Islamic Criminology

Islam is the fastest growing religion in the world. Irrespective of the prejudice and propaganda against Islam and Muslims it continues to lead in expansion.
Fearing the rapid expansion the western media have used the label of "Islamic Fundamentalists" to Muslims who do something wrong to imply all kinds of possible negative connotations: terrorists, kidnappers and hostage takers, where as the media do not use the term "Christian Fundamentalist” for a Christian who behaves wrongly. A Muslim who is trying to live his religion is indeed a true believer in God. This person tries to live all of the rites of his religion in a fundamental way. Thus, a true believer is a fundamentalist in the practice of his religion. But he cannot be radical, because the Quran teaches tolerance and moderation in all things. Allah says:
وَكَذَٲلِكَ جَعَلۡنَـٰكُمۡ أُمَّةً۬ وَسَطً۬ا لِّتَڪُونُواْ شُہَدَآءَ عَلَى ٱلنَّاسِ وَيَكُونَ ٱلرَّسُولُ عَلَيۡكُمۡ شَهِيدً۬ا‌ۗ
Thus, have We made of you an Ummat justly balanced, that ye might be witnesses over the nations, and the Messenger a witness over yourselves. (2:143)
When the popular media generalize the fundamentalist believer to the radical fundamentalist they do harm to all Muslims and others. The use of such labels is wrong for any group; Christians, Muslims, or Jews. The media have used some terms of Islam as a way to increase hatred and prejudice in the mind of people. They have taken the views of a few radicals and projected them onto all Muslims. This action has done a great harm to the Muslim world.
Misinterpretation
The public and many academicians have several preconceived notions about Islamic Law. One such notion is that Islamic judges are bound by ancient and outdated rules of fixed punishments for all crimes and they do not possess much greater freedom in giving punishment for crimes. They often point to the inflexible nature of Islamic Law.
Importance of Islamic Law
Some of these inaccurate perceptions and treatments in both the contemporary literature and academic writings can be altered by the following theories:

Differences between Islamic Law and the Modern Law

Islamic Law
Islamic law is known as Sharia Law, and Sharia means the path to follow Allah's Law. Sharia Law is holistic or eclectic in its approach to guide the individual in most daily matters. Sharia Law controls, rules and regulates all public and private behavior. It has regulations for personal hygiene, diet, sexual conduct, and elements of child getting. It also prescribes specific rules for prayers, fasting, giving to the poor, and many other religious matters.
Sharia Law can also be used in larger situations than guiding an individual's behavior. It can be used as guide for how an individual acts in society and how one group interacts with another. The Sharia Law can be used to settle border disputes between nations or within nations. It can also be used to settle international disputes, conflicts and wars. This Law does not exclude any knowledge from other sources and is viewed by the Muslim world as a vehicle to solve all problems: civil, criminal and international.
Crimes and its solution in Islam
Crimes under Islamic Law can be broken down into three major categories. Each will be discussed in greater detail later. The three major crime categories in Islamic Law are:

Qisas Crimes: Diya andSolutions

A Qisas crime is commendable for retaliation. If you commit a Qisas crime, the victim has a right to seek retribution and retaliation. The exact punishment for each Qisas crime is set forth in the Quran. Qisas crimes include:

If a person is killed in this category, then his family has right to seek Qisas punishment from the murderer. The punishment can come either in the form of killing the murderer or in the form of Diya (hundred camels in three divisions (thirty Hiqqa which are three years old female camel, thirty ja’d’a which are four years old female camel and forty khalfath which are pregnant) or cost of the camels)when they forgive death penalty to the offender. The family can liberate him from the Diya too.

 The holy Quran dictates:
وَمَن قُتِلَ مَظۡلُومً۬ا فَقَدۡ جَعَلۡنَا لِوَلِيِّهِۦ سُلۡطَـٰنً۬ا فَلَا يُسۡرِف فِّى ٱلۡقَتۡلِ‌ۖ إِنَّهُ ۥ كَانَ مَنصُورً۬ا
… And whoever is killed wrongfully (intentionally with hostility and oppression and not by mistake), We have given his heir the authority [to demand Qisas, - Law of Equality in punishment - or to forgive, or to take Diya (blood-money)]. But let him not exceed limits in the matter of taking life (i.e. he should not kill except the killer). Verily, he is helped (by the Islamic law). [17:33].

Killing of the offender is permitted only here. The murderer can be killed in the same manner he killed another person if he deliberately killed him. This is indeed absolute justice as Allah Says:
وَإِنۡ عَاقَبۡتُمۡ فَعَاقِبُواْ بِمِثۡلِ مَا عُوقِبۡتُم بِهِۦ‌ۖ وَلَٮِٕن صَبَرۡتُمۡ لَهُوَ خَيۡرٌ۬ لِّلصَّـٰبِرِينَ
And if you punish [a criminal, O believers], punish with an equivalent of that with which you were harmed. But if you are patient — it is better for those who are patient.[16:126]   

Here the family has right to seek Diya (hundred camels in three divisions (thirty Hiqqa, thirty ja’d’a and forty khalfath) or cost of the camels) from the family of murderer. The family can liberate him from the Diya

Here the family has right to seek Diya (hundred camels in five divisions (twenty each from binth Makhadh which is one year old female camel, binth Labun which is two years old female camel, bani Labun which is two years old male camel, Hiqqa which is three years old female camel and Ja’d’a which is four years old female camel) or cost of the camels) from the family of murderer. The family can liberate him from the Diya

Here the victim has the right to get retribution for what he had suffered from the offender in similar degree or to seek Diya if he forgives. He can liberate him from the both.
The Diya in this category varies by the type of offences. If casualty occurred in the most useful and beautiful organ or in both of the paired organs like eyes, Diya of murder could be taken. If casualty occurred in one of the paired organs, half of the Diya could be taken. Each finger is worth for ten camels and each tooth is worth for five.

Here the victim has right to seek the Diya mentioned in pre meditated offences against human organs.
Some reporters in the mass media have criticized the thought of "blood to blood" punishment as barbaric. They labeled the practice as undemocratic and inhumane. Here the holy Quran answers:
وَلَكُمۡ فِى ٱلۡقِصَاصِ حَيَوٰةٌ۬ يَـٰٓأُوْلِى ٱلۡأَلۡبَـٰبِ لَعَلَّڪُمۡ تَتَّقُونَ
And there is life for you in retaliation, O men of understanding, that ye may ward off (evil). [2:179]
Killing one or two persons / hurting them may be a sufficient reason for saving millions from an inevitable death caused by murdering others or from hurting others. Moreover, Allah draws our attention to the fact that kindness, affection should be in some situations while other situations need harshness and force and that being kind in some places is a mistake. The purpose of enforcement of Qisas is to be serious enough with those who think of jeopardizing others' lives. Allah says the benefit of such Qisas in the verse.
Qisas crimes are based upon the criminological assumption of retribution. The concept of retribution was found in the first statutory "Code of Hammurabi" and in the Law of Moses in the form of "an eye for an eye." Muslims add to that saying "but it is better to forgive".
Contemporary common law today still is filled with the assumptions of retribution. The United States federal code contains "mandatory minimum" sentences for drug dealing, and many states have fixed punishment for drugs and violence and using weapons. The United States justice system has adopted a retribution model which sets fixed punishments for each crime. The idea of retribution is fixed in the U.S. system of justice. Then why the criticism?
Another concept of Qisas crimes is the area of punishment. Each victim has the right to ask for retaliation but Imam would carry out that punishment. Modern Islamic law now requires the government to carry out the Qisas punishment. Some grieving family member may have tortured the offender in the process of punishment. That is why the Imam and the government, who are the independent party, administer the punishment, because torture and extended pain is contrary to Islamic teachings and Sharia Law.

Hadd Crimes and solution

Hadd crimes are certain cruel crimes which have established punishment. These most serious of all crimes are specified to a particular punishment by an exact reference in the Quran. There is no plea-bargaining or reducing the punishment for a Hadd crime. Hadd crimes have no minimum or maximum punishments.
When the crimes are proved, no judge can change or reduce the punishment for these serious crimes. A judge can only impose the Hadd punishment when a person confesses the crime, or takes an oath (in some cases), or there are enough witnesses to the crime. The usual number of witnesses is two, but in the case of adultery four witnesses are required. The media often leaves the public with the impression that all are punished with poor evidence or limited proof.
But one who has been forced to commit crime is exempt, if it is proved, from every punishment, for the Prophet (Sallallahu Alaihi wa Sallam) said:
 "Allah forgives for my Ummah sins committed by mistakes, forgetfulness or compulsion" [ Ibn Majah ].
 

Hadd crimes are:

If a Muslim apostates, he will be called to repent, then if he repents, [and therefore re-embraces Islam] this is acceptable from him, otherwise he should be killed. Any person who enters Islam and then gives it up, commits a major sin for which he deserves to be beheaded because he left, by this act, the Muslim community, and betrayed himself. This is treason to the Muslim community. So, such a person who apostates and defects from the community becomes, like a cancerous organ that has to be removed to avoid that the expansion of the disease reaches other organs. But, this mutilation should only be taken place if there is no hope of treating it. The apostate is given a last opportunity to repent and return back to Islam before being executed. If he perseveres and refuses to return to what he has committed himself to, i.e. Islam, he is then executed. This is a retributive act and the apostate is then the one who harmed himself by sticking to his apostasy.
the Prophet (Sallallahu Alaihi wa Sallam) said:
"The blood of a Muslim who confesses that none has the right to be worshipped but Allah and that I am His Apostle, cannot be shed except in three cases: In Qisas for murder, a married person who commits illegal sexual intercourse and the one who reverts from Islam (apostate) and leaves the Muslims."  (Bukhari, Muslim and others).

The Adultery, for which Hadd is prescribed, is penetration of a glens penis into a forbidden vagina. The other acts such as kissing, hugging, and caressing are no doubt among the minor acts of Adultery, but there is no Hadd imposed on them.  
Adulterers should be stoned to death, if they are married and if they are not, whipping hundred times and exile for one year must be executed as Allah says:
ٱلزَّانِيَةُ وَٱلزَّانِى فَٱجۡلِدُواْ كُلَّ وَٲحِدٍ۬ مِّنۡہُمَا مِاْئَةَ جَلۡدَةٍ۬‌ۖ وَلَا تَأۡخُذۡكُم بِہِمَا رَأۡفَةٌ۬ فِى دِينِ ٱللَّهِ إِن كُنتُمۡ تُؤۡمِنُونَ بِٱللَّهِ وَٱلۡيَوۡمِ ٱلۡأَخِرِ‌
 {The fornicatress and the fornicator, flog each of them with a hundred stripes and let not pity for them detain you in the matter of obedience to Allah, if you believe in Allah and the last day, }[ 24:2].
the Prophet (Sallallahu Alaihi wa Sallam) said: "Take from me the religious ruling, take from me the religious ruling, Allah has set a punishment for them, the virgin person is to be flogged one hundred times, and should be exiled for one year, and non-virgin person has to be stoned to death." [Muslim]

It should be noted that the punishment of stoning to death is adequate to his abominable act. Since his entire body enjoyed what is forbidden for him –while he was able to do this in a legitimate way (i.e. by marriage) –and thus he deserved to be stoned to death so that his entire body would feel the pain in return for the illegal enjoyment which he satisfied himself with. It should be mentioned that this is more merciful for societies than allowing illegal relationships and the fatal diseases which they cause, like AIDS and other sexually transmitted diseases.
Carrying out this punishment in public acts as deterrence for other criminals and a warning for them against committing an act that necessitates such a punishment so that peace and tranquility would prevail, and people would be safe about their lives, their dignity and their wealth. Stoning one or two persons may be a sufficient reason for saving millions from an inevitable death and diseases that require many resources and money. For this benefit Allah orders:
وَلۡيَشۡہَدۡ عَذَابَہُمَا طَآٮِٕفَةٌ۬ مِّنَ ٱلۡمُؤۡمِنِينَ
and let a party of believers witness their chastisement  (24:2)
In addition to this, an adulterer should not be stoned to death if the conditions for stoning are not met.
For fornication and adultery to be proven, four witnesses have to have witnessed the act and their testimony would not be accepted unless each one testified that he had seen the male sexual organ inside the vagina of the woman, because it could be that he shared the bed with her without having committed any sex act with her. There is no doubt that it is very difficult to prove fornication and adultery in this way, but it is not impossible. The purpose of this condition is, as we have stated, to protect the honour and dignity of the human beings.

If the defamed is very religious, the offenders must be whipped eighty times and in the case of others forty times. The holy Quran says:
وَٱلَّذِينَ يَرۡمُونَ ٱلۡمُحۡصَنَـٰتِ ثُمَّ لَمۡ يَأۡتُواْ بِأَرۡبَعَةِ شُہَدَآءَ فَٱجۡلِدُوهُمۡ ثَمَـٰنِينَ جَلۡدَةً۬ وَلَا تَقۡبَلُواْ لَهُمۡ شَہَـٰدَةً أَبَدً۬ا‌ۚ وَأُوْلَـٰٓٮِٕكَ هُمُ ٱلۡفَـٰسِقُونَ
And those who accuse honourable women but bring not four witnesses, scourge them (with) eighty stripes and never (afterward) accept their testimony - They indeed are evil-doers. (24:4)

عن معاوية رضي الله عنه قال قال رسول الله صلى الله عليه و سلم  من شرب الخمرفاجلدوه   (Tirmidhiy)

Thief must be punished by amputation of wrist or feet, depending on the number of times it is committed and by the Ta’azeer after the amputation as the Quran says:
وَٱلسَّارِقُ وَٱلسَّارِقَةُ فَٱقۡطَعُوٓاْ أَيۡدِيَهُمَا جَزَآءَۢ بِمَا كَسَبَا نَكَـٰلاً۬ مِّنَ ٱللَّهِ‌ۗ وَٱللَّهُ عَزِيزٌ حَكِيمٌ۬
As to the thief, Male or female, cut off his or her hands: a punishment by way of example, from Allah, for their crime: and Allah is Exalted in power. [5:38].
Islamic law has a very high level of proof for the most serious crimes and punishments. When there is doubt about the guilt of a Hadd crime, the judge must treat the crime as a Ta'azeer crime. If there is no confession to a crime or not enough witnesses to the crime, Islamic law requires the Hadd crime to be punished as a Ta'azeer crime.
 

Ta'azeer Crimes and solution

Ta'azeer crimes are not commendable for Kaffarath and Hadd punishment. Some of the more common Ta'azeer crimes are: bribery, selling tainted or defective products, treason, usury, and selling obscene things, etc. Some common law writers use the analogy of misdemeanors, which is the lesser of the two categories (felony and misdemeanor) of common law crimes. Ta'azeer crimes can and do have comparable "minor felony equivalents". The Islamic judges are free to punish the offender in almost any fashion. Islamic law has much greater flexibility than the Western media portrays. Each judge is free to punish based upon local norms, customs, and informal rules. Each judge is free to fix the punishment that will deter others from crime and will help to rehabilitate an offender. Mohammed Salam Madkoar, who was the head of Islamic Law at the University of Cairo, makes the following observation (Ministry of the Interior, 1976,p.104):
Ta'azeer punishments vary according to the circumstances. They change from time to time and from place to place. They vary according to the gravity of the crime and the extent of the criminal disposition of the criminal himself.
Ta'azeer crimes can be punished whether they harm the social interest or not. The assumption of the punishment is that a greater evil will be prevented in the future if you punish this offender now.
Historically Ta'azeer crimes were not written down or codified. This gave each ruler great flexibility in what punishments the judge was able to dispense. The judge under Islamic Law is not bound by precedents, rules, or prior decisions as in common law. Judges are totally free to choose from any number of punishments that, they think, will help in defending an individual from offences. The only guiding principle for judges under Sharia Law is that they must answer to Allah and to the community. Some of the more common punishment for Ta'azeer crimes are flogging, fines, public or private censure, family and clan pressure, seizure of property, confinement in the home or place of detention, and so on.
In some Islamic nations, Ta'azeer crimes are set by legislative parliament. Each nation is free to establish its own criminal code and there is a great disparity in punishment of some of these crimes.
Modern Islamic Society has changed greatly from the time of the Prophet. For example, the consumption of alcohol in Egypt is punished much differently than in Iran or Saudi Arabia because they have far different civil laws. Egypt has a parliamentary process which has a formal penal code written and based upon the principles of Islamic Law, but Saudi Arabia allows the judge to set the Ta'azeer crimes and punishments. Modern Islamic Law recognizes many differences between these two nations.