Alexandra Tolhurst

Al-Awa’s paper on the Islamic penal law system is one that can easily be broken down to the main contributions that make up the theories of punishment in the system: retribution and deterrence make up the main theories, while I would argue that circumstance, morality and reformation each would make up a smaller theory. To understand the application of these theories, one must first understand what is considered a crime in Islamic law and where these are derived from. Islamic criminal law recognizes six major offenses, two of which Al-Awa doesn’t even recognize because their punishments are not defined in the Qur’an or the Sunna, which is the definition of a hadd punishment. Along with the fact that hadd punishments are written in the text, it’s important to point out the distinguishing factor from ta’zirs in that they cannot be pardoned by any non-divine authority once reported. This divinity was the reason the original jurists found no reason to prescribe a purpose for the punishments and is now the basis for all of the theories of punishment and the Islamic law system itself, which we will now discuss.
The first theory of punishment is retribution. Retribution is a universal theory and is revealed in the Qur’an as the purpose of punishment in this world and “the Hereafter” (which greater confirms the divinity of the law.) The Arabic word for retribution is “jaza” which means punishment and reward, which makes the theory of retribution similar to the usage in Western law, apart from the divinity. When it comes to hadd punishments, it’s important to remember that they are the most severe punishments in the world for the crimes they’re prescribed to, which draws attention to the consequences, and also that mediation is prohibited, so combining these features brings a very retributive effect in Islamic culture. The theory of retribution in punishment is shown by the fact that in the case of multiple offenses, multiple sentences will be imposed, with the criminal serving them from least severe to most severe ending with the death penalty.
The second theory of punishment is deterrence, which is recognized as the most dominant reason for the hadd punishments. This fact is interesting to me in that the idea of deterrence is the opposite of retribution because deterrence justifies the punishment with regards to the future while retribution justifies punishment with regards to the past, seeing each offense as an isolated offense. With deterrence, two effects are seen: general deterrence on the population as a whole and individual deterrence on the criminal. The punishment is justified with this theory because future crime is being prevented, both by the population because the punishment is made as public as possible, and by the individual criminal because the inhibitive effects of serious punishment makes one reluctant to ever offend again (or so the theory goes.) This theory has evidence to back it up in that Saudi Arabia has seen a significant decrease in their crime rate since re-implementing hadd punishments in the 20th century.
While retribution and deterrence are the main recognized theories of punishment, I think circumstance, reformation, and morality are worth being noted. What is meant by circumstance is that many determinations for punishments were once made to be based on what suited the community of the Prophet. Now because of circumstances that have changed with the times, the punishments (more-so certain characteristics of the punishment) have had to change with the times. We see this in the case of theft where one of the controversies between jurists is the value of the stolen property; a relevant value for hadd punishment in the Prophet’s time surely would be sufficient for our time. We also see this in the case of the hadd punishment of execution for armed robbery, which is to be done by the sword. Some would argue this is more of a medieval practice and the method should be changed to meet the current circumstances of the time. Reformation as a theory of punishment only has roots in one hadd crime, which is armed robbery. One of the hadd punishments for this crime is banishment or imprisonment, which naturally would suggest that the reason for the punishment is to improve the criminal’s behavior and make them reform their behavior until they’re