Criminal Justice - Contemporary Issues

By Bilal Philips | 2026-01-15T18:42:35.935304+00:00 | Topic: Justice

Criminal Justice in Islam

Criminal Justice in Islam

Contemporary Issues Series - Lecture by Dr. Bilal Philips

Opening

(بِسْمِ اللَّهِ الرَّحْمَنِ الرَّحِيمِ - bismillahir-rahmanir-rahim)

In the name of Allah, the Beneficent, the Most Merciful. I'd like to welcome you, dear viewers, to another in our series, Contemporary Issues, in which we look at a variety of ideas or concepts which have become very popular in the world today, promoted by Western civilization, accepted by Muslim countries to varying degrees, or by the intellectual elite or the educated elements of the society, where these ideas have become very popular, and they challenge the fundamental concepts which are held by Islam with regards to these various issues.

Introduction

The topic that we'll be looking at today is a very vast topic, and it's a topic concerning criminal justice, the Islamic legal system, and how its laws are applied.

What people tend to focus on is that the criminal justice system of Islam is very harsh. It's referred to as being medieval, primitive, with a variety of different terms used, because the image given of the application of Islamic law is really one of:

This is the general image given—that this is just something impractical in our time, something which modern civilization has left behind, no longer applicable, and of no benefit, really something which was primitive. This is the general impression given.

Western Penology: Historical Development

However, when we look at the issue of criminal justice, and perhaps at the core of it is the issue of capital punishment, which has been banned by the UN as well as the ECC (European Economic Community), we look at it and how it has developed in Western civilization.

Three Main Goals of Western Penology

For example, in America and the West in general, the main goals behind Western penology were three:

  1. Retribution - justification looking to the past, that is punishment or revenge
  2. Deterrence - looking to the future, that is prevention
  3. Reformation - to reform the individual, to make that individual a better personality, a better character to be released back into society

These were the basic principles behind Western penology.

The Shift Away from Punishment

However, from as early as the late 1930s, we find a report of the Departmental Committee on Corporal Punishment in England, stating that corporal punishment was of no value as a deterrent and should be abolished.

In 1952, Justice Hugo Black, United States of America, wrote that "retribution is no longer the dominant objective of criminal law. Reformation and rehabilitation of offenders have become important goals of criminal jurisprudence."

In 1972, Justice Thurgood Marshall, again of the United States Supreme Court, wrote: "Punishment for the sake of retribution is not permissible under the Eighth Amendment."

In the same year, California's capital punishment law was declared unconstitutional.

The Medical Model

For some criminologists, reformation has become synonymous with cure. The criminal was no longer considered to be a bad man, but a sick man. And the convict needed treatment. He was genuinely ill—perhaps physically, almost certainly mentally and psychologically. This was the approach which Western criminal justice took.

In 1965 in England, the death penalty was abolished.

The Failure of Western Reforms

However, some five years later, in 1970, when the Home Secretary announced that 172 convicted murderers had been released from prison since 1960—that's over a period of 10 years—he pointed out that:

And these were not cases of mistaken judgments where they were revising judgment. These are people who were convicted murderers. But due to the change in attitudes, good behavior in prison, people were being let out. Somebody murdered somebody and was let out after six months. Twelve—or nine of them—were let out after six years or less, after murdering somebody.

And of course, the reality is that these individuals, after being let out into the public, a number of them ended up killing others and ended up back in jail again for further murders.

Admission of Failure

Today, Western penologists have admitted that the penal system has utterly failed in reforming and rehabilitating criminals. The reality is that the petty criminal who enters into the system sits, spends time with well-trained, hardened criminals, and he comes out prepared. Now he's got all the information he needs to go on to major crime.

So it becomes a training ground for criminals. And the society ends up paying for their crimes by providing them with housing, food, clothing, and shelter for the period of their sentence. So the society pays for their crime.

The Islamic System of Punishments

In the Islamic system, punishments are placed basically in three categories:

1. Hudud (Fixed Punishments)

Hudud )حُدُود( are the fixed punishments which have been set by Allah in the Quran or by the statements of the Prophet Muhammad. These are considered to be rights of God.

There are six basic offenses which come under that heading:

  1. Drinking alcohol
  2. Theft
  3. Armed robbery
  4. Illicit sex (including homosexuality, pedophilia, and bestiality-type sexual deviations)
  5. Sexual slander
  6. Apostasy

2. Qisas (Retaliatory Punishments)

Qisas )قصاص are retaliatory punishments where an injury or murder takes place and an equivalent punishment is set for that. This is considered under the headings of the rights of people.

3. Ta'zir (Discretionary Punishments)

Ta'zir )تَعْزِير are what may be called discretionary punishments where no specific punishments are set aside in the law. The judge may, depending on his own ruling, depending on how he sees the seriousness of a particular crime, prescribe any particular punishment.

Now, of course, these punishments cannot reach the level of those of the hudud themselves, the ones which are fixed by Allah.

Evidence of Effectiveness

But in terms of the application of Islamic law, because when we're going to judge—is this applicable, is it relevant, is it beneficial, etc.—we have to look to see what are the effects.

Saudi Arabia Example

What you find is that during the Ottoman administration of the Arabian Peninsula, the hudud punishments were discontinued. But by the late 1920s, after the Saudi regime reintroduced them, the crime rate fell noticeably. And this has continued.

Basically in Saudi Arabia, you find the level of crime is quite low. If you compare 8 million people in Saudi Arabia, compare them to 8 million people in New York City, and you compare the crime rates, it's like night and day.

The number of murders which take place—for which people are executed for murder shortly after the crime is actually committed—the number of people who are executed, murderers in Saudi Arabia in a year, would be equivalent to those murders which take place in New York City in a week. We're talking about vast differences.

Whether it is robbery, theft, the variety of different crimes, you find that the difference is enormous.

Sudan Example

There's also another example which was shown: within 6 months after the Shari'ah (that is, Islamic law) was introduced in Sudan, at the time Ja'far al-Numayri, the ruler, the president, had released 13,000 prisoners, decreeing that Islamic law was not applied in their sentencing. So some 13,000 prisoners were released.

In spite of all that, within 6 months of the application of Shari'ah, they found that crime had decreased by over 40%.

This is the proof. Application of Islamic law does have a deterrent effect in the society itself.

Islamic Approach to Murder

What we find also with regards to murder—there's a different approach to it in the Western system, where murder is left up to the state to decide what to do with this person who's committed murder.

Whereas from the Islamic point of view, it's an issue of the rights of human beings, where they have the right to decide. If this person is to be let free, then it's those people who have suffered, the family that has suffered the loss—they're the ones who have the right to decide in this regard.

Western Voices Against the Trend

Some Western criminologists have challenged and have spoken against this change in attitude.

Goodhart (1953)

For example, Goodhart in 1953 had stated:

"Retribution and punishment is an expression of the community's disapproval of crime, and if this retribution is not given recognition, then the disapproval may also disappear."

Very, very wise statement, and it challenges the trend which was taking place in the West.

Leo Page

Another legist, Leo Page, had written:

"Law exists for the protection of the community. It is not necessary to show that capital punishment is an absolute preventative of murder, or even that it is only a deterrent. If it can be shown that it is more effective as a deterrent than any other punishment, then I shall be satisfied that it should be retained. To hold otherwise is surely to forget the innocent victims of murder in the interest of their murderers, and I have no doubt at all that the fear of the gallows is the most powerful of all deterrents."

These are the reflections of some Western legists in the face of this change in attitude in the West towards punishing murderers.

The Return to Capital Punishment in America

In fact, over the last 30 years—especially the last 20 years—the application of capital punishment has been reintroduced into most of the states, or many of the states in the United States. And as it's picking up, we find again a new wave, which is spearheaded by the Pope and others, against the application of capital punishment.

Valid Concerns About Arbitrary Application

From the American perspective, where capital punishment is applied in a somewhat arbitrary way, there is some validity to objections raised against it. When studies were done back in the 1960s, they showed that Black Americans seemed to be sentenced to death for crimes that white Americans were not.

They both commit the same crime, but the chances of a Black American being sentenced to death was far greater. So many of them were on death row, greatly disproportionate to their presence in the society and the number of crimes which they committed.

The civil rights movement challenged this issue of application of the death penalty because it seemed to be unfair, and to some degree, this kind of practice continues. So there is an element of reason here for not applying it in this unjust way.

But the issue of not applying it to somebody who murders is, in fact, really an encouragement to murder in the society.

Islamic Law and Premeditated Murder

Of course, when Islamic law was applied in any given society, it does not stop what they call crimes of passion—a person who, out of just exploding in an instant, killed somebody. No matter what laws you set up, it's not going to stop that person who explodes and does that.

But it will stop the premeditated murders. It will cut it down.

Because when a person is making his plots and his plans, and he thinks of the consequences:

And people who plan do think these things over. And I'm sure that knowing that your life will be taken will cause people to think—a lot of people—to think twice, thrice, etc.

Options in Islamic Law for Murder Cases

But as I said, from the Islamic perspective, when it comes to murder and how the law is applied, there are options. It is not automatic execution, but execution is there. That's a first option.

But then there is also:

1. Diyah (Blood Money)

Diyah )دِيَة( is where the family accepts that the person pays a compensation for the loss or for the death of that person. Then this option is there.

2. Pardon

As well, the person may be pardoned.

But this is left up to the family, to those who suffer the loss. This is not up to the state to make this kind of decision.

So where the family members agree to let somebody off without any punishment, they can do it. Without payment of any fine, they can do it. It's up to them.

The Wisdom Behind Family Choice

And this is to allow for circumstances which may happen in the family where the family knows full well that the father or the son or whatever who was involved in this crime deserved it, or they had created a circumstance which precipitated this.

Maybe somebody—a relative or some friend or a neighbor or whatever—ended up killing somebody who was goaded into it or something like this. They are the ones who can make that kind of decision.

Whereas as a general rule, the law will be applied swiftly once the evidence is there.

The Standard of Evidence

But again, the evidence has to be 100%. There cannot be doubt.

It's not just a question of fingerprints or a murder weapon. There has to be evidence which is incontrovertible.

It cannot be—you cannot find out later on, "Oh, this was a mistake." No.

The law is only applied when it is absolutely sure.

Prophetic Guidance

As the Prophet Muhammad had said:

ادْرَءُوا الْحُدُودَ بِالشُّبُهَاتِ

"Leave aside the hudud (the fixed laws) whenever there is doubt."

Conclusion

This is as far as we can go in this segment of the program, dear viewers. We hope to continue looking into some issues of the punishments in Islamic law in our coming segments.

Thank you for being with us. And I bid you farewell.

السَّلَامُ عَلَيْكُمْ وَرَحْمَةُ اللَّهِ وَبَرَكَاتُهُ