Fight Against Crime In Islam

Fight Against Crime In Islam
BY: MOHAMMAD MAHER
Magistrate, Attorney-General
The Arab RepubIic of Egypt.
Translated By: ISMAIL KASHMIRI
Revised By: Dr. ABDUL HAMID HUSSIEN
Published under the auspices of:
THE SUPREME COUNCIL FOR ISLAMIC AFFAIRS
Secretary-General
MUHAMMAD TAWFIK OWEIDA
A.R.E. 1975

FIGHT AGAINST CRIME IN ISLAM
BY: Mohammad Maher
 Forward
PART ONE
Combating Crime is The Duty and Right of  Muslims.
PART TWO
History of Criminal Accustion.
In Ancient Laws.
In Modern Laws.
In the present Egyptian Law.
PART THREE
Procedures of Combating Crime in Islam.
CHAPTER ONE
Procedures Taken Piror to Committing of Crime.
CHAPTER TWO
"The Muhtasib" and the Attorney-General the system of "Hisbah" in Islam
CHAPTER THREE
 Deterence by Judicature.
CHAPTER FOUR
Reconcilation and Arbitration.
•    1- Background.
•    2- Recnciliation.
CHAPTER FIVE
 Proof  Procedures.
PART FOUR
Objctives Fighting of Crime.
CHAPTER ONE
-Diversification of Penlities.
CHAPTER TWO
Severity of Punishment
- Criminal Garivity and Decoity.
CHAPTER THREE
- Individualisation of Punishment in Minor Offences.
CHAPTER FOUR
- Combat of Crime by Threatening of Punishment in the Hereafter.
CHAPTER FIVE
- Repentance and Forgiveness.
CHAPTER SIX.
- Social and Moral Measures to Avert Crime.
PART FIVE
-Islamic Law's Attitudes Towards Development of Penology in Modern Times. Stages Passed by Penology.
PART SIX
- The Holy Quran and The Good Citizen. 

In the name of Allah ,the Beneficient, the Merciful
FORWARD
Praise be to God, the Lord of the worlds ; and peace be upon Muhammad, the most exalted of all Prophets, and upon his kith and kin and all his Companions. There is no doubt that the Islamic Law (Shariah) is the law enacted for all mankind. In the Holy Quran, God, addressing the Prophet Muhammad, said : "And We have not sent thee but as a bearer of good news and as a warner to all mankind". 1The sublime Islamic Law is suitable for every time and clime. It is the final and most advanced stage of social development. Describing the Quran, which combines this Law, God says "And We have revealed the Book to thee explaining all things and a guidance and mercy and good news for those who submit.2

Islam's claim that it is the religion of all mankind is not a balderdash. Its principles and teachings are the instrument by which one would live in safety, with his faith, self, property, progeny, honour and all other in born rights fully protected.

God has created people to live together in communities, each one of them is the fellow of the other every member is a brick in the whole edifice of humanity. The Prophet Muhammad said : "Each one of you is a shepherd and every shepherd is responsible for his flock." And to keep such an edifice properly and strongly erected, God, from days immemorial, inspired people to make legislations defining everyone's duties and rights. Such a human system is known as the "positive law". But one cannot subjugate one self entirely to such a legislation because, firstly, it does not supply one with all that one needs for one's own well-being and, secondly because the legislation is made by a human being who, however intelligent he might be, does not possess but a limited power of thinking.

Therefore, human beings are always in need of a Divine Law which would certainly throw into the shade any other man-fade law. The Divine Law, of course, transcends all other man-made laws. It purifies peoples' hearts, raises their dignity, and awakes their consciousness. Moreover, it enables man to properly tackle his problems, of the present and of the future. It also establishes human relations on a solid base. For the welfare of human beings, God made the Divine laws and raised Messengers from among themselves, "Messengers, bearers of good news and warners, so that the people may have no plea against Allah after the coming of messengers. And Allah is ever Mighty, wise."3

The Islamic Law, which is the last of Divine Laws, meets all the requirements of people, serves their own interests, and fully guarantees their dignity. In this context, God says ,"And certainly We have brought them a Book which we make clear with knowledge, a guidance and a mercy for a people who believe"4

Deriving inspiration from this 14- centuries old august Islamic Law which, through its commands and injunctions provided the Muslims with security and stability, and established among them justice, brotherhood, freedom and equality, I present his modest study of the " Fight of Crime in Islam". A good opportunity was provided to me which helped me in making this study, and that was when I led a delegation of the Arab Republic of Egypt to a seminar on Arab Studies which was held in Tripoli from it to 15 October, 1971. At that seminar, I discussed only one aspect of the subject, and this was "The People's Role in Combating Crime as Stipulated by Islamic Laws". In this essay, I came to the conclusion that the public should assist in making criminal indictment because such a participation is a right, even a legal duty. As a result of the public's involvement, the accusation is surely made on a basis of impartiality.

But when I was about to complete my study, I came to realize the importance of the other aspect of the subject, and it is an aspect in which any researcher must have interest. This aspect deals with the role of the victim, or of his governor, and with the part criminal's repentance plays in criminal accusation. In such a case, one becomes close to the crime, and not isolated from it or from its concerned parties. He is either a victim or a culprit, and in both cases, such a man becomes by no means impartial.

Despite all the efforts made in the past and in the present, this subject has not yet been carefully studied. As a result, I took upon myself to make a study of the subject, albeit temperately, in which I would draw comparison between the Islamic and the positive laws.
MOHAMMAD MAHER

PART ONE
COMBATING CRIME IS THE DUTY AND RIGHT OF MUSLIMS
All the Divine Laws agree on combating crime because it destroys the very foundation of any community which these Laws try to keep solid.

Foremost among these Laws is the Islamic Law. As it was the last of institutional messages, it attached great importance to crime and to fighting it. According to Islam, it is the duty of all the believers to combat -crime. Not only people in authority, the discretionary jurists, who are required to combat crime, but all the Muslims as a whole are also required to do so.

To fight delinquency and to protect any community, precautionary and protective measures must be taken to forestall crime before it is committed, and to discover it and punish the offender after it is committed.

To have cognizance of the public's, or the true believers' role in fighting crime, whether before or after it is committed, the people who are religiously entrusted with combating crime in Muslim lands have first to be identified.

As a matter of fact, the whole nation of the Prophet Muhammad, may Allah's peace and blessings be upon him, is required to combat crime, everyone according to his potentials. It is also the duty of the ruler to do so because, firstly, he is one of the Muslims, and, secondly, because he represents the entire nation. Such a ruler has assumed power only after he received allegience from all the Muslims. This system is identical to the referendum followed in our present time. In combating crime, all the believers, without exception, are fully, and equally, responsible.

Not on even one occasion has any positive law considered fighting of crime a legal obilgation on the masses. But, despite this, certain man-made laws had given the people the right to combat crime. Sometimes, this right is exercised by people, and some other times is not.

As for the Islamic Law, it made it obligatory on all Muslims to combat crime, because it is the entire community that has a real interest in safeguarding its own security.

According to Islam, all the authority is vested with the people. This principle had not been recognised by any positive law except in the eighteen century. It is the same principle which stipulates that the nation is the source of all authorities." It was followed by Europe after a long and continuous struggle made by a few number of liberal philosophers like Montesquieu (1689-1775), who dealt with this principle in his book "Esprit des Lois" (Spirit of Laws), and Voltaire (1714-1778). The efforts of these philosophers were crowned with the "Contrat Social" (Social Contract) which was compiled by Jean Jacques Rousseau (1712-1778).

Rousseau opined that all people were born free and equal in rights and that to guarantee freedom and equality, the individuals had joined each other and entered into a social contract whereby each one of them had accepted to forgo a part of his freedom to the community which has appointed representatives as rulers who would discharge their duties on its behalf. These rulers were to protect the other rights left to the people to exercise. The author of the Social Contract tried, through his imaginery perspective, to make the nation the source of all the authorities, and to prove that the government derived its power from the community, the rights of its members it had to safe guard. If the government failed to give such protection and misused the administration of its power, it has to be sacked and a new government was to replace it.

At that time, in most countries of Europe, a ten dency for emancipation from the slavery of rulers prevailed. Among the philosophers who championed this cause, in addition to those already mentioned, were Ques Nay (1694-1774), in France; Emmanuel Kant (1774-1809) in Germany; and Adam Smith (1723-1790) in England. As a result of this new revolution in political thought, the French Revolution was staged in 1789, and in Article 2 of the Human Rights Manifesto, which was issued by the Revolution ,it was stated that "the objective of political groups to safeguard the innate human rights to freedom, ownership, safety and resistance of oppression. This article confirmed that the government was the servant of the people whose rights it had to protect. The people, moreover, were the course of all powers.

The revolutionary ideas of these philosophers crystalised after great efforts, toil and reasoning. It is my belief that had the Islamic notions of the Andalusian Arabs not reached these parts of Europe, these European philosophers would not have been able to set forth their philosophies. The Arabs had provided them good material for their theories.5

This brief lexicon which seems to be out of my subject was necessary. I intended to draw comparison between the open and frank Islamic thinking and the Western thinking which was sometimes based on imagination and some other times on plagiary. Since a very early time, the Islamic jurisprudence had known the principle of people's sovereignty and also recognised the other principle that the people were the source of all powers.

These principles were contained in text in the Holy Quran and given more elucidation in some of the Prophetic sayings, all of which were applied to the letter by the great Muslim Caliphs. Usually it was the Muslims as a whole who were addressed when the exercise of power was mentioned. In the "Retaliation Verse", addressing the Muslims, God says "O, you who believe, retaliation is prescribed for you in the matter of the slain."6 In another Surat (Chapter), referring to aggression, the Quran also asks the believers that "if two parties of the believers quarrel, (you) make peace between them. Then if one of them does wrong to the other, fight that which does wrong till it returns to Allah's. Then if it returns, make peace between them with justice, and act equitably, Surely Allah loves the equitable." 7

In the verse dealing with war, the Quran says: "The only punishment of those who wage war against Allah and His Messenger and strive to make mischief in the land is that they should be murdered, or crucified, or their hands and their feet should be cut off on opposite sides, or they should be imprisoned. This shall be a disgrace for them in this world, and in the Hereafter they shall have a grievous chastisement. Except those who repent before you overpower them; so know that Allah is Forgiving, Merciful."8

Referring to "theft", God also addresses the whole Muslims when He says : "And as for the man and the woman addicted to theft, cut off their hands as a punishment for what they have earned, an examplary punishment from Allah. And Allah is Mighty, Wise."9

The Muslims, as a whole, are again ordered, in context of adultery, that "The adulteress and the adulterer, (you have to) flog each of them with a hundred stripes, and let not pity for them detain you from obedience to Allah if yon believe in Allah and the Last Day, and let a party of believers witness their chastisement"10

In the verse concerning "slander", God commands all the Muslims that ".. Those who accuse chaste women and bring not four witnesses, (you have to) flog them with eighty stripes and never accept their evidence, and these or' the transgressors." 11

Commanding the Muslims to do good and refrain from doing wrong, God says : "And from among you there should be a party who invite to good and enjoin the right and forbid the wrong. And these are they who are successful." 12

Also addressing the Muslims as a whole, God informs them, "You are the best nation; . raised up for men; you enjoin good and forbid evil and you believe in Allah."13

In the Surat Al-Tauba (Repentence), God says "Surely Allah has bought from the believers their persons and their property-theirs  (in return) is the Garden. They fight in Allah's way, so they slay and are slain. It is a promise which is binding on Him in the Torah and the Gospel and the Quran. And who is more faithful to his promise than Allah ? Rejoice therefore in your bargain which you hare made. And that is the mighty achievement. They who turn to Allah, who serve Him, who praise him, who fast, who bow down, who prostrate themselves, who enjoin what is good and forbid what is evil, and who keep the limits of Allah and give good news to the believers."14

These were some of the Quranic verses which vested power in the Muslim community and not only with the ruler. But there are other verses which also address the Mslims as individuals, commanding them to perform various kinds of worship. These verses deal with the true belief (Iman), the prayers, the payment of the poor- rate, and the performance of pilgrimage to Mecca, These verses teach the indivildual Muslim the principles of his religion and his moral duties, They are different from those vesting power in the community.

The sense of the Quranic verses vesting power in the community was upheld by the Prophet Muhammad, Ordering the Muslims to teach their sons how to say their prayers, the Prophet Muhammad commanded : "Repeat ordering them to pray at the age of seven and beat them, at the age of ten". He also ordered : "Whoever sees an evil should remove it by hand, and if he fails, then by his tongue, and if he still fails, then by his heart. And that is the weakest of true belief ".

In his maiden speech after assuming power as the Caliph of the Muslims, Hadrat Abou Bakr, the Truthful, the First of the Wise Caliphs, said : "I have been elected your ruler though I am not the best of you. If I carry out my duties properly, you must assist me ; and if I do not, you have to correct me. Obey me as long as I abide by God's orders concerning the treatment meted to you. If I break God's rules, you are not required to obey me."

Similarly, Hadrat Umar Ibn Al-Khattab, the Ruler of the Believers, on assuming the Caliphate, had repeated the same statement. Listening to the Caliph's reaffirmation, an Arab commented "By God, if you misuse power, we will set you right with our swords." Umar replied : "Praise be to God Who enabled one of Muhammad's nation to set right the wrongs of Umar by sword". The Caliph was not a despot, but a ruler who received the mandate of authority from his people by voting and swearing allegiance. Allegiance was given because the ruler feared God and abode by God's and the Prophet's commands.

The whole nation of Muhammad is vested not only with one authority, but with the three authorities, the legislative, the judiciary and the executive.

The Holy Quran has assigned to the whole nation the legislative authority through the unanimity of their views and consultation. Describing these people to His Prophet, God said : "And those respond to their Lord and keep up prayer, and whose affairs are decided by counsel among themselves, and who spend out of what we have given them."15 God also says : `Thus it is by Allah's mercy that thou art gentle to them. And hadst thou been rough, hard-hearted, they woulid certainly had dispersed from around thee. So pardon them and ask protection for them, and consult them in important matters".16

In "A'lam Al-Muwaqieen" by Ibn Al-Qayyim, Maymoun Ibn Mahran was quoted as having reported that whenever a case was brought before Abou Bakr the Truthful, he used to seek decision from God's Book. If he could find such a decision on the ease, he would pass the judgement, and if not, he would ask the Muslims whether they were aware of a judgment which was passed by the Prophet Muhammad on a similar case. If there was such, the people would tell him of the Prophet's decision.

But if the Caliph could not find
A relevant Prophetic saying or tradition, he would collect the Muslim leaders for consultation. Only when they unanimously agree on a judgment would he pass his verdict. Hadrat Umar, may God be pleased with him, found no fault in inviting, on certain occasions, some young men rather than the old-aged, for consultation. In so doing, he wanted to benefit from their virile intelligence. In "Concise Study of Learning and its Benefits", by Ibn Abdul Barr, Yusuf, son of Jacob, quoted Al-Magshon as having reported that when Ibn Shehab was interrogated by young people, he used to warn them not to look down upon themselves due to their tender age. " when Umar Ibn Al-Khattab was confronted with a difficult issue, he used to consult the young among his people, seeking good ideas out of their wit. 17

God willed that from among the Muslims there should be a group which must be well versed in know ledge and learning. In Surat Tauba, God says : "And the believers should not go forth all together. Why, then, does not company from every party from among them go forth that they may apply themselves to obtain under standing in religion, and that they may warn their people cautious". 18 Any perceptive jurisprudent was entitled to make decisions. According to the Islamic Law, such a jurisprudent stood on the same footing with any legislator But this principle is no more applicable in our present times. The jurisprudent's duty is now confined only to the interpretation of legal texts. This interpretation is not binding, but facultative and consultative.

As regards the judiciary, God commands the whole Muslim nation “ to make over trusts to those to Those worthy of them, and that when you judge between people, you judge with justice. Surely Allah admonishes you with what is excellent. Surely Allah is ever-Hearing, Seeing.”19 But the executive authority must be vested in the ruler, who is to reign on behalf of the nation and under its supervision. This was exactly the principle which the Caliph Abou Bakr had included in his above-mentioned address to the Muslims after he had assumed power.

This shows that according to Islam, the nation is the source of the three authorities
Taking this into consideration, we discuss now the people's role in combating crime, because it was they, as true believers, who shared responsibility with the ruler for fighting crime.

The role of the people in fighting crime, as stipulated in Islamic Jurisprudence, is very important not only from the religious point of view, but because of the service such a role renders to the community as a whole. Crime however, is a detested phenomenon which all member of any community must fight. Crime is deep rooted in history and is still being committed every day. And because crime is still being committed amidst us, and since it is unanimously agreed that it should be combated the combat must be intense and firm.

To ruler's power alone cannot prevent crime, and, therefore the masses are asked, and according to certain laws ordered, to take part in combating crime.

In regard, we have to distinguish between two first is the moral duty of the people to combat cirme, and the second, the religious duty which makes it obligatory for every individual to combat crime by all possible means. But this distinction does not mean that the two duties are contradictory; they, on the contrary, take two parallel lines which at the end would lead to one goal, fighting crime.

When the masses feel that they are carrying out a religious duty in fighting crime, they have to feel that they are also doing a moral duty. But before morality, the religion had come to the force demanding that ever one should do his utmost to combat crime. As one is not forced by law to fight crime, giving him only the right to do so, a person may be reluctant in exercising his legal right.

Here, morality must play its part. With morality, the right is sustained, becoming an ethical duty which is tantamount to a legal obligation. The poor-rate (Zakat), for example, is one of the cardinal doctrines of Islam which must annually be paid at a fixed rate. Charity, on the other hand, which is also an alms-giving, is given voluntarily. Apart from the poor- rate, a true believer, who should wish goodness for every one else as he wishes it to his own self, must be kind to the poor and the needy, and on every occasion, he is required to help the helpless.

It is not wrong to state that the legal obligation and the legal right in combating crime is something and the discharge and exercise of such rights is something else. A number of duties are still unobserved, and they do not appear except in text books. Similarly, there are other well-established duties, which after having been acknowledged after a long struggle, go later into oblivion.

The implementation and the exercise of any duty depend on the extent of the awareness of the people of any country. The greater awareness might be, the firmer crime is combatted To be aware and in the know of every thing, one must first know his duties as well as his rights. Learning and reorientation can be made by several means, such as education and the sermons made in mosques especially on Fridays and seasonal feasts. Awareness can also be accomplished through various information media, such as the radio, the television, the Press an public cultural centres, and the like. In this sphere, the family plays a significant part. The more the people become educated, the more effectively is crime fought. To the educated person, crime is a violation of all natural laws and moral ethical principles.

Though people's awareness is very effective in fighting crime and in making the discharge of legal responsibilities obligatory, it will not be discussed here for several reasons. First, awareness is a question whose importance and effectiveness in any community cannot be disputed, especially in combatting crime. Secondly, awareness is need for execution, and not in prescribing a duty and a right. Lastly, awareness is not a subject which comes under the jurisdiction of law, but under education. It is duty of educationalists and instructors to teach the people and make them distinguish between virtue and evil.

Therefore, our study here will be made only of the religious side of the subject, namely, the part which the people must play, from the religious point of view, in combating crime. It is the right and duty of people to do so, because the people, in any country, are the principal component of the community.

Social defence against crime requires objective mea sures. Every community must be protected against crime.

Not only would the general authorities of the state combat crime; the people must join hands and play their part in informing of crimes and in bringing criminal charges against offenders. In this way, the whole situation would come under control, and is exactly what was ordained by the Islamic Law.

when Islam started to re-organise the conditions of the Muslim community, it attached great importance to people's rights to live together in affaction, compassion and fraternity. By this, Islam aimed at creating a sound unity which would cooperatively forestall dacoity. To achieve this goal, Islam held the Muslim responsible for staving off delinquency and for protecting their community against its dangers. By so doing, Islam did not put the burden on a particular person, or on the elite of muslim scholars, "the discretionary jurists" or the people in authority", but on all the Muslims, each one according to his power and ability. By imposing this duty, the sovereignty and kingdom were given to the whole Muslim nation. This doctrine, as has already been mentioned, had not been known by any modern laws except in the eighteenth century. With this principle, the role of the masses in thwarting delinquency becomes in evitable and primary.

Though the Islamic Law had preceded all other laws in handling this subject, its rules were precursors, and not uncommon. It was the preciseness and the comprehensiveness of the Islamic rules, which had been laid down after labour and great effort, that inspired other laws to adopt the Islamic principles. The English law is an example in view. It comprises a system for combating crime by the people after it has already been committed. Any individual can make direct accusation against any offender who had committed an actionable offence and also ask for punishment.

PART THREE

CHAPTER ONE

Procedures of Combating Crime in Islam

Procedures Taken Prior to Committing of Crime

Crime is committed in two stages, in the first the criminal plans for his crime, and in the second, he executes that what he has arranged for. Therefore, it is logical that to combat crime, it has to be combated before it is committed, and that certain action is to be taken after it takes place. In the former stage, the public plays a simultaneous social and religious part, because they are required to forestall crime. According to Islam, the people are required to exhort one another to Truth and to forbid the wrong. To Muslim jurisprudents, every Muslim is required to defend himself or his property, or any other one's self or property, before any crime is committed. This principle is based on the Islamic rule that man has to do good and avoid sin and on several Prophetic saying among which are "Whoever sees a sin must eliminate it by his own hand" and "Do not do harm either to yourself or to anyone else."

According to the positive law, self-defence is a right rather than a duty, but to the Islamic Law, it is simultaneously a right and a duty. Though the  man-made law entitles individuals to fight in self-defence or in defending others, they are free either to do this or not. But in the Islamic Law, any individual, as decreed by all the jurists, has the right to repel the harm or offence intended either against him or his property, or against the self or property of others.

    All the modern positive laws made self-defence a right and not a duty though some of the jurisprudents are now of the view that it must be a social duty.

     A quite few of such legislations were of this view at least as regards the civil law. One of these legislations is the Portugese Civil Law (Clause 2368). In Islam, self-defence is enjoined by the Holy Quran and by Prophetic saying and traditions.

In the Holy Quran God says "And those who, when great wrong afflicts them, defend themselves."35 As reported by Abou Daud and Al-Tirmizi, the Prophet Muhammad was quoted as having said that "Whoever dies in defence of his religion is a martyr; and whoever dies in self-defence is a martyr; and whoever dies defending his property is a martyr; and whoever dies defending his family is a martyr".

Muslim quoted Abou Hurayrah as having reported that once a man came to the Prophet Muhammad, may Allah's blessings and peace be upon him, and asked him what he would do if someone else attempted to take his money. The Prophet said : "Do not allow him to do so." When the man enquired of what he would do if he was attacked, the Prophet said "Kill him". The man asked : "But what happens if the man killed me? "The Prophet replied : "Then you are a martyr." And when the Prophet was again asked : "And if I killed him ?" the Prophet replied : "He will go to Hell."

Muslim also quoted Umran Ibn Husayn as having narrated that a man cut another man's arm with his teeth. The assaulted man pushed the attacker with the result that his front tooth was pulled out. Complaining to the Prophet of what had happened to him, the Prophet said "But you attempted to cut his flesh".

Abou Hurayrah quoted the Prophet Muhammad as having said!: "If someone suddenly attacked you, and you pelted him with a stone which would gouge his eye, you are not to blame."

     If one is threatened with danger, he has to defened himself even by murdering the attacker, provided that there was no other way to spare his own life. 36

   Defending others is based on the Prophet's saying "Assist your brother when he is oppressed; and protect him against any harm."

One is also required to defend his own honour as well as the honour of others. As it has been reported before, the Prophet explained that whoever died in defence of his family, he was a martyr.

Once, Al-Zubair, one of the Prophet's ompanions,did not report for duty with the army and remained at home with a maid-slave. Two men approached him begging. He gave them some food, and when they tried to take the maid-slave, he killed them with his sword.

Once, when Umar Ibn Al-Khattab was taking his lunch, a man came to him in haste, with a sword stained with blood in his hand, and a number of people chasing him. He sat opposite Umar and told him :"O, leader of the Believers; I have struck the thighs of my wife with this sword and I did not know whether I have killed someone who was sitting between them." Umar took the sword by his hand and swung it and then returned it to its owner saying : "If they do it again, you repeat whatever you have done." Apart from his own honour, one is also required to defend the honour of any alien woman.

One is to defend his property by all means available,and if there is no alternative but to kill an assailant, the latter might be killed by the former in defence of his own property. One is also allowed to defend other's property. This principle had been unanimously agreed to by all the jurisprudents.

In "Fathul Qadeer", if burglars steal any other people's property, and the latter ask for help, the rescuers who might respond to the call are allowed to kill the thieves. To some jurists, to defend others is similar to self-defence. Not only should crime be fought before it is committed; it has to be also fought even after it takes place, and this is done in a bid to deter any other criminal who would think of a probable crime. The Islamic Law has imposed punishment on criminals and explained in detail the procedure of indictment, ways of litigation, or means of collecting evidences.

CHAPTER TWO

"The Muhtasib" and the Attorney-General

The System of "Hisbah" in Islam

Islam has made it obligatory on Muslims to carry out the restrictive ordinances of God and to defend His rights. By the system of "Hisbah", Islam entrusted everybody with the defence of God's rights within the "principle of enjoining good and forbidding evil".

In order to have an idea about this system, the duties of the people who volunteered to carry out their duties expecting no return whatsoever but the pleasure of God, and the duties of the "Muhtasib", a brief study of the Islamic legal system would be made.

The ruler or the Caliph of the Muslims had the supreme and general authority on various aspects and functions of the Judiciary. It was his right to try people in person, but when the Islamic State spread out and differences and altercations increased in intensity and in number, the rulers appointed competent judges to try the cases. At the beginning, it was within the jurisdiction of the judge to arbitrate civil, criminal and administrative cases; to execute people's wills; to get the singles married; to execute God's restrictive ordinances; and to prevent attacks and aggression on the roads. But it was a matter of difference among the jurisprudents whether the judge was allowed to pass a judgement in a certain case in the absence of an adversary or not. However, this subject is not to be dealt with here.

When civilization made its headway, the disputes increased consequently. The State expanded further and as a result the judiciary was divided into three categories, one for litigation, another to study complaints, and the third for the "Hisbah". The Hisbah" was administered by a "Muhtasib", whole functions are similar to those of our present time's attorney-general, but still of more vast domains. By this division of authority, the judicature was entrusted with trying the civil cases, the per sonallaw questions, the observance of God's restrictive ordinances, and the minor offences for which punishment had been left to the discretion of the judges. Also referred to him was any dispute the settlement of which could not be reached except through witnesses or under oath. In other words the judges had to hear the cases in which the claim. had not been very clear even though these cases would come under other categories. Another jurisdiction of the judge was the investigation in a dispute involving any jurisprudential discretionary judgement.

The investigation in complaints was identical to our present administrative judicial system. The judges of that category were entrusted with investigation in people's complaints against any injustice done to them by the State's officials or in cases where these officials declined to discharge their duties or misused their power. The judges of this category were also required to execute and to investigate the cases which the first category judges had failed to do under the great influence of adversaries. For this reason, the judge of complaints had to be selected from among those who enjoyed particular qualities.

He had to be of great solemnity and worthiness and of a high calibre. He had also to be held by all the people in high esteem, known for his virtue and probity and piety. He should not have to he covetous. He had to combine in himself the powers of the protective force (Police) and the sagacity of judges.

The systm of investigating people's complaints was first initiated by the Ummayad Caliph Abdel Malik Ibn Marwan The council for hearing complaints consisted of representatives of five factions of people ; the security protectors and defenders who were to preserve law and order; the judges and the arbitrators who were to investigate the cases; the jurists who were to be consulted on legal subjects; the clerks who were to record the statements of the adversaries and the proceedings of the trial; and, lastly, the witnesses who were to certify the bench's decisions and orders. Only when all these representatives were present would the court sit for hearing.

The functions of the complaints' court were the following:
1- To inquisite rulers' or their agents' transgression on the people;
2- To inquisite the injustice done by the State's workers in collecting revenues;
3- To keep an eye on the conduct of the employees of various departments of the State lest they should misuse their power;
4- To attend to the poor and the needy and supervise their procurement of their due share in livlihood and of their other rights;
5- To return to the real owners whatever the ruler or his agents had usurped of their property;
6- To supervise the distribution of public and private endownment funds by administrators of unalienable property to deserving people;
7- To execute the sentences which were passed by judges but remained unexecuted due to failure of these judges to do so;
8- To investigate the failure of the "Muhtasib" in carrying out his own duties such as an abomination or aggression the "Muhtasib" had failed to curb;
9- To see that apparent worships, such as Friday congregational prayers, feasts prayers, pilgrimage to Mecca, "Jihad" (Holy War), were properly observed; and,
10- To investigate any judicial issue which was feared not to have been properly tackled by judges due to the great influence of litigants or of a party to the case. In such a case the complaints council had to follow the same procedures which had been followed by the former judges. There was no objection to include in this council some of the former judges. After a little while, the general judicature was separated from the "Hisbah" and a ` Muhtasib", a public official, was appointed to look after the "Hisbah".

To explain further the Islamic system of the "His bah",we have to trace its history and the religious basis on which it was founded.

The history of the "Hisbah" goes back to the days of the Prophet Muhammad, may God's blessings and peace be upon him. Al-Bukhari quotes Nafei and Ibn Umar,may God be pleased with them, as having stated that during the days of the Prophet Muhammad, the Muslims used to purchase food grains from caravens, while they were on their way before reaching their distination, but the Prophet sent messengers to ask the sellers not to dispose of their commodities until they reached the market 37.

As it was reported by Abou Umar Ibn Abdul Barr, the Prophet Muhammad had appointed Said Ibn Said Ibn Al-As Ibn Umayyah administrator of the Mecca market- place.

The Prophet Muhammad, and his Companions, set a  good example. In their bid to enjoin  good and forbid evil, they themselves superintended the market and on certain occasions they appointed administrators to do the job on their behalf. But still the "Muhtasib" had no full or absolute powers to exercise.

It was also reported that Umar Ibn Al-Khattab appointed Abdullah Ibn Uqbah as an administrator of a market-place.

The system of the "Hisbah" was also known to the Fatimides in Egypt, and the Ummayads in Andalusia. This system was mentioned, and hailed, by "Al-Hagari" in his book "Nafhul Teeb" Usually, the "Hisbah" was concerned only with the supervision of the precision of weights and measurements, the prices, adulteration of food, fraud, cleanliness of roads, and disperssion of gatherings in maltitudes. 38

The "Hishab", as defined by the Chief Justice Aboul Hasan Ali Ibn Muhammad Ibn Habib Al-Basri Al-Baghdadi Al-Mawardi, who died in the Hegrite year 450, 39 was "to enjoin good if good is not done, and to forbid evil, if evil prevails". The system was based on the Quranic verse : "And from among you there should be a party who invite tgood and enjoin the right and forbid the wrong"40 and on the Prophetic sayings :"Whoever sees a mischief mueliminate it by his hand, and if not possible, then by his tongue, and if not, by his heart and the last is the weakest weapon".

The "Hisbah" is supposed to be the duty of every Muslim, man or woman, because God has deputed all the Muslims, rulers and ruled, to see that His rights are observed and safeguarded. The word "Hisbah" in Arabic implies"work for the sake of God and not for the interest of anyone whatsoever."

But though the "Hisbah" is a duty, it is a duty which is to be discharged by some people, and not by all. Prayers, for instance, are the duty of every Muslim, which he has to perform otherwise he would be treated as sinner. To answer a greeting could be made by only one person on behalf of a group to whom the greetings were expressed. If the other members of the group will not answer the greeting, this will not be accounted for.

But some people may think little of discharging a duty which is to be done by someone on behalf of others and the result would be that the duty remains undone. It was for this reason that the post of the "Muhtasib" was created and in this post he acted on behalf of the ruler. But even with the presence of the "Muhtasib", any member of the Muslim commodity could file a Hisbah" case, a right which was established before, and after, the creation of this post. When the system was introduced, the "Muhtasibes" from among the public were called "volunteers". In fact, such a man in the true sense of the word was not a "volunteer",

But a representative of the Muslim community who spared everyone else that burdens of the post The "Muhtasib's" post was identical to that of the present attorney-general and the duties of his agents could be likened to those of the judicial police officers and in certain cases, those of the "Deterrent Police", a force practising only in Western countries. In these countries, the "Deterrent Police" are required to check crime before it is committed and they are independent from the "Judicial Police", one of whose duties is to in vestigate a crime after it is committed. The "Muhtasib's" function could also be likened to that of a judge of summary justice who makes preliminary investigation of a certain case and after having released that it needed more testimonies and doctrinal disputation, he would refer it to a court of competent jurisdiction.

The duties of the "Muhtasib" were numerous. In his capacity as a caretaker of doing good, he had three obligations, one concerning God's rights, the second the people's rights, and the third God's and His servants' joint rights.

As for God's rights, the "Muhtasib" had to punish or censure any group of Muslims, numbering forty or more, who would refrain from saying a Friday congregational prayer. He had also to punish and blame any individual who was in the habit of nonobservances of prayers.

As for people's rights, the "Muhtasib" had to look after the welfare of the community. He had to see to it that his community was systemically receiving drinking water or why the town's rampart was destroyed; why the city had discontinued extending help to needy wayfarers; or why the town's mosque was falling down. On such occassions, he had to take any suitable action to repair damages or proceed in the relief w6rk even though he had to draw money from the public treasury "Baitul Mal", if this institution had special funds for such.

The "Muhtasib" had also to help individuals retrieve their rights and get their debts paid if he was asked to meddle. But he had no right to imprison anyone, because for imprisonment there should be a legal sentence. But he had the right to put the property of any indebtor under his custody. He also had no right to fix allowances given by anyone to his kith and kin, Such a matter required religious discretionary judgement which entirely fell under the jurisdiction of judicature.

As regards the joint rights of both God and His servants, the "Muhtasib", was entitled to ask parents who prevented their daughters from marrying good husbands to reconsider the case to ask the masters to give their slaves their due rights; to punish the divorced wives who violated the period of waiting; and to punish whoever took a foundling under his care but showed carelessness in his sustenance.

As for forbidding evil, the same three categories held good. Regarding God's rights, the "Muhtasib", would, in the domain of worships, discipline whoever said a prayer in loud voice while he was to say it otherwise, or whoever increased his bows while performing prayers or prolonged the call for prayer. He was entitled to reprove the beggars and whoever asked for charity whereas he had enough of money for self-sustenance. He had to teach people not to be open to suspicion as it had been ordained by the Prophet Muhammad who said: "Avoid being suspected and do unsuspected things."

For example, a male should not say his prayers amidst females or talk with a woman in private at a suspected place. One, moreover, must not make public his possession of wines. If such a man was a Muslim, the "Muhtasib" would pour the wine over his head, and if he was a "Zimmi" belonging to a Divine Book, he had to be punished. 41 The "Muhtasib" was also required to prevent people from practising unlawful enjoyments.

In dealings, the "Muhtasib", was required to preclude any greed-to unlawful marriage, sale fraud, and fraud in prices, measurements and weights.

As regards people's rights, the "Muhtasib" had to stave off aggression on other people's property, conquering privacy, demolition of common walls or fences and removal of trunks reclined to walls. But in all these functions, the "Muhtasib" had to meddle at the request of a neighbour, never on his own.

The "Muhtasib" was also authorised to supervise the work of workers and to see that they were not derelict in their work; they did not cheat their customers; or they did not do their work properly.

As regards the joint rights of God and man, the "Muhtasib" had to see to it that a neighbour would not descry his other neighbour from stop of his house and that no one who constructed a high building should leave the roof without cover.

Moreover, the "Muhtasib" had to protect the "Zimmis" from any tresspass by any Muslim.

From this brief survey it appears that the "Muhtasib" had many functions to perform. Some of them were to be carried out on his own or when he was asked to do so by any complainant. But when the matter would concern God and His rights, he had to act swiftly, without complaint presented by anybody. Whenever there was infrongement upon any person’s right, he was to act only when he was asked to do so, because it was the right of any to pardon the transgressor.

The public, and the "Muhtasib's" assistants, were allowed to inform him of any violation of law. In all the cases, the "Muhtasib" had to pry into them personally and later pass on them the relevant religious judgement, If the dispute was complicated, he would refer the matter to a judge. The "Muhtasib" had sometimes a licence to apply the principles of a prevailing custom either in the city or in the market place or any practice followed by the workers. He, moreover, was to keep in view decency on roads; to protect passers-by from any possible harm; to disband people's gatherings on markets; and to prevent castration of human beings and animals.

These were the functions of the "Muhtasib" held a public post in the State. While a judge was entrusted with investigaiton of the civil cases which required evidences and great understanding of Islamic laws, the "Muhtasib" had never been allowed to investigate a dispute over property, or to authenticate a contract, or to verify an ownership deed. Moreover, it was the duty of the judge to investigate cases of denial of rights serious disputes civil or criminal. This entitlement was denied to the "Muhtasib"; he had not been authorised to authenticate an evidence to prove disowned rights or to ask for an oath for disaffirmation of a right this was the jurisdiction of the judge alone. While the "Muhtasib" was to investigate only the cases which he himself came to know or those which were brought to his notice by complaints, the judge could not investigate but only the cases which were referred to him by adversaries or witnesses.

Put had the jurisdiction of the "Muhtasib" repealed that of the public in combatting crime? Had the volunteers continued to carry out their duty even with the presence of the "Muhtasib"?

As a matter of fact, the "Muhtasib" was appointed to complement the role of the public in the voluntarily tracing of offences. Before the post of the "Muhtasib" was created, the public sought help from the rulers or the judges to correct a situation where good was not enjoined and evil done. At times, the public were to remove evil by themselves, when self-defence or others' defence were involved, or when the need for protecting their own, or others' property arose.

Fearing that the public might fail to do their duty in enjoining good and forbidding evil, the post of the "Muhtasib" was created, but without rescinding the people's part in combating crime. In countries which saw no "Muhtasib", cases of "Hisbah" are still being referred to courts. These cases include separation between a husband belonging to a Divine Book and a Muslim wife, or divorce of a fifth, or more, wife.

Islamic Law permits the public to fight crime directly, and the "Muhtasib's" part was only complementary and not abolishment of the role. This principle is still being adopted by the English Law.

However, the public can refer to a court any case requiring evidence and discretionary judgement they thought the "Muhtasib" was unable to make. The public had also the right to refer to the judge any "Hisbah" case involving God's right and this had to be done within the principle of enjoining good and forbidding evil.

However, never at any stage of Islamic history had the functions of the "Muhtasib" been defined. Sometimes, his jurisdiction was limited, and some other times, boundless.

In studying these jurisdictions, the jurisprudents only set examples, without going deep into the subject.

But could such examples be based on established rules ? Could we distinguish between the jurisdiction of the"Muhtasib"and that of the judge, or of the complaints administrator? Could this subject be studied objectively rather than historically ? Would the punishment left to the discretion of the "Muhtasib" for minor offences be the same like those imposed by a judge ? Was a crime without any prescribed penalty left entirely to a "Muhtasib" ?

Like the "Muhtasib" the judge could pass a discretion verdict on a minor offence. But what was the criterion between the discretions of the two institutions ?

Historical studies showed that the `Muhtasib" had enjoyed several powers. He combined under his authority the powers of the deterrant and the judicial Police and that which gave him the right to pass judgement on the offences he himself had detected.

Secondly, it was for him to take action in cases of summary justice which needed no delay had they been referred to a judge. Thirdly, the "Muhtasib" was to pass a judgement on whatever situation he had seen before him in cases of red-handedness where the evidence was clear objectively and religiously. If the case lacked this condition, it had to be referred to a competent judge. Lastly, under his jurisdiction, the "Muhtasib" was to investigate civil, religious and certain criminal offences. His civil jurisdiction, in fact, could be used as a basis for a civil prosecution, a system Egypt is still lacking. However, the public prosecutor in Egypt is carrying out the same duties of the "Muhtasib" in certain civil cases. He immediately, and quickly, decides cases of free tenure or taking possession of property.

In minor criminal offences, some legislations allow any prosecutor to issue a criminal writ, as in conmatters fall under the jurisdiction of a judge. It is not surprising then to see that the "Muhtasib" combined under his authority, but in certain cases, the functions of a prosecutor and those of a judge. It is not also surprising to note that the "Muhtasib" was allowed to investigate civil as well as criminal cases. But it is to be stated here that when the "Muhtasib" or the judge had exercised their powers in cases of minor offences for which punishment was left to their discretion, the investigation and the punishment imposed on the offender had violated the legal principle that no crime or no punishment he imposed without a lawful text prescribed before the action entailing criminal responsibility. This is what is seen on the surface, but the fact is contrary to that. All the minor offences are mentioned in the Quran and the Prophetic sayings as well as in the unanimously agreed to decisions by jurisprudents.

To enjoin good and forbid evil, for instance, is a matter which has not been left by Islam to the jurisdiction of a judge. The Holy Quran has prohibited the Muslims from assembling in front of a mosque after saying the Friday congregational prayers. It says : "But when the prayer is ended, disperse abroad in the land."42 The Quran orders that before entering a house, permission for this must be obtained. It says : "O, you who believe; enter not houses other than your house, until you have asked permission and saluted their inmates."43 Similarly the Quran prohibits espionage and backbiting. It says: "And spy not nor let some of you backbite others."44 The Prophet Muhammad had asked people not to do harm to others or to linger on the road except on certain conditions.

Referring to the first case, the Prophet said, "Do not do harm either to yourself or to anyone else", and to the second case he ordered his Companions " not to sit across a road". When he was told that at times they had to sit, the Prophet said : "Then, give the road its own right." They enquired in exclamation "But what right a road would have ?" To this, he replied : "To answer the greetings ; to stave off harm ; to lower your gaze; and to enjoin good and forbid evil".

These were only a fexamples of the principles enshrined in the Quran and the Sunnah (Prophet's Sayings). To charge someone with a crime, the judge the "Muhtasib" must not convict him on their own or out of personal inclination. Similarly, the judge would never pass a sentence on an offence on his own discretion or according to his own innovation. The verdict that he had to give for such offences, such as correcting a certain situation, censure, beating, flogging, imprisonment, banishment from the land, or keeping someone under house detention. 45 these were all prescribed by the Quran and Sunnah. The duty of the judge and the "Muhtasib" in such cases was only to apply the already imposed penal ties for the offences adjudged by legislators as crimes.

There was a great authority they had to individualise the penalty according to the prevailing circumstances. The new trend in positive criminal jurisprudence has reduced the severity of law in minor and summary cases. As regards traffic regulations which, according to Islam, were within the jurisdiction of the "Muhtasib", the present executive authority is authorised to incriminate and to decide the penalty and, sometimes, to execute the penalty without referring the case to a judge.46

CHAPTER THREE
DETERRENCE BY JUDICATURE
Judicature was practised by all countries of the world since days immemorial. Not a single country or a community, in whatever shape it was formed, would have lived without a judge to settle disputes and pass judgements on offenders.

In pre-Islamic the Arabs practised this system and the judge was called a ruler. The same nomenclature was also given by the Romans to the judge in ancient days. Calling a judge a ruler in ancient communities was based on a historical basis. It was custom then that the supreme ruler was also the judge and whenever a competent judge was found and appointed, he was to derive his authority from the ruler.

At the advent of Islam, the Prophet Muhammad was ordered to investigate and settle disputes. In the Quran God told the Prophet "But no, by Lord; they believe not until they make thee a judge of what is in dispute between them, then find not any strainess in their hearts as to that which thou decidest and submit with full submission".47 There are other Quranic verses all of which are carrying the same meaning.

When Islam spread out and disputes and differences multiplied, the Prophet Muhammad appointed judges, among them were the Imam Ali Abou Talib and Maaz Ibn Jabal, both of whom were sent to Yemen. This system was later followed by the Umayyad and Abbaside Caliphs.

Under Islam, there were certain conditions required for a man to hold the post of a judge. These conditions aimed at protecting the judge from deviation.

Among these conditions were the following:
1 - The judge should have been of good repute;
2 - He ought to be well versed in all the Islamic laws and able to use his discretionary judgement.
3 - During the Abbaside reign, a chief justice Abou Yusuf, was given the authority to appoint other judges and asked to supervise their conduct, and dismiss them if this was found necessary
4 - Some judges were appointed to hear only certain cases or to serve certain localities. Umar Ibn Al Khattab was quoted as having ordered one of his judges to "discourage people from coming to me complaining of minor things". It was reported that the princes of Basra had appointed judges each one covering a certain locality to hear cases involving 200 or 20 dinars, or less:
5 - More than one judge were allowed to hear a case. This was the viewpoint of the Hanafites, the Hanbalis and some of the Shafei Sect:
6 - Verdicts could have been attacked even before the same judge who had passed them.

In "Risalatul Qada", Umar Ibn Al-Khattab, giving directives to a judge, said:
"If you have found that a sentence which you have passed the same day was unjust, you have to set it right later. Justice is a deep- rooted virtue and to resort to fairness is better than to continue to be in the wrong." It was also allowed that one would attack a verdict before a judge who was senior in rank than the judge who had passed it. when Ali Ibn Abi Talib was in Yemen, he passed a sentence in a certain case. Dissatisfied, the adversaries appealed to the Prophet Muhammad, but the Prophet circumstantiated Ali's judgement.

It was also possible that a sentence would be Reversed for its contradiction to the law, i.e., its contradiction to the unanimity of scholars' views or to the well-established rules, or to the clear text and analogy.

In the history of Islam, all the criminal and civil law suits were within the general jurisdiction of the judicature. But when the State spread out, certain congnizances were separated from general concurrent jurisdiction, among which were that of epostulations, which resemble the civil judicature of our present times, and the "Al Hisbah" jurisdiction which was based on the principle of enjoining good and forbidding evil. With these two jurisdictions excluded, the judicial jurisdiction remained general.

Criminal and civil judicial jurisdiction was distinguished by the deep doctrinal study and correct application of law. If the complaints council desired to apply a religious principle or make a thorough investigation of a certain case by hearing witnesses or receiving statements under oath, it was only the judge who had the auditory to administer justice though the authority seemed to be that of the complaints caretaker or the "Al-Muhtasib".

In Islam, the role of the criminals judge was not confined only to the application of law, but he had to play a social part in combating crime, especially in cases of prescribed sentences. It was within his power to pass a severe or a light sentence or to choose the penalty he deemed fit. The judge was also allowed to go beyond the set punishment and to pass even a death sentence if he was convinced that the defendent was so dangerous that he would not be deterred if only the prescribed sentence was passed on him.

CHAPTER FOUR
Reconcilation and Arbitration.
RECONCILIATION AND ARBITRATION
1- Background
Reconciliation and Arbitration Instead of Force:
In primitive communities, the use of force was the only means for settling disputes, either those which erupted internally or those which existed between them and other communities. But by virtue of the chieftains of these communities, the use of force in settlement of domestic disputes was abandoned, and such differences were resolved only by reconciliation. The use of force was abandoned after they had seen the destruction and annihilation the wars entailed. Reconciliation was made either by excluding the offender from his community, by handing him over to the victim or his community, by retaliation from the offender alone, or by payment of damages to the victim. The two disputing parties would come to terms either with the help of a third party, or without it.

But with the advancement and development of these communities, their disputes were referred to arbitration by one or more than one arbitrators who were agreed to by the two disputing parties. But this development in the primitive communities could not completely eradicate from minds the idea of restoring to force, because, at that time, there was no high authority which would force the disputants to accept reconciliation or arbitration. Any community, however, was free to reject any decision taken through arbitration and resort to force in settling its disputes. The use of force had not been completely abandoned except after the state had been formed replacing the tribe in the political field. Only then would the state impose its authority on disputants after formulating a legal system which defined the individuals' rights and another judicial system under which they would settle their differences.

Types of Reconciliation and its Impact on Ancient Laws:
A. Expulsion of Offender:
A community would expel any offender from it in a bid to ward off evil and safeguard and protect other members of the community.

Dispute, in such a case, was contained, and only retribution from the culprit was needed. This system was practised by the ancient Arabs; they called it the system of expulsion. In "Asas Al Balaghah", Al-Zamakhshari said that it was the practice in such cases that the chieftain would bring the offender before the people and declare him excluded and should be rejected by all of them. The Greeks also knew this system; they called the expelled "the person denied of God's protection." Also the Saxons had followed the same system and from them it passed to the British. According to the English Law, such a man is called an "outlaw"; he could be killed at any time and his property could also be spoiled.

B. Handing Offender Over:
This is another type of reconciliation. The tribe would hand over the culprit to the victim or to his community for retaliation. Articles used in doing the harm in question would also be delivered together with the offender. The Roman Law included a number of applications of this system. The head of the family, for example, was responsible for any damage made by any member of his family or by a tamed animal he was keeping. He had to hand over the causer of damage to the victim or his people or pay a specific fine as ransom.

Even the Greek Law had adopted the same system. It relieved the family of responsibility if it would deliver the offender, whether he was a person, an animal or an inorganic substance, to the victim or his community. Also the Islamic Law had applied the safe principle. It was unanimously agreed to by the Muslim jurists that if a slave had committed an offence, his master was compelled either to hand him over to the victim or to pay a ransom.

The same system has also been accepted by modern laws. According to Clause 30 of the Egyptian Maritime Trade Law, a ship would be given by its owners to any creditors whose debts remained unpaid for any reason other than negligence on the part of the captain.

The ancient English Law had enjoined that any criminal had to cede the object with which he killed some one else.

C. Retaliation
Previously, revenge was not taken only from the offender, but from his community too, unless the community expelled the offender or handed him over the victim's people. But such communities had developed with the development of the authority of their chiefs who persuaded their peoples not to resort to fighting and to be satisfied only with punishing the offender alone. The chief of the victim's community also had to convince his people to accept the punishment inflicted on the offender and not to use force. With the passage of time, the communities became familiar with the system of punishment which superseded individual fightings.

According to the Roman Law, if someone offended someone else ,the victim was to choose either to take a certain amount of money or to do to the offender the same injury he had inflicted on him.

D. Blood-Money
With the advancement of primitive communities, the system of retribution was replaced by another system which was based on giving satisfaction to the victim or his community. The offender would either express his regret for what he had done and ask for pardon and mercy, or pay a sum of money, or a number of the slaves, or some heads of his cattle, in compensation for the damage caused to the victim, on one hand, and in an attempt to persuade the victim's community to for sake revenge and incline to peace on the other. The offender's community would help the offender by contributing to the money which was to be paid as compensation.

In this case, the compensation was distributed among the members of the victim's community, but, notwithstanding, the latter's community was not compelled to accept the blood-money; instead, it would ask for revenge.

The blood-money was fixed in agreement between the two disputing parties and according to the magnitude of damage done. This kind of blood-money was called "Optional Blood-Money". When the state expanded, together with its various capabilities) it made the blood- money obligatory and outlawed personal vengeance and forced the victim to accept the blood-money. The Babylonian and Assyrian Laws made it obligatory on makers of particular offences to pay to the victim compensation which differed in value according to the social status of the victim. If someone robbed someone else of something, the thief had to pay ten-fold the value of what he had stolen if the owner of the thing was a member of the Moshkino class. If an article was stolen from any sacred temple, the thief had to pay thirty times the value of what he had stolen.

Islamic Law:
The Holy Quran has presretain more than one verse. By retaliation, the victim and his community would be content and blood was not shed. One of these verses reads as follows: "O, you who believe retaliation is prescribed for you in the matter of the slain; the free for the free, and the slave for the slave, and the female for the female"48 Another verse states: "And there is life for you in retaliation. O, men of under standing, that you may guard yourselves."49 In another place, the Quran says: "The sacred month for the sacred  month, and retaliation is allowed in sacred things.

Whoever then acts aggressively against you, inflict injury on him according to the injury he has inflicted on you and keep your duty to Allah, and know that Allah is with those who keep their duty.50

Retaliation was known to the ancient Arabs and when Islam was introduced, it approved it, but with some amendments. Islam has fixed the amount to be paid as blood money in cases of homicide. The Quran says," And he who kills a believer by mistake should free a believing slave, and blood-money should be paid to his people." 51

 2 - Reconciliation
In Positive Laws:
The acceptance by a victim of an offence does not relieve the offender from punishment. This is the essence of the positive law. In the Egyptian Criminal Law, the system of reconciliation had not been vastly applied in the ancient legislation. According to the Law, a penalty for an adulteress, who was pardoned by her husband and continued to live with him, could be dropped. In conspiracies, an accomplice in planning of a crime would be acquitted if he would inform the authorities of the remaining accomplices and help in getting them arrested. But the new Law has added some other offences to those which could be settled by reconciliation, among them were the crime of libel, desertion from the family and shefts among lineal consanguinity or between husband and wife.

A study of the positive legislator's tendency will come out with the following conclusions
1 - The legislator wanted to expand the sphere of offences which might be settled by reconciliation with the in tention of giving them the characteristic of private offences.

2 - Offences which would be settled by reconciliation had a special character. These include the offences which gravely threatened the State's security. In such cases, the State itself might have interest in reconciliation as this might lead to the arrest of most of the culprits. The State would acquit whoever helped in the arrest of offenders. Some other offences might threaten people's honour; and to protect one's honour is better than to defame him. As regards contraventions, these were so insignificant that the judicature showed no great concern about them and reconciliation here would save the judge's time as well as the State's money.

Though reconciliation in these three cases seemed to be in the interest of individuals, and not of the whole community, reconciliation was in the public interest which sought keeping order and convential rules of behaviour.

Reconciliation in Islamic Law:
The Islamic Law preceded all other laws in formulating a rigorous system to deal with one of the most dangerous crimes committed against the community. These were the crimes of wilful homicide which entailed death sentences. Included in these crimes were those of beating to death, grievous hurt short of murder, or causing permanent infirmity. In such cases, reconciliation was optional, not obligatory. As a condition, the victim, if remained alive, had to give approval to the reconciliation. If he was dead, acceptance must be secured from his next of kin.

The Holy Quran states "O, you who believe : retaliation is prescribed for you in the matter of the slain; the free for the free, and the slave for the slave, and the female for the female. But if remission is made to one by his aggrieved brother, persecution for blood-wit should be according to usage, and payment to him in a good manner. This is an alleviation from your Lord and a mercy. Whoever exceeds the limits after this will have a painful chastisement. And there is life for you in retaliation, O, men of understanding that you may guard yourselves." 52

Crimes of involuntary manslaughter were also compounded for by agreement. The Quran explains: "And a believer would not kill a believer except by mistake; and he who kills a believer by mistake should free a believing slave, and blood-money should be paid to his people unless they remit it as alms. But if he be from a tribe hostile to you and he is a believer, the freeing of a believing slave suffices. And if he be from a tribe between whom and there is a covenant, the blood-money should be paid to his people along with the freeing of a believing slave. But he who has not the means should fast for two months successively - a penance from Allah. And Allah is ever-Knowing, Wise. 53

The Muslim legislator had made the payment of blood money-obligatory and, as a consequence, it was the right of the victim's second of kin to get it. Blood-money was different from criminal mulct. According to the positive law, the latter is paid to the State's treasury.

It is to be noted that whenever the blood-money was agreed to, it had to be paid, either by freeing a believing slave or by payment in kind, in gold or in silver. If the murderer failed to pay the blood-money, it had to be relinquished for infeasibility In such a case, reconciliation was turned over into repentance 54 This was in conformity with God's saying: "But he who has not the means. should fast for two months succeeively a penance from Allah. And Allah is ever-Knowing, wise".

Reconciliation must not be equalled to pardon if the offender declares penance. Pardoning the repentant offender was the right of the ruler. It was the ruler who would either grant him pardon or punish him. But reconciliation was the right of the victim, whether he was a member of the community, or the State itself. Reconciliation was warranted whether the offender expressed repentance or not.

But what is the use of reconciliation in crimes of mudrer ? What is the harm in effecting reconciliation and what are the methods which would be followed to parry any harm it may do, if there would be any such harm ?

Reconciliation has many advantages:
1-By reconciliation, a human-being's life is spared. Such a person might be highly-placed in his community. The offender might possess rare qualities which no one else would possess. These qualities might be vocational, political or military, or the like.

2- To pardon the offender by the victim is better than to put the former in jail. Imprisonment is calumnious and demoralising and it has had effects on prisoners. It might be alleged that any murderer deserves to receive capital punishment, and that to execute a murderer would not cost the State anything.

In reply, it could be stated that according to the positive law, death sentences could be commuted into hard labour sentences, which in turn are a type of imprisonment. In most cases of homicide, as prescribed by positive laws, murderers might be given only hard labour sentences. This kind of punishment is not economical as it would prevent one from doing any productive work. This penalty, moreovev, will never reform a criminal it may impel him to do more evil.

3- If the culprit is pardoned by the victim's next of kin or by the victim himself if he was still alive, the culprit would certainly feel and acknowledge the favour and benefaction the victim had had extended to him and that he has been granted life whereas he deserved to be dead. Moreover, in pardoning a criminal after having been doomed to punishment, a human touch and a spirit of tolerance would prevail. As a result, hatred in people's hearts would diminish and disappear and feud crimes, which increase in number in the Arab countries which do not usually resort to reconciliation' go on the wane. It is noticed that as a result of only one murder, a number of other lives might be lost over decades even inside one family. Had the victim or his next of kin willingly pardoned the culprit, hatred and enmity would have completely been eliminated from people's souls.

As for the disadvantages of this system, it might be alleged that the blood-money had not been paid to the victim or his next of kin, and the victim, therefore, would certainly lose his right in retaliation. In reply, we say that in crimes of intentional murder, the like, the blood-money should have been paid otherwise retaliation would become obligatory.

In cases of murder by mistake, and in similar cases, the blood-money was obligatory and when it had not paid from the offender's own purse, it had to be collectively paid, by his family or his tribe. If the money had not been paid even by the family or the tribe, it had to be taken from the State's treasury (Baitul Mal). This was the viewpoint of some jurisprudents which we fully support.

It might also be alleged that a wealthy criminal would not fear penalty since he had only to pay the blood money.This would have encouraged him to commit his crime. In our view, this sort of offender would behave otherwise. As regards cases of intentional murder, and the like, the ruler had the right to kill the murderer in retaliation even if the victim or his next of kin had pardoned the culprit. This would happen when the ruler became sure that the culprit harboured perfidy due to his becoming a habitual offender.

Pursuing of Proceedings on victim's Complaint:
According to the Egyptian Law victim has been left free to take legal action in some particular cases. These cases cannot be investigated except after a complaint submitted by him.

These crimes are those of:
1 - Slander maliciously uttered to the injury of a public government servant, a person representing in any capacity the public, or a person charged with a public responsibility, all of them being done during their discharge of their duties;
2 - Adultery by the wife;
3 - Adultery by the husband;
4 - Showing indecency to a woman even in private;
5 - Undelivery of a minor to a legal guardian;
6 - Non-payment of wife's alimony, of expenses for child's nursing, or of a house rent fixed by a court's decision ;
7 - Defamation:
8 - Libel; and,
9- Defamation and libel through publicity, injuring honour or detracting of family dignity.

There are other offences that despite being referred to in the Law of Criminal Procedures yet are included in the Penal Law itself or in some other special laws.

They are:
1-Theft from collateral ancestors or husbands or wives, 55 and,
2 - Outbreak by a juvenile of father's or guardian's control.

In these cases, the victim's complaint must be objective and unconditioned and the offender should be accurately named. A complaint by a victim is not entertained if it is submitted three months after he has been informed of the offence or the personality of the offender, unless it is otherwise prescribed.

Recantation of Complaint :
A victim or his representative can recant a complaint any time as long as it was still being investigated by public prosecution or court, whether this was before or after filing the case and even after passing a sentence by a court of first instance. But if a final decision is taken, a complaint cannot be recanted except in two special cases and these were clearly prescribed by the law.

They are the crimes of adultery by a wife who was par doned by her husband who willingly agreed to resume relationship with her, and of theft from husband, wife or kith and kin.

Consequences of Recantation:
1- According to law, a criminal case is completely dismissed by recantation. If the case is still in the phase of preliminary examination or deduction, the public prosecution would treat the case as closed. But if the case was still being investigated by a competent court, the defendant is to be aquitted of the charge by extinction of obligations. Recantation in such a case does not supersede the victim's right to a civil indemnity to be claimed before a civil court. But in cases of adultery, recantation supersedes any such right because such a claim in the court would make the scandal widely known.

2 - Recantation to one of the defendants is not neces sarily applicable to other defendants in a case. The crime of adultery was exempted from this condition because of its particular nature! In adultery cases, adulterer is acquitted of the crime when the adulteress is acquitted and gets involved in the case as long as she is also being involved. The case is the same with the adultress; she is acquitted with the acquittal of the adulterer husband, and is involved in the case as long as he is also being involved.

Blood-Money in Islam and Compensation in Positive Laws The principle of compensation in positive laws is undemocratic. Compensation is not fixed on an equitable basis; it is fixed according to the magnitude of damage done to the heirs of a victim. If the victim is poor, the offender would pay only a paltry compensation, but if he was highly-placed in the community, he would get significant compensation. This differentiation is wrong. It is not acceptable to the Islamic Law. According to Islam, people are equal whether they are alive or dead.

When a positive law gives a poor man an insignificant compensation, the law will be doing injustice to the man, because the affliction on the poor man's heirs is certainly more grave than that on the wealthy. After a murder of a poor man, his family may suffer from hunger or be formed `to search for a new way for earning livlihood after the death of its bread-winner. Taking this into consideration , the Islamic Law equalised the blood-money especially in cases when it was paid obligatory. As regards the optional blood-money paid as retaliation, it was fixed in agreement by all parties to the offence.

Another characteristic of the blood-money as prescribed by the Islamic Law was that it was paid either in kind or in cash, in gold or in silver, This system becomes more advantageous as a result of fluctuation of prices. Had the blood-money been paid in cash and according to official rates and the purchasing power of currency diminished, the blood-money would have certainly been valueless. But if the blood-money was paid in kind or in cash, in gold or in silver, its value would not have been affected.

Some European countries are following a system similar to that of Islam. There, debts, even if they are fixed, are re-paid according to gold rate. If a man had borrowed, 1.000 pounds in 1900, to be repayable, for example, in 1970, according to the present legal tender of banknotes, he would certainly suffer in-justice, because the 1.000 pounds in 1900 would equal in value about 1.000 pounds in 1970. And vice-versa. And because of this, these laws stipulated that debts are to be repaid according to gold rate.

CHAPTER FIVE
PROOF PROCEDURES
1- Oath:
Oath is a means of proof. If a murder was committed, but without witnesses of the crime, the kith and kin of the murdered could name a murderer but on oath. Fifty oaths had to be sworn in this case. If the accusers were fifty in number, each one of them had to make an oath, and if they were less in number, one could make more than one oath so that the fifty oaths could all be sworn. If fifty persons swore that a certain man was the culprit, this was enough to convict him as murderer. If they failed to make such an oath, the suspected person could make fifty oaths that he had not committed the crime, after which action he had to be acquitted.

Taking oath was practised before the advent of Islam, in the days of Ignorance. When Islam was introduced, the practice was approved and made lawful so that blood shed stopped and crime fought. If the criminal was not named under oath, more killings could have taken place. The Quran states that "whoever is slain unjustly, We have indeed given to his heir authority , but let him not exceed the limit in slaying . Surely he will be helped"56 "Authority" here was interpreted by the Prophet Muhammad as "oath" and in more than a saying, the Prophet had sanctioned the oath. When Abdullah Ibn Sahl was found killed in a well, the Prophet Muhammad asked his relatives to name the murderer under oath.

Jurisprudents are unanimously agreed to the legality of oath. Besides the four "Sunni" sects, Al-Zahiriyya and the “Shiites” are of the same view. But some jurists dismissed it as an evidence and mentioned in support to their view the order which was issued by Umar Ibn Abdel Aziz to his agents and judges that oath should not be accepted as evidence. Those who supported the unlawfulness of oath argued that it was contrary to religious dictates. Anyone who would name a murderer under oath was not required to have had really seen the murder. He could make the oath by suspicion and clues. To name a murderer by supposition was serious, and this was why Umar Ibn Abdel Aziz had rejected accusation of murder by oath. Al-Bukhari quoted Abou Qitabah as having reported that at a meeting with Umar Ibn Abdel Aziz, Umar asked him about evidence on oath.

Abou Qilabah replied:
O, Leader of the Believers. Suppose that fifty dignitaries from among the Arabs and chieftains have given evidence that a certain man had committed adultery in Damascus, but without seeing him do the act, would you stone this man to death? " The Caliph said "No". Then Abou Qilabah said: "If fifty people gave evidence that a certain man had stolen something in Emessa , but without seeing him doing the act, would you cut off his hand?" The Emir said: "No". Abou Qilabab said: "Then how it could be that evidence by such people who had never seen a murderer at a remote place, because they were still living here, be accepted ?"

Umar Ibn Abdel Aziz then decreed that if only two men had witnessed a murder, their witness would be accepted; but if fifty people gave evidence on a murder only by oath, their oath was to be rejected. However, it was appropriate to take into consideration the conviction by oath, because in such a case the blood of a murdered Muslim should not have been wasted. No Muslim blood had to be shed illegally. To the Imam Abou Hanifah, the legality of oath was based on the principle of the inability of the inhabitants of the locality in which the murdered was found to give suitable protection to the victim. Their responsibility in such a case was a civil liability.

To reconcile the two points of view, the viewpoint of the Imam Abou Hanifah on the legality of oath could be taken into account. He opined that if an accused, or more than one accused, made fifty oaths that he or they had not committed a crime, he or they should be acquitted. But if the kith and kin of the murdered were to make conviction under oath, the oath must be made on what they had already witnessed.

To Abou Hanifah, if an accused of murder failed to take oath that he had not committed the crime, he had to pay the blood-money and not be exposed to retaliation. This principle reduces the severity of its opposition by other jurists.

But the Imams Malik, Al-Shafei and Ahmed were of the view that oath had to be taken to prove a crime, and not to deny it. Oath, then, the kith and kin of the murdered had to be made by However, taking oath does not contradict the established means of evidence, whether the oath was required to be made by the kith and kin of the murdered or by those charged with the murder. Oath alone is not accepted to prove murder; it has to be supported by other evidences and clues. Judgement by clue is permissible. If the murder was committed deliberately, retaliation was to be made; and if it was a murder by mistake, blood-money was to be paid. According to Abou Hanifah, the blood-money was to be paid in both the cases; and I am of the same view. But according to all the Islamic sects, if there were witnesses of a crime, oath was not needed.

2. Upright Testimony
According to Islam one is not to be convicted of an offence by any other man's evidence unless the witness was credible. The Quran says : "And call to witness two just ones from among you."57

Once, a man came to the Caliph Umar Ibn Al Khattab to seek his advice and directives about a new custom which the people had been following, giving false testimony. In reply, the Caliph decreed that no-one under Islam would be even arrested without testimony.

Justice is righteousness, and there is no limit for righteousness. It is a discretional issue.

Abou Hanifah opined that a ruler was not to dispute the credibility of any witness because according to the Prophet Muhammad, all the Muslims are credible and they deal with each other in justice and fair play, except those who were punished for slander." This was also the same view of the Caliph Umar Ibn Al-Khattab. Some jurists were of the view that before giving evidence, the witnesses' credibility must be investigated by the judge. If the adversaries attacked the credibility of witnesses, their credibility must first be ascertained. If the judge failed to do so, the witness's credibility had then to be recommended by some people known to the judge. These people must be from among the man's neighbours or fellow-countrymen. The recommendation might be made covertly or overtly in the presence of the witness.

PART FOUR
Objctives Fighting of Crime.
CHAPTER ONE
Objective Fighting of Crime
Diversification of Penalties
Crimes are interdicted by the Islamic Law and to combat them God has imposed specific and discretional punishments. The interdiction is either a commitment of an act which is prohibited by the religion or the renounce of a duty which was religiously Prescribed. These interdictions were so incriminated because they encompassed aggression on one of the five Islamic recognized and established rights, namely, self-protection; defence of the faith; protection of reason, property and honour.

The Muslim jurisprudents have divided crimes as regards their gravity into three categories. Seven crimes were singled It with specific penalty imposed on them. They are those of adultery defamation of chaste women; tyranny and oppression; highway robberies; drinking of alcohol; and apostasy.

Retaliation, or blood-money, are prescribed for physical crimes against self; and this is the second category. The last is the minor offences for which punishment has been left to the discretion of the judge. Various punishements had been imposed by Muslim legislators on such offences.

Positive laws tend to specify punishments; they pass sentences of execution, imprisonment in various degrees, and fine. In most of the offences, the punishment, as imposed by the enacted laws, is the imprisonment. According to the Islamic Law, penalties are individualised.

1- In cases of apostasy and retaliation, the offender is to be killed by sword. A Prophetic saying orders, Whoever turns back from his religion must be killed. The Quran also states And whoever is slain unjustly, We hove indeed given to his heir authority but let him not exceed the limit in slaying. Surely he will be helped (by the authorities) 58

2 - For a married adulterer or adulteress, they have to be stoned to death. The Prophet said "In matrimony, a child is his father's son; and the adulterer must be stoned to death."

3- Flogging is prescribed for the drinker of alcohol, for the slanderer, and for the unmarried adulterer or adulteress. Flogging of the user of wine was unanimously agreed to by Muslim jurists. As for the slanderer, the Quran says:" And those who accuse free women and bring not for witnesses, flog them with eighty stripes."59 For the adulterer, God says :"The adulteress and the adulterer, flog each of them with a hundred stripes." 60

4- Islam prescribed crucifixion in certain cases God says "The only punishment of those who wage war against Allah and His Messenger and strive to make mischief in the land is that they should be murdered, or crucified, their hands and their feet should be cut off on opposite sides, or they should be imprisoned."61

5- Another kind of punishment by Islam was the cutting off of hands and feet opposite sides. The Quran says : "The only punishment of those who wage : against Allah and His Messenger and strive to make mischief in the land is that they should be murdered , or crucified, or their hands and their feet should be cut off on opposite sides, or they should be banished from the land "62

6 - Also prescribed was "banishment from the land", which literally meant "imprisonment."

7 - The hands of a theif must be cut off. God orders : "And as for the man and the woman addicted to theft, cut off their hands."63

8 - Imprisonment is for the apostate woman. Opinions of Muslim jurists about the apostate woman are different. Some of them including the Imam Abou Hanifah, opine that such a woman must be forced to return to Islam by imprisonment and beating. Some others, including Al-Hasan and Qatadah, said that she should be enthraled. The two Caliphs Abou Bakr and Ali and the two Imams Malik and Al-Shafei decreed that she had to be killed exactly as the apostate man.

9- For Women was prescribed for the apostate women.

10- For women guilty of lesbianism, their liberty, according to some jurists, must be curtailed by detaining them in their houses. The Quran says "And as for those of your women who are quilty of an indecency, call to witness against them four witnesses from among you; so if they bear witness, confine them to the houses until death takes them away or Allah opens a way for them" 64

Besides, there are other related punishments, as cancellation of inheritance for the apostate.

As for the offences the punishment for which was left to the discretion of the judge, their punishments were many in number. Among these punishments were the payment of compensation 65 the seizure of money in cases of abomination; beating; flogging; animadversion; seclusion from the community; etc...

In the West, sentences of imprisonment in degrees are passed in almost all the offences, various and this is the prevailing tendency of our positive laws But the Islamic Law basically prefers flogging.
To compare the effect of flogging to imprisonment, especially in our present times, there is no better than to reproduce here extracts from an article which was written by Dr. Muhammad Mokhtar Al-Qadi on The Punishment by Flogging, in Al-Azhar monthly magazine of April, 1966.

The article runs as follows:-
Flogging is an old kind of punishment which was mentioned in institutional Books such as the Torah and the Holy Quran and prescribed by the Prophet Muhammad too. It was applied in a number of cases in a number of positive laws, such as the English and French laws. Until recently, it was practised in Egypt on borstal criminals as well as in schools for minor offences. But this punishment was finally abolished in the country.

"The effectiveness of this punishment was argued everywhere, and in Egypt in particular. The only argument of those who opposed this punishment was that it was so brutal that it affected the offender psychologically and made him feel self- contempt because it was only the animal which was beaten and flogged.

This argument lacks logic, though it lacks no intelligence. Like flogging, imprisonment also hurts the offender psychologically and makes him equal to animals. The difference between a human being and an animal is the former's mind and the liberty he enjoys. An animal is deprived by nature of reason; as for freedom, the animal is "artificially" deprived of it, only because man wanted it not to be free and to remain always subservient to him. He enslaved a variety of animals and put some of them in cages either for enjoyment, like the birds, or for their flesh, skin or milk, such as the camel, the sheep, the cow, or for riding, such as the mule, the donkey, and the like. If a human being, who is naturally fond of freedom, is imprisoned, this becomes an insult, making him equal to animals. In such a case, he would certainly suffer from inferiority complexes and realise that he was badly treated because he had committed an indecency.

"This wrong impression made people loathe flogging and favour imprisonment in its place. But, in fact, both punishments lead to the same humiliation. The opponents of flogging are either those of the West who, out of fanaticism, oppose a punishment which had been lawfully prescribed by the Holy Quran and Prophetic sayings, thus, they indirectly attack both the sources, or those of Eastern extraction, but who lived in Europe and were imbued with European culture, taking its side and parrotly resounding and repeating their masters' argumentations. Not only that; this kind of people try to add to whatever they hear and exaggerate in introducing the arguments.

Prisons may reform an offender who could not be disciplined by the society. By putting such a man behind bars, where he easily finds his sustenance, the society will live in safety. But in most of the cases, a prisoner can never be reformed in a prison. His behaviour may become more aggressive than before. Prisons, in fact, are institutions where the inmates to be habitua offenders.

There, they learn freach other lessons in stratagem and how crimes are committed or a punishment is evaded or a policeman deceived or assailed. Friendship is being usually established among the prisoners and agreements and promises are made so that they, individually or collectively, would take revenge from the community after their release.

`Even inside prisons, offences of narcotic smuggling, guards bribing, and other numerous and inexplicable in decent offences are made.

`Prisons, moreover, are institutions on which the State spends a lot of money to provide the prisoners with food, water, cloth, beds, and instruction. This money is better spent on any other productive work, provided another type of effective punishment, replacing imprisonment, is found.

"In prisons, human energy becomes impotent. Even those who are given work within the prison's four walls can never happy in so doing.

Outside the prisons, the prisoners' families would certainly be deprived of their supporters' care with the result that the children would go astray and their women be provided a chance to lead an easy life. A wife may also ask for divorce of her imprisoned husband and remarry another man whom she would bear more children. Her former children would certainly suffer from want, while the new offspring may live in sufficiency. Hatred, covetousness and spite would unnecessarily harbour their souls, and this only because the former head of the family was in prison and the wife was unable to live without a husband.

"When a prisoner is released, he remains branded with guilt and denied employment, whether he was a government servant or a worker. When Victor Hugo wrote "The Miserables", he, in fact, was attacking, and condemning, the prisons' systems and the way of life a prisoner would lead after his release.

This is the condition of those who are sent to jail in spite of their own teeth. But there is another faction of people who try their best to be driven into prisons only to have sustenance free of charge and lead a life relatively more comfortable for them than in the open. They would make offences without any reason or motivation, simply to be sent to jail where they will guarantee for themselves the necessities of life.

To put in jail such people who prefer laziness and indolence to toil and labour is a crime committed against the society as well as the national expenditure.

"As regards flogging, it is, in more than one phase, better than imprisonment. Firstly; it is an economical punishment which does not require from the state more than a stick or a whip, and the services of a man who would use them. After being flogged, the offender can go back home probably unnoticed by anyone else.

This punishment is effected in a very short time and the offender, unlike the prisoner, gets off without scandal or humiliation. The offender will not lose his work and can re-join his family without his wife suing for divorce, without seeing his children going astray, or his daughters leading a life beyond his control.

Flogging, moreover, is more deterrent than imprisonment, especially in minor offences. It is physically painful and its pangs are immediate. But imprisonment, though also painful, is slow in outcome. On the other hand, flogging can be described as democratic, because its pangs afflict everyone, young and old, poor and rich. Contrary to that is the imprisonment which is also painful and humiliating, but only to some. Some others may welcome it. In poor communities, where life outside a prison differs from that inside it, more degenerated in the former case than in the latter, prisons would never reform a criminal.

It is, therefore, better for the State to spend its funds on schools, hospitals, rebuilding of society or industrial development rather than on prisons. Though criminals, prisoners' energies must not be crippled. It is true that criminals must be punished, but by a system which will not deter them from production to add to the national income. By so doing, husbands would be left to support their families and look after their children. Imprisonment hurts not only the offender, but also his family and in such a case it is not only the culprit who is punished, but also some other people who committed no offence whatsoever. And this is surely against the principle followed in imposing penalties."

CHAPTER TWO
Severity of Punishment
Criminal Gravity and Dacoity
An offender may commit an indictable offence and the offence may be grave, but, nevertheless, the offence may receive no great attention by the community. In any community, murder, larceny and drinking of wines are common crimes. But there are other offences which are criminally grave and deserve punishment of more severity than those prescribed by laws, such as in the case of persistent offenders, offences of anal coitus, and adultery with a married wife. Such crimes will certainly shake the very foundation of any community, agitate the feelings and sentiments, and do with its ideologies.

These crimes should not be punished by the normal restrictive ordinances or by a punishment left to the discretion of a judge. These crimes fall under the category of dacoity.

Dacoity is not confined to a certain offence; it is a crime which suggests heinous and unusual culprit. Among such crimes are highway robbery, anti-state activity and adultery with married persons. For this reason, God has imposed on these crimes a variety of penalties the application of which was left to the ruler to decide.

Referring to dacoity God says "The only punishment of those who wage war against Allah and His Messenger and strive to make mischief in the land is that they should be murdered, or crucified, or their hands and their feet should be cut off on opposite sides, or they should be imprisoned. This shall be disgrace for them in this world and in the Hereafter they shall have a grievous chastisement". 66

Dacoity could be done by only one act, but such an act may entail grave consequences. From studies of the Islamic Laws and Muslim jurists' decisions one can deduce that if an offender persists on committing even minor offences the ruler can impose on him the severest of prescribed penalties. In crimes with prescribed penalties, capital punishment might be imposed though the prescribed penalty for the same crime was less in severity. But such a verdict could not be passed except under two conditions; that the culprit has been persistent offender, and that the crime itself was grave.

Persistent offenders deserve to receive the severest of punishment and in one of his sayings the Prophet Muhammad said : "Whoever drinks wines must be flogged; and if he continues to do so four times, he must be killed." It has also been reported that whoever steals five times must be killed. Habitual murderer is also to be killed even if he comes to terms with the murdered next of kins.

A number of Muslim jurists had called for severe punishments for grave crimes. Ibn Abbas quoted the Prophet Muhammad as having said : "Whoever commits sodomy must be killed." Al-Barra' Ibn Azib narrated that once his uncle Abou Barda passed him. He asked him about his destination. The man replied :I have been sent by the Prophet Muhammad to kill a man who had married his step-mother. Abdullah Ibn Abbas decreed," He who commits adultery with a married woman is to be killed." The Prophet Muhammad said : "I whoever tries to stir up dissention among you is to be killed." The Imam Ali was quoted as having ordered that whoever committed sodomy had had to be killed. 67

According to Ibn Abedine (Vol.3, p.277), the sorcerer and the atheist must be killed even if they express repentance while on their way to execution. The Prophetic saying and the jurists' decisions are in conformity with the punishment prescribed by the Holy Quran for dacoity. If punishments are prescribed for certain offences, and though only in rare cases these punishments are more severe, punishment for minor offences could be more severe if the judge finds this necessary, because in minor offences, the punishment and the gravity of the crime are left to the judge to decide. To impose punishment heavier than the prescribed one, which reaches execution in certain cases, is recognised by positive laws.

According to the Egyptian Penal Law, an intentional murderer is punished either by hard labour life imprisonment or for only a specified period. 68 If premeditated murder was committed, the culprit is to be executed. 69 The reason for this severe punishment is that to murder someone with premeditation, after having ample time for thinking over the gravity of the crime, is an indication, or proof, of criminal gravity. This is the same in cases of murder with malice. The ordinary murderer is he who intentionally shoots his enemy when he sees him. But the wilful culprit is he who commits murder after looking for his victim for sometime and everywhere. Premeditation involves a kind of malice, but malice may lead to murder without premeditation.

In these cases, the culprit, who showed grave criminal tendency should not serve only hard labour life sentence or temporary hard labour sentence. This must be also the case with those who commit murder deliberately, but without malice. There are other crimes which are of the same nature they suggest great criminal gravity for which capital punishment must be inflicted. For ordinary thefts, which is an offence against property, imprisonment sentences are imposed. But in robbery, where physical aggression is made against people, the penalty must be severe. These are the cases when arms are used and the offence is committed under constraint during the night. These offences are sometimes considered contaventions of higher degrees, and some other times crimes.

Persistence on committing crimes entails heavy penalty and in some cases a contravention is turned into a crime. A habitual offender must not be served an ordinary punishment, but a heavy one.

CHAPTER THREE
Individualization of Punishment in Minor Offences
The minor offences for which punishment is left to the discretion of the judge demand individualization of punishment so as totally with the prevailing circumstances and the gravity of the crime. In this case, punishment is imposed according to the circumstances of each case. It is, therefore, a precautionary measure aiming at protecting the community against crime.

The Islamic Law preceded all other laws and legislations in adopting precautionary measures to protect the society against crime. While the traditional penal law prescribes a few number of punishments, such as execution, various degrees of imprisonment and fine, the Islamic Law has prescribed diversified punishments.

In cases of intentional murder, the culprit, according to the Islamic Law, was to be beheaded. In cases of injury, retaliation is prescribed an eye for an eye, and a tooth for a tooth. The adulterer with a married opposite sex was to be stoned to death, and with the unmarried, to be flogged. The same punishment was imposed on whoever defamed women.

For waging war against God, the offenders were to have their hands and feet cut off on opposite sides, or crucified, or imprisoned. In larceny, the thief's hand was to be cut off and for an apostate Muslim woman, she was to be put in jail or under house detention. For those guilty of indecency, various kinds of slight punishment were imposed.

In the Quran, God says: "And as for the two of you who are guilty of it (indecency), give them both a slight punishment; then if they repent and amend, turn aside from them Surely Allah is ever Oft-returning to mercy, the Merciful."70 Slight punishments comprise reprehension, scolding, imprisonment, banishment, etc.

Sometimes, the offender might be dismissed from the service of the government and this punishment was often imposed by Umar Ibn Al Khattab on anyone of his agents who misused authority.

One of the objective procedures which the Islamic Law had adopted before any other modern law was the imposition of punishment without prescribing a minimum or a maximum degree for it. In minor offences for which the penalty `was left to the discretion of the judge, some of the Muslim jurists theorised that flogging must not exceed ten stripes. This opinion was based on the Prophetic saying: "One should not be flogged with more than ten stripes unless he has violated a restrictive ordinance of God".

But most of the jurists, except the "Hanbalites", were of the opinion that the punishment left by the legislator to the discretion of the judge could be heavier. Flogging might exceed ten stripes and some times, the culprit might be sentenced to death. Though the English judge, since a long time, had powers greater than those of his opposite number in Latin countries, the Muslim judge had still greater powers in individualisation of punishment whenever had found such necessary for protecting the community within the penal law.

Since the discretional punishments were unqualified, the Muslim judge was in no need for any special legislation authorising him to impose exceptional other than the conventional penalties. He, for example, did not need a law for sending an offender to a reformatory or putting him under legal probation or sending him to a mental diseases hospital. As the punishment for minor offences had never been fixed either in quantity or quality, the jurists were of the view that the judge would be granted powers allowing him to take even precautionary measures in the absence of a relevant text.

He had the power to give a delinquent boy to a certain family, or any derlict woman to a reformatory, for reform The absence of a minimum degree of punishment for minor offences had given the Muslim judge the right to commute a penalty to an extent that the offender seemed to have almost been pardoned. If an offender seemed to have been responsive to reform only by censure, and not flogging or imprisonment was to be applied. These commuted penalties had often been applied in Islam.

According to the Islamic Law, penalties fell under two categories, the restrictive punishment imposed by God, and the penalty on minor offences left to the discretion of a judge.

The restrictive ordinances are applied to larceny, adultery, libel, drinking of wine. oppression and apostasy. Retaliation, though equal to a restrictive punishment, was usually practised in cases of attack on self or less than self in gravity. Retaliation and restrictive punishment were prescribed in text.

As for minor offences, their penalties were of particular character. Firstly, the punishment was imposed on undefined crimes and in these cases the judge could incriminate any action within the general principles of the Islamic Law and impose on the offender the penalty he thought fit. The judge was not to blame in incriminating any indecency for which there was no text or in passing any sentence he would find proper. It was for the Muslim judge to treat a woman's display of beauty outside her residence as an offence which would come under punishment.

 This had been done by judges despite the fact that even the Holy Quran did not prescribe any punishment for such an act. The Quran simply says "And stay in your houses and display not your beauty like the displaying of the ignorance of yore."71 Though usury was prohibited by Islam and the usurers were threatened with chastisement, Islam did not prescribe any worldly punishment for such a crime.

 Secondly, the punishment for minor offences was left as we have said to the discretion of the judge, either in quantity or quality. As regards quality, some jurists were of the opinion that in such minor offences, flogging could be absolute, without limit. In this they relied on a decision taken by the Prophet Muhammad, transmitted by Al-No'man Ibn Bashir, that anyone who would engage in sexual intercourse with a maid of his own wife, but with the maid's consent, would be flogged with one hundred stripes. But if he had done this by force, he had to be stoned to death. Commenting on the punishment by flogging with one hundred stripes Ibn Al-Qayyim said that such punishment had to be left to the judge to decide.72

It was also reported that once Umar Ibn Al-Khattab flogged Ma'an Ibn Zaida with one hundred stripes and repeated the punishment twice as punishment for forging the Prophet's seal and submitting a forged order to the State's Treasury to obtain from it something he had no right to have.73

Sectarian differences took place over the number of stripes given for minor offences. The "Hanafite" Sect were unanimously agreed to the view that punishment for minor offences should not amount to the restrictive ordinances. This, they opined, was in conformity with the Prophet's saying : "Whoever applies a punishment prescribed for a restrictive ordinance to an offence other than this is a transgressor."74

Even among those who demanded limitation of the number of stripes differences erupted as to the maximum of stripes to be imposed. The Imam Abou Hanifah theorised that in cases of libel and drinking of wine no more than 39 stripes were to be applied. This meant that the maximum of stripes had to reach 39 instead of 40.

Abou Yusuf was quoted to have made two statements. The first said that as the minimum number of stripes for free people was 80, 79 stripes would be applied to others. Man, by nature, he said, was free, and the punishment, therefore, must be 80 stripes, but one stripe was to be deducted, bringing the total to 79. In the second statement, he was quoted as having theorised that the maximum punishment for minor of fences was 75 stripes. It was said that this was also the opinion of Umar Ibn Al-khattab and Hadrat Ali.

The "Shafi'ite" Sect held the same view, but distinguished between the free man and the slave in case they committed offences. The free was to be given one less stripe in case he committed an offence. In libel, punishment would not exceed 79 stripes. For the slave, the number would not exceed 39. To some other jurists, the slave was not to get more than 10 stripes for a minor offence.

As regards the "Hanbali " Sect the Imam Ahmad was quoted as having opined that never would the punishment for a minor offence amount to that of a restrictive offence. This quotation was transmitted by Al Khargi.

Differences also emerged over the feaning of punishment for restrictive ordinance." Some scholars said that if a slave drank wine or commited a libel, the maximum number of stripes to be applied was 40. Some other jurists said that in any certain offence, the nature of the crime had to be examined first, and if it was equal to a libel in its various dimensions, the punishment should not be heavier than that of a slanderer. If the crime was equal to adultery, the punishment was to be less than that for adultery. In the first case, the punishment would be 79 stripes, the punishment being 80 and in the second, 99, the punishment being 100. In all the cases there should be distinction between the free man and the slave.

As it has been mentioned earlier, the Imam Ahmad was of the view that in minor offences no more than 10 stripes would be applied as this was in conformity with a Prophetic saying. Excluded from this category was the culprit who would make sexual intercourse with his wife's maid, without the maid's consent. Such a man would receive 100 stripes. Following the Prophet's order, as reported by Abou Baradah, whoever drank wine during the month of Ramadan was to be flogged with 20 stripes. The Imam Ali decreed that any stranger who would be found in one bed with a woman must be flogged with 100 stripes.

As for the "Maliki' Sect, they were of the view that there should be no maximum for flogging even though it exceeded the prescribed punishments. In this they depended on the sayings of the Prophet and his Companions, which were considered by other Sects as exceptions. To the "Malikis", these sayings were mandatory and had to be observed. Other Prophetic sayings which prescribed a maximum for a punishment, the "Malikis" said, had to be observed only during the Prophet's life time, when the criminals were not in need for reform for more than that.

I, personally, tend to hold this view which has its own weight. Punishment for offences, in fact, differs according to the differences among offenders as well as offences. Some of the crimes are more grave than those for which flogging was prescribed as punishment. Some criminals, on the other hand, were not deterred by flogging and for this reason the number of stripes had to be left to the ruler to decide so that the punishment applied would serve the purpose aimed by the law. This opinion is in conformity with the general principle of minor offences that the punishment had not to be fixed, but left to the ruler to decide.

Punishments for minor offences also differ in kind. There are heavy. as well as moderate punishments. The punishment, again, may be physical or moral. If flogging was not imposed, exclusion was decreed. It was reported that the Prophet Muhammad had ordered his Companions to keep themselves away from those who held back and failed to participate in the Tabouk expedition, namely, Ka'ab Ibn Malik, Murarah lbn Rabia' Al-A'meri and Hilal Ibn Umayyah Al-Waqifi. These people had been forsaken fifty nights during which time-no-one talked or greeted them.

 This ban continued until they expressed their regret and repented. On this occasion, God said "And He turned in mercy to the three who were left behind; until the earth, vast as it is, became strait to them and their souls were also straitened to them ; and they knew that there was no refuge from Allah but in Him. Then He turned to them in mercy that they might turn to Him. Surely Allah - He is the Oft-returning to mercy, the Merciful". 75

Among these punishments was the animadversion. It was reported that once Abou Zarr had called another man names and taunted him with his mother. The Prophet Muhammad asked him : "Have you, Abou Zarr, upbraided him with his mother ? You are a man who are still following the practices of the Days of Ignorance". Abou Dawud reported that once a drunkard was brought to the Prophet Muhammad. The Prophet ordered the Muslims to scold the man. Another version of the story says that the Prophet ordered that the man be beaten, and not only scolded. Another punishment was imprisonment. This punishment needs not to be verified because there were prisons at that time and some of them were built by Umar Ibn Al-Khattab.

Banishment had also been decreed. In the "Al-Mabsut". it was reported that the Prophet Muhammad had ordered that effiminates should be expelled from Medina. Fine was another punishment. In the "A'lam Al-Muwaqi'in, the slaves of Hatib Ibn Abi Balta' once stole a camel of one of the Muzaynah tribe. The man took the thieves to Umar. They admitted the crime. Umar wanted their hands to be cut off, but later changed his mind, saying to their master Hatib "`By God ; Had I not known that you always give them hard work to do, leaving them also to bear starvation, forcing them to disobey God's orders; I would cut off their hands.

By God while I will spare them this penalty, I will impose on you a heavy fine". Then, Umar asked the Muzaynah tribesman "How much does your camel cost? " The man said "Four hundred". Umar ordered Hatib "Go away, and give him eight hundred." Another punishment was to throw the culprit into fire; The Imam Ali had ordered that apostates and those who opposed and refused to accept Abou Bakr and Umar as Caliphs to be burnt.

Abou Bakr had also ordered that homosexuals be thrown in fire. Other punishments included warning confiscation of property and defamation. But imprisonment for some minor offences had reached in some cases execution though it was neither a decreed penalty nor made in retaliation. Al-Tirmidhi, Al-Nisaei and Abou Dawoud reported that once a man married his step-mother. The Holy Prophet ordered Abou Baradah to decapitate him and decreed that anyone who would consumate a prohibited marriage must be killed. This, of course, was not a prescribed punishment, but a discretional one. In this case, the Prophet Muhammad did not make any distinction between a married or an unmarried person.

Among the punishments which were previously imposed on minor offences were blackening the criminal's face with paint, or forcing the offender to ride a donkey or a mule in reverse. Once, the Caliph Umar blackened the face of a man who gave false evidence and forced him to ride a mule in reverse.76

Combating crime with penalty differs according to the type of criminals and the gravity of the crime. Some people may commit the same crime, but punishment would differ in magnitude according to the offender's character and behaviour. This is likely to appear as a legal inequality, but, in fact, it is not so. Because by and large, the punishment is imposed to serve as a deterrent. Some offenders are deterred only by a slight punishment.

Discretionary punishments should be imposed only to serve the purpose for which they were imposed. This was the principle called for Bentham in the modern times. If deterrence could be realised by the slightest of punishments, no heavy punishment is then required. If deterrence cannot be materialised except by a heavy punishment, the punishment must not be reduced. The higher classes, for instance, are deterred by slight punishment, while the lower classes are not by such. One of the Prophetic sayings is: "Help the dignified and the venerable except if they commit an offence." 77

Islam moreover, has imposed penalties to severe as protective and precautionary  measures. Once, Umar Ibn Al-Khattab ordered that the head of Nasr Ibn Al-Hajjaj be shaved simply because his physical beauty was lauded by the women, although the man was known for his chastity. But when the man's head was shaved, he appeared not to have lost anything of his glamour. Umar had no alternative but to expel him from the city, without the man having committed any crime. But it was a precautionary measure, as seduction was inevitable.

CHAPTER FOUR
Combat of Crime by Threatening of Punishment in the Hereafter
To Islam, a criminal is to be punished in this world and in most of the cases in the Hereafter. A number of examples can be supplied in this context.

On retaliation, for instance a number of verses were contained in the Quran. The Surat "Al-Baqarah" says "O, you who believe , retaliation is prescribed for you in the matter of the slain the free for the free ,and the slave for the slave, and the female for the female. But if remssion is made to one by his aggrieved brother, prosecution for blood-wit should be according to usage, and payment to him in a good manner. This is an alleviation from your Lord and a mercy. Whoever exceeds the limit after this will have a painful chastisement" 78

In this Quranic verse, the worldly penalty is mentioned and in the meantime, another punishment was prescribed in the Hereafter for those who would repeat the crime. In another verse, only has the punishment in the Hereafter been mentioned rather than the worldly punishment. God says : "And whoever kills a believer intentionally, his punishment is hell, abiding therein And Allah's wrath is with him and He has cursed him and prepared for him a grievous chastisement." 79

Another verse mentions only the earthly punishment. It says "And whoever is slain unjustly, we have indeed given to his her authority - but Let him not exceed the limit in slaying. surely he will be helped " 80

As regards larceny, God says "And as for the man and the woman addicted to theft, cut off their hands as a punishment for what they have earned, as exemplary punishment from Allah. And Allah is Mighty, wise. But whoever repents after his wrongdoing and reforms, Allah will turn to him mercifully surely Allah is Forgiving, Merciful knowest thou' not that Allah is He to whom belongs the kingdom of the heavens and the earth? He chastises whom He pleases, and forgives whom He pleases. And Allah is Possessor of power over all things." 81

These Quranic verses indicate that the punishment was not confined only to the cutting off of a hand, but the thief must repent his crime, otherwise he will receive from God in the Hereafter due chastisement.

For usury, punishment will be imposed only in the Hereafter. God orders "O, you who believe, devour not usury, doubling and redoubling, and keep your duty to Allah, that you may be successful. And guard yourself against the fire which has been prepared for the disbelievers." 82

Punishment in the Hereafter for the same crime is mentioned in another verse. The Quran warns "Those who swallow usury cannot arise except as he arises whom the devil prostrates by, his touch. That is because they say trading is only like usury. And Allah has allowed trading and forbidden usury .To whomsoever then the admonition has come from his Lord, and he desists, he shall have what has already passed. And his affair is in the hands of Allah. And whoever returns to it - there are the companions of the Fire; therein they will abide". 83

A Prophetic saying stipulates, "To take only one dirham as usury is considered by God more oppressive than adultery committed by man twenty times. Whoever accumulates money unlawfully deserves to have his abode in hell."

These verses refer to punishment for usury in the Hereafter. In the worldly life, the Muslim legislator has left the punishment of the usurer to the ruler.

By these texts, God and His Messenger want crime to be combated strictly. Warning of punishment in the Hereafter, in addition to the worldly penalty, are more restrainable against committing crime.

But would the worldly punishment supersede punishment in the Hereafter ? On this subject the jurists differed and on this issue there were three points of view.

Some of the jurists opined that the worldly punishments are nothing but deterrents end, thus, they would not abrogate any punishment in the Hereafter unless the offender repented his crime. In this view, this faction of jurists derived support from this Quranic verse: "The only punishment of those who wage war against Allah and His Messenger and strive to make mischief in the land is that they should be murdered, or crucified, or their ands and their feet should be cut off on opposite sides, or they could be imprisoned This shall be a disgrace for them in this world, and in the Hereafter they shell have a grievous chastisement." 84 Here God mentioned the two punishments, but abated them if the offender expressed repentance. Repentance, however, absolves all sins. The Prophet Muhammad said : "He who turns away from sin is like a person who had made no sins whatsoever".

Other jurists were more strict. To them, repentance never substitutes either the worldly punishment or that of the Hereafter, and as a consequence, the worldly punishment does not substitute that of the Hereafter even if the offender repented.

Ibn Abbas once was asked about the case of a man who had intentionally killed a believer but later expressed penitence. He replied: "How would such a penitence be accepted ? I have heard the Prophet saying, The slain clings to his assassin, with his veins full of blood. The slain asks: O, God will You ask this man why he had killed me ?" Ibn Abbas added "I swear by God that this statement had never been repeated."

Saeed Ibn Jubair reported that once he asked Ibn Abbas:
"would anyone who intentionally killed a believer be forgiven ?" He said, No". Saeed then recited to him the Quranic verse, "And they who call not upon another god with Allah and slay not the soul which Allah has forbidden, except in the cause of justice, nor commit fornication ; and he who does this shall meet a requital of sin - the chastisement will be doubled to him on the Day of Resurrection ;and he will abide therein in abasement - except him who repents." 85 Ibn Abbas said "This was a verse which was revealed in Mecca, but was revealed later by another verse which was revealed in Medina". The latter verse reads as follows "And who ever kills a believer intentionally, his punishment is hell."86

There is a third view, and it is more slight in verdict. This school of thought theorises that earthly punishment supersedes that of the Hereafter.87

This means that the punishment imposed on the criminal absolves the crime and abrogates the punishment for the same offence in the Hereafter. In this view, these jurists relied on a report by Al-Tirmidhi in which he quoted the Imam Ali Ibn Abou Talib as having said that once the Prophet Muhammad stated that "Whoever received a punishment for a crime in this world, God is not unjust to impose on him another punishment for the same crime in the Hereafter. And whoever committed a sin, but went unnoticed, God is so exalted that He will not punish him because He has forgiven the offender."88

Ubadah Ibn Al-Samit reported that when once they were at a meeting with the Prophet Muhammad, the Prophet said to them "Whoever promises me that he will not take any other god as a partner with Allah; anyone who will not commit adultery; anyone who will not exceed his limits; and anyone who will not kill any human soul except in the cause of justice all these will be rewarded by God; and anyone who does such a thing and receives his due punishment in this world, this will be an expiation for the wrong he had done; and whoever does such an offence and repents, it is for God either to forgive him or to punish him."

Ibn Taymiyyah and other jurists are the view that repentance absolves the sins even if no earthly punishment winflicted on the offender. 89

This view, in fact, is complementary to the other view which opines that punishment absolves the Hereafter punishment, and that repentance absolves the sins whether it was expressed before or after the earthly punishment.

CHAPTER FIVE
REPENTANCE AND FORGIVENESS
Repentance by a sinner is accepted by God during the person's lifetime until he is about to breathe his last. Whoever resolves sincerely, and in a full belief in God, to refrain from doing wrongs, God will accept his repentance. God says : "Surely Allah forgives not that a partner should bc set up with Him, and forgiven all besides that to who He pleases." 90 There are other Quranic verses all of which urge the sinner, or the wrongdoer, to turn back to his Creator for mercy and forgiveness.

   Repentance and forgiveness, either in this world or in the Hereafter, encourage a wrongdoer to desist from committing crime.

The two books "Al-Sahihain" report that in days of yore a man had killed ninety-nine persons. The killer came to a saint and asked him as to whether he would be absolved of the crime if he expressed regret and repented. The saint told him : "Your repentance will not be accepted. " The man killed the divine, thus, bringing the total of those he had slain to one hundred.

In this story, the killer killed the saint when he knew that he had no hope in mercy. As a matter of fact to cause one to have aversion to forgiveness is harmful, and to make things easy for man is beneficial. Ibn Abbas was reported to have replied in negative to any one who had never slain another person but still asked whether the killer's repentance would be accepted. This he would say as a warning. But if an assassin would ask him the same question, he would answer in the affirmative. By telling him this, he would like to put him at ease. 91

For repentance to be valid, four conditions are set forth: repentance must be expressed in complete sincerity; sin to be given up without persistence; immediate determination by a sinner not to commit any other sin again; repentance must be expressed in diffidence and bashness of God and of no other one. 92

But would repentance absolve punishment for offences ? In one of his sayings, the Prophet Muhammad said, "Whoever continues to drink wine in this world, without giving it up would be denied it in the Hereafter." This saying had been differently interpreted by jurists as to the effect or repentance on punishment. Some of them said that if the drinker of wine gives up drinking and repents, he still is to be punished. But according to the Imam Al-Shafe'i, if a drinker of wine gives up drinking and repents, no punishment is to be imposed on him.

Repentance passes through various stages. There is no doubt that before committal of an offence, repentance absolves the sin. But after commiting a crime, repentance is expressed, of course, either before informing the authorities concerned of the crime or after. In the first case, the jurists have distinguished between the crimes committed against God as in case of violation of His restrictive ordinances, and the crimes committed against human beings.

As regards the crimes committed against human beings, a man can surrender his right before informing the authorities, and by so doing, punishment is dropped. If someone is slapped on his face but surrendered his retaliatory right before the authorities were informed, the culprit was not to be punished.

As for God's rights, including the restrictive ordinances, the jurists' views are different. Some of them decreed that a repentant should not be punished before informing the authorities, because, according to the Quran, "And as for the two of you who are guilty of it, give them both a slight punishment; then if they repent and amend, turn aside from them" 93 After prescribing punishment for a thief, God says in another verse "But whoever repents after his wrongdoing and reforms, Allah will turn to him mercifully." 94 When Hozal Ibn Zabab Ibn Zaid wanted to inform the authorities about a thief but later changed his mind, the Prophet Muhammad said to him "If you have sheltered him, Hozal, it was better for you." On another similar occasion the Prophet Muhammad said "Could not you have forgiven him (an offender) before bringing him to me?

It was also reported that an agent of Ali Ibn Abou Talib in Basrah sent him a message telling him that Haritha Ibn Zaid had waged war against God and His Messenger. Ali, in reply, told him that Haritha had repented before he was exposed to punishment, and, therefore, he should be left free and not to be attacked unless he was engaged in a war. 95

Once, when the Prophet Muhammad was about to lead a congregational prayer, a certain man approached him and told him that he had committed an offence. The Prophet did not take the man's story seriously and led the prayers. When the prayers ended, the man came near the Prophet again and informed him of the same story. The Prophet asked him : "Have not you joined us in prayers? " The man said "Yes". The Prophet replied "Then go away; God has forgiven you."

It was reported through Malik and Zaid Ibn Aslam that during the Prophet's lifetime, a man admitted adultery. The Prophet asked for a whip. A brittle whip was brought, but the Prophet asked for another one, and when a strong whip was brought, he rejected it and asked for another one, of lesser frightening shape. When the new stick was brought, the Prophet ordered that the man should be flogged and said to the people : "It is time for you now to stop violating God's laws. If someone commits an offence, he must take shelter under God, but if he declares it to us, he would be punished by God's penal laws."

In some case of larceny, the prescribed punishment might not be inflicted, because when a theft was claimed to have taken place, the incident was to be brought before a judge and unless the theft was proved and a Judgement passeed, the thief's hand would not be cut off. In such a case, the offence has violated a human being's right. Except in theft, penal laws had to be applied.

In the "Al-Montaqa", Al-Baji quoted Malik as having informed, through reports transmitted by Yahya and Saeed Ibn Al-Musayyib, that a man came to Abou Bakr the Faithful and told him that he had committed adultery. Abou Bakr asked the man:"Have you informed anyone else of this act?" The man said, "No." Abou Bakr said: "Then go back and repent, because God accepts repentance from His servants." But the man was not convinced of this decision and went to Umar and told him the same story and sought his decision.

Umar told him exactly the same decision, which was previously made by Abou Bakr. But the man was again unsatisfied of this verdict and went to the Prophet Muhammad. The Prophet turned his face away from him, and when the man repeated his confession, the Prophet sent a messenger to the man's family to enquire whether the man was sick or insane. When the family's answer came that he was sane and healthy, the Prophet asked the man as to with whom he had made intercourse with a virgin, a widow, or a divorcee. On being informed by the sinner that the act had been made with a divorcee, the Prophet ordered that the man be stoned to death.

Differences also arose about repentance after information. To some jurists, punishment was to be dropped after repentance even after passing the information to the authorities. In this, these jurists took sanction from the following story. When the people began to stone Maiz, he ran away, but they followed him. Maiz asked them to take him to the Prophet Muhammad, but instead they caught him and stoned him until he died. When the incident was told to the Prophet, he said "Could not you have given him a chance to repent after which God would have forgiven him ?"

A report transmitted through Alqamah Ibn Wa'il Ibn Hajar and his father stated that once, when a woman was on her way to the mosque before dawn, she was attacked and raped by someone. She shouted for help and a passer by came to her rescue. The culprit flee away. A group of people also passed her and she asked them for help. They mistakenly arrested the other man who first came to her help and draged him to the Prophet. The woman told the Prophet that the man had raped her and the group informed that they had caught him while he was running. The man pleaded unguilty, saying that he came to save the woman from the culprit. The woman accused him of telling lies and said that it was he who had raped her. The Prophet ordered that the man be stoned to death.

But another man came to the scene and said Do not stone him and stone me, because it was I who committed the crime. The Prophet then took the three people, the culprit, the saviour, and the woman, aside and told the culprit that he was forgiven by God, and dismissed the man who hurried to save the woman with some nice words. Umar asked the Prophet to allow them to stone to death the man who admitted adultery, but the Prophet said "No; he has repented to God". Commenting later on this story, Umar said that the culprit, in fact, had repented so sincerely that his repentance would have covered the whole people of Yathrib had they wanted to depent such an act.

Wa'ilah Ibn Al-Asqa' reported that one day a man came to the Prophet Muhammad telling him that he had already made a punishable offence. The Prophet did not take notice of the man but the man made his confession three times, but still to no avail. Time was due for prayers, and when they were performed, the man told the Prophet his story `for the fourth time, emphasising that he had violated one of God's laws and asked that he would be given his due punishment. The Prophet asked the man "Have you not been completely clean and performed ablution and joined us in our prayers ? Go away. That was an atonement."

Abou Talha quoted Anas as having said that once a man come to the Prophet and admitted adultery, thus, deserving punishment.

The prayers were due and the culprit joined the Prophet in his prayers. After the prayers, the Prophet said to the man : "Your prayers have absolved your crime."

Some other jurists were of the view that after in formation of an offence, repentance would not absolve punishment because the law had to be applied in its geucrality. They took support to their theory from what happened to a certain woman from the "Ghamid" tribe. She came to the Prophet and declared her repentance, but still the Prophet ordered that she should be stoned to death because she committed adultery. He gave this order though he stated later that the woman had expressed such a repentance that if it had been made by seventy people of Medina, their sins would certainly had been absolved.

Abou Dawoud and Al-Nisaei quoted Abdullah, son of Umar Ibn Al-Khattab, as having said that a woman from the "Bani Makhzum" tribe was of the habit of borrowing some articles and objects from her neighbours and then denying taking them. The Prophet ordered that her hand be cut off and refused to accept her repentance. 96

Minor offences are generally squashed after punishment. In his "Musnad", Abou Dawoud AI-Tayalsi quoted Ali Ibn Abou Talib as having said that Abou Bakr had told him that the Prophet Muhammad decreed that anyone who had made an offence and then performed ablution and said a prayer of two bows and asked for God's for giveness, his offence was pardoned. In this context, the Prophet recited two verses from the Quran : "And those who, when they commit an indecency or wrong their souls, remember Allah and ask forgiveness for their sins. And who forgives sins but Allah ? And they persist not knowingly in what they do" 97 and "And whoever does evil or wrongs his soul, then asks forgiveness of Allah, will find Allah Forgiving, Merciful" 98

In the "Sahih Al-Bukhari", Al-Bukhari said that if a person committed a minor offence, but violating no God's law, and informed the ruler of it, the offender should not be punished if he expressed repentance and sorrow. The Prophet had never punished a man who confessed to an offence. Such an offender was given by the Prophet a chance for reforming himself, and, moreover, the culprit was allowed to join the Prophet in prayers. Such prayers, the offender would be told by the Prophet, would certainly absolve his offence.

Repentance after apostasy rescinds punishment. Before passing a judgement the apostate must be asked to think with contrition of his apostasy. If a person apostated , he was to be imprisoned for three days and nights during which time he should be asked to repent his crime. This was decreed by Umar, Ali, Malik and Al-Shafei. There was another statement made by Al-Shafei on the same question. He stated that an apostate was to be asked to repent immediately otherwise he would be killed. In this judgement, Al-Shafei relied on a general statment previously made by the Prophet that "He who changes his religion must be killed." The Prophet did not permit delay in executing the sentence if the apostate did not repent. To some jurists, an apostate woman had to be treated likewise. To some others, she was to put in jail, and not to be killed. And in this, they relied on a Prophetic order that "women must not be killed".

CHAPTER SIX.

SOCIAL AND MORAL MEASURES TO AVERT CRIME

The Islamic Law did not comprise only punitive laws to combat crime but also included precautionary measures which would help combat crime.

It is a fact that most of the crimes are motivated by proverty and, realising this, the Islamic Law tried to bring various social classes close to each other and protect the toiling classes from committing crimes of pecuniary character, such as theft and highway robbery. To achieve this goal, the Islamic Law had enacted legislation for payment of the poor-rate (Zakat) which is a specific amount of money taken from the rich to be paid to the poor.

Payment of the poor-rate is different from the other utilities provided by the State to tax-prayers. Money raised for this institution is to be spent only on the objects for which the poor-rate would be spent. According to the Holy Quran, eight heads of expenditure in this con- cern are recognised. It says: "Poor-rate is only for the poor and the needy, and those employed to administer it! and those whose hearts are made to incline to truth, and to free the captives, and those in debt, and in debt way of Allah and for the wayfarer an ordinance from Allah. And Allah is Knowing, Wise." 99

Among the social laws whereby Islam tried to prevent committal of a large number of crimes was polygamy. Anyone who is displeased with his wife is entitled to marry another wife, even a third and a fourth. If one marries more than one wife, he, surely, would not commit the crime of adultery. For the protection of a wife from the same sin, Islam has recognised and approved several reasons allowing a wife to ask for a divorce. If a wife is no more pleased with her husband and asks for divorce but was denied this right, she may commit adultery.

According to Islam, a wife can ask divorce from her husband if she anticipated physical or moral danger on his side. The religion must take all precaution to protect such a wife against adultery. Similarly, the Islamic Law has allowed the husband to divorce his wife even without giving reasons for that A husband might not afford marry two wives at one time, and if such a husband is disallowed to divorce his former wife, he would commit adultery. The Islamic Law, therefore, allows the husband to divorce his only wife and re-marry another one instead of keeping unwillingly this wife, a matter which might encourage him to commit adultery.

One of the Islamic social legislations also was the prohibition of display of beauty by women. Addressing the Prophet's wives, God said "And stay in your houses and display not your beauty like the displaying of the ignorance of yore ; and keep up prayer, and pay the poor-rate, and obey Allah and His Messenger. Allah only desires to take away uncleanness from you, O people of the house folk, and purify you a thorough purification."100

There is no doubt that if a pretty young girl displays Her beauty strange men might be seduced and encouraged to establish with her improper relations.

It is impossible for a writer to explain in detail in such a small booklet the noble principles of Islam which call for strengthening of solidarity and other relations of familities, prohibition of deceit, cheating, lies and hypocrisy, and for helping the neighbour and the needy. The Holy Quran and the Prophet's sayings and traditions had comprised a large number of principles and teachings for social solidarity and ideologies which speak volumes. By ordaining worships, Islam did not want man only to make submission to God, but also to refine his own self, to always remember and fear God, and to obey His orders and injunctions.

In the Quran God explains "Surely prayer keeps one away from indecency and evil; and certainly the remembrance of Allah is the greatest force."101 The Prophet Muhammad said : "Some people keep up prayers, but in vain, and some people keep fasting, but get nothing except hunger and thirst."

Worships, in fact are not an end, but a means by which one feels the presence of God and the necessity to obey His orders and injunctions. When one realises that his deeds and behaviour are overseen by a great super visor, that is God, he would certainly refrain from committing offences. In decreeing the Friday congregational prayers and the two Eidd prayers, and the urge on every one to say his prayers in congregation, and in demanding that some prayers be made openly and not secretly, religious and moral awakening would certainly prevail all classes of people.

The democracy of the congregational prayer, when the rich and the poor stand in one line, would remove from the poor's soul any grudge which might be created by his poverty. The poor would also be restrained by receiving the poor-rate or the voluntary charity. More than any other social subject, the treatment of the poor with kindness and generosity, in addition to the payment of the poor-rate, was extensively called for by the Quran and the Prophet. By this, the Quran and the Sunnah wanted to eliminate all traces of poverty which might motivate crime and give rise to spite against the wealthy.

Crime is not fought only by deterrent punishment, but also by provoking the desire to do good and desist from committing any offence. In so doing, the legislator and the moral instructor are required to do their utmost to see that crime would be shunned and disallowed to take place with punishment imposed later.

PART FIVE

ISLAMIC LAWS ATTITUDE TOWARDS

DEVELOPMENT OF PENOLOGY

IN MODERN TIMES STAGE PASSED BY PENOLOGY

Penology passed through three stages before it was drawn up in its present form in modern laws.

The first stage was that in which the offender estimated the volume of pleasure he would get from committing a crime. The legislator took notice, before a crime was committed, of the pain the criminal would suffer in return for the pleasure he had relished. `The criminal had to draw comparison between his pleasure and his loss due to pain. This was the "Classical Theory" which was introduced by Bacharia in his book "Crimes and Penalty".

Bacharia was of the view that the legislator must inform the offenders who would likely commit crime, of the quantity of pain they would receive if they committed a crime, as will as the pleasure they would enjoy, and then leave it to them to choose between pleasure and pain. This theory was based on the principle of the two freedoms of will and option. It demanded that all offenders must be given an equal treatment when penalties were afflicted. The penalties must not vary due to their status or circumstances. This stage was also called the "Mataphysical Stage", because it was not based on an experimental programme.

The Islamic Law agrees to a part of this theory, the part that decreed that no distinction should be made in applying the penal laws according to the circumstances of the offender, at least as regards the minimum degree of punishment. But the Islamic Law differed with this theory over two points. Firstly, it did not agree to the justifications which were made for the adoption of this system. By imposing penalty, the Islamic Law did not like to inflict pain in return for pleasure, but to protect the community. To Islam, every human community should observe and adhere to some principles. It has to take measures to prelate the freedom of thinking and reasoning, the self, the property, the faith and the honour. To eliminate vices, penal laws were prescribed.

It imposed a penalty on wine dunking in order to protect reason and mind, and on theft to protect property, and retaliation in case of murder, and on adultery to protect the honour, and on apostasy to protect the religion. Secondly, to the Islamic Law, these penal laws were the minimum degree of punishment which was to be inflicted. But it was admissible that punishment, in certain cases, would be more severe, such as in the case of an unmarried man who made unlawful sexual intercourse with a married woman. In such a case, the man could be killed.

The second stage started when a light change was made in the Metaphysical Theory following the theory of the German philosopher Kant which was in the eyes of absolute justice a basis of the right to punishment. The function of punishment was to satisfy the human soul's deep-rooted desire for justice. This revised theory was called the "New Classical Theory". It had made significant changes in Bacharia's theory, and was taken as a basis for the individualisation of punishment.

It was just and fair that different offenders would be treated equally. Punishment had to be counterbalanced between the benefit resulting from it and what had to be inflicted on the offender after taking his circumstances into consideration. The Islamic Laws acquiesced in this theory as regards the individualisation of punishment. This had been applied by the Islamic Law in minor offences as it has previously been explained. In so doing, by imposing punishment, the Islamic Law sought the welfare of the community. It imposed a minimum degree of punishment and had no objection to doubling it if the common interest deemed this necessary. In punishment for minor offences, the Islamic Law sought justice and coordination between what was beneficial and what was just and fair in the meantime. On this point, the Islamic Law agreed with the "Revised Classical Theory."

The third stage was the positive physical stage which was adopted by the Italian Positivists. This school of thought turned the ancient concepts about penalty upside down. It rejected the freedom of option and classified criminals under various categories in all of which no criminal seemed to be responsible for his crime, because his appetite for crime came to him either through inheritance, or created by the environment, or was committed by coincidence. This theory changed the criterion of punishment and its various kinds so that punishment would be commensurate with the gravity of the crime. The offender, whether he was responsible for his offence or not, had to be dealt with certain measures susceptible of overcoming his danger.

The positive school of thinking differed with the Islamic Law in its rejection of the "Arbitrary Freedom"at least as regards the Sunnis Rites". But it agreed with it on the individualisation of punishment and on taking measures corresponding with the gravity of crime.

Stages of penal development ended with was recently cpolicy of social defence which was envisaged by Mark Ancel. Despite the fact that this policy was in line with the theory of the Italian Positivists regarding putting criminals under various categories and sanctioning the idea of the measures, it did not deny the criminal's freedom of option and the assessment of his personal responsibility. It called for observance and respect of human rights. Moreover, it defined the idea of measures; they have to be taken for the defence of the community, and not, as it had been claimed by ancient theories, to be used as a mere method for correcting the illegal situation which was created by the crime. This last objective was not final.

By the measures, in fact, it was the social rehabilitation of the criminal which was sought so that he would not be allowed to pose any further danger to the community. The measures taken in this regard were meant for the protection of the community against any mischief the offender might do in future.

The Theory of Social Defence and the Islamic Law:

But to what extent the Islamic penal policy fell in line with the theory of social defence whose aim it was to provide protection to the community through certain measures which might not even include the sense of punishment and which might have been applied to an innocent as long as the policy aimed at protecting the community against any crime which had already been committed or was likely to be committed?

The theory of social defence was based on general bases among which were the following  Firstly; the study of the personality of the offender and his criminal gravity and taking measures in each case separately, according to the danger he had posed. This was the individualisation of punishment which was envisaged by the Italian Positivist school of thought. This theory was accepted by the Islamic Law. In Islam, the married adulterer was to be stoned to death, and as for the unmarried, he was punished by flogging with one hundred stripes.

Nevertheless, it was reported that the Prophet Muhammad had ordered that he who would marry his daughter-in-law, 102 or commit adultery with a married woman, whether he was married or not, 103 should be killed. However, punishment was commuted if the offence was minor and the offender a novice. If a punishment was imposed on a beginner, and the punishment was commuted, there would be greater hope for reforming the culprit.

Secondly ; Punishment is one of the measures taken to protect the community and not to restore the situation to its previous condition before committing the crime. But, besides, there are other precautionary measures which have to be taken even if a crime has not been committed but was likely to be done in future. These measures do not have the character of punishemnt; they have to be taken in different degrees so as to be able to confront the criminal gravity in the interest of the community. In the Islamic Law, such measures were applied even in case there was not crime. An examplary story is that of Umar Ibn Al-Khattab with Nasr Ibn Hajjaj.

Once, when Umar was roaming Medina, he heard a woman saying "Could not I be given wine to drink or be allowed to go to Nasr Ibn Hajjaj?" Umar asked for Nasr to be brought to him. The man was pretty, young, with long hair. Umar ordered that his head be shaved; but the chap became more beautiful even after shaving his head. Umar expelled him outside Medina though he did not commit any offence whatsoever. By so doing, Umar feared that an offence might be done. The measure he had taken was precautionary; it was the fear of a potential crime.

Thirdly; Punishment and measures are to be individualised so as to safeguard the community and check crime in modern times, the traditional penalties have become more elaborate. New penalties were brought into existence, such as the suspended punishment, detention at week-ends, placing one under house arrest, force labour, and force training on work without restricting liberty and legal option. The Islamic Law had virtually diversified the punishment for minor offences. It comprised all kinds of reproachment either by advice, censure, reprimand, beating, flogging, house-detention, and, sometimes, execution.

Fourthly; Observance of the principle of legality. This means that no crime or punishment is imposed without a text itemising the offence. Punishment was fully scrutinised by the Islamic Law and in minor cases it classified the offences and all kinds of punishments in general and left it to the discretion of the judge or "Muhtasib" to apply certain penalties on certain offences. It is to be noted that the Western jurisprudence has started developing itself and is desisting from overestimating the principle of the non-retroactivity of law, despite the fact that the majority of the supporters of the theory of social defence were of the view that a crime, or an unsocial act, should specified beforehand. To them, punishment or the measure should be treated likewise.

But a minority of jurists, foremost among whom was Gramatica, started thinking of applying measures from the moment the danger of a crime emerged, though the crime itself has not been committed. 104 The Islamic Law took a middle course between the majority and the minority of jurists. It had classified a number of non-social questions and of measures and left the option to the discretion of the judge or the "Muhtasib."

Fifthly The criminal's responsibility. Committing a crime, the criminal is not considered as having no free will or a victim of others. Since the crime has been committed without compulsion or mistake, the criminal was surely responsible for it. This principle was the same principle of the school of thought in question. It is different from the Italian Positivist Theory. The Islamic Law was in full agreement with the theory of social defence, though the Islamic Law was enacted fourteen centuries before the other theory. In fact, the Islamic theory is more accurate than the other theory; the former had distinguished between the punishment for what was considered an aggression on the community itself irrespective of the nature of the aggressor and the punishment which a judge would impose on minor offences,  taking into consideration the criminal gravity of the case.

Such a punishment the judge had to inflict according to the prevailing circumstances. The Islamic Law made of the penal law a categorical legal evidence of the danger of the criminal and a minimum degree for such gravity. It left all other minor offences to the judge to decide on his discretion. It was up to him to determine the criminal gravity and the proper measures to be taken. He was also entitled to go upward in point of severity of punishment, but within the prescribed penal laws; each punishment was to be inflicted according to the gravity of the crime.

From this it seems that the Islamic Law was in full agreement with the programme of the minimum degree of social defence which was envisaged by Mark Ancel. Mark Ancel theorised that under no circumstances would the principle of legality not be denied; and this was contrary to the concept of the philosopher Gramatica, one of the staunch champions of the theory.

The Islamic Law was clear of the mistake Mark Ancel made later. He, nonchalantly, rejected the study of the principle of responsibility, the mistake and the moral element in punishment. But the Islamic Law took a middle course. As regards penalties, it decreed that the offender should have made a mistake; and regarding the measures, it gave priority to the protection of the community and applied the measures even if an offence had not actually taken place. The more so was that measures should have been taken if an offence had been committed by an irresponsible person. The Islamic Law had also taken a middle course between the views of those who based responsibility on the free will, and that was evident in criminal penalties, and the principle of compulsion, which is evident in measures of severity.

Some jurists have criticised the theory of social defence for the great authority it gave to the judge in taking suitable measures in each case. They feared that by such authorisation, by a freedom of choice given to the judge, he may go astray. But a judge can deviate from the proper path even if he was under restrictions. The judge who inclines to deviate can do so by asking for more conclusive evidence, with the result that he might acquit an offender intentionally, or by neglecting further evidence which might entail convicting an innocent, also intentionally.

To prevent deviation is a subject which is not included in law texts; deviation is prevented by the good selection of judges and the good treatment it must be meted to them. The English judge, who is known to be just and far from deviation, has greater powers for the application of penalties than those accorded to his French counterpart who is heavily restricted by the penal law. Originally, on the English bench only one judge sits.105 Though such a system makes it possible for the judge to deviate occasionally, no English judge has been known to have behaved contrary to the dictates of justice.

PART SIX
THE HOLY QURAN AND THE GOOD CITIZEN
In a number of essays written by the Hungarian orientalist Agnace Goltziher, 106 he described the Holy Quran as an incomplete draft of an unsystematised constitution.

It seemed that after studying a number of European constitutions, all of which were systematised in clauses and articles, no other book could have been taken as a constitution. When he saw that the Holy Quran was something different from the type he thought it was perfect, he considered the Holy Book an incomplete draft of an unsystematised constitution.

As a matter of fact, the Holy Quran is not constitution, but a code of high constitutional principles. It comprises legislation, morality, and meaningful stories which, unlike other constitutions and laws, were unsystematically recorded.

But this unsystematic way in recording these principles or the absence of particular chapters for each and every particular principle, are not blemishes in the Quran. The fact is contrary to that and the way in which the Quran was revealed was deliberately devised by God in this form. The recitation of the Quran is one of the worships 107 and it is the duty of every believer in Islam to recite whatever he can from the Quran. 108 Had the Holy Quran been classified subjectwise, one chapter on inheritence, for instance, and another on penal laws, and another on marriage and divorce, every believer would read only the subject he was interested in.

This is not what God has aimed at. He made each and every chapter of the Quran comprising more than one subject , legislation, moral directives, religious doctrines, etc... lf a true believer reads even a little part of the Quran, he would benefit much from the different subjects the Holy Book is dealing with, thus, purifying himself and bringing his own self close to perfection.

Despite the fact each chapter of the Quran has a particular heading, the title does not exactly imply the contents of the chapter. Each chapter, in fact, comprises various concepts and proofs of the unity of God as well as Islamic jurisprudence and code of morality. The chapter "Al-Baqarah (The Cow), for instance, is not confined only to the story Similarly, the chapter "Al-Qasas" (The Narrative) does not consist only of stories; and the chapter "Yusuf" (Joseph) deals with a number of subjects other other than the story of Yusuf.

Holy Quran, as a matter of fact, has only one in view; it tries to bring into existence and a good citizen who is willing to establish good relations with God, with mankind at large, and with his ownself. To create such a good citizen, he has to be provided with all the components which would make of him such a person. In all his lifetime, one must always remember God's ordinances, guiding directives, punishment and atonement.

Therefore, it was necessary that each Quranic chapter should comprise a number and different principles and teachings which would reform the human being and make of him a useful and productive member of the human community, worthy of being God's vicegerent on earth. In every chapter there are Islamic principles and teachings and if a Muslim moves from a certain chapter to another, he would find the same principles and teachings.

This diversification of laws causes the human being to fear and keep God's duties, obey His orders and injunctions, and implore His rewards for his good deeds and expect His punishment for the wrong he would have done. In other words, this would give rise to a life free of crime, and in such a divine community a human being can lead a pure life without doing anything which might displease God. If these principles and teachings are imbued in one's heart and soul, such a person will never think of doing any harm, crime, or aggression.