This post is the fourth and last in a series of four posts on obligation, jihād, revolution and prisons.
Over the past several years, there has been a surge of interest in anti-carceral ideas in the United States arising out of greater public awareness of systemic problems in its criminal system. This abolitionist thinking has understandably been American-centric, a product of the particular history and unparalleled expansion of the U.S. prison population. Anti-carceral thought tailored to American circumstances and its unique experience of mass incarceration may not apply everywhere. For global application, a more expansive theoretical basis is needed. One drawing from outside of well-known European critiques of prison by thinkers, such as Michel Foucault. The Global South contains its own versions of anti-carceral thought which may offer new avenues of thinking.
The question I want to explore here, and as part of a larger project, is whether Islamic legal thinkers have anything to contribute to this discourse? By way of background, the shift from corporal to carceral punishment occurred in less than a century, between 1780 and 1820, across Europe and the New World, with the development of “regimented” detention in the form of penitentiaries. A similar phenomenon occurred more recently in other parts of the world including Muslim-majority nations. Historically, prison existed in Islamic civilization, but with strictly limited periods of confinement since confinement was generally not meant to punish, but temporarily detain. In fact, premodern Islamic legal texts are often reluctant to endorse prison as punishment at all. Relevant sections in those texts discuss both punitive and non-punitive responses to crime. In terms of punitive responses, the primary focus is on hudūd punishments (virtually all of which are corporal) explicitly delineated in Islam’s core sources, but also retaliatory punishment (qiṣāṣ) and discretionary punishment (taʿzīr). Non-punitive responses include financial compensation (diya) and non-punishment or “forgiveness.”
With the above background in mind, a cursory look at the views of contemporary jurists of Islamic law in the Middle East, North Africa and South Asia reveal three broad sets of opinions on long-term imprisonment. First, is the opinion that permits long prison sentences as a type of discretionary punishment (taʿzīr). They acknowledge that this punishment looked different in Islamic legal tradition, but believe political authorities have some latitude to expand it. Second, is the view that considers incarceration impermissible because it subverts Islamic law by replacing scripturally-prescribed, corporal punishment with prison. This is not necessarily a critique of imprisonment itself, but of its use as a substitute form of punishment. The final opinion, of particular interest here, is one that considers long-term imprisonment as a form of punishment unethical and immoral. I consider this to be a prison abolitionist view.
One compelling example of this anti-carceral thinking can be found in the work of Jāved Aḥmad Ghāmidī (b. 1951), a Pakistani religious scholar, jurist and influential public intellectual. Trained in both traditional Islamic sciences and at secular universities, Ghāmidī’s thought is heavily influenced by his teacher, Amīn Aḥsan Iṣlaḥī (1904-1997), author of the nine-volume Qurʾānic exegesis, Taddabur-i-Qurʾān (Reflection on the Qurʾān). Ghāmidī has authored several works, but his two major contributions are Mīzān (Balance), his magnum opus on theology, legal theory, ethics and substantive law, and al-Bayān (The Exposition), a five-volume Qurʾān commentary. His most significant critique of the carceral system came in a short article, in Urdu, entitled Qayd kī sazā (Prison as Punishment), which was published in the July 1989 volume of the journal Ishraq. Anti-carceral ideas appear in his other writings as well, especially his 1993 article Hudūd wa taʿzīrāt: chand aham mabāhith (Hudūd and Discretionary Punishment: A few important points), which is part of an anthology of his writings entitled Burhān (Proof). In this post, my primary interest is in the arguments contained in the piece on “Prison as Punishment.”
Ghāmidī’s article was written under a backdrop of over a decade of debate on Islamic reforms to Pakistan’s legal system, popularly known as “Islamization.” A Hudūd Ordinance had been introduced in 1979 and by 1990 an ordinance on qiṣāṣ and diyat was also put forward. Ghāmidī made other interventions during this period which generated significant response, but this article was not especially controversial. As noted above, anti-carceral ideas resonated with the traditional view of punishment, thus religious scholars had little objection to the idea. Ghāmidī’s piece reflects this since its language seems geared towards an audience of Pakistan’s secular elite, for whom carceral punishment was an important sign of modern advancement.
Ghāmidī begins his article by framing the discussion on incarceration as one residing outside the sacred realm, noting that prisons are institutions that “human beings have devised for themselves.” This detaches carceral punishment from any Divine mandate, disconnecting it from religious law and removing concerns about its “sanctity.” He follows this by immediately providing a moral assessment of prisons as “enormities” that should be considered among “the worst forms of oppression” (badtarīn ẓulm). He uses similar language later, intentionally referring to carceral punishment as among “the worst crimes” (badtarīn juram). These are important rhetorical moves because they allow him to provide a moral critique of what he has essentially classified as a secular institution. This is significant because once an institution is marked as sacred it is far harder to abolish. After briefly recounting a history of prisons and acknowledging the long presence of confinement in human history, Ghāmidī mentions that the key distinction between prisons in the past and today is the temporary nature of past detention. He contends that in Islamic history, people were either confined awaiting trial or the administering of punishment. Ghāmidī attributes extended imprisonment as penalty for criminal behavior originated in Western countries only a few centuries ago, then spread to other parts of the world because of Western culture’s global hegemony. By doing this, he situates prisons as foreign interventions from a different legal culture.
Ghāmidī then turns to the substance of his critique, which centers on the unjustified harm—psychological, emotional and collateral—caused by prolonged confinement. There are a few different aspects to the harm, making its severity all the more pronounced. He is particularly concerned with the perpetual harm caused; as opposed to physical punishment which is momentary, imprisonment persists for an extended period of time and repeats daily. For years, the recurring harm torments the “hidden recesses of a person’s core personality” (andar chupī huwī us kī aṣl shakhṣiyyat). The source of this torment is built into the nature of prison itself, where an individual must forfeit control over their body; “rising, sitting, eating, drinking, sleeping, waking, and even…relieving themselves” at the “mercy” of others. The experience causes a loss of dignity (ʿizzat-i-nafs) and sense of self; the prisoner agonizes over rescuing their “complete self” (apnī wujūd kī takmīl).
Second, aside from psychological harm, Ghāmidī argues that prison inflicts serious, if not tortuous, emotional harm by depriving individuals of love and affection from their closest kin. The individual is forced to suppress their intuitive desire for these emotional connections, a hardship that Ghāmidī says even God never demands. Here, the subtext seems to be that prison, a human construct, imposes ungodly restrictions on prisoners, making it in many respects inhumane. He describes the psychological and emotional harm as leaving individuals in a state of “neither dying nor living” (lā yamūtu fīhā wa lā yaḥyā), the Qurʾān’s words to describe hell (Q 87/al-Aʿlā:13). Ghāmidī seems to be saying that prison’s psychological harm negates the individual self, while its emotional harm negates the relational self.
The third harm of incarceration that Ghāmidī raises might be characterized as collateral punishment. He notes that prison is not simply punishment for the criminal; it becomes a punishment for his close relations who committed no wrong. The most devastating harm is experienced by the prisoner’s spouse who suffers “psychologically,” “socially,” “financially” and “ethically” while surviving the absence of their marital partner. Similarly, Ghāmidī bemoans the fate of children faced with choosing to either avoid seeing their imprisoned parent entirely for years or suffer the trauma of visiting them in prison, locked behind bars in a cage. Ghāmidī returns to the idea of perpetual harm, noting the child’s trauma is renewed with each visit, detrimentally shaping their personality. He asks how society can expect any child to develop a stable (tawāzan) personality, not hostage to passions (jazbāt) stirred by this sustained trauma. Furthermore, he rhetorically wonders “what precise justification can we present to these children from ethical treatises” for punishing them with this type of estrangement?” He seems to be probing a deeper philosophical question about the application of our theories of punishment beyond the individual. This is a somewhat novel approach that challenges us to think of the entire ecosystem that is disrupted by prolonged incapacitation of one individual.
Aside from a critique of the harms caused by carceral punishment, Ghāmidī also questions the internal logics of the purported “goals” of this form of punishment. He argues that, alongside disciplining (tādīb) and deterring (tanbīḥ), any reasonable society must surely want its criminal actors to be rehabilitated (iṣlāḥ) at some point. If that is the case, then Ghāmidī argues that prison represents a “theatre of the absurd” (t̤urfah-yi tamāshā). In his view, it is widely acknowledged that if anything is effective in reforming individuals it is the influence of the company (ṣuḥbat) they keep. Hence, he finds it bewildering that carceral states seek to reform criminals by separating them from potentially positive sources of intervention in their life: community, family, and kinfolk. Instead, Ghāmidī says, what rehabilitation can we reasonably expect will result from prolonged confinement in the company of criminals? He argues that common sense requires that any society truly interested in transforming criminals into productive members of the community consistently and constantly create opportunities for this to happen. This seems to create a larger moral responsibility to also address societal factors producing criminal behavior.
Let me conclude with a few broader thoughts on this article. First, this article represents a rare occasion, even for Ghāmidī himself, where an Islamic scholar steps outside purely religious arguments and offers a moral critique in the capacity of a public intellectual. Ghāmidī focuses on the carceral system’s ethical travesties, philosophical shortcomings and the incongruence between its goals and realities. This is not to say that he avoids discussing religion; Islam is always operating in the background as the core value system upon which this critique is based. Although he does not classify prison with religiously loaded terms like “forbidden” (harām), he implies as much by stating unequivocally that there is “no conception in Islamic law’s core sources of confining people to prison cells for years on end.” The implication seems to be that any government that uses prison as punishment diminishes its claims to being “Islamic.”
Second, unlike others who are willing to accommodate the idea of prison or even advocate ways in which it can be made morally acceptable through reform, for Ghāmidī prison appears virtually irredeemable. In that sense, he is a prison abolitionist. It should be noted though that Ghāmidī is not eschewing the idea of punishment itself; he is simply arguing against this particular type of punishment. Finally, Ghāmidī wrote his piece when American “tough on crime” rhetoric was peaking, culminating in the now infamous Violent Crime Control and Law Enforcement Act of 1994. Not surprisingly, he makes no reference to this or any other Western discourse in his writing. He speaks of similar challenges in his own context, but uses moral arguments with universal application. It is indicative of the fact that the Global South has its own discourses on areas of shared concern, with unique insights that might provide helpful perspectives beyond its borders.
 There are approximately 2.2 million citizens behind bars in the United States, “a 943 percent increase over the past half century.” The rate of incarceration in the U.S. is “five to ten times higher” than comparable nations and it imprisons 25% of the world’s prison population. See Elizabeth Hinton, From the War on Poverty to the War on Crime: The Making of Mass Incarceration in America (Cambridge: Harvard University Press, 2016), 5.
 Of course, some of the most influential global anti-carceral thinkers have arisen out of the American context, see for example, Angela Y. Davis, Are Prisons Obsolete? (New York: Seven Stories Press, 2003).
 See generally, Michel Foucault, Discipline and Punish: The Birth of the Prison, trans. Alan Sheridan (New York: Vintage Books, 1977).
 Roger-Pol Droit, “Michel Foucault, on the Role of Prisons,” NYTimes (August 5, 1975): https://archive.nytimes.com/www.nytimes.com/books/00/12/17/specials/foucault-prisons.html?r=1.
 See generally, Irene Schneider, “Imprisonment in Pre-Classical and Classical Islamic Law,” Islamic Law and Society, vol. 2, no. 2 (1995). For a discussion of imprisonment under the Saljūqs of Iraq and Persia (fifth/eleventh and sixth/twelfth centuries), see Christian Lange, Justice, Punishment and the Medieval Muslim Imagination (Cambridge: Cambridge University Press, 2008), 89-94.
 This is not to say that jurists had no conception of long-term imprisonment. In fact, some even allow the guilty to “be confined until death” (takhlīd fī al-ḥabs ilā al-mawt) as a discretionary punishment (taʿzīr). See, ʿIzz al-Dīn ʿAbd al-ʿAzīz b. ʿAbd al-Salām, al-Qawāʿid al-Kubrā, vol. 1, eds. Nazīh Kamāl Ḥammād and ʿUthmān Jumʿa Ḍamīriyya (Damascus: Dār al-Qalam, 2000), 161. Of course, despite permitting long-term imprisonment, Ibn ʿAbd al-Sālam expresses his personal reservations about it. Ibid, 160. I am grateful to Mariam Sheibani for this reference.
 For more on these punishments, see Intisar A. Rabb, Doubt in Islamic Law: A History of Legal Maxims, Interpretation, and Islamic Criminal Law (Cambridge: Cambridge University Press, 2013), 30-37; see also, Rudolph Peters, Crime and Punishment in Islamic Law: Theory and Practice from the Sixteenth to the Twenty-first Century (Cambridge: Cambridge University Press, 2005), 30-38 & 53-68.
 See for example, Ḥasan ʿAbd al-Ghanī Abū Ghudda, Aḥkām al-sijin wa muʿāmalat al-sujanāʾ (Legal Guidelines on Prison and the Treatment of Prisoners)(Kuwait: Maktabat al-Manār, 1986), 34-35; see also, Maktaba fatāwā al-shaykh Abd al-Ḥayy Yūsuf, Ḥukm al-sijin fī al-Islām (Ruling on Prison in Islam), YouTube Video, June 15, 2020, 2:59, https://www.youtube.com/watch?v=miRj3Hn5Ts8.
 See for example, al-Baṣirah Net (Aḥmad al-Naqīb), Hal ʿUqūbat al-Sijin lahā aṣl fī dīn al-Islām? (Does prison punishment have a basis in the Islamic faith?), YouTube Video, November 3, 2010, 4:20, https://www.youtube.com/watch?v=yXEtAynZljo&t=8s.
 Ghāmidī was born to a Sufi peasant family in the Panjab (Pakistan). His early education included secular schools, Arabic, Persian and the Dars-e Nizāmī curriculum (1959-1966). He then studied philosophy, English literature and Islamic studies at Government College in Lahore (1968-1973). During this period, Ghāmidī began associating with Abū’l Aʿlā Mawdūdī (1903-1979) and briefly joined Jamāʿat-e Islāmī. From 1973 to 1983, he actively studied under his most influential teacher Amīn Aḥsan Iṣlaḥī (1904-1997). For more on Ghāmidī’s biography, see Muhammad Khalid Masud, “Rethinking Sharīʿa: Javēd Aḥmad Ghāmidī,” Die Welt des Islams 47, no. 3-4 (2007): 357-360.
 Amīn Aḥsan Iṣlaḥī, Taddabur-i Qurʾān (Reflection on the Qurʾān), 9 vols. (Lahore: Fārān Foundation, 2004). See also, Mustansir Mir, Coherence in the Qurʾān (Indianapolis: American Trust Publications, 1986).
 Jāved Aḥmad Ghāmidī, Mīzān (“Balance”), 11th ed. (Lahore: al-Mawrid, 2018) and al-Bayān (The Exposition), 5 vols. (Lahore: al-Mawrid, 2018). The first edition of Mīzān was published in 1985.
 Jāved Aḥmad Ghāmidī, “Qayd kī sazā (Prison as Punishment),” Ishrāq, no. 11 (July 1989): 37-42.
 Jāved Aḥmad Ghāmidī, “Hudūd wa taʿzīrāt: chand aham mabāhith (Hudūd and Discretionary Punishment: A few important points),” in Burhān (Proof), 7th ed. (Lahore: al-Mawrid, 2009), 143-146.
 For a brief history of this period, see Moeen H. Cheema, “Beyond Beliefs: Deconstructing the Dominant Narratives of the Islamization of Pakistan’s Law,” The American Journal of Comparative Law 60, no. 4 (Fall 2012), 878-900.
 Jāved Aḥmad Ghāmidī, telephone conversation with author, September 9, 2020.
 Ghāmidī, “Prison,” 37.
 Ibid., 38.
 Ibid., 37.
 Ibid., 38.
 He specifically mentions Ramadan as illustrative of the fact that God asks human beings to restrict their core desires for food, drink and even physical intimacy, but never restricts your emotional connections. Ibid.
 Ibid., 39.
 There are occasions where scholars will provide a moral critique as an extension of their religious one, but unlike Ghāmidī, they are not advocating the abolishment of prison on the basis of this critique. They either simply point out its flaws or suggest ways for reform. See for example, Kalima ḥaq (ʿAbd al- ʿAzīz al-Ṭarīfī, La tūjid ‘uqūbat al-sijin fī al-Islām (There is no prison punishment in Islam), December 28, 2017, 9:14, https://www.youtube.com/watch?v=gK1dCoBLkMI. For a perspective on reform, see Zāhid al-Rāshidi, “Jaylon ke niẓām mein iṣlāḥ kī ḍurūrat (The need for the prison system to be reformed), Tarjumān al-Islām, November 12, 1976, http://zahidrashdi.org/1267.
 See H.R. 3355 – Violent Crime Control and Law Enforcement Act of 1994, https://www.congress.gov/bill/103rd-congress/house-bill/3355/text.