It is to be noted in the first place that the texts of Shari`ah warned against crimes such as child abduction. According to Shari`ah, the doer of such a crime is liable to receive a discretionary punishment to be applied by the state, similar to that applied in case of spreading mischief in the land; a punishment that may amount to execution if that could serve as a deterrent. However, justice-insuring measures should be taken into account to avoid inflicting any punishment on an innocent man.
The late Sheikh Jadul-Haq `Ali Jadul-Haq, former Grand Imam of Al-Azhar, may Allah shower mercy on his soul, states: The Hanafi jurists and many other Muslim scholars permit the application of dealth penalty as a discretionary punishment for this crime, just to protect the society. If no other punishment could serve as a deterrent to the culprits, particularly if this crime has become recurrent and they have taken it as habit or profession.
Therefore, those who are proven to be professional killers, burglars, or hijackers and those who kidnap children and women are subject to receive the capital punishment because they are a real threat to the whole society and are not expected to be good members in the future. This is the view of Ibn `Aqeel, Ibn Taymiyah and Ibnul-Qayyem.
Resorting to capital punishment as a deterrence is also the view of many Maliki jurists who pemitted executing the spy and the person who spreads mischief in the land. Some Shafi`is adopt this view specially in cases of warding off aggression.
`Umar ibn `Abdul-`Aziz is reported as saying: “The more corrupt people get, the newer issues they have.” This saying shows how necessary it is to resort to capital punishment as a deterrence for those professional criminals who place the whole society under the threat of instability and terror and whose acts violate the very objectives of Shari`ah that aim at protecting life, religion and lineage.
However, in order to avoid inflicting punishment on an innocent man, justice must be given due regard. The application of penalty here must not be based on doubt or circumstantial evidence, particularly if the accused is not arrested red-handed.
The Goals of Islamic Law
All Muslim scholars agree that the Shari`ah aims at protecting five main necessities; religion, life, lineage, property, and intellect.
In order to protect such necessities, the scholars deducted the following penalties from the sources of Islamic law:
First: Hudud (fixed penalties) shown by the texts of Shari`ah: Such penalties constitute the right of Allah alone and are not subject to forgiveness. Hudud are prescribed to ensure the public interests of the society.
Second: Payment of Diyyah (blood money) or Arsh (indemnity for damaged organs): Such penalties are prescribed for crimes against a human life (manslaughter) or for less serious crimes.
Third: Ta`zir (discretionary punishment). Unlike Hudud, the punishment here is defined according to a flexible criterion not a fixed one. The Shari`ah has only stipulated some types of punishments for Ta`zir crimes that may amount to the maximum punishment of Hudud, i.e. execution.
The Hanafis allowed the application of capital punishment for crimes threatening the security and interests of the society. According to them, any crime that threatens people’s lives, property, or dignity is considered an act of spreading mischief in the land. If no fixed penalty is established to deter such a crime, the ruler is authorized to apply capital punishment as a discretionary punishment or as a form of security measures.
While the Malikis agreed that the discretionary punishment has no minimum limit, they differed concerning the maximum limit of such a punishment. Imam Malik holds the view that the discretionary punishment is to be estimated according to the severity of the crime, the conditions of the criminal and the victim. He is also of the view that discretionary punishments may exceed the limits of fixed penalties.
Some Shafi`is permit the execution of the heretic, the sodomite and the catamite by putting them to the sword. According to them, the ruler must apply a discretionary punishment on highwaymen. The Shafi`is also hold the ruler responsible for protecting people’s lives, organs, interests, properties as well as women’s honor against the attack of any aggressor. Therefore, death penalty is one of the means for deterring such a criminal.
In his book ‘Qawa`id Al-Ahkam’, Imam Al-`Izz ibn `Abdes-Salam Ash-Shafi`i wrote: “Warding off the aggressor may involve killing, inflicting harm or damage. This is meant to protect souls, honor and properties. Also, this may involves destroying houses, cutting trees and killing beasts, but this is just under extreme necessity, if there is no other alternative to stop aggression.”
This saying of Imam Al-`Izz ibn `Abdes-Salam is very precious. It signifies that killing for the purpose of warding off aggression or stopping it is the discretion given to the ruler. Some Hanbalis also allow the application of capital punshment as a discretionary punishment for espionage, heresy as well as any crime that can not be stopped otherwise. They said: “The punishment for highway robbery is not restricted to the crimes committed in deserts or highways for such crimes can also happen in the city.