Volume 3 | Issue 4
Volume 3 | Issue 4
Volume 3 | Issue 4
Volume 3 | Issue 4
Volume 3 | Issue 4
This study examines the objectives (maqāṣid) of Islamic criminal sanctions as set out by the Andalusian Mālikī judge Abū Bakr ibn al-ʿArabī (d. 543/1148) in al-Qabas fī sharḥ Muwaṭṭaʾ Mālik ibn Anas, and uses them to answer the objections most often raised today against the ḥudūd and retaliation (qiṣāṣ). It rests on a complete reading of the book “On Blood and the Ḥudūd” and the Book of Theft that follows it in al-Qabas and a computer-assisted survey of the rest of the work, compared with his al-Masālik and Aḥkām al-Qurʾān. It finds that Ibn al-ʿArabī described corporal punishments as “restraints and deterrents”, in agreement with al-Māwardī before him, and divided the Law’s response to transgression into a “ruling of deterrence” (ḥukm zajr) and a “ruling of reparation” (ḥukm jabr), which he applied explicitly to retaliation and blood-money and which also explains his account of combining amputation with liability for stolen property. This division precedes in time the maxim of “reparations and deterrents” (al-jawābir wa-l-zawājir) later set out by al-ʿIzz ibn ʿAbd al-Salām and al-Qarāfī. The objectives of punishment in his thought are four: a root objective, the preservation of the necessities and the setting right of people, and three objectives that serve it: deterrence, reparation, and the reform of the offender. The study adds objectives from the wider tradition that complete his account: expiation, satisfaction of the victim and the ending of vendetta, public order, and mercy as the intention of the one who punishes. These objectives cohere in a system in which the measure of punishment follows the gravity of the offence, rights are divided between God and the human being, and seven safeguards surround enforcement. On this basis six objections are answered: cruelty and human dignity, the hadith of the ʿUranīyūn, the abolition of retaliation, the denial of stoning, collective punishment, and the claim that Islamic sanctions are purely retributive.