Difa an al-Uqubat al-Islamiyya
- Author died
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- Editions
- Islamic University of Madinah
Difa' 'an al-'Uqubat al-Islamiyya (A Defense of Islamic Punishments) is a legal treatise written by Muhammad ibn Nasir al-Suhaybani, former dean of the Faculty of Sharia at the Islamic University of Madinah, addressing the rationale and justice of Islamic criminal penalties and responding to modern criticisms against them .
Background and Purpose
The treatise originated as a promised continuation of an earlier article by the author on the merits of Islamic legislation . Al-Suhaybani intended to provide a concise defense of Islamic corporal and capital penalties against charges of cruelty, backwardness, and inhumanity advanced by external critics as well as secularist Muslim writers . It was published in the journal of the Islamic University of Madinah (Majallat al-Jami'ah al-Islamiyyah bi-al-Madinah al-Munawwarah) .
Structure and Core Themes
Definition of Crime and the Islamic Perspective
Al-Suhaybani begins by analyzing the concept of crime (jarimah) linguistically from dictionaries such as Lisan al-'Arab and Taj al-'Arus, noting that Quranic uses of related roots primarily describe disbelief and obstinate rejection of divine signs . Legally, he adopts the classical definition of al-Mawardi, who characterized crimes as "prohibitions delineated by the Sharia that God restrains by fixed penalties (hadd) or discretionary chastisement (ta'zir)" . He observes that early generations generally reserved terms like mujrim for severe transgressors, as reflected in chapter headings by al-Bukhari .
The author argues that Islam views crime as an unavoidable social reality rooted in innate human fallibility, citing the hadith: كل ابن آدم خطاء وخير الخطائين التوابون ("Every child of Adam errs, and the best of those who err are those who repent") . Rather than pursuing an impractical utopia of total crime eradication, Islamic law seeks to contain crime, mitigate its societal damage, and allow offenders a pathway to reintegration and spiritual redemption after enduring their prescribed sentence, as exemplified by prophetic precedents involving remorseful transgressors .
The Social Necessity and Wisdom of Penalties
Al-Suhaybani frames punishment as an indispensable social defense mechanism analogized to medical surgery or amputation of a diseased limb to preserve the larger body politic . He identifies two complementary purposes of Islamic sanctions: reforming and deterring the offender, and safeguarding society's vital interests—religion, life, lineage, property, and intellect .
Refutation of Criticisms
The treatise organizes its defense into general and detailed responses:
- General Response: Al-Suhaybani asserts that non-Muslim critics reject the theological presuppositions of divine wisdom and revelation, making debates over specific legal branches secondary, while Muslim critics must realize that authentic faith entails submitting to divine rulings even when full wisdom is not immediately grasped .
- Comparative Law: Drawing extensively on Abd al-Qadir Awdah's al-Tashri' al-Jina'i al-Islami, the author demonstrates that Islamic law strictly restricts capital offenses to between five and ten categories and corporal amputation to only two, whereas historical Western legislation permitted execution for hundreds of minor offenses and subjected animals, corpses, and collective families to criminal liability .
- Critique of Imprisonment: He critiques modern positive legal systems for their heavy reliance on temporary and life imprisonment, arguing that prisons impose heavy financial burdens on the state, transform penal facilities into hubs for criminal training, lower health and moral standards, and devastate the innocent dependents of incarcerated individuals .
- Evidentiary Stringency and Victim Rights: Al-Suhaybani emphasizes that severe corporal penalties are tightly constrained by demanding evidentiary rules, requiring uncoerced confession (which may be retracted at any point before execution) or multiple eyewitnesses whose standards are rarely met in practice, functioning primarily as psychological deterrence . He also argues that legal sympathy belongs fundamentally to the victim rather than the criminal .
He concludes by pointing to historical and contemporary security conditions in regions enforcing Islamic penal norms, contrasting their low crime rates with rising delinquency and organized violence in societies relying on modern penal codes .
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