10/31/08, Opinion-Editorial, printed in the Finger Lakes Times (NY)

Islam is often criticized as advocating a rather harsh, even barbaric, penal philosophy. The Qur’an orders adulterers to be flogged (24:3) and the thief’s hand cut off (5:39). How odd is it that a religion which bears the literal name of ‘peace’ has instituted harsh penal codes for its constituents! In truth, these and similar criticisms arise from a lack of understanding of society’s rights, and a rejection of giving weight to context.

Firstly, Islam has argued for a hybrid penal code – combining certain aspects of utilitarianism, where net social welfare (reduction and prevention of crime) is the objective, with the deontological idea that justice itself demands the administration of punishment. In Islam, punishment’s primary aim should be reformative and deterrent in scope, and retributive only to a subordinate degree. This contradicts doctrines such as “an eye for an eye” of the Hammurabi Code and the Bible (Exodus 21:23–25) and that of the renowned German philosopher Immanuel Kant, who argued that punishment should be proportional to the crime committed, irrespective of the aftermath.

Of flogging adulterers, understand that ‘flogging’ is not administered to inflict any physical pain whatsoever. Rather, ‘flogging’ would more rightly be described as ‘tapping’ as the Arabic for ‘flogging’ is jaldatan – whose root means ‘animal hide’. Prophet Muhammad instructed that when ‘flogging’, the white of the arm should not be revealed – meaning one should not raise their hand so high as to be able to inflict any pain. What then is the purpose of tapping an adulterer with a piece of animal hide? The answer highlights why context must be given weight when evaluating the Islamic penal code.

Islam seeks, as do all the world religions, to create a society where chastity is the norm. If someone threatens this norm, they must be punished. Yet the punishment Islam recommends is a non-violent tapping. In essence, Islam seeks to make the adulterer, and society, aware of the shamefulness of his behavior via a symbolic tapping. This attitude also underscores the fact that Islamic law cannot be blindly administered – a climate nurturing chastity must first be created before the idea of punishment is even born.

This also explains why Islam prescribes that a thief’s hand be severed. In accordance with the Qur’anic directive (20:119-120), Muhammad fashioned a State responsible for providing every citizen with food, water, shelter and clothing. So long as these needs were met, the citizens had no need to steal. As was the case with the flogging of adulterers, context is crucial in understanding why a thief’s hand must be cut off. Any individual found stealing after having been provided all fundamental necessities would be violating society’s moral fabric, and threatening a chain reaction of unqualified theft. This is what Kant was referring to when he stated, “If you steal from another, you steal from yourself.”

However, in failed states such as Haiti and Chad, or even in parts of America where more than 37 million live in poverty, someone stealing a loaf of bread to survive would not be subject to this punishment because the government has failed to look after their basic needs.

With all this talk of punishment, one may ask what value Islam affords forgiveness. Most everyone knows Jesus Christ’s famous directive, “Whosoever shall smite thee on thy right cheek, turn to him the other also” (Matthew 5:39). Islam most certainly recognizes the value of forgiveness and steadfastness, but mandates that forgiveness is only permissible if the act of forgiveness brings about a reformation in the criminal (42:41). To forgive someone who would undoubtedly repeat his offence is not a mercy, rather a crime upon humanity, and on the criminal himself.

This philosophy also resonates with the Islamic concept of Hell – neither endless nor punitive simply for the sake of being punitive. The Qur’an declares Hell to be “a nursing mother” (11:101), again indicating that Islam employs punishment as a means of reformation.