The Philosophy of Punishment between Sharia and law in Terms of Cause and Purpose

Abstract

This is an academic article on the philosophy of punishment in Sharia and secular law. It addresses a nuanced issue: it can be argued that Sharia and secular law agree—indeed, are identical—regarding the cause and purposes of punishment. Does this mean that they are based on the same philosophical foundation?. The most significant findings that addressed this issue were as follows:

         The philosophy of Sharia dictates that the legislator of punishments must be superior to human beings, more knowledgeable than them, and characterized by perfection, free from any imperfection; and this applies only to the Creator of humankind. This contradicts a law that grants humans the right to enact punishments against their fellow humans, thereby violating the principle of justice by elevating some people above others. In contrast, the philosophy of Sharia places everyone on an equal footing when determining punishments.

         Therefore, the theory of punishment in Islamic law was fully established with the completion of revelation, whereas modern theories of punishment did not emerge all at once; rather, they were the result of a profound and gradual transformation that accompanied the evolution of human thought, the concept of the state, and human rights.

         Another key finding of the study is that the philosophical basis for punishment in Islamic law rests first and foremost on belief in God and on the acknowledgment that He has the right to command and prohibit because He is the Creator; the law, however, does not require belief in anything specific for its application, as it applies to everyone, and believers and non-believers are equal before it.