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Routledge Handbook on Capital Punishment
Robert M. Bohm, Gavin Lee
Death Penalty in Sharia Law
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Sanaz Alasti, Eric Bronson
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13
DEATH PENALTY
IN SHARIA LAW
Sanaz Alasti1 and Eric Bronson2
“Avoid [sentences of ] death and flogging involving Muslims to the extent possible.”
Ibn Abi Shayba3
Introduction
This chapter is intended to introduce a comparative study of death penalty in sharia law. The primary
goal is to use a comparative approach by illustrating the similarities and differences in the practice of
capital punishment over time and place in Islamic countries. We will review the current practice of
death penalty in both Islamic states and secular Islamic countries. The second goal is to find out why
capital punishment is less in practice in some Islamic countries.
The death penalty in Islamic countries is familiar to most readers because capital punishment exists
in the domestic law of most Islamic nations, but the ways by which these states employ capital punishment are varied and inconsistent. With the advent of Islamic fundamentalism in the 1970s, more
and more Islamic states began objecting to international norms for human rights and abolition of the
death penalty, as being contrary to sharia, the historically formulated traditional law of Islam.
The question is why contemporary Islamic penal systems are so cruel and short on mercy when
in secular criminal justice systems efforts are made to guarantee that prisoners are treated humanely.
This comparative study reaches back to classical Islam and contemporary use of sharia law in Islamic
countries to trace how and why punishments in Islamic nations came to diverge.
This research is organized into six sections. In section one we attempt to describe the contemporary status of the death penalty in Islamic countries. Section two argues about the crimes for which
death is prescribed in sharia law. The third section reviews the harsh execution methods in Islamic
law, and section four argues against the juvenile death penalty in sharia law. Section five is the study of
the evidentiary process, procedures, and avoidance of death penalty in case of doubt. Finally the sixth
section describes how, without challenging the death penalty per se as punishment in religious textual
resources, evidentiary and procedural, barriers may lead to the moratorium.
The Contemporary Status of Death Penalty in Islamic Countries
More than two-thirds of the countries in the world have now abolished the death penalty in law or
practice. From 55 retentionist countries, 27 of them are Islamic countries. In 11 Islamic countries
abolition is in practice. In eight countries Islamic laws do not provide for the death penalty for any
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Sanaz Alasti and Eric Bronson
crime (abolitionist for all crimes) and in one Islamic countries laws provide for the death penalty
only for exceptional crimes such as crimes under military law or crimes committed in exceptional
circumstances (de facto abolition). Geographically the majority of these Islamic countries are located
in the Middle East (see Figure 13.1).
It is estimated that there are over 900 million Muslims today. Many live in the Arab world, but
many more live in countries such as Iran, Pakistan, Bangladesh, Indonesia, Malaysia, Nigeria, and
Sudan (Bassiouni, 1988). Although all Islamic countries are not retentionist, practice varies considerably from one to another. For instance, some Islamic countries, like Iran and Saudi Arabia, are enthusiastic practitioners (please refer to Figure 13.2), with thousands of executions, while others, such as
Kazakhstan (Kazakhstan is de facto abolitionist), conduct executions in only the rarest of cases; Islamic
countries such as Albania, Azerbaijan, and Turkey have abolished capital punishment. The diversity of
practice would suggest there is little consensus among Islamic countries. For example, Sudan recently
banned the juvenile death penalty and amended its laws in January 2010 to set 18 years as the firm
age of majority nationwide, but still it is not clear whether the new 2010 law extends to Islamic
offenses (retaliation and prescribed crimes). Qisas (retaliation) concerns intentional crimes against
the person. Its fundamental premise is the lex talionis, “eye for eye, tooth for tooth.” Lex talionis is set
out in the Quran, verse 5.32 (further developed by verse 17.33). Under Hadd or Hudud (prescribed
crimes), important crimes deemed to threaten the existence of Islam are punishable by penalties set by
the Quran, or by the Sunna or Sunnah. Islamic jurists consider that these sanctions immutable. They
conclude that the judge is left with no discretion.
Countries that practice sharia law as the source of their criminal justice system are associated with
the use of capital punishment as retribution for the largest variety of crimes. Therefore, among Islamic
30
25
20
15
10
5
0
Abolition for all
crimes
De facto abolition Abolition in practice Retention of death
penalty
Figure 13.1 Status of the death penalty in 47 Islamic jurisdictions as of March 2017.
Abolition for all crimes: Albania (2007), Azerbaijan (1998), Djibouti (1995), Kyrgyzstan (2007), Senegal (2004),
Turkey (2004), Turkmenistan (1999), Uzbekistan (2008).
De facto abolition: Kazakhstan (2007).
Abolition in practice: Algeria, Brunei, Burkina Faso, Sierra Leone, Maldives, Mali, Mauritania, Morocco, Niger, Tajikistan, Tunisia.
Retention: Afghanistan, Bahrain, Bangladesh, Chad, Comoros, Egypt, Gambia, Guinea, Indonesia, Iran, Iraq, Jordan,
Kuwait, Lebanon, Libya, Malaysia, Nigeria, Oman, Pakistan, Qatar, Saudi Arabia, Somalia, Sudan, Syria, United Arab
Emirates, Yemen.
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13 Death Penalty in Sharia Law
Figure 13.2 Execution rates in Islamic countries per million population—2010.
Source: www.deathpenaltyworldwide.org
nations we should distinguish Islamic states with Islamic criminal justice systems in which sharia law
or Islamic law is a form of legislation (e.g., Iran) with a state religion, in which Islam as the official
religion of a country, where Islamic courts may be used (e.g., Malaysia), and secular criminal justice
systems in which government institutions are separated from the role of religion (e.g., Turkey).
Although William Schabas believes capital punishment is a mandatory penalty under the sharia
for only a small category of crimes (Schabas, 2000), the death penalty in some Islamic countries
is applicable to an overly broad range of crimes in addition to murder: incest, rape, sex between a
non-Muslim and a Muslim female; adultery, sodomy; other homosexual acts after fourth conviction,
drinking liquor after three convictions, drawing arms to create fear, defamation to sanctities, drug trafficking in a specified amount, corruption on Earth, fornication (fourth conviction), false accusation of
unlawful intercourse (fourth conviction), and Had Theft (fourth conviction).
Degradation in death penalty is related to some complex patterns in history and social development. If we want to maintain why some Islamic countries have abolished the death penalty, we need
to examine how different social traditions have emerged. A major difficulty is how to distinguish
cruel and unusual punishments in religious and secular criminal justice systems. The most dramatic
differences are related to the proportionality doctrine. Penal proportionality based on religious proportionality in Islam is completely different from the secular proportionality in the Western countries.
For example, fornication between a non-Muslim man and a Muslim woman would not pass the secular proportionality doctrine. In the secular countries criminalizing sexual conduct is related to harm
caused for the society rather than virtue of Muslims.
Capital Crimes in Sharia Law
When discussing punishments in Islamic criminal justice systems, keep in mind the relationship
between the state and the concept of justice is derived from the religious principle of Islam. The sharia,
the general and particular rules of Islamic corpus juris, is not just a code of law but a code of conduct of
behavior and ethics, a combination of law and morality, inseparable. Evidence of this relationship can
be seen in the penal code and punishments of the following Islamic countries: Mauritania, Somalia,
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Sudan, Afghanistan, Brunei, Iran, Iraq, Maldives, Pakistan, Qatar, Saudi Arabia, Yemen, Aceh in Indonesia, and sharia states in Nigeria. All of these countries have death penalty statutes.
In Islamic criminal justice systems those who are deemed ‘Corrupt on earth’ or those who committed major economic crimes with subversive intent are often sentenced to die. Also, corporal punishment and other inhumane punishments are in practice in all Islamic criminal justice systems.
According to Muslim jurists, the death penalty is imposable only if God has specifically, precisely,
and clearly authorized such a punishment. Thus, support of the death penalty found in Islamic texts
should be clear and unambiguous. In classical Islamic law, there were five capital offenses, four known
as the hudud crimes. The hudud death penalty eligible crimes were adultery, banditry, sodomy, and
apostasy, and the fourth capital offense was murder.
Islamic law traditionally categorizes crimes according to the provenance of the authority to punish the offense. Islamic law recognizes four systems or category for punishment. Under had or hudud,
important crimes deemed to threaten the existence of Islam are punishable by penalties set by the
Quran, or by the Sunna or Sunnah. Islamic jurists consider these sanctions immutable. They conclude
that the judge is left with no discretion.
The second system, qisas, concerns intentional crimes against the person. Its fundamental premise is the
lex talionis, “eye for eye, tooth for tooth.” Lex talionis is set out in the Quran, verse 5.32 (further developed
by verse 17.33). The lex talionis appeared first in the Code of Hammurabi. It was a progressive penal reform,
at that time aimed at enhancing the principle of proportionality. It is now seen as a basis for retribution.
According to the Quran, the victim or his or her heirs are to inflict the punishment under the supervision
of public authorities; the victims of such crimes may pardon the offender, in which case the death penalty
set by qisas will not be imposed. In case the offender is pardoned by victims, two other systems of crime
and punishment come into play. These are the diyat (prescribes restitution or compensation for the victim)
and the taazir (public authorities set their own punishment, and the judge has wide discretion). Under the
taazir, public authorities may provide for capital punishment, but no religious text requires them to do so.
In Islamic criminal justice systems the legislature has approved capital punishment in three different categories:
(1)-Prescribed Punishments (Hudud)
• Sodomy is punishable by death if both the active and passive persons are mature, of sound
mind, and have free will. If an adult male of legal capacity commits sexual intercourse with
an immature person, the doer will be killed and the passive one will be subject to taazir
(discretionary punishment determined by the judge.)
• Adultery: The Quran (24:2 Surah a Nur) only stipulates 100 lashes for adultery. When,
Prophet Mohammad stoned a number of men and women, and so this punishment is
sharia, Islamic law. But there is no historical evidence that this ever happened; there are two
specific stories that are repeated, and in each the prophet required not only confession, but
the culprits actually asked for their punishments (Ebrahimi, 1333 Solar Hejira).
• Banditry (Moharebeh or resorting to arms to frighten people) is defined as an act of robbery by a group of armed men within the territory of the Islamic state that creates anarchy
under which the property, privacy, safety, dignity, and religious values of the people would
be violated. The crime is regarded as a war against God and his messenger. There are several alternative punishments for banditry, for instance execution, crucifixion, amputation of
hand and foot and exile (5:33, Surah Ma’ideh).
• Apostasy has an ambiguous basis in Islamic law. There is no reliable evidence that Prophet
Mohammad executed anyone for this crime. However, the penalty for apostasy was common during the caliphate of Abu Bakr, and there was a specific historical context that
elicited the emergence of the law of apostasy (Ownes, 2004).
• Capital punishment based on the prescribed punishments is also imposed for incest and rape.
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13 Death Penalty in Sharia Law
In some circumstances recidivism will lead to a death sentence in Islamic criminal justice systems
or the death penalty has been prescribed, mainly in the Shiite school of Islam:
• The punishment of fornication after the fourth conviction is death, and the fornication of a
non-Muslim with a Muslim female is capital punishment, as stated in the Holy Quran.
• Lesbianism (Mosaheqeh) is female homosexuality. Punishment for lesbianism is one hundred
(100) lashes for each party. Punishment for lesbianism is established vis-à-vis someone who
is mature and of sound mind and has free will and intention. In sharia law punishment for
lesbianism there is no distinction between the doer and the subject, as well as a Muslim or
non-Muslim. If lesbianism is repeated three times and punishment is enforced each time, death
sentence will be issued on the fourth conviction. Article 131 of the former Islamic Penal Code
of Iran provides that “if the act of lesbianism is repeated three times and punishment is enforced
each time, death sentence will be issued the fourth time.” The death penalty for lesbianism has
been eliminated from the current Islamic Penal Code of Iran.
• False accusation of unlawful intercourse (qadhf ) is prohibited under sharia law. Punishment for the
fourth conviction is the death penalty. The rationale behind the Law of qadhf is here:
(a) It serves as a protection for the generality of the Muslims. The law of the qadhf bans publishing people’s unlawful connections and illicit relationships to the society.
(b) To serve as a deterrent for the accuser and his like. When a person makes an allegation of
adultery or fornication against someone and cannot prove his case, he should be punished
for slander so that he might not slander in future.
• Punishment for the fourth conviction of had theft is the death penalty. Theft is defined in sharia
as the act of taking other people’s property without any lawful claim to it. Theft deprives a man
of property. It is an encroachment upon the property of man without any justifiable society and
is looked upon with terror. Therefore, strict measures have been ordered by the Islamic criminal justice systems against thieves. The punishment for theft is in the Holy Quran: “As to the
thief, male or female, cut of his or her hands as punishment by way of example from Allah for
their crime. And Allah is exalted in power.” According to a tradition of Prophet Mohammad,
this punishment does not apply to petty larceny. However, the classical Islamic jurists differ as
to the definition of petty larceny in terms of value of the stolen item. For instance, the Islamic
Penal Code of Iran regulates 16 different thefts, and just punishment of one category of theft is
amputation. Punishment for nine categories of theft involves imprisonment and flogging.
• Punishment for wine drinking during the time of the Holy Prophet was beating with shoes,
sticks, and hands without specifying the number of lashes. In contemporary Islamic criminal
justice systems, punishment of wine drinking is 80 lashes, and for the third conviction the death
penalty will be imposed.
(2)-Retaliation (qisas) is imposed for murder: The Quranic verses do not seem to require a nuanced
inquiry into the circumstances of the murder before permitting the imposition of qisas. Classical Islamic law limited the death penalty. It required a specific intent of the murderer and
granted certain family the right to override qisas by accepting diyat (blood-money) or other
compensation in lieu of the murderer’s death; also, classical Islamic law took into account the
status of the victim and murderer (Anderson, 1951).
(3)-Discretionary punishments (taazir)
Discretionary punishments are the third category of punishments that provide for capital
punishment. Islamic penal codes use capital punishment for offenses such as: defamation
to sanctities, drug trafficking in a specified amount and for the corruption on earth crimes.
Corruption on earth crimes have a vague definition. In Islamic criminal justice systems,
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corruption on the earth is not a crime; its definition can be attributed to crimes that
include waging war against prophet and God, setting ablaze a mosque, destroying state
property during internal rebellious, and any criticism of state.
Although the application of hudud is the right of God, and this made series of capital crimes an unalterable and unpardonable component of the Islamic criminal justice systems, the Muslim jurists have
differed in their approach to the hudud. Disagreements are numerous, deep and recurring. The first
approach to be noted demands the immediate and strict application of hudud, assessing this as essential
prerequisite to truly defining a “Muslim majority society” as “Islamic” (Montazeri, 1998). According
to a prominent Islamic scholar Mirza Ghomi (1992), while accepting the fact that the hudud is found
in the textual references (the Quran and the tradition), considering the application of hudud to be
based on the moves of the society must be just and, for some, has to be “ideal” before these injunctions
could be applied. Thus, the priority is the promotion of social justice, fighting against poverty and
illiteracy. Finally, there are others, also a minority, who consider the texts relating to hudud as obsolete
and argue that these references have no place in contemporary Muslim societies (Ramadan, 2009).
Despite the presence of the death penalty in Jewish and Islamic law sources, religion continues to be a
powerful and variable resource for people of faith as they wrestle with the morality of capital punishment.
For instance, among those who opposed the death penalty for murders, 42% cited religion as their most
important influence, while only 15% of those who favored the death penalty said the same (Owenes, 2004).
Harsh Execution Methods in Sharia Law
Methods of execution in Islamic countries vary and can include hanging, shooting, beheading, stoning,
and dropping the convict from a high wall. In some Islamic countries public executions are carried out to
heighten the deterrent effect of punishment. Jewish law prescribes harsh execution methods as well. For
instance, the Mishnah (the first major written redaction of the Jewish oral traditions) mentions four methods of execution for a capital crime: stoning, burning, strangulation, and beheading. Short drop hanging
or hanging by crane as an execution method is not in practice in the Western countries; however, some
Islamic countries routinely hang capital offenders. This profound clash of attitudes was not the result of
some difference in degree of civilization. It was the result of differences in traditions of status.
The common method of execution in classical Islam was beheading by the sword, but in certain
cases different methods are prescribed. For instance, in the Shiite school, sodomy is punishable by
beheading, stoning, burning, or dropping the convict from a high wall (Peters, 2006). In some Muslim
countries governed by sharia law, stoning is still practiced. Stoning as a form of punishment is provided
in the criminal codes of the following Muslim countries: Iran, one province in Indonesia (Aceh), two
federal states of Malaysia (Terengganu, Kelantan), 12 federal states in northern Nigeria (Bauchi, Borno,
Gombe, Jigawa, Kaduna, Kano, Katsina, Kebbi, Niger, Sokoto, Yobe, and Zamfara), Pakistan, Saudi
Arabia, Sudan and the United Arab Emirates.
The Quran (24:2) only stipulates 100 lashes for this offence. However, Prophet Muhammad stoned
a number of men and women (Sahih Muslim Chapters 623, 680, 682, and hadith Malik (493:1520))
and so this punishment is sharia, Islamic law. The man is to be buried up to his waist and a woman
to above her breast. The stones are not to be too small, as death will not ensue; nor must they be too
large, as death may come too soon.
By the way, the Quran does not even have that kind of punishment for adultery: The Quran speaks
of 100 lashes and that is that, though cruel enough (see Surah 24:2 and 24:3), but based on the hadith
(sayings and actions of Prophet Muhammad or tradition), stoning is the punishment for adultery.
Some of the hadith no doubt have a claim to authenticity, but many, perhaps most, do not.
After Muhammad’s death, the first generation of Muslim legal scholars included adultery as one of
the six major offenses (hudud) in Islamic law for which the penalty is fixed by God in the Quran and
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13 Death Penalty in Sharia Law
whose application is the right of God (haqq Allah). This made adultery an unalterable and unpardonable component of the Islamic criminal justice systems. However, unlike the other five major offenses
(hadd) clearly laid out in the Quran, both the application and the definition of adultery have been
sources of confusion and controversy in the Islamic legal tradition for centuries. The inconsistencies between the Quran and the hadith with regard to the punishment for adultery were ultimately
explained by the Caliph ‘Umar (Caliph ‘Umar is the second caliph, based on the Sunnah school of
Islam; therefore his indication is not a source for Shiite school).
Although tradition declares Muhammad as occasionally ordering stoning, even the most reliable hadiths are not free from controversy. Because tradition demonstrates that while Muhammad may have
confirmed stoning and not lashes for adulterers, there was a great deal of confusion as to whether he had
done so before or after Surah an Nur, which unmistakably prescribes 100 lashes for adultery (Alasti, 2007).
For the preparation of stoning the convicted person is wrapped in a shroud and placed into a pit
and buried either to the waist (if a man) or the chest (if a woman). If the individual is sentenced to
flogging and stoning, flogging is carried out first and stoning is carried out consequently. If the adultery was proven in court by confession, the judge has the responsibility of throwing the first stone. But
if the case was proven through witnesses, they start first, followed by the judge and then by any others
who are present, the number of which cannot be less than three. The lack of presence of the religious
judge or not throwing the first stones by the religious leader or the witnesses would not prevent the
sentence from being carried out; it should be carried out under any circumstances (Alasti, 2007). The
stones are then hurled one by one until the accused is killed. The former Islamic Penal Code of Iran
was explicit regarding the proper stones to use. Article 104 states, with reference to the penalty for
adultery: “the stones should not be too large so that the person dies on being hit by one or two of
them; they should not be so small either that they could not be defined as stones.” Under the law, the
stones must be big enough to injure but not kill with just a few blows.
Victims who can dig themselves out are acquitted. In case the guilty escapes from the hole in
which he is put during the stoning and if his guilt is proved by his own confession, it will result in
pardon, because if the crime has been proved by confession his escape indicates his withdrawal. Men
who are stoned to death are buried to the waist, while women are buried deeper, to stop the stones
from hitting their breasts; as for women, the possibility of escaping is much smaller than for men. That
is why in Islamic countries fewer men have been stoned than women. This apparent regard actually
has a negative impact for women: if a prisoner manages to pull free during a stoning, he or she can be
acquitted. In addition, the escape of a witness, denial after confession, and repentance of sin will also
result in avoiding the punishment (Alasti, 2007).
In the Old Testament of the Bible, stoning is prescribed as the method of execution for crimes
such as murder, blasphemy, or apostasy. The punishment of stoning to death (rajm) has a long tradition
in Islam. When it comes to the practice of stoning adulterers, however, the traditions indicate that
Talmudic law primarily influenced Mohammad. The hadith present Mohammad as initially prescribing
stoning explicitly for Jews who had been found guilty of adultery, then later referring to the Jewish
law whenever passing similar sentences on members of his own community. Mohammad even criticized the Jews for relaxing their adultery laws when Jewish people replaced stoning with smearing of
coal on the face. A hadith recorded by al-Bukhari, on the authority of Ibn Umar, states: A Jew and a
Jewess were brought to Allah’s Apostle (S) on a charge of committing illegal sexual intercourse. The
Prophet asked them: “What is the legal punishment (for this sin) in your Book (Torah)?” They replied:
“Our priests have innovated the blackening of faces with charcoal and Tajbiya” (being mounted on
a donkey, with their faces in opposite directions, then mortified in public). Abdullah bin Salaam said:
“O Allah’s Apostle, tell them to bring the Torah.” The Torah was brought, and then one of the Jews
put his hand over the Divine Verse of the rajm (stoning to death) and started reading what preceded
and what followed it. On that, Ibn Salaam said to the Jew: “Lift up your hand.” The Divine Verse of
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the rajm was under his hand. So Allah’s Apostle (S) ordered that the two (sinners) be stoned to death,
and so they were stoned.
Execution method seems to be harsh in religious sources, but the punishment, the harshest in Jewish law, was intended to be as quick and painless as possible given the nature of the punishment. Harsh
Biblical penalties were carried out to the letter at one time, but certainly by Mishnaic times (the early
first through early third centuries) courts favored a lenient interpretation of the law. Considering the
stones’ size and execution conditions, the Rabbis’ ultimate concern was that the execution be as quick
and as painless as possible, with minimal disfigurement. When one Rabbi suggested that the height of
the platform should be increased so death by falling would be certain, another Rabbi responded that
raising the platform is unacceptable, a fall from too high would result in disfigurement (Alasti, 2006).
The death penalty debate in the Talmud, therefore, can be viewed as not so much about justice as about
mercy. In the classic Jewish tradition, mercy occupies a central role (Ledewitz, 1993).
Juvenile Death Penalty in Sharia Law
Eighteen years is the internationally accepted minimum age for the imposition of capital punishment.
According to Amnesty International, since 1990, only nine countries in the world are known to have
executed juvenile offenders: China, Congo, Pakistan, Iran, Saudi Arabia,Yemen, Sudan, and the United
States. Of those nine countries, five are Muslim. In a geopolitical sense, these countries are often considered to form the Muslim world.
Between 1990 and 2009, at least 82 executions against juvenile offenders have been carried out
around in the world. China (2 children), Democratic Republic of Congo (1 child), Iran (46 children),
Nigeria (1 child), Pakistan (4 children), Saudi Arabia (5 children), Yemen (2 children), Sudan (2 children), and the USA (19 children).
Although the number of juvenile offenders affected by the death penalty is small, the practice is in
direct conflict with international law, violates the right to life, and is the ultimate cruel, inhuman, and
degrading punishment. The execution of juvenile offenders continues in two Islamic countries: Iran
and Saudi Arabia. Juvenile offenders remain on death row in several other Islamic countries around
the world.
The patterns in most Islamic nations over the last two decades are consistent with the longer term
declines in prevalence of juvenile executions, and many places now have a zero execution rate for
juveniles, including Nigeria, Pakistan, and Sudan. In 2010, Sudan amended its laws to set 18 years as
the firm age of majority, and in Nigeria a 13-year period without juvenile execution is widely viewed
as a stage in the transition toward abolition. One exception is Iran; from 2004 to 2010 the rate of
juvenile executions is 11 times higher than previous years. Another is Saudi Arabia, where there were
four executions since 2003.
From 1990 to 2012, 60 children were executed in Islamic countries: 28 (46.7%) for qisas crimes,
9 (15%) for hudud crimes, and just a small portion of them for ta’zir crimes. The preceding indicates
that, despite the abolition of the juvenile death penalty in a majority of Islamic countries, this punishment is still widely applied for hudud and qisas crimes in the major regions of the Muslim community
where the Islamic law was elaborated.
Muslim scholars maintain that the criminal capacity of a child and consequently his criminal
responsibility increase in accordance with his age (Sanad, 1991). The stages of human growth, from
birth to the age of completing maturity, can be divided into three stages: (1) During the first stage,
a child has no conscience and is indiscriminative. In this stage, a child is not responsible for actions
committed in violation of the law; therefore, he or she is neither criminally liable nor responsible from
a disciplinary aspect. Jurists have fixed the age of 7 for this stage. (2) This stage begins at 7 years of
age and extends to the age of puberty. Through this stage, the child is not criminally liable for his
acts, but he can meet with disciplinary action. (3) The third stage begins, for boys and girls, when
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13 Death Penalty in Sharia Law
they reach the age of puberty. A person in this stage shall be completely responsible for his actions
(Elashhab, 1994).
The basis for jurists stipulating puberty age in criminal liability is a tradition by Prophet Mohammad, who said: “No liability in three cases: a child till it reaches puberty, a sleeping person till he
awakes, and a demented person till he regains his mental health.”
Puberty in Islam is determined either by age (some scholars say it occurs at 11 years old, and some
say at 12; others differentiate between males and females), or by the signs of puberty, or by both. Islamic
jurists are not agreed over fixation of the age of puberty, at which the discrimination stage ends (Ibn
Edris Shafi’I, 1980). There are five major schools of thought within Islamic law, and they hold diverse
viewpoints even on some questions of responsibility and puberty. Among these five some Shiites say it
is 15 years for boys and 9 years for girls. Some Hanafi and Maliki say it is 19 years for men, and 17 years
for women, but for most jurists it is 15 years of age (Elashhab, 1994).
In almost all Islamic schools, girls—due to the earlier onset of puberty—potentially bear criminal
responsibility several years before their male cohorts for hudud crimes (Cipriani, 2009).
Among the 47 Islamic nations that are part of the Islam world, only ten clearly base their minimum
age of criminal responsibility provisions to some extent upon Islamic law. The Quran does not provide
explicit age guidelines regarding the puberty age; therefore, Islamic jurists interpret relevant ages as objective criteria for it. Several Islamic jurists relied on the standard version that criminal liability is determined
by puberty, but the practice of juvenile death penalty has not been mentioned in any authoritative hadith.
Also, even after the onset of puberty, juveniles should not be automatically held criminally responsible for their illegal acts. For such responsibility to follow, children must have reached puberty and
be of sound mind (Fathi Bahnassi, 1982). Indeed, in the case of the minimum criminal responsibility
age, one may even argue that classic Islamic criminal law doctrine lies closer to international standards
than to some countries’ contradictory provisions (Cipriani, 2009).
Despite the abolition or moratorium of capital punishment for juveniles in Islamic countries, children are still being executed. It demonstrates simple attempts to outlaw the juvenile death penalty will
not solve the problem because the moratorium was not proclaimed for genuine attempts to humanize
the society but rather to please the international community. More execution of juveniles is possible,
especially in the case of a change of political power.
Avoidance of Harsh Punishments in Case of Doubt
Although the death penalty has been prescribed in other religious sources, such as Jewish law, the
Talmud seriously limits the use of the death penalty to criminals who were warned not to commit the
crime in the presence of two witnesses and persisted in committing the crime, also in front of two
witnesses. In Jewish law a court of at least 23 judges would have to be satisfied, to a legal certainty,
that the capital offense had been committed by the accused before the court could impose a death
sentence. Since the testimony of two eyewitnesses was required in Mishnah, and the witnesses were
subjected to searching and detailed interrogation by the court, there was rarely an instance when the
evidence met the prescribed legal standard.
Despite the scriptural mandate for capital punishment in Jewish law, two of the most influential
sages of the second century of the first millennium, Rabbi Tarfon and Rabbi Akiva, stated in Mishnah
that had they been in the Sanhedrin (the Supreme Court of ancient Israel) when Jews did have the
political power to administer capital punishment in their community, no one would have ever been
executed. The Gemara explains how they would preclude the death penalty without denying its
divine legitimacy. The rabbis would ask improbable and obscure questions of the witnesses—such as
whether it were not possible that the victim had been suffering from some fatal disease, which actually
killed him. A lack of certainty by the witnesses on any material point would bar formal execution
(Ledewitz, 1993).
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The death penalty does exist in Islamic textual references, and almost all Islamic countries with
an Islamic criminal justice system have not abolished the death penalty, but it is possible to consider
various evidentiary, procedural, and barriers against the death penalty. These include the lack of a
just and ideal religious criminal justice system for prosecution of hudud crimes (Mirza Ghomi, 1992).
The Islamic legal maxim of avoidance of hudud crimes in case of doubt says that judges are to avoid
imposing hudud punishments when beset by doubts as to the scope of the law or the sufficiency of the
evidence. Moreover, avoidance of hudud crimes in case of doubt, more stringent evidentiary requirements, and pressures for twenty-first-century norms of jurisprudence make implementation of the
death penalty increasingly rare.
In Islamic criminal law there is a principle that punishments are to be avoided whenever there is
ambiguity or doubt as to the textual basis, evidence, or criminal culpability of the accused. In Islam,
“hudud punishments are to be prevented in case of doubt.” This is based on the prophetic tradition:
“Prevent the application of hadd punishment as much as you can whenever any doubt exists.” Shaykh
Mufid (Abu ‘Abd Allah Muhammad ibn Muhammad ibn al-Nu’man al-’Ukbari al-Baghdadi, known
as Shaykh Mufid for his expertise in philosophical theology [c. 948–1022 CE] was an eminent Twelver
Shi’a theologian) notes that defective contracts give rise to hudud avoidance if entered into in the
presence of doubt or ambiguity (Muqni’ah, 1990). Also, Allameh Hilli (1999), who was an eminent
Twelver theologian who flourished under the Mongols in Iraq and learned knowledge and philosophy
from a famous Iranian scientist of the seventh century, “Khajeh Nasireddin-e Tousi,” notes several
types of hadd-averting doubt in one of his treatises.
The standard of proof in hudud punishment is very high and difficult to attain. It is even recommended by the sharia that a judge suggest the possibility of withdrawal of confession to an accused
who has confessed to the commission of crime (Alasti, 2006).
Obviously, if these rules were followed in Islamic criminal justice systems, there would be almost
no convictions in capital cases. Unlike the contemporary practice of capital punishment in Islamic
countries, classical Islamic law has regarded wrongful execution as totally unacceptable. The extreme
procedural and evidentiary hurdles employed in the classical death penalty systems can be understood
as in part stemming from an abhorrence of convicting and executing the innocent.
A Lesson Learned
Even if the religious sources such as the Quran and hadith justify the death penalty in theory, that gives
us no answer about whether the death penalty is justified as applied in Islamic nations today. Islamic
criminal justice systems apply laws of 14 centuries ago equally today because they are of divine origin.
The fact is many Islamic punishments were pre-Islamic and, indeed, were promulgated by the Prophet
Muhammad (e.g., stoning, retaliation laws.)
As a general rule, the Islamic punishments to some extent belongs to the Arabs’ tribal system of
punishment, in addition; Imam Bukhari narrates a hadith (tradition) on the authority of Ibn Abbas
that the law of retaliation was originally prescribed to the Israelites. It shows these punishments belong
to many ancient cultures. The most significant difference between secular criminal justice systems
and modern Islamic nations is the level of violence and existence of authoritarian regimes. The death
penalty in the secular criminal justice systems differs from that of the sharia law in that it is part of a
religious criminal justice system. In contemporary Islamic criminal justice systems, we would move to
summary procedures, more courts, and a weakening of procedural and evidentiary restrictions.
Although scriptural mandates in Islamic sources may never be repealed because the law of God cannot be revised by humans, one could argue that the death penalty statutes in religious criminal justice
systems are more symbolic than real. In contemporary secular criminal justice systems it is not permissible to execute a condemned man or woman by methods that cause unnecessary pain, delay, or disfigurement. Even in the rare case when the state has determined that the accused must be put to death
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because a heinous offense was committed, the condemned is legally entitled to consideration and dignity
(Alasti, 2006). Thus, contemporary Jewish law considers the standard of decency; for this reason, they
do not impose stoning, and it is possible for Muslim jurists to adopt the same approach. Most Muslim
policymakers in offending countries want to make changes in certain aspects of their strict penal codes,
and they are looking for the language and justifications that would make it palatable to do so.
The more the situation of the Muslim community changed, the more the revelation altered to
match the community’s needs. To coordinate with the contemporary standards of Islamic societies,
Islamic scholars developed a vital exegetical tool called naskh, which can best be understood as the
purposeful abrogation (not cancellation) of one verse with another. For the vast majority of Muslims in
the world, naskh signifies that the Quran is a living, evolving scripture developed alongside the Muslim
community. More than anything else, however, naskh demonstrates the importance of historical context
in Quranic interpretation. And while it is true that, with the Prophet Mohammad’s death, the Revelation ceased evolving, it would be counterfactual to argue that the Muslim community has also ceased
evolving over the past fifteen hundred years. Quite the contrary; the fact is there can be no question
that the sharia was developed within a clear historical context. Like the Quran, the tradition, the second
most important source of Islamic law, is also a response to specific historical circumstances. Indeed,
countless traditions strive to explain the historical context in which a certain revelation was revealed.
The question of whether to leave the death penalty in the statutes of Islamic countries, prolong the
moratorium on it, or abolish it is one that I think embodies the larger realities of political, legal, and
social developments in the Islamic countries. Must abolition of the death penalty await the decline
of Islamic authoritarian governments, or will hardline regimes abolish the state killings to coordinate with the contemporary standards of Islamic societies? Several Muslim nations with large Islamic
populations have recently gone long periods without executions. Most of the Islamic countries that
are low-execution nations have secular criminal justice system rather than a religious criminal justice
system. But the tiny nation of Brunei Darussalam combined an Islamic theocratic regime with no
execution for the past half-century (Zimring, 2009). Although in 2014 Brunei’s new Islamic Penal
Code prescribed the death penalty for a variety of crimes, the enforcement of capital sentences has
been postponed to 2018. The experience of death penalty in abolitionist Islamic countries demonstrates the death penalty is not a question of religion but of political dynamics and political will.
While the abolition of the death penalty for hudud and qisas crimes seems to be a very positive
aspect of the law, the majority of executions of offenders in Islamic countries are cases of taazir, where
the individual has been found guilty of nonreligious crimes, and mainly drug-related crimes. At the
least, legislation in Islamic countries is urgently required to ensure that no person is sentenced to
death for any nonreligious crime, including drug trafficking. The majority of Muslim jurists, historically and today, recognize the existence of scriptural sources that refer to such punishments, but some
Islamic scholars believe the conditions under which they should be implemented are nearly impossible
to reestablish. Mirza Ghomi, the author of Jama al-Shetat, and Mohammad Ali Abtahi, the author of
Tozihol al-Masayel, believe before the reappearance of al-Mahdi (an ultimate savior of humankind and
the final Imam of the Twelve Shi’a Muslims who would, in accordance with God’s command, bring
justice and peace to the world) these penalties, therefore, are almost never applicable.
Also, there are many examples from Islamic history of how these punishments have been suspended
in practice. For example Umar Ibn al-Khatab (the second Khalifa of Sunni Muslims after Muhammad’s death) suspended the hadd punishment in a time of war, because the required conditions for its
application were impossible to meet. The hudud would, therefore, serve as a ‘deterrent’, the objective
of which would be to stir the conscience of the believer to the gravity of an action warranting such
a punishment. The penalties are Islamic, but conditions are not appropriate for their implementation.
The more the situation of the Muslim community changed, the more the revelation altered to
match the community’s needs and to coordinate with the contemporary standards of societies (Aslan,
2004). Thus, personal dignity and humanity are highly valued in current societies. Muslim jurists
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should continue adapting the tools to prohibit punishments that violate these values and that would
have to be deemed problematic and in contrast to the idealism embodied in the ban on cruel and
unusual punishment. Furthermore, in contrast to punishment in accord with norms of human rights,
particular countries may treat people in arbitrary ways and severely curtail their freedom. This is in
spite of, rather than in keeping with, religious law, because religions have the ability to adapt themselves with ideas. Therefore, Islamic law needs to be updated and meet the demands of modern times.
The better course is to steer clear of such obstacles and focus on the purpose of the ride: that is, providing a humane and civilized criminal justice system the way religions originally intended.
Notes
1 Sanaz Alasti is Associate Professor of Criminal Justice and Director of the Center for Death Penalty Studies at
Lamar University: Texas State University. Alasti has completed her postdoctoral research at Harvard law school,
and she is the author of seven books.
2 Eric Bronson is Professor of Criminal Justice and the Dean of School of Justice at Roger Williams University,
specializing in Corrections.
3 Ibn Abi Shayba, (d. 235/849 H.) was one of the peers of Ahmad ibn Hanbal, Ishaq ibn Rahuyah, and Ali ibn
al-Madini in age, place of birth, and hadith memorization.
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