Crime and punishment
Family: Arts, economy and the world · 36 entries
Entries on this theme
Event
Ali's judgment on the men who fell into a lion pit in Yemen
631 CE · 10 AHWhile Ali was in Yemen, four men fell one upon another into a pit dug for a lion; the lion killed them, and their kin took up arms. Ali ruled that the first gets a quarter of the blood-money, the second a third, the third a half and the fourth the full diyya, and sent the parties to the Prophet when they refused.Ali's counsel in Umar's judgments
between 634 and 644 CE · 13 AHDuring Umar's caliphate Ali repeatedly corrected or advised the judgments: he stopped the stoning of a woman with a mental affliction, asked Umar what authority he had over the unborn child of a confessing pregnant woman, showed by a test that a woman's claim of assault was false, and said that the innovated marriage should be returned to the Sunna. Umar is reported to have said that he sought refuge from a problem Abu al-Hasan could not solve.Umar sets the penalty for wine at eighty on Ali's counsel
between 634 and 644 CE · 13 AHWhen wine-drinking spread in the newly conquered lands, Umar took Ali's counsel to flog the drinker eighty lashes, the lightest of the fixed penalties, arguing that a drunk man raves and one who raves slanders, and the slanderer gets eighty. Jurists differ on whether the fixed penalty is forty or eighty; Sallabi sets out the schools.Ali burns the village of Zarara where wine was sold
between 656 and 661 CEAli passed a quarter of Kufa called Zarara where meat was sold and wine too, and ordered it set on fire, saying the wicked eat each other; the fire spread from its western side until it reached an orchard. Al-Sallabi takes the report from Abu Ubayd al-Qasim ibn Sallam's Kitab al-Amwal.Ali flogs the poet al-Najashi al-Harithi for drinking wine in Ramadan
between 656 and 661 CEAl-Najashi al-Harithi, a poet, drank wine in Ramadan; Ali flogged him eighty lashes and jailed him, then flogged him twenty more the next day, saying the lashes were for his defiance of God and breaking the fast. The book cites the case as an example of prison as ta'zir.Ali frees two men who each confessed to one killing and pays the diya from the treasury
between 656 and 661 CETwo men each confessed to the same killing before Ali. Hasan's ruling was that the one who had killed had saved a life by confessing; Ali released both and paid the diya from the treasury. The book suggests the victim's heirs may have waived retaliation.Ali's rulings on the apostate and the zindiq, and the ways he killed them
between 656 and 661 CEAli is reported to have said the apostate is asked to repent three times and then killed; the book gives two reports on the zindiq and two on women apostates. It lists the methods Ali used: the sword, beating to death, burning after killing (Mustawrid al-Ijli), and burning the Saba'iyya.Ali's judgment on a slap over a debased dirham in Kufa
between 656 and 661 CEA man sold a sheep on the condition of no debased coin and gave one; the buyer returned it and was slapped by the seller. Ali, passing through the market, ruled that the slapper sit, let the slapped man choose between retaliation and pardon, then had the slapper carried on a man's back and beaten fifteen strokes, saying this was the punishment for violating the other man's sanctity.Ali's judgment: Shurahah flogged and stoned after confessing zina
between 656 and 661 CEShurahah confessed to zina while pregnant; Ali flogged her a hundred lashes on Thursday and stoned her on Friday, saying stoning is the Prophet's sunna. The book notes that combining flogging with stoning is disputed among jurists.Ali's inquiry into a missing traveller and his wealth
between 656 and 661 CEA young man complained that a company of travellers came back without his father and with his father's money. Ali had the police guard each suspect separately, questioned each on the journey, the lodgings, the cause of death and the burial, and found their accounts contradictory; one confessed, and they were made to pay.
Person
Concept
Habs (imprisonment and detention)
In the technical sense habs is holding a person back, preventing him from acting for himself and going about his affairs. Jurists agree that it is lawful. Most treat it as a branch of discretionary punishment (ta'zir), used either as a penalty or to secure a suspect, and most set no upper limit on its length, leaving that to the judge. It may be open-ended or for life, and it ends with death, repentance or the pardon of the person wronged. Jurists also set rules for women, ambiguous and juvenile detainees, the prisoner's transactions, maintenance and oaths, the prohibited forms of discipline, and the jailer's qualities and the state's duty to oversee prisons.Hadr (blood and value wasted: no retaliation, no compensation)
Hadr means waste or nullity; as a technical term, a hadr soul is one for which there is neither retaliation, diya nor expiation. The principle is that a human life is protected, but an apostate is an exception agreed by the jurists: the imam or his deputy executes him, and if someone other than the imam kills him without authorisation there is no retaliation or diya, though he is disciplined (ta'zir). The blood of a heretic whose innovation is takfiri is also wasted, and so is that of a belligerent non-Muslim; non-combatants such as women, children, the old, and monks may not be killed. The blood of a married adulterer is wasted in the view of most jurists; the Hanafis require that the killing follow a judgment. Where a wounded person's status changed between protected and wasted before death, the majority hold the earlier wound unliable, while Ibn al-Qasim (Maliki) holds a diya due. If a Muslim shot a hadr person who then converted before the arrow struck, the majority hold no retaliation is due, while the Shafi'is hold, in the sounder view, a lighter diya paid by the kin. For the Shafi'is the retaliation is claimed by the Muslim next of kin; for the Hanbalis it is the imam who executes. A person whose blood is wasted need not be given water he needs, and the Shafi'is and Hanbalis permit a compelled person to kill such a person to save his own life if no other food is found. One whose blood was wasted by a crime who kills himself gets no expiation from that act, since he has no right to spill his own blood.Harisa (a superficial wound)
Harisa is a superficial head wound that scratches and slightly splits the skin without drawing blood; it is also called the scratching or peeling wound. The Shafiis and Hanbalis, and one Hanafi view, hold that there is no retaliation for it and that only a just assessment (hukuma adl) is due; the Malikis and the apparent Hanafi view require retaliation.Hashima (a head wound that breaks the bone: its compensation)
Hashima in the lexical sense is a wound that breaks the bone of the head; for the majority it is a wound that breaks the bone, the Shafi'is adding that it does so even without separating the flesh or exposing the bone, and the Hanbalis and some Shafi'is defining it as a wound that exposes and breaks the bone. No retaliation is due for it, by agreement, and compensation is due. The Shafi'is and Hanbalis fix it at ten camels, on the ruling of Zayd ibn Thabit; the Hanafis at a tenth of the full diya; the Malikis differ according to their definitions. When a hashima accompanies a muwadiha, the compensations combine, and the victim may take retaliation for the muwadiha, with the schools differing on the extra arsh. The Malikis give discretionary compensation for a broken bone in the body where retaliation is excluded, and most jurists do not call a break in the body other than the head or face a hashima.Cauterising the stump (hasm)
Hasm (cauterising) means, in the lexicon, cutting, and in law dipping the stump of a cut hand or foot in boiling oil or searing it with a heated iron so that the veins close and the bleeding stops. The Hanafis and Malikis, and one Shafi'i view, treat it as obligatory since the penalty must deter and not destroy; the sounder Shafi'i view and the Hanbalis treat it as recommended.Hija' (satire and insult in verse: its rules)
Hija', in the lexical sense, is the opposite of praise: it is abuse and enumeration of faults; the word also means spelling out the letters of a word. It differs from sabb (abuse, which is wider), from qadhf (accusing a free Muslim of unchastity or of a false lineage), and from ghiba (backbiting, said in the absence of the person). Most jurists allow satirising an unbelieving non-protected person and an apostate, since the Prophet bade Hassan ibn Thabit satirise the unbelievers, and forbid satirising a Muslim; the Shafi'is except an innovator and an open sinner; the Hanafis allow satire of a hypocrite. Satirising the dead is judged as satirising the living. If two men abuse each other, the sin falls on the one who began, and retaliation is allowed to the extent of the wrong. The imam may discipline one who satirises people without right.Hirabah (highway robbery)
Hirabah, which most jurists call highway robbery (qat' al-tariq), is the act of taking to the road, to take property or to kill or terrify, openly and by force, with no help near at hand; the Malikis add an assault on honour. It is a grave sin and a fixed penalty by consensus; the Qur'an calls its perpetrators those who wage war on God and His messenger and run about the land in corruption, and the penalty is killing, crucifixion, cutting of hands and feet on opposite sides, or banishment from the land. Hirabah differs from rebellion (baghy), which is revolt under an interpretation, while the highwaymen act without one; it differs from theft by openness, and from usurpation by the use of force. The majority require the highwayman to be a legally bound adult; the Hanafis and Hanbalis require arms, counting stones and sticks as arms, while the Malikis and Shafi'is require only coercion and dominance. For the Hanafis, manhood is required, while Abu Yusuf would penalise men who join a woman in the act. An accessory who supports the act is treated as the perpetrator by the Hanafis, Malikis and Hanbalis, and disciplined by the Shafi'is. The penalty is a fixed penalty that a pardon cannot remove, and repentance before capture removes it.Guarding (hirasa)
Hirasa (guarding) means keeping a thing safe continuously, and the term keeps this meaning in law. It differs from ribat, which is residence at a frontier to strengthen the Muslims, and from himan, the reservation of a plot against grazing. It takes the five rulings: obligatory, as when part of an army guards another during the prayer of fear; recommended, as in guarding a frontier or a volunteer raid; permitted, as in guarding fruit or markets; and forbidden, as in guarding places of unlawful amusement. Using a dog for guarding is generally allowed, and the guard's liability is disputed.Safe custody (hirz) in theft
Hirz (safe custody) is the place set up customarily to keep people's property, such as a house, a shop, a tent or a guarded person; its limits are fixed by custom. Taking from safe custody is a condition of the hand's amputation for theft of ownable property, by the majority: the cut is not owed until the goods leave the whole of the custody, on the hadith that there is no cut for fruit still on the tree or for grazing animals in the mountain, and that the cut applies to what reaches the value of a shield. There are two kinds: custody by place, such as houses and strongboxes, which is custody in itself; and custody by a guard, such as roads and mosques, where a nearby guard makes the place custody. The jurists treat it under theft, and also under deposits and other contracts that carry liability.Hudb (eyelashes: injury and washing in ablution)
Hudb is the hair growing on the eyelids; the hair above the eyes is called hajib. For injuring a single eyelash so that it is pulled out and does not regrow, the Hanafis and Hanbalis hold a full diya is due, while the Malikis and Shafi'is hold neither retaliation nor diya applies, only an assessed compensation (hukuma). On washing the eyelashes in ablution: if the hair is dense and does not show the skin, washing its outer surface suffices according to the Malikis and Hanbalis, with combing it recommended for the Hanbalis; the Hanafis require passing water over the hair without washing beneath it, while the Shafi'is require washing both outer and inner surfaces.Fixed penalties (hudud)
Hudud (sing. hadd) means a barrier in the lexicon, and in law a fixed penalty owed as God's right; the Shafi'is and Hanbalis define it as a fixed penalty for an offence that is a right of God, or in which the right of God and of the person are joined, as in slander. It differs from retaliation (qisas), which is the person's right, and from discretionary punishment (ta'zir), which is not fixed. Enforcing the fixed penalties is a duty of the ruler on the authority of the Qur'an, the Sunna and consensus, and the reason given is that human appetite leans toward forbidden acts, so these penalties deter and cut off corruption. Fixed penalties differ from retaliation in that they are not inherited, cannot be pardoned, do not depend on a claim, may be recanted, and may not be interceded for once they reach the judge. Two penalties of one kind merge, but a new offence is punished anew. Penalties are averted by doubt; a confession is withdrawn except in slander; and the stoning is not carried out if the witnesses are dead, for those who require the witnesses to begin. Four witnesses are required for fornication by the majority, the penalty is applied only to a sane adult, and only by the ruler or his deputy. Repentance removes the penalty for highway robbery and apostasy before capture; for others the views differ.Open assault by force (mukabara)
Mukabara means overpowering and defying. In the jurists' usage it is one aspect of highway robbery (hiraba): an open seizure of property, killing or intimidation that relies on force far from help. In general it takes the rule of hiraba. On the theft limb, the Hanafis require cutting the hand for a night-time mukabara in a house but not a daytime one in town, while the Malikis exempt one who takes by force and claims ownership. The Shafi'is and Hanbalis treat a group that breaks into a house at night and prevents help as highwaymen.Reciprocity and equality (mukafa'a)
Mukafa'a means returning like for like, and in the lexicon it is equality, as in the hadith that the blood of the Muslims is equal in blood-money and retaliation. The jurists apply the notion to several matters: returning a gift with a gift, the equality of killer and victim in retaliation (required by the Malikis, Shafi'is and Hanbalis but not by the Hanafis), equality of spouses in marriage (required by most jurists), the words of a quarrel that turn into divorce, the reward for a partner in a profit-sharing contract, and equality of horses in a race.Unlawful tolls and levies (mukus)
Mukus is the plural of maks, which in the lexicon means loss and injustice. It names the dues taken from sellers in markets in the pre-Islamic period, and the toll that a collector takes from merchants entering a town. The jurists distinguish it from the tithe on trade, the general collection, the levies and the kharaj on land. Some levies are blameworthy and forbidden, the hadith on Uqba ibn 'Amir stating that the one who takes a toll does not enter Paradise; others are not, such as the half tithe Umar imposed on the trade of the protected people. Most jurists hold that a toll paid cannot be counted as zakat; the Malikis allow a pilgrim to be excused from pilgrimage when the toll is heavy.The grave-robber who steals shrouds (nabbash)
A nabbash is one who digs up graves to steal the shrouds of the dead after burial; nabbasha is the trade of digging up graves, and a thief is a wider term. All agree that it is forbidden, but the jurists differ on whether he is a thief whose hand is cut. The majority (Malikis, Shafi'is, Hanbalis and Abu Yusuf) cut the hand for stealing the minimum value, since the grave is by custom the shroud's safe-keeping, citing a report from Aisha and Ibn al-Zubayr's cutting of a nabbash at Arafat. Abu Hanifa, Muhammad and others say there is no cut, citing the saying 'no cutting for the one who hides', a weak hadith, and because people shun shrouds and so they are not kept safely. Conditions of the cut differ: the grave must be deep and levelled, the shroud must come out of the whole grave, and the dead must be in it; the Shafi'is hold that the sea is no safe-keeping. For the Shafi'is the owner of the shroud is the claimant, and for the Hanbalis the heirs.Nafy (exile and banishment)
Nafy, in the lexicon, is banishment, driving out and removal. The Qur'anic phrase about exile has three readings: wandering through the lands, favoured by the Hanbalis and in one Shafi'i view; imprisonment, favoured by the Hanafis, Shafi'is and some Hanbalis; and a combination of removal and imprisonment, favoured by Malik. Exile is established by the Qur'an, the Sunna and consensus. It is required for banditry, permitted as discretionary punishment, and according to most jurists required for fornication by an unmarried free person, though the Hanafis treat it as discretionary. For fornication its term is a year according to the majority; for banditry it lasts until repentance is evident; for discretionary exile the judge decides. It ends with the term, death, insanity, a fatal illness, pardon or intercession, with details. Women are not exiled by the Hanafis and Malikis; the Shafi'is and Hanbalis exile a woman only with a mahram or trustworthy women.Naqd (annulment and breaking)
Naqd, in the lexicon, is undoing what was tied; in the usul sense it is a flaw in a cause when the ruling does not follow it. Its forms include breaking ablution, breaking truces, safe-conducts and the dhimma contract, annulling reasoning, and annulling a judgment. A judgment is annulled only if it contradicts a text of the Qur'an or Sunna or a consensus; the Malikis and Shafi'is add a clear analogy and established principles. A judgment that is correct or falls in an area of ijtihad is not annulled, and the schools differ on the cases in between. A ruling by an unfit or tyrannical judge is annulled in whole or in part, by the schools' differing views. A ruling based on false witnesses, or on witnesses later shown to be unfit, is treated differently; testimony withdrawn after execution does not annul a money ruling. A judge annuls his own ruling if he sees an error, and does not search through another judge's rulings except for a plain contradiction. A judgment on a right of God may be annulled without a claim; one on a right of a person needs the claimant's demand.Raqm (the marking of a price on goods, and pictures on cloth): sale by the written price, and the decorated cloth
Raqm in the lexicon is the weaving of cloth; technically it is the mark that shows the price for which a sale takes place, or the price written on the cloth. A sale by the written price is valid when both know the price; when both are ignorant it is void according to the majority, and the Hanbalis hold it valid if the ignorant party learns the price before they part. A hadith forbids images in houses but excepts a mark on cloth.Ridh (the helper of the fighters in jihad): his share of the booty, his liability in crimes, and his place in retaliation and banditry
Ridh in the lexicon is a helper or supporter; in the usage of jihad he is one who stands in for the fighters or waits at a post and fights when they withdraw. The jurists agree that the helper and the direct fighter are alike in the right to share the booty, and differ on giving one more than the other. A helper may be disciplined in cases of discretionary penalty; he has no hadd penalty for fornication, drinking or false accusation. In banditry the majority treat the helper like the direct perpetrator, while the Shafi'is hold no hadd for one who only helped. In retaliation the majority do not punish the helper, while the Malikis punish those who agreed in advance to the killing.Ridda (apostasy from Islam): its conditions, its forms, the repentance of the apostate, and its effects on property, marriage and worship
Ridda in the lexicon is turning back from a thing; in law it is a Muslim's unbelief by an explicit word, a word implying it, or an act containing it, and it can only be committed by a sane, adult and free person. Abu Hanifa and al-Shafi'i do not count a child's apostasy in one view, the Malikis and a famous Hanbali view count it; a child is not killed before puberty; a madman's apostasy is not valid; a drunk man's apostasy is not counted by the Hanafis, while the Shafi'is and Ahmad count it. One who is compelled to speak unbelief does not become an unbeliever, by the verse excepting the compelled whose heart is at peace in faith. Apostasy happens by belief, speech, act or omission: associating others with God, throwing the Qur'an in filth, prostrating to an idol, and abandoning prayer in denial. Insulting God is unbelief by agreement; insulting the Prophet is apostasy for the Hanafis and Hanbalis, and for the Shafi'is apostasy with an added hadd, while the acceptance of the repentance of the insulter is disputed. The apostate is asked to repent, and if he does not he is killed by the imam; the female apostate is killed by the majority and not by the Hanafis. A marriage of an apostate is void; a spouse's apostasy annuls the marriage for the Hanafis; the apostate's property is disputed as to whether it passes away. The deeds of the apostate are annulled, and the jurists differ on the condition of this, and on repeating the pilgrimage and the missed prayers.Rijl (the foot): washing in ablution, the theft and hirabah penalties, the blood-money for a foot, and its place in the nakedness rules
Rijl means the foot. In the jurists' usage it names the foot with the two ankle bones in the verse of ablution, the part below the joint of the leg in cutting a thief's foot, and from the root of the thigh to the foot in another place. Most jurists hold that washing the feet up to the ankles is obligatory in ablution; some early scholars held wiping, and al-Hasan al-Basri and al-Tabari allowed a choice. For theft, the right hand is cut first and the left foot at the second theft; the rest is disputed, and the Malikis, Shafi'is and a Hanbali view cut the left hand and right foot. Cutting both feet carries full blood-money, one foot half of it, and each toe a tenth; the Hanafis and Shafi'is add a just assessment. For a free woman the foot is nakedness except the two feet, and for men the nakedness runs from navel to knees by the majority.Riq (bondage): its kinds and causes, the rights and duties of owner and slave, the marital and sexual rules, the slave's worship, transactions, crimes and inheritance, and how bondage ends
Riq (bondage) is a person's being owned by another; freedom is the original state, and the jurists set out its rules at length. Slaves enter ownership by capture in war, by the offspring of a slave-woman, by purchase, gift, bequest and inheritance; a free Muslim may not be enslaved. A non-Muslim may not keep a Muslim slave, and must sell or free him. Owning a relative within the prohibited degrees frees him. The owner may command the slave in what is not sinful, but the work must be within his strength; he must provide food, clothing and care, and may not torment or disfigure him. The owner may sell, pledge or give the slave, and the schools differ on sale on condition of freedom, on separating relatives in sale, and on the slave's property. In worship the slave is lighter: Friday is not obligatory, the owner pays his zakat, and his vowed fast and i'tikaf need leave; his hajj is not obligatory until freed. In marriage a free man may marry a slave-woman under conditions; a slave's divorces and waiting period are counted by his condition. In crimes, a free man is not retaliated against for killing a slave; a slave who kills a free man is retaliated against; the value of a slave is owed; the hadd for a slave is half of a free man's. The co-owned and the partly freed slave have their own rules. Bondage ends by manumission, by writing-off, by the status of mudabbar or umm walad, by legal manumission and by bequest.Rusgh (the wrist): the limit of washing the hands in ablution and of wiping them in tayammum, and the place of the cut in theft
Rusgh in the lexicon is the joint between the forearm and the palm; in the jurists' usage it marks the limit of washing the hands in ablution and wiping them in tayammum, and the place of the cut for theft. It is a sunna to wash the hands up to the wrists at the start of ablution. The jurists differ on wiping in tayammum: the Hanafis, the Shafi'is in the school's view and some Malikis take the elbows; the Hanbalis, a view of Abu Hanifa, most Malikis and the older Shafi'i view take the wrists; al-Zuhri and Muhammad ibn Maslama take the shoulders. The jurists of the cities hold that a thief's hand is cut from the wrist.The police (shurta) under Ali
Under Ali the police were an important office. His police included Abu al-Hayyaj al-Asadi, Qays ibn Sa'd, Ma'qil ibn Qays, Malik ibn Khubayb, al-Asbagh ibn Nubata and Sa'id ibn Sariya; their work included helping the needy and feeding the poor, and prisoners were fed and clothed.Ta'dhib (torment or punishment beyond the lawful: the prisoner, the thief, animals)
Ta'dhib is inflicting punishment or harm. The basis is prohibition, since it punishes without right. It is lawful in discipline, the fixed penalties, retaliation and discipline by the ruler; the Hanafis allow cauterising for treatment when it is needed; and the jurists allow burning enemies in war when they cannot be taken otherwise, but not after capture. A captive may be made to reveal hidden property, and is not tormented at the start; an accused man of known goodness is not punished, one of unknown standing is detained, and one known for wrongdoing may be detained and beaten according to some. Torment of animals by starving them or using a living creature as a target is forbidden; branding and training are lawful to the extent of need.
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