The penalty of hand amputation seems barbarous and backward to Western public while it is objective and purifying within the Moslem community. The reason for that lies in different key principles on which justice system is based. The publication aims to prove the discrepancy between the Western and Islamic justice though an in-depth investigation of religious, philosophic, and social aspects that influence the sentence consideration in the Islamic jurisprudence. The article suggests that to get a proper understanding of the Islamic jurisprudence, all details and peculiarities should be taken into account. The authors discuss religious aspects of Islam that play a crucial role in maintaining the Moslem society united and pure. At the same time, the article neither advocates the penalty of hand amputation nor digresses a theological debate about the superiority of one religion over another.
Theft is considered to be an insignificant crime in European and Western society while in Islamic justice the punishment for theft presupposes hand amputation, which may seem backward and barbaric. The system of punishments for crimes in Islamic countries has always been associated with extreme severity in the eyes of Western public. However, the Islamic system of justice is based on philosophical principles and Judeo-Christian doctrine. The article “The Penalty of Hand Amputation for Theft in Islamic Justice” by Sam Souryal and Dennis Potts aims at discovering and analyzing the practice of hand amputation, including social, religious and philosophic peculiarities of the penalty. In the context of sustaining a peaceful and spiritual Islamic society and under rigorous rules of evidence, the penalty of hand amputation can be justifiable and necessary.
The main ideas outlined in the article explain the true relationship between the crime of theft and the penalty of severing a human limb. In other words, the article gives a detailed analysis of the reason why the crime of theft is a heinous one and why punishment for it is so severe. The next idea of the publication is to present another viewpoint in the prospect of generally negative perception of hand amputation as a punishment for a crime. Finally, authors intend to discuss the rules of evidence that must not be avoided in case of imposing the penalty mentioned above. At the same time, Souryal and Potts (1994) mention that they did not imply advocating hand amputation in America or promoting one religion over another.
Authors briefly compare Islamic and Western justice systems. In the West, hand amputation for theft seems unbelievable in comparison with prison sentences to murderers and rapists in the Western society (Souryal & Potts, 1994). However, dramatic differences between Western and Islamic jurisprudence should be taken into account. Western philosophy looks for answers in the nature of humans while Islamic philosophers rely on the nature of God. As a result of a strict and severe punishment for less heinous crimes, such as theft, murder and rape are very rare in Moslem communities. This penalty is associated with a punishment prescribed by God (a Had) as a means of a stern deterrent that is mentioned in the Qu’ranic verse. In context of religion, a Had cannot be altered, negotiated or forgiven. The purpose of a Had is to prevent a person from committing a crime and to satisfy stringent rules of evidence. Consequently, if there is a slight doubt in the crime establishment, the penalty should be introduced by the judge (Souryal & Potts, 1994).
In Qu’ran, two episodes with hand amputation are mentioned. In the first episode the Prophet ordered the amputation of a female’s hand, and another time a male’s hand was cut off (Souryal & Potts, 1994). The existence of only two examples of the punishment suggests that there occurred only two thefts at the Prophet’s time. On the other hand, it proves the idea that since ancient times all acts of thievery were considered wicked crimes, and people committing them were a menace to peaceful Islamic society. Hence, individuals marked by the punishment were socially disgraced. Authors one more time prove the initial hypothesis about deterrence of the Moslem society from committing more serious crimes. Indirectly, the researchers support the criminological theory of ‘broken windows’, which warns of much greater crime in case a previously committed mischief is left unpunished.
According to the authors, spiritual communitarianism is the basis for Islam, which considers all thieves to be social murderers and rapists who violate basic spiritual traditions (Souryal & Potts, 1994). Citing the Qu’ran, authors support the idea of theft being a means of keeping people in fear in the prospect of their freedom to own, trade, and worship their personal property. Theft victimizes a person as well as it impedes the formation and maintenance of a spiritual community within a society. A common threat represented by individual fears poses a danger of community discontinuity, yet unites it even closer. Consequently, authors justify Islamic jurists’ reluctant and conscious penalty of hand amputation for the transgression of theft in the name of preserving a spiritual community.
In terms of accepting Islamic penalty of hand amputation in the Western society, authors suggest two different viewpoints. First, backwardness and barbarism allegations are based on the intention of the Western society to act in a civilized manner, which is inconsistent with the ideas of Islamic spiritual community and law. Second, the reaction is caused by the lack of familiarity with Islamic rules of evidence and law in general (Souryal & Potts, 1994). Additionally, the authors stress that the penalty of hand amputation is possible only in case a few prima facie cases. They conclude that the Western attitude towards the penalty is nothing more than an unwarranted rhetorical exaggeration.
Furthermore, Souryal and Potts (1994) provide an overview of Islamic justice together with the general typology of crimes. Conveying the social essence of Islamic justice and works of the Moslem scholars are among the primary causes of distorted associations connected with severe punishments of the Moslem culture. Before the examining and analyzing another culture, one should investigate the worldview of its people.
Authors continue discussing the meanings of Islamic justice. The first meaning expresses the connection of a sacred duty and trust that is imposed on humans. Within the idea of identifying one’s own interest among others, justice is viewed as an act of devotion. Identically, justice guarantees merciful and morally responsible giving every individual a personal due. The second meaning of Islamic justice discussed in the article claims that its grounds promote mutual respect between humans (Souryal & Potts, 1994). In this sense, justice provides mutual respect regardless of various social differences. In terms of legitimate interests, all people are equal regardless of their position and welfare. Hence, their social domination can hardly influence the final decision of the judge. Additionally, fair actions are fulfilled to provide the common interest of all members of society. The third meaning of Islamic justice presents it as a bond that unites the society and makes it a brotherhood, where everyone is responsible for another. In terms of the forth meaning, justice is presented as the God’s command that presupposes grievous punishment in case of its violation (Souryal & Potts, 1994). It is summarized that the last two meaning are among the basic ones for Islamic jurisprudence, especially in case of theft. Similarly, Moslem justice is penetrative due to the consideration of God’s knowing all human motives, thoughts and acts.
Apart from this, authors mention numerous Qu’ranic commandments that provide justice within the Islamic community. They are as follows: The Book, the Balance, and the Iron, which are the elements of maintaining the society united (Souryal & Potts, 1994). Being the body of revelation, The Book commands good doings and forbids evil ones. As an essence of justice, the Balance gives every individual what he/she deserves. Finally, the Iron that punishes evildoers represents the arm of Allah.
The work of Souryal and Potts (1994) indicates two primary sources of Islamic law, which are Shari’ah and Sunnah. They represent a theocratic legal system expressed in Qu’ran and act of the Prophet respectively. As noted above, God is the sovereign who guides the humankind. In this respect, Shari’ah interprets the commandments and helps people understand what is right and wrong, proper and improper, legal and illegal in the Moslem community. Additionally, it combines the prowess of the law and the benevolence of the supreme end of the law, which is justice itself. More precisely, Shari’ah demands, authorizes, and prohibits certain behavior of human conduct and provides an all-inclusive scale of human religious and secular conduct. Moreover, the researchers discuss the classification of human behavior in the Islamic society. The aspects of human behavior are subdivided into obligatory, recommended, indifferent, reprehensible and forbidden (Souryal & Potts, 1994).
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More importantly, the authors discuss the main body of the Shari’ah, which is devoted to the problems of criminal behavior and penalties. This part is known as Huddud Allah and combines the Constitution, the Penal Code, and the Code of Criminal Procedure (Souryal & Potts, 1994). The crimes of the Hudduh category, including theft, are viewed as offences against the community of God. Consequently, promoting community interests over individual ones, the latter can suffer. Moreover, being decreed by God, Huddud punishment is universal, absolute, unpardonable, and nonnegotiable, in other words it cannot be subjected to any government or judge, regardless of its status, rank, and power. For the same reason, Huddud penalties are not to be judged in terms of human reasoning and rational considerations. The authors compare Jewish and Islamic traditions, mentioning their similarities in terms of sustaining social goodness and resisting social evil by means of a set of spiritual commitment norms aimed at social decency. As a result, the community is expected to obtain collective moral conscience and distinguish between right and wrong, adequately resist criminal endeavors, and avoid criminal behavior (Souryal & Potts, 1994). Thus, reprehensible acts are not shocking to the socially.
Furthermore, it is claimed that Islamic justice is based on divine law and renders natural justice, which, in turn, makes the Moslem law amoral, apolitical, asocial, and not subjected to the rules of science (Souryal & Potts, 1994). Besides, in Islam, religion and behavior are not autonomous categories and must reflect the will of God and be regulated in strict accordance with His commands. Hence, God is the only judge of people in every civil, military, or criminal matter, and the punishment prescribed by Gog through The Book must be fulfilled. The next issue under consideration is the description of judges and the functions of the head of the state, which can be both negative and positive. Positive function means establishment of piece and protection of the weak while the negative one presupposes punishing the offenders and the restitution of the rights of the injured (Souryal & Potts, 1994). Consequently, judges should be God-fearing, deeply acknowledged in law, and have such traits as sterling piety and irreproachable character. Obeying the laws of Allah, the judges are highly interested in fear. Such information provides a baseline for viewing the Islamic philosophy of justice as both deterrent and forgiving.
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Again, the punishment should be severe enough to strike fear concerning and thus deter from more serious crimes and magnanimous to prevent reintegration of corruption into the Moslem community. Thus, the ‘sword of Shari’ah’ is to take priority over community disruption by maximizing the punishment carried out in public. The researchers stress that severe punishments are justified due to social utility (Souryal & Potts, 1994). Additionally, they perform the following functions, namely they are used to fulfill the worship, purify the society, and make atonement for a crime. It is rational to punish severely if the sanctity of God is violated or the integrity of society is under a threat.
In the Moslem society, religious testaments are valid sources of justice. The examples of giving another eye and hand remain both remarkable and disputable. On the one hand, they are considered to be an instruction how to behave. On the other hand, they are argued to be religious allegories. However, in Islamic society, public execution is an act of societal purification and redemption. Another point for consideration discussed by the researchers is the theory of Islamic justice concerning salvation of human beings. In this prospect, the amputation of a ‘sick’ hand is better than doing the same with the entire person (Souryal & Potts, 1994).
Authors continue to compare Western and Islamic philosophy of penalty and claim that in the Moslem community the criminal is initially punished, but remains a normal person to the society because he has paid his debt to the community in full (Souryal & Potts, 1994). On the contrary, in the Western society, the offender is imprisoned and remains socially ‘amputated’, being a social outcast. Finally, the repulsiveness of the penalty is discussed in the context of the severity of hand amputation, including emotional shock. Based upon examination of the grounds, it is concluded that in case deterrence is approved, then maximum deterrence is better, especially if all components of community, including society, government, and religion share the same idea of God’s ordainment.
Further, the typology of crimes in Islamic law is discussed, including Huddud crimes, Queses crimes, and Ta’azir crimes (Souryal & Potts, 1994). Huddud crimes are the crimes against the society, the penalties for which are precisely described in Qu’ran and which are not to be negotiated or violated. Crimes of Queses category may seem more serious. However, they are the crimes against individuals and do not put the community’s pureness under threat. Hence, the penalties for them are easily negotiated and even forgiven due to the absence of a precise description of penalty they deserve. Ta’azir crimes cover misconduct that is unacceptable in a spiritual society and deserves less severe punishment, such as imprisonment or the payment of restitution.
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The crime of theft is considered a serious offense in Islamic law that might be the starting point for more serious crimes and endanger the basic structure of an organized Moslem community (Souryal & Potts, 1994). Hence, a severe penalty for theft crime represents a cornerstone of Islamic deterrence in its intention to save the Islamic community pure and united. As in Islam theft belongs to the crimes of violence, it can even be punished by beheading. Going forward, the authors discuss the elements of theft that should be present to carry out an amputation. As noted earlier, these elements prove the fact of conscious and planned character of the offence by expressing substantial responsibility on the matter as well as proving the value of stolen property. Additionally, details and peculiarities of evidence are deeply investigated in order to support the initial hypothesis about hand amputation penalty as an objective punishment for the crime against the Moslem community (Souryal & Potts, 1994).
In the final part of the research, Souryal and Potts (1994) try to investigate the deterrent effect of hand amputation in Saudi Arabia. The opinions of various respected people (alem) are inserted into the body of the publication. The speakers supported the penalty of hand amputation for the crime of theft in the name of Islam and spiritual purification and unity of the Moslem society (Souryal & Potts, 1994).
The penalty of limb amputation in Islam is a disputable issue due to its severe and inhumane nature in the eyes of the Western society. However, the authors of the given publication proved its adequateness and objectivity in the prospect of maintaining the Moslem society united and pure in the name of God and in strict accordance with His commands.