Harsh

by Salahuddin Khan

Created on: October 26, 2008   Last Updated: December 07, 2008

I'm intrigued by the framing of this proposition. It seems to imply that punishment cannot be just if it is harsh or vice versa. I believe that punishments under Islamic law are indeed harsh but that doen't make them unjust. This technically places me on both sides of the proposition and I have to say I am completely comfortable with that.

Logically, taking any position in this debate, as often is the case in debates, we need to lay out arguments for the meanings of the words involved and then go on to argue the substance of the proposition that involves those words.

So, we're left to decide what we mean by "just" and what we mean by "harsh".

At its core, "just" has to do with balance, and justice is indeed often symbolized by weighing scales. In civil proceedings, justice is often guided by a consideration of damage mitigation to restore balance. Extrapolating this principle, modern western philosophy has led to the idea of "debts" to society and repayment of such debts are considered just. This seems like a reasonable posture but it isn't an absolute given. Islamic jurisprudence, for example, holds that while mitigation of damage is indeed a just response to a civil infraction against a plaintiff, there is no real concept of a "debt" to society in the matter of criminal justice. Instead, criminal justice is directed not at restoration of balance but rather the deterrence of imbalance and the preservation of societal integrity. We may disagree with this posture but it is far from a clear absolute that either is preferrable to the other.

Having said this, it is my belief that Western systems of justice are in a schizophrenic posture relative to this matter. There is a hankering for both deterrence and restitution. The result is manifest in the way punishments are designed. I believe one cause of this perspective is that Western society is sufficiently aware of the fallibiity of its own system of justice as to be concerned with the possibility of error in dispensing justice and that punishments which fit crimes are generally more lenient and more easily reversed.

However, a consequence of giving priority to restitution leads to a society with relatively large imprisoned populations who seem undeterred from committing crimes. The price paid by society may not be limited to the cost of maintaining these populations. Societies can succumb to general malaise and concern for personal safety or property might pre-occupy law-abiding citizens to an intolerable degree. Muggings, murders, drive-by shootings and so on are all part of a collective price for holding the view that punishments should fit the crime instead of preventing it.

So, with regard to Islamic punishment being just, my view is that in seeking never to be meted out by deterring crime, such punishment IS just when seen in the wider context of an aim of societal integrity which has always been important to Islamic societies. Now we have to look at harshness.

For me, the measure of adequacy in deterrence in punishment is the ability for the deterrent to be graphic and memorable at the moment when irrational passion is about to overwhelm the otherwise saner judgements of an incipient criminal. This assumes that insanity is not itslef a cause. Sophisticated and complex penal codes typically do not exhibit these graphic and memorable qualities in all but the most severe crimes. If the prospect of punishment can achieve a deterrent effect in this situation, then it should also serve to deter in more measured, premeditated criminal adventures.

Now, punishment needn't be the only form of deterrence. Deterrence can occur at the margins if people's needs are well satisfied and there is cultural cohesion. Witness Switzerland and its relatively low crime rate. The economic and social well-being in Switzerland is sufficient to achieve systemic deterrence. Hardened criminal elements and sophisticated white collar criminals are of course not motivated by these dynamics, but would-be petty criminals and otherwise non-violent people do seem to be less numerous in such economic and social conditions.

So what exactly does harsh mean? There can be two views of this. Either an absolutist view that physical pain of any kind is inherently harsh or a graduated view in which we viscerally internalize other people's painful experience and form some kind of subjective scale of pain, a sort of internal "pain-o-meter" which we can relate to. When we imagine other people's pain, we can draw subjective views about the "fitting" nature of a pain as a reasonable payback for some deed or other. It's worth noting here that that modern conceptions of painful punishment, torture and the like seem to be, at least in part, shaped by the cultural histories of the civilizations involved. In medieval Europe, much inventiveness was directed toward design of pain-inducing machinery (and some of these under the sponsorship of the Inquisition). It is probably true that the modern Western world recoils from these cultural memories in forming its perspective.

As a result, the modern Western view has evolved toward an ideal that (a) punishment should FIT the crime as described above and that (b) a punishment somehow greater than this would ordinarily be deemed harsh and that (c) outside of punishment by death, other forms should at least avoid physical pain. (There is the matter of psychological "pain" associated with things like solitary confinement and similar experiences). In matters of capital punishment where there is little information to suggest that modern forms of capital punishment are truly painless, capital punishment stands in controversy.

By this definition of harshness, I can certainly accept that Islamic punishment is harsh since it involves physical pain in many more cases than other forms of judicially sanctioned violence. But I should add, that this punishment is carried out far less often than the less harsh counterparts in non-Muslim societies. Not only is there a deterrence dimension that makes such punishment rarer, but many sophisticated provisos and qualifications exist to avoid handing out harsh punishment when mitigating circumstances prevail. For example, before reaching for the chopping block, it is notable that insanity IS a defence, as is indigent hunger as a cause for stealing food.

I cannot reasonably complete this discussion without taking a moment also to address a common misconception about Islamic law. Western superficial analysis often seeking to appear well-informed, refers to Shariah. The common mistake is to think of Shariah as similar to a book of statutes. Yet no such book exists and Islamic jurisprudence has a long history of sophisticated and scholarly pursuit that is far more subtle than this. Indeed Shariah is more accurately described as a set of God-given principles rooted in revelation and the recorded and strongly corroborated practical example of the Prophet Mohammed (upon whom be Peace), from which a legal code can be derived. Most importantly of all, these principles are capable of being applied to changing circumstances in society to arrive at evolving legal codes which can not only reflect modernity but also guide it.

That is not to say that this is how all Muslims see Shariah and it is also fair to say that today something of a debate is raging within the Muslim world about it. However, we should remember that modern Muslim societies are in many cases, hollowed out shells of what they used to be and in place of their core, is a post-colonial experience that is being contended with and reconciled relative to Muslim ideals. Intellectuals are often caught in the middle of this tension and are having to resort to fundamentals of Islam or the works of leading Islamic scholars to arrive at a perspective. Additionaly, governments in what are alleged to be Muslim countries are often corrupt in much the same way that, say, post-colonial non-Muslim African or Latin American regimes have also been at various times. This should not be seen as a reflection of Islam as it SHOULD be followed but more a reflection of the behaviors of fallible humans.

Bottom line - Islamic punishments are both harsh AND just and as such are carried out less often for this reason.

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