Introduction
Islamic criminal justice system is unique compared to other criminal justice systems of the world, for example, the British criminal justice system or even the American criminal justice systems. Whereas the essence of penology in an American justice system would be aimed at imposing stiff punishment to heavy or complex crimes, Islamic criminal justice system is aimed at imposing the stiffest penalty to simple crimes so that more complex crimes are not committed in future. The penalty is thus deterrent in a special way. Furthermore, this justice system practiced by Muslims is ordained by God, implemented by the Prophet and, therefore, other Muslims who descend under the Prophet must perpetuate the practice. Therefore, Islamic criminal justice system is founded on religion. In fact, the Islamic criminal justice system is often administered by Islamic religious leaders who are well versed with Islamic doctrines. Penal codes and criminal procedure codes in other criminal justice system are a creation of statute and, therefore, have got no connection with a religious or a Supreme Being. This paper will critically analyze hand amputation in Islamic criminal justice system, in contradistinction with penal measures in other criminal justice systems.
The uniqueness of Islamic Criminal Justice System
This paper has indicated in the prolegomenon that Islamic criminal justice system is a unique as compared with criminal justice systems all over the world. First of all, it is ordained by God. It is God who prescribes the sentence for the various forms of crime and, therefore, the players in the justice system are constrained to acting in the only way that is prescribed by God as the sentence. Furthermore, there are stiff penalties for simpler crimes as compared with more complex crimes. As such, the offence of theft will attract a stiffer penalty than the offence of rape, murder or even robbery with violence. Criminal justice system in Islam focuses on four major attributes (Potts, 1994): there is a sacred trust which links the Islamic community to God as the source of the justice system. Every punitive or deterrent measure against crime is prescribed by God. The people carrying out the punishment are, therefore, bound to follow the prescription to the later. Secondly, there is the respect. Mutual respect regards respect for other people in the society and also respect for their property. Here, theft comes into perspective. The harshness of the penalty for theft is, therefore, meant to instill respect for other people’s property. When people respect other people’s property, chances are that they will not steal it. The respect should be mutual in the sense that every other person should respect their neighbor’s property. There is also a bond of brotherhood. The bond binds together all those people who profess the Muslim religion. People who descend from the same ancestor and, therefore, bound into one by faith, religion and mutual respect will in most cases refrain from acts that injure others. That is the principle that guides practitioners of Islam. Then finally there is a command from God. God commands all and sundry to act in a particular way, prescribes the behavior and the also prescribes the penalty against those who err and practice deviant behavior.
This uniqueness of Islam has made the criminal justice system distinct and quite different from other criminal justice systems. The most interesting thing about it is that it has not been questioned over time. This is because it has been able to achieve its objective sufficiently. That objective is deterrence. Islam practitioners argue that a criminal in theft, if constrained in a prison cell, will most likely commit the offence again when they are released from prison. Again, the determination as to how long a prison sentence is supposed to take is a difficult question to solve. Some convicts are imprisoned for short periods of time yet the offence they committed was serious. They further, argue that a theft convict whose hand has been amputated will link up with their family members soon enough after their hand has been amputated and; therefore, they will not have wasted a lot of their time idling in prison. While this argument may be valid for the practitioners of Islam, controversy still reigns amongst the proponents of human right systems all over the world. Human rights activists will argue that human beings have the right of not to have their bodies amputated in any way. In fact, most jurisdictions including America have shied away from imposing death penalties as a penal measure. This practice has been occasioned by rampant campaigns by human rights activists and the provision of the right to life articles in constitutions of almost all sovereign nations. It is, therefore, the question of what, among religion, government and the society, will take preference. It seems that, in Islam, religion takes precedence over the other two, and, in fact, there has been a consensus among the trio (Potts, 1994). That could be the sole reason the practice has not been banned by the government as the custodian of human rights.
The “wholeness” of the society vis-à-vis individual rights:
As per the provisions of Islamic jurisprudence, the community has a preference over any single individual. Is, therefore, follows that in cases of theft, the interest of having a united community living peacefully together will be given more importance than sparing the hand of a single individual who has chosen not to respect the property of other people in the society. The community will, therefore, jubilate in accepting one of their own whose hand has been chopped off following theft. It does not matter how petty the theft was, in fact, the pettier the theft, the harsher the sentence so that this acts as a deterrent measure (Potts, 1994).
The Quran at chapter 2 verse 188 (Potts, 1994) warns all Muslim faithful against deferring one other’s wealth by either false or illegal means. When this mandatory amputation of a person’s hand is looked at in contradistinction with the penalty of theft from other jurisdictions, there is a very big difference. This paper will analyze that on a different sub-topic herein under.
God is interested in the oneness of the community and; therefore, Islam faithful belief that He will not be happy when one individual threatens this oneness (Potts, 1994). They would rather the individual pays dearly than to threaten the peaceful existence of the rest of the community. Whereas this position may be seen as religious and spiritual, it is the essence of punishing crimes in all the other jurisdictions. Theft in most of the penal codes of various countries is defined as the unlawful taking of another person’s property. The only difference is in the nature and types of theft. The other difference lies in the gravity of the punishment. Whereas Islamic justice will amputate the convicts’ hand, other jurisdictions will charge a fine or a prison sentence or both. The underlying factor is that the theft is punished because it is an offence against the unlawful taking of the property of other people who form part of the larger society.
Islamic justice, therefore, imposes such heavy penalty against theft because it is an offence against the society and that the unity of the society is more important than the rights of the individual (Potts, 1994). Herein, again, the question of rights comes into play. In all major jurisdictions of sovereign nations, there are individual rights and freedoms and the rights of the society at large. However, there is no clear-cut line as to which of the two rights should take precedence over the other. Should we kill the offender so that the rest of the society may be at peace? Do make the rest of the society suffer at the hands of a single individual? These questions generate heated debates and in most cases the peaceful coexistence of the society takes precedence and that is why other jurisdictions choose to put the individual in solitary confinement.
Islamic justice, therefore, in an attempt to balance these conflicting interests, chooses to amputate the hand of the offender that is meant to act as a deterrent measure. It also enables the offender to link up with the rest of the society soon enough and continue with their day-to-day activities. Furthermore, the rest of the society may learn from them by seeing them around with an amputated hand. The position of this paper is not to suggest which justice system is better than the other or to discredit any justice system. The position is to look at both sides of the coin and critically examine how the systems operate. What will be important is the knowledge acquired from the analysis.
This position of the Islamic faithful is also echoed by other faiths. Jesus used to teach that the penalty for proven theft is crucifixion. The thief would either be stoned to death or t other times hanged on the cross. The society would then be happy of getting rid of him because they were a bother in the society. This provision is found in the book of Matthew chapter twenty-seven verse thirty-eight. Jesus was teaching at a time when these crimes were rampant in the society, and; therefore, the only way to get rid of the crime was to punish the criminals severely. It did not mean that the crime subsided; it only happens that the society had learned from the punishment. This was also the position that was taken by the teachings of Prophet Moses. According to Moses, a tooth was to be compensated by extracting the tooth of the offender while an eye would be removed from the offender who removed a victim’s eye. It was that drastic.
It would, therefore, appear that this form of punishment has a moral background. This is because both Islam and Christianity have more/less similar provisions regarding the punishment of offenders yet the same is not the case with man-made law. Man-made law appears to be more lenient as compared with religious law, perhaps because those who make the law fear that the same law might in future be used against them and, therefore, the need to make a sentence or the punishment a little bit friendly arises. Islamic faithful believes that if deterrence from committing a crime in future is good, then the punishment that is being imposed as a deterrent measure should be to the maximum.
Islamic penology against theft vis-à-vis penology in other justice systems
This paper started by noting that Islamic penal measure against theft is a unique one as compared with such penal measure in other justice systems. An example is in California where the penal code categorizes petty theft as a misdemeanor. The penalty for most of the first-time petty theft cases is a fine of $1000 or a sentence of up to 6 months in prison, or a combined sentence of both (see State v Pedrozza [2010]). Punishment for the offence of theft in other justice systems is, therefore, lenient and cannot compare that of Islamic justice.
The act of amputating the convict’s hand pulls together a trinity of forces comprising the government, the community and Islam as a religion. The government does not question the amputation, because it is a God-ordained practice. The government does not have a role to play here. On the other hand, religion has to be followed to the later, because the faithful of this religion were created by this Supreme Being who now commands that a hand is amputated. The society, on the other hand, must live in harmony and cannot allow this peace to be disrupted by the iniquity of a single person; hence, the society will readily amputate the hand of the offender. In this case, God, the society and human beings relate in a special way to meet a trite objective: to fulfill spiritual worship, to ensure that the society is pure and to redeem the individual. This, therefore, is the difference between the punishment of theft in Islamic justice and other jurisdictions, for example, America (Shover, 1979).
The justification for hand amputation in Islamic Justice
Islamic faithful justifies the penalty of having to amputate a person’s hand by saying that it is a divine intervention from God. The Muslim Society is neither troubled nor bothered, as long as such amputation justifies the wrong committed by the victim. The victim is, therefore, made to undergo such pain as a deterrent and punitive measure. This practice may be seen as either awkward or barbaric by other individuals who do not profess Islamic faith but all the same, it is a widely accepted practice. The practice is further supported by the moral claim that it is meant to exonerate the larger society of their spiritual wholeness. If the convict were to undergo societal amputation, they would serve a prison sentence for a number of years or months after which they will return to the society. However, the amputation remains with the convict because the society does not forgive them. They continue to be seen as a threat to the peaceful existence of the society as a whole. They will be looked at with a lot of cynicism, and it will be like scar that never recovers. With the physical amputation, the faithful claim, the amputation soon heals, because the society accepts the convict back to the society and also assists them to recover. They are also close to their family and owing to the fact that the amputation is carried out in public; every member of the society is involved in the exercise.
Trial proceedings against theft in Islamic Justice: the nature of the proceedings and admissibility of evidence
In a trial for theft, in Islamic justice, only two types of evidence are admissible: the accused person’s oral confession of the commission of the theft and witness oral testimony of not more than four people who witnessed the theft. Such confession must be voluntary; it should never have been obtained under undue pressure or trickery and should also be unequivocal. The confession should also give such details like why the theft was committed, from whom was the property stolen and where it was taken after stealing. The theft case may also be withdrawn any time before conviction. However, if there was ample evidence that the accused had committed an offence, such withdrawal will not make them escape scorch-free. They will be exposed to either a stiffer penalty or more lenient one depending on the nature of theft.
Regarding burden and standard of proof, the person from whom the property was stolen in other words the complainant has the evidential burden of proofing their case. The accused person is assumed that they are innocent until they have been proven guilty (Allobied, 1991). The witnesses who are called upon to testify should be of a high moral character. Moreover, their sense of righteousness, honor and credibility should meet the threshold. On matters age, the witnesses should be mature and preferably must have attained the age of maturity. The witness must also be of sound mind and has never been convicted in the past. This criterion must be met before any witness is allowed to testify in a sharia court.
Elements of prima facie evidence in amputation
Certain prima facie criteria must be met for evidence against a theft suspect to be admissible for amputation. First of all, the suspect must have attained the age of puberty. This means that under-age persons cannot undergo hand amputation. The commission of theft must not have been under any undue influence or pressure. It must have been a voluntary act. On top of this, the act must have been stealth as opposed to violent which would fall under either robbery or robbery with violence. It is a precondition that the stolen property was transferred from the place where it was kept; hence it has to be a moveable property. Moreover, the suspect must have taken the property as if it was theirs and thereafter assumed full possession of the said property. The suspect must have had an evil mind while taking the property; the animus furans must, therefore, be established (Allobied, 1991). Without meeting these criteria, there can be no amputation. It is probably to avoid cases where the wrong persons are made to be amputated.
In conclusion, this paper has made a case for the fact that Islamic justice for theft cases is a unique one and has also discussed the trial process regarding the same
.
References
Allobied, A. (1991). The Deterrent Effect of Shariah Law in Islamic Justice with a special Application to the Crime of Theft. Unpublished Master's Thesis, Sam Houston State University, Hunstville, TX.
Potts, S. S. (1994). The Penalty of Hand Amputationfor theft in Islamic Justice. Journal of Criminal Jusice, Vol. 22, No. 3, 249-265.
Shover, N. (1979). A Sociology of American Corrections. Homewood. IL: The Dorsey Press.
