“Punishment is now unfashionable… because it creates moral distinctions among men, which, to the democratic mind, are odious. We prefer a meaningless collective guilt to a meaningful individual responsibility.”
~ Thomas Szasz
Penalties and punishments are legislated under Islamic Law for several reasons, one of those being rectifying the human condition. Far from demanding blood-lust, they serve two main purposes. First, they satisfy the desire for justice that is innate to human nature. Second, and more importantly, they instill a sense of individual responsibility for one’s actions in the minds and hearts of responsible, sane adults. Punishments, for those who are not directly affected by a crime and have not committed one, can act as deterrents to crime and immorality as well.
“God deters with the Sultan…”
Within Islamic legal theory, deterrents fall under one of three categories. They may be natural, i.e. things in your conscience that prevent you from doing publicly what is generally known and accepted as immoral or unjust. For example: Fornicating in the middle of the street is an act that is an immoral act in and of itself. People fornicate all the time privately. And while they may feel immense shame afterwards, they generally would never repeat such an act in public. This innate sense of shame is a natural deterrent to immorality and crime.
Another form of deterrent is those measures by which the state dissuades the public from things which harm the common good. “God deters through the Sultan the one that is not deterred by the Quran” Othman b. Affan is reported to have said [al-Mudawwanah]. Included in this are discretionary measures not prescribed by sacred text in number or manner, as well as the procedural methods that the state takes to reduce corruption and other public harms. One example in this can be seen in Umar’s treatment of his governors, who were assigned overseers that reported to Umar the abuses that they incurred towards the public or public wealth. Another example that comes to mind is the Muhammad b. Maslamah’s destruction of Sa’ad b. Abi Waqqas’ palace at the order of Omar after he had refurbished it through unknown sources [al-Turuq al-Hukmiyyah]. A more modern example would be things like parking tickets, restaurant health grades, and announcements about bad business practices. Each of these is meant to deter people from actual harm or call attention to a source of possible harm.
Hudud Punishments, Discretionary Punishments, and Slander
A third type of deterrent is those things which have been legislated by God and His messengers to dissuade people from illicit acts, both public and private in nature. One example of this would be the various warnings of punishment in the afterlife for specific sins or the negation of faith in this life from that person from the person that commits them. One such example is the sin of fraud in business dealings. The Prophet Muhammad said about a person who defrauds others “He is not from me, nor I from him” essentially disassociating himself from this person [Ahmed #11192]. Muslim theologians considered this an indication that such a person has deficient faith and are not following Prophetic guidance in this matter, not that they have disbelieved. [Ikmal al-Mu’lim 1/375]
Another example can be seen in the stoning of an adulterer. This harsh punishment is characterized as an expiation in this life for the sin of illicit sex while married. The conditions that must be met for this punishment to be meted out against an accused person are so stringent that, to my knowledge, there has never been a single person in the history of Islam who has been punished based upon the testimony of four witnesses. With this said punishment would never then be meted out to an adulterer unless he or she confessed; leaving the guilty in the throes of faith. Either he admits to the act and his sin expiated in this life, or awaits the decision of God in the next. Obviously, such an exercise in weighing the consequences of one’s actions will have a profound effect on the individual’s faith. Does he see God’s mercy as greater than His wrath and hope for atonement on the Day of Judgment? Or does he view God’s justice as eternal and instead expedite the punishment in this life, so to not forfeit receiving his mercy for other sins committed? How can one best lessen their load? This sort of moral conundrum is one that, while difficult, can have a profound rehabilitative effect on the mind and soul of a sinner.
Under this third category, there are only seven (7) prescribed punishments. Known as Hudud punishments, they cover infractions like Adultery, public intoxication, theft, highway robbery, brigandry, apostasy, and slander. [Ouda 1/85]
Other than these prescribed punishments, the Shariah does not designate punishments from any other infractions and instead leaves the way a dispute or offense would be rectified up to the judge presiding over the case. This discretionary power, known as ta’zeer, can range from something as simple as advice or the issuance of a warning to the offending party, and escalate up to flogging and/or jail. In rare instances it may reach the level of execution, especially for compound offenses that challenge public safety and terrorize the general populace. These discretionary punishments are not codified, and therefore the judge may apply them as seen fit, with the caveat that his ruling may be appealed.
Slander, Metaphor, and Ambiguous Accusations
One of the Hudud punishments under Islamic law results from a case of Slander (Qadhf). This is narrowly defined as lodging an explicit accusation of fornication against another person, like one saying: “You adulterer, you fornicator, you’ve committed Zina,” etc. This accusation must be accompanied by four witnesses who have witnessed penetration, “…like applicator entering the mascara tube…” as a Prophetic hadith describes it [Abu Dawud #4428], or accompanied by a uncoerced confession made four times by the accused party. Unless these two evidentiary standards are met, the person who slanders another by accusing them of fornication will be flogged for this accusation.
What then of lesser accusations? What if a person says something like: “You bastard” “you lecher” “You womanizer” or “You whore”? This form of accusation was known as “al-Qadhf bil-Kinayah” or Slander by Metaphor. It was not considered a Hadd punishment where the prescribed punishment of flogging could be applied as it was not an express accusation of infidelity. It was however considered vile enough to be left to the discretion of the judge as to how someone making such accusations could be punished.
Defamation of Character and Damage to Reputation
Lesser than this in severity, but still a culpable offense, was defamation. Defamation was the act of negatively affecting someone’s reputation. The precedent for this is found in numerous places in classical works of Islamic law. Perhaps one of the reasons that it was not spelled out in one place in the books of law was the nature of Islamic societies until the 18th century, where social norms and means of communication would prevent defamation from spreading beyond a tight circle of people who could resolve the issue amicably among themselves.
In several prophetic traditions we find precedent for considering personal slights and defamation unsavory and inexcusable. The Prophet reprimanded Umar for accusing Hatib ibn Abi Balta’a of hypocrisy [Bukhari #3007]. When Aisha taunted Safiyya for being short he told her “You’ve said something if mixed with the oceans it would permeate them entirely.” [Tirmidhi #2502] And when Abu Dharr disparaged Bilal by saying “You son of a black woman” the Prophet told him “You are a man that has pre-Islamic ignorance in him.” [Bukhari #30] These narrations indicate that defaming a person for their actions, character, or appearance is inexcusable. The Prophet said: “Cursing a Muslim is iniquitous and fighting him is disbelief.” [Bukhari #48] Based on this, jurists considered curses and personal defamation to be offenses left to the discretion of the Judge.
Take for instance Shihab al-din al-Qalyubi. In his Marginalia in Shafi’i law he says: “Curses less than Slander mandate a discretionary punishment meted out either through jailing, flogging, pardoning, or shaming.” [Hashiyat Qalyubi 4/312] Scholars of the Maliki school considered ridicule to be a similar offense, and used the actions of Omar and Uthman as evidence to the applicability of discretionary sentences to ridicule when vindictive and meant to defame. [al-Istidhkar, 24/127] Al-Kasani, the Hanafi jurist, mentions “When one says to another ‘You sinner, you vile person, you thief’ or similar then the Imam has the option to reprimand them publicly.” [al-Badai’ 7/64] Ibn Humam al-Hanafi said, “When a Muslim is slandered with something other than Zina, such as saying; ‘ You sinner, you kafir, you vile person, you thief’ and similar phrases, seeking to harm him and disparage his name, then a discretionary punishment becomes obligatory.” [Sharh Fath al-Qadir 5/333] The Hanbali school adds to this list of epithets, “You unfaithful, you cheater, you dog, you he-goat, you pimp, you player” and the like [Dalil al-Talib 312].
Similar to this is a ruling related from Imam Malik in the Mudawwanah. Ibn al-Qasim adds “Some people are known for their harm. Because of this it such a person should be dealt a painful punishment. Others may [say such] as a lapse of judgment, while being known for righteousness and virtue. In this case the Imam should investigate. If he cursed him viciously, he should be reprimanded in a manner commensurate to his virtue. If it was only a slight then Malik said: The sultan should overlook lapses that occur from dignified people.” [Mudawwah 493]
Elements of Defamation
If and when a plaintiff would take action against a person who defamed them, here the defendant they would need to meet the standard for defamation found in the various texts above. From these above texts, it is possible to derive a general rule as to what constitutes defamation under Islamic law:
- The statement was not an express accusation of adultery/fornication.
- The defendant made a statement about the plaintiff to another, publicly or privately.
- The statement was injurious to the plaintiff’s reputation.
- There was an intention to harm or disparage the plaintiff.
- The statement was false or sufficiently ambiguous enough to imply falsehood.
- There are no privileges in effect when making such a statement.
The first element excludes cases of Slander (Qadhf). The second excludes intimations that are not recorded or spoke by one party to the other, such as a head nod or wink that could be interpreted in a variety of ways. The injurious nature of the statement excludes those statements made in jest. This relates directly to intent, that the defendant would have to want to purposely bring about a particular consequence that was injurious to the plaintiff. True statements are an absolute defense against defamation. However, as we see in the texts above, the examples given indicate that defamatory statements involve a certain level of ambiguity and interpretation, leading the listener to belief about the plaintiff something that is not true, even if the statement was not expressly a claim of truth against him.
For example, saying “You sinner” could be interpreted to mean they have committed a specific sin in the mind of the defendant or he simply meant “you’re a sinner like everyone else.” Another example would be to say, “She is questionable around children.” This could mean the plaintiff is simply awkward around kids for some reason or another, or that she is abusive or exploitative to children. It goes without saying that yes while truth is an absolute defense, if one is so concerned about plaintiff and their relationship to a potential victim, they should be confident enough in that claim to make an express statement that would be defensible in court. Lastly, a privileged statement of defamation is one that is made under the obligation of the law or a court order. A person asked to repeat a phrase under oath, or a judge reading out choice adjectives for a convicted criminal would not be defamation under Islamic law.
Your lives, your wealth, and your dignity are sacred
Allowing for discretionary cases to be brought against accused parties would naturally bear the burden of evidentiary proof in order to become actionable. One of the five objectives that Islamic law seeks to protect is the honor and dignity of people. During his farewell pilgrimage the Prophet said, “Your lives, your wealth, and your dignity are sacred between you like the sacredness of this day, in this month, in this land.” [Bukhari #67] To disallow bringing such cases in front of the court, despite their not being Hudud cases, would not only be damaging to the individual but to social cohesion and the objectives of Islamic law as a whole. Similarly, to handle these issues through extra-judicial means is equally as damaging, as it preempts the burdens of proof and the procedures for testing and proving intent to harm through such accusations.
In light of public welfare, if and when a case of defamation of character is brought against a person, the elements of defamation must be present. The judge presiding over the case has the discretionary power to sentence the accused as he or she sees fit. While cursing, defamation, and maligning others does not reach the level of Slander under Islamic law, they are no doubt sinful offenses that people should refrain from. If person escapes legal culpability in this life, they can’t escape being morally culpable for such accusations in the next.
Openly defaming people with vague and abstruse statements is to subject them to the court of public opinion. While it may seem like a win to the person that does so, doing this while making unnecessarily ambiguous accusations can point to either insufficient knowledge of true culpability, maliciousness on the part of the accuser, or both. Ambiguous claims may injure a guilty party at first, but they also afford them the privilege of plausible deniability. This allows them the capacity to deflect any criticism, even true criticism, in the future under the guise of persecution and harassment. Wounds meant to crucify become stigmata, signs of martyrdom for the plaintiff accused indirectly and a constant reminder for the victims that their oppressor is still masquerading as a savior.
26 Sept 2017
Followup, 30 Sept 2017: “Two in Hell, One in Heaven: Dispute Resolution in Islamic Law”