Philosophy of the Islamic Prescribed Punishment and the Role of Expediency in Legislating Punishment Laws

Given the efforts made by the Law-giver in legislating punishment laws and the comparison between Islam and other schools which have laid down penal laws, one can say that the issues such as ‘preventing commission of a crime’, ‘correctional programs’, ‘administering justice’ and ‘satisfaction of a victim or injured party’ are based on the appropriate penal policies and in line with the religious teachings of Islam. These can be said to be the most important objectives of the penal system governing punishment laws. Islamic penal policies and the relevant rulings are based on and determined by the interests and corruptions which they may have. ‘Interest’ or ‘common good’ is a widely-used concept in the Islamic jurisprudence and the ‘Principles’ signifying any act which bring about material or spiritual benefits for individuals and society as a whole. No doubt, divine punishments have been laid down according to the common interests of the Muslim community. The aim of implementing the rulings is to arrive at publicinterests, including self-interest and the interests of religion, reason, female family members and property. These interests are not restrictive. It seems that nowadays a Muslim ruler is entitled not to implement certain punishment laws with recourse to secondary rules and the principle of expediency and even he can replace them with some new ones. For, if a law is laid down for a criminal act and is not implemented for some reason, it will lose its declarative property. In case the implementation of an Islamic law brings about a corruption (mafsadah), in reality, it has lost its consideration of public interest – even within a short time – and thus one has to consider public interests with respect to the punishment laws and requirements of time and place.