From Punishment to Restitution: In What Direction Should a Restatement of Islamic Law Go? :: Part 4 :: The Art and Science of Keeping the Peace

This is part 4 in a series of 4 posts.

:: Part 4 :: The Art and Science of Keeping the Peace

Students of Ḥanafī law learn that the crime of murder consists in a deliberate act, aiming at ending a life, by a competent adult, using—and this is where the emphasis is—a proper murder weapon. For Ḥanafī lawyers, to establish an intention to kill, the weapon used must be a cutting blade, which is the natural murder weapon.  Knives and swords are standard examples. What of a heavy metal object? The intention to kill would be doubtful, they say. The killing may have happened inadvertently. This leads to a lengthy consideration of whether objects that could end someone’s life are or are not considered weapons, without denying some form of liability for the unintentional killing of the victims in these cases.[1]

One may see this element as part of a larger structure. While the requirement that the murder weapon be “sharp” (muḥaddad as Ḥanafīs have it) is traceable to Abū Ḥanīfa (d. 150/767) himself, the reluctance to grant a claim of murder fits in a larger pattern that survives and becomes stronger over the centuries.

Claims of liability, civil or criminal, in this system, are strongly scrutinized and often rejected. While Ḥanafī jurists sympathize with those under duress and coercion, acts of legal impact (marriage, divorce, etc.) are not negated or invalidated, even after the defense of coercion.[2] The default in a case where one entered into a contract or a legal obligation is that they did so voluntarily, and in a case of being harmed that no one in particular is responsible for that harm. An original condition preceding all action is presumed to obtain, while judges, plaintiffs, and defendants are required to provide reasons to alter it.

The excuse of coercion, it is good to remember, neutralizes this-worldly but not other-worldly responsibility. A man coerced to kill to avoid being killed bears only the sin of killing but not the criminal liability for the act of murder. Hence, whether an adult or a minor is coerced to kill, the coercer bears both this-worldly and other-worldly responsibilities. The child will not bear any religious responsibility, as s/he lacks legal majority. The idea that an unavoidable coercion (ikrāh kāmil or muljiʾ) leads to no consequences is not true; the heart of the coerced, after all, has sinned by acquiescing to kill.[3]

Ḥanafī law is, in other words, loath to punish without confirmation of desert of liability, while simultaneously hesitating to concede the inconsequentiality of an otherwise apparently valid legal act under a claim of coercion. One way to protect the social peace is a) not to question stable social conditions before a complaint of a violation of the social norms and b) (which may seem to go in an opposite direction) to be suspicious of claims that a disruption of that existing condition was not voluntary and ultimately hold all responsible for their actions that may have disturbed the stable social peace by denying them a “coercion” defense.[4]

In some cases, the legal doctrines protecting the existing social peace beg to be caricatured. These doctrines seem to let many alleged criminals (or those who ostensibly acted with negligence and may be seen as, at least, civilly liable) off the hook, as the editors of a 16th century encyclopedia of liabilities indicated in their introduction.[5] And this invites the question: Was early modern Muslim society always less punitive than contemporary societies?  And is this a virtue or a vice?

One may also look at this issue this way: A lawyer’s craft of legal reasoning must identify its aim. Is it the high bar of justice or the low bar of preserving the peace in society? Determining liability, civil and criminal, is a concomitant of a sense that an intolerable disturbance occurred in what we may call a natural condition in society. A realistic jurisprudence must, first, accommodate this stability. This jurisprudence must operate with the confidence that an alternative to the existing peace is likely to be inferior.

At least this much may be easy to assert from the evidence: Belligerence or failure to keep to one’s commitment toward his fellow countrymen should be compensated. But it should not be overcompensated, since this overcompensation may lead to worse conditions.

Assuming I got this one right, how could this provide guidance for a restatement of Islamic criminal laws for today’s environments? On the one hand, if a new criminal justice system is focused on the victim, compensating that victim ought to be possible if not easy.  On the other, fearing frivolous claims and respecting the existing balance and peace in society, it ought to be hard to make a claim of being harmed, whether in one’s person or property, until the claim is scrutinized.  But the fundamental question remains whether the existing order deserves a jurist’s support.  And if modern society is already showing signs of instability and susceptibility to unrest, what peace and what order should one work to preserve?  If modern society is still, all things considered, peaceful and stable, then a mitigated form of punishment, or possibly a move from punishment to restitution, may be in order.


Human beings ought to be held responsible for their actions.  When someone concludes a contract or ends it (e.g., marriage, divorce), s/he ought to bear the commitment entailed.  If this person claims to have been coerced to take the action, the claim of coercion is scrutinized and may often be rejected.  A violation of civil (e.g., A broke B’s property) and criminal (A intentionally or unintentionally killed B) responsibility needs to be compensated.  These ideas, scattered in Ḥanafī juristic sources, may be taken to work toward a new conclusion: Society ought to sit somewhere between being a) eager to punish and b) neglectful of the rights of victims of intentional or unintentional belligerence.  If a society is stable and peaceful overall, stirring animosity by exacting excessive compensation (or punishment) is a bad idea.  If the society is unstable and the government’s intervention is not bound to make things worse, perhaps some strict punishments of criminals and heavy compensations of failure to meet one’s responsibilities are needed.  The goal of the laws should be keeping the peace and stability, however, and not retaliation or revenge.

Doing away completely with punishment may be hard to imagine, but making it a rare occurrence is not.  In my highest moments of confidence, I imagine a gradual move from a paradigm of punishing the culpable to compensating the victim.  The burden of compensation would be shared, possibly, by the community the way we share taxes (setting aside how the shares are assigned).  This may free some mental space and financial resources to employ toward further mitigating the potential of crime, which we agreed, will likely be with us as long as this species is around.


[1] Al-Fuḍayl b. ʿAlī al-Jimālī’s (d. 991/1583) Encyclopedia of Liabilities (Fātiḥ-2343, folio 156|345).

[2]  Under a legitimate threat, one is allowed to perform prohibited acts without liability, but legal actions are deemed valid and operational.  See Al-Kāsānī (d. 587/1191), Badā’i‘ al-sanā’i‘ fī tartīb al-sharā’i‘, vol. 10, ed. A. ‘Abd al-Mawjūd et al. (Beirut: Dār al-Kutub al-‘Ilmiyya, 2002), 106-18, for a discussion of being forced to utter the words of unbelief, kill, eat or drink prohibited food and drinks, and for being forced to commit unlawful sexual acts.  Distinctions between men and women and between young children, older children, and adults are introduced.  In Ibid, 118 and after the discussion, Al-Kāsānī turns to contracts and other legal commitments, which are, in principle, seen as valid and enforceable, regardless of the defense of coercion.  Liability is assigned in some cases, with financial liability being more frequently assigned than retribution.  Disagreement among Ḥanafī jurists shows conflict of principles.

[3] Al-Fuḍayl b. ‘Alī al-Jimālī’s (d. 991/1583) Encyclopedia of Liabilities (Fayzullāh-915, folio 11-12).

الأقوال فالذي لا يجري فيه الهزل فإن كان الثبوت فيه بالقول كالعتق فالثبوت فيه يقتصر على الفاعل

[4] Ḥanafī jurists say that, even if the person was coerced, an act fulfilling its correct formula (initiating or dissolving a contract) must be taken as valid as it appears.

[5] M. A. Serag and Ali Gomaa, Majma‘ al-ḍamānāt of Ghānim M. Baghdādī (d. after 1600) (Cairo: Dār al-Salām, 1999), 17, 30.

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