15H from time to time.

153. Hibbert, The Roots of Evil, 2nd Ed. Penguin Books, 1966, pp.19-9^*. Rolph, C.H., Common Sense about Crime and Punishment, London, 1961, p.102, et. seq. Canham, op.cit. pp.6o, 82 -3 .

151** The best representative of this demand are the

writers of 'the Muslim Brotherhood Society* in Arab countries, and 'The Islamic Society' in Pakistan. The same demand was put forward in the Arab Regional Conference of Crime and the Treatment of Offenders, Co-sponsored by the U.N. and the L.A.S. held in

Kuwait W-9th April 1970. See the English copy of the final report pp.8-1*+, 18, 23-^f, 2 9 . The conference was attended by delegates, mostly of the legal pro­ fession, representing all the Arab states and Emir­ ates and it was a preparatory conference for the *+th U.N.C. on the same subject.

73.

According to Muhammad Qutb, the severity of the punishment is based on psychological grounds. In order to defeat the criminal1s desire to break the law, Islam prescribed severe punishments drawing attention to the consequences of the crime, so that people would not

•^■55

commit it. The same explanation is given by 1 Uda in

156

his book "The Islamic Criminal Legislation".

Severity of punishment is a controversial point. On one hand, one finds that some philosophers hold the view that "treatment" and not punishment is what the

157

criminal needs. On the other hand one finds that some judges demand severer punishment, including corporal

punishment to be reintroduced in Western countries^ as the only means to control the increasing crime rate.

155* Manhaj al-Tarbifca al-Islamiya, 3rd ed. Beirut, 1967*

P.231-U-.

156. Op.cit. vol.I, p. 636 et seq.

157* Baylis, Immorality, Crime and Treatment, in P h i l o ­

sophical Perspective on Punishment1 , op.cit. pp.36-1*8. cf. Prattfs comments on Ducasse's paper, ibid. p.2h-. 1 5 8 . Rolph, op.cit. p.128 et seq. where the writer referred

to the view of Lord Parker, the former Chief Justice, who told the Cadogan Committee that it is desirable to

"retain the (then) existing power to impose sentences of corporal punishment" for certain offences, ftnd

p.12 F.N.(l) where the writer quoted that Mr. Harlof/ Sturge whom he described as "one of the most humane of Magistrates". At Old Street Court, 18th June i9 6 0 , he said: "people who say that pain must be taken out of all punishment do not seem to understand much".

7^.

Whatever view one holds about this point, no doubt retributive punishment can be nothing but severe punish­ ment. For this reason, I think the Muslim jurists justify

159 the "hadd" punishment as retributive punishment.

Nevertheless the degree of severity is not, and 160

cannot be, agreed upon. The Muslim jurists justify the severity of the "hadd" punishments because they are prescribed by "Allah11, so they cannot be objected to,

and are eternally to be considered the most proper punish- 161

ment for the crimes for which they are prescribed.

At the same time they quote the Qurfanic verse "should He not know what he created? And He is the subtle, the Aware". (Surah LXVII, verse I1*) to illustrate that God created people, defined for them what is right and what is wrong and determined suitable punishments for wrong­

doers. i

On the other hand to try to justify the "hadd"

*

punishments in secular, or in other words, modern terms, would take us beyond the limits of this study, and might not reach any point of agreement.

159. Ibn al-Qayyim, Had! al-Arwah, pp.273, and I 1lam al Muwaqq'in, vol.II, p.100 e t ’seq.

160. For a philosophical view about the degree of severity, see Michael Clark, The Moral Gradation of Punishment, The Philosophical Quarterly, April 1971? PP*132-1^0. 161. Ibn al-Qayyim, ibid.

75.

The second aspect in which "hadd" punishments seem

*

to be retributive is the necessity of their infliction once the crime has been proved. In a well known Prophetic report "hadith" the Prophet prohibited any mediation in executing the "hadd" punishments, and indicated that if his daughter (Fatimah) had committed a crime of "hadd11

162

he would punish her*

This prohibition of mediation, or the necessity for the execution of punishmant, I interpret as a retributive feature in "hadd11 punishment. That is to say: if media- tion were allowed, or the "hadd" punishments were able to be replaced by any other sort of punishment, the retri­ butive effect of them would no longer exist. So the severity of the punishment and the necessity of its infliction? both give it as much retributive effect as possible.

So far, only the role of the retributive theory in the general rules concerning "hadd11 punishments, has been discussed. But the clearer and more important/ influence of it appears in jurists1 approaches and views about

some more detailed aspects.

One of the aspects concerned is the problem of in­

flicting cumulative sentences against one offender "ta!adud a l ^ U q u b a t " . Sentences may be cumulative where the same

162. Bukhari, vol.XII, p.72 et seq. Muslim, op.cit. vol. V, p.ll*+-5.

76.

person has committed various offences before he stands trial, or before he has been punished for any one of

them. Offences committed by the same person may be either of the same nature, e.g. theft, highway robbery, and house­ breaking, or of a different nature, e.g. theft, adultery, and wine-drinking. In the first case it is agreed that

163

the offender deserves one punishment for all his offences. In the second case one does not find such an agreement. The three schools, Hanafi, Maliki and Hanbali stand on one side, and the Shafi*i school at the other. With its non-recognition of the practice of abrogation "jabb11,

(to which we will return later), the Shafifi school understands the predominant role of retributive theory

\

in this context. Their view is that the offender deserves as many sentences as his offences. All the sentences

deserved are to be carried out, starting with those pro­ nounced for offences classified as f,haqq adami".

If, however, the offender has been aentenced to death for homicide (which is ”haqq adami*1), then the penalty must be carried out last, i.e. the death penalty must be .

the last punishment, disregarding the classification of

l6*f

the offence for which it has been given. To explain

1 6 3 . Fath al-Qadir, vol.IV, p.208^ AnsarT, commentary on Matn al-Bahj& of Ibn al-Wardi,_v©l.V. Cairo 1900, D.9 9 . Mughni, vol.IX, p.8 l. Mudawwanah, vol.IV, PP.385, Uo5.

l6l+. Ansari, ibid. p. 103*

this view the Shafi1i scholars give the example of an unmarried man who commits adultery, unproved accusation of fornication, theft, armed robbery (for which he has been sentenced to death) and homicide (for which he has also been sentenced to death). In this case, they say, the punishments are to be inflicted starting with the lightest; so the offender should be punished first for the unproved accusation of fornication; second for adult­ ery; third for theft; and then he is to be executed for homicide, and his execution works for both homicide

165