Penal Law – Crime and Punishment

In every society, crimes are committed, usually only by a fraction of the population. In present-day secular states, religion is no longer of direct importance to penal law, although it can have an impact on the basic mentality underlying the law, on certain law-making issues, and, last but not least, on personal and group ethics.

The Bible and the Qur’an were written when the ties between religion and penal law were much more stringent. The laws define in various ways what is considered an offense, and how it should be punished. Much depends on interpretation. The variety of opinions between the faiths is matched by varieties within them, so that a liberal Muslim can seem closer to a liberal Christian than to a fundamentalist of his own creed. Here, the French expression ‘les extremes se touchent’ -“the extremes touch each other” seems valid. ‘Fundamentalists’ or ‘Puritans’ from each faith emphasize the letter of the law whilst ‘Moderates ’or ‘Liberals’ focus on the historic context making harsh rules obsolete , and concentrate on the underlying mentality that guides moral behavior.

Christians and Jews still recognize the Ten Commandments, the basic rules of the Law of Moses. For Christians, the Law is complementary to conversion, valid for prescribing behavior, if not sufficient for salvation. There is, however, quite a variety in how these commandments are interpreted, and how essential they are thought to be in practice. Differences of opinion circle around questions such as capital punishment, abortion and the rights of homosexuals.

The harshness of the Law of Moses, with its high frequency of the death penalty for all kinds of offences, is mitigated by the ‘Great Commandment in the Hebrew Bible’:

Stop being angry and don’t try to take revenge. I am the LORD, and I command you to love others as much as you love yourself. Leviticus 19:18

For Christians, the words of Jesus are relevant:

“But I am giving you a new command. You must love each other, just as I have loved you.” John 13:34

The Qur’an explicitly builds on both the Hebrew Bible and the New Testament. The Law of Moses is still accepted as a source of Islamic law, valid unless specifically abrogated by specific verses in the Qur’an.

“It was We who revealed the Torah (to Moses): therein was guidance and light.” 5 The Table Spread, 44

In stressing repentance and forgiveness, the Qur’an also builds upon the Bible. The relationship between the Bible and the Qur’an concerning penal law is therefore complex. It is touched upon here only lightly. In the same superficial way present day legal practices are mentioned, acknowledging that in so doing immense complexity and diversity is compressed into a mere handful of statements.

In all three books, murder is considered a major crime. Jews and Christians must obey the sixth commandment: You shall not murder. The Qur’an underscores the importance of this precept with a Jewish saying that declares the enormous impact of taking and of saving a life. Killing a human being is allowed in the Qur’an only as a punishment for murder or wanton destruction. Murder deserves the death penalty.

It is curious, given the importance of the sixth commandment, to see the death penalty so liberally dealt out in the Hebrew Bible. First and foremost insulting God must be punished by death.

“And warn the others that everyone else who curses me will die in the same way, whether they are Israelites by birth or foreigners living among you.” Leviticus 24:16

Such a statement is considered obsolete in modern Jewish and Christian circles too cruel to be associated with a Living and Loving God.

The words “and slay them wherever you catch them” 2 The Heifer,191 are often quoted as proof that Muslims are obliged to the kill unbelievers wherever and whenever they are stumbled across. Read as a whole, i.e. including the words “and turn them out from where they have turned you out” it refers to a command valid only in war. It is therefore dealt with in the next chapter.

In both books, murder is distinguished from accidental or unintentional killing. The Law of Moses promises those who kill by accident protection from revenge. The Qur’an calls for compensation to the victim’s family.

Theft is punished in the Law of Moses by compensation (several times the worth of the stolen goods). In the Qur’an the thief’s hand is to be cut off, unless he or she repents. In practice this severe punishment is rare, due to stringent conditions which are hardly ever met. For example, those guilty of theft due to hunger or provoked jealousy are exempt from this punishment.

Sexual transgressions are dealt with harshly in the Law of Moses. Those guilty of adultery, of losing their virginity before marriage and of homosexual behavior receive the death penalty. It is from this punishment that Jesus saves a woman caught in adultery. The Qur’an formulates a much lighter punishment for adulterers: whipping, not stoning, Culprits are allowed to live on and even remarry, although not with an upright believer. In other words social sanctions accompany physical ones. Punishment cannot be without proof, delivered by four witnesses. False witnesses are likewise punished. In practice, the whipping is often symbolic. The Qur’an is less clear about lost virginity before marriage. In certain extreme cases the Law of Moses is called upon by Muslims to legitimize capital punishment for lost virginity, either by the state or next of kin. This is inconsistent with the general approach to capital punishment in the Qur’an, which is reserved for those who themselves kill or create havoc in the land.

Harsh words against homosexuals are found in the Hebrew Bible and the Letters of Paul. Death is their penalty. These statements are considered by many Jews and Christians to be abrogated by the Biblical command to love one’s neighbor, without regard to his or her sexual behavior. Sexual relations between consenting adults have been removed from penal law. Emphasis now is on the legal protection of the young and weak from any kind of sexual harassment. In this light, the Biblical story of Lot or Lut is interpreted in terms of his attempt to protect his angelic visitors from mass rape; not as a condemnation of homosexual relations as such. Paul is seen, in the historical context, to have opposed homosexual exploitation of the young and weak by Greeks and Hellenized Jews, rather than condemning homosexual love relations between consenting adults. Today, the issue is no longer punishment of homosexual behavior, but giving homosexuals the right to marry.

Unlike the Bible, the Qur’an does not seem to deal with homosexuality in a general way, or mention the punishing homosexual behavior. The verse

If two men among you are guilty of lewdness, punish them both. 4 The Women, 16 is usually translated as referring to two persons, more correct in the context which refers to women.1

Most Muslims debating the subject refer to verses taken from the story of the prophet Lut. As described above, that story only relates how Lut tried to protect his angelic guests from the lustful masses. This does not imply a condemnation of homosexual love or sex between consenting adults. The lack of a clear statement in the Qur’an on homosexuality is sometimes compensated for by turning to the Bible, in accordance with advice given in the Qur’an:

“If you were in doubt as to what We have revealed to you, then ask those who have been reading the scriptures before you…” 10 Yunus, 94 Haleem, 2008

Thus, punishing homosexuals in Islamic law is ultimately based on the Law of Moses, and on the statements of Paul, not on the Qur’an. Here again, some Muslims are seen to be striving to be more biblically correct than the adherents of the Bible themselves. In some countries with a Muslim majority, homosexuality is still included in the penal law. In practice, however, the conditions for a conviction are so stringent, (i.e. four witnesses of the deed) that actual punishment of homosexuals takes place only in extreme cases. Liberal Muslims treat homosexuals as human beings who should be treated with respect, even if their sexual practices are considered unnatural.

Child abuse, considered a serious crime today, is not specifically mentioned in any of the books. In the Hebrew Bible sons are admonished not to abuse their parents, rather than the other way round.

“Don’t have sex with your own mother. This would disgrace your father.” Leviticus 18: 7

Sex of fathers with their daughters is not mentioned in the list of sexual crimes in the Hebrew Bible, although sex with a daughter-in-law and granddaughter is forbidden. The prophet Lut had sex with his two adult daughters, on their initiative it would seem; an incident not related in the Qur’an. A son who has sex with his mother (or another of his father’s wives) was stoned, as indeed was his mother. Leviticus 20:11 Bad luck for the boy, but striking or even cursing a parent would have had the same outcome for him. Leviticus 20:9

The Qur’an does not mention child-abuse as such, but does prohibit a man to marry his mother or daughters. 4 The Women,23 As sex outside marriage falls under the general prohibition of fornication, this amounts to a veto on abuse by a father of his daughter. Abuse of sons falls under the general prohibition of homosexual acts. Both are to be punished with flogging.

24 The Light, 2

However very little attention has been paid to child-abuse in Islamic law or literature and practice can and does depart from the intention of the Qur’an. Sometimes the abused children are ordered to acquiesce on the grounds of a misinterpretation of the quote: Be kind to parents. 17 The Israelites, 23 Or parents who abuse or mistreat their child escape punishment on the grounds of a farfetched interpretation of the words:

“No mother shall be treated unfairly on account of her child. Nor father on account of his child…” 2 The Heifer, 233

Again the Muslim legal practice sometimes lags behind the Qur’an, whilst on the other hand the Western legal regime is miles ahead of the Laws in the Hebrew Bible. Both in Western and Muslim societies the actual banning of child-abuse is still an uphill struggle.

The experience of child abuse

To honor the many victims of child abuse in Jewish, Christian and Muslim societies throughout the ages we present here the story in her own words by an anonymous young woman who sought the advice of Khaled Abou el Fadl.

He murdered her soul
After an uncomfortable pause, she tells me (Abou el Fadl ed.) that as a child she learned that love is a service. The warmth and love of a parent that you take for granted came to mean the price of my soul. She senses the anxiety on my face and she says: “Yes, I was sexually molested by my father most of my life.” … I learned early on that my body was not my own – it was simply a price to be paid in return for attention and affection. I learned to hate and sacrifice my body and to cower each time in shame. I was locked into a cycle of degradation and bitter self-hate … But who talks about me in your dignified world? Now, I refuse to be a victim … Every waking moment I try to empower myself, to reclaim myself, and to assert the right to say no. p.28-29

The Qur’an refers to the principle of limited, controlled punishment formulated in the Hebrew Bible, in terms of ‘an eye for an eye a tooth for a tooth’. Excessive punishment is to be avoided, as it leads to uncontrollable spirals of revenge and destruction. However, this rule is overruled by the principle of remorse and forgiveness. In the Hebrew Bible, this principle is instituted in the Great Day of Forgiveness. Jesus speaks of turning the other cheek. The Qur’an states that whoever shows remorse after committing a crime is granted forgiveness by God. In Islamic law, they receive a lighter punishment. As stressed in the Hebrew Bible, the New Testament and in the Qur’an, forgiving is better than revenge.

1 The First translation is from Yusuf Ali 2008, but the Yusuf Ali translation authorised bythe authorities of Saoedie Arabia speaks of two persons