Islam and Restorative Justice: An Introduction

1. Islam and Restorative Justice: An Introduction Presented by the Center for Restorative Justice and Peacemaking

2. Islam in the World Today • Facts and Figures • Over 1.5 billion Muslims in the world in 2010 • As many as 7 million in the U.S. • Followed by almost a fourth of human beings in the world • Over 50 countries have a Muslim majority • Muslim means “one who submits to God”

3. Muslim Belief and Practice • 5 Pillars of Basic Muslim Belief • One God • Prophets of God • Divine texts • Angels • Life after death • Day of judgment • Basic Muslim Practices • Declaration of faith • Prayer • Fasting • Charity • Pilgrimage

4. The Shahadah • Simple declaration of faith • Recited in Arabic, la ilaha illa Allah wa Muhammad rasul Allah • Translates to “there is no God but God and Muhammad is the messenger of God”

5. Salat • Arabic word for prayer • Five times each day • Dawn, Noon, Mid-Afternoon, Sunset, Night • Ablutions, bowing, and prostrating

6. Sawm and Zakat • Zakat • Required charity • 2.5% of one’s accumulated wealth each year • Sawm • Fasting from food, drink, smoke, and sex • From dawn to sunset each day of the lunar month of Ramadan

7. Hajj • Pilgrimage to the city of Mecca in Saudi Arabia • Performed by approximately 3 million Muslims each year

8. Criminal Law Today • Theories of Criminal Law • Crime as conduct that is prohibited by the state because of its harm to society, necessarily eliciting state response in terms of retribution • Utilitarianists view punishment as a deterrent to potential offenders, creating a criminal-focused system • Rehabilitationists view punishment as a way to reform or cure the offender, again focusing on the offender rather than the victim

9. Restorative Justice • Restorative Justice seeks to develop community-based responses to crime and violence by using • dialogue • repair of harm • peace-building to heal victims and bolster social harmony

10. Restorative Justice • Restorative Justice is NOT a method or program but relies on basic principles of • Repentance • Forgiveness • Reconciliation • All three are central to many religions and can help mediate between the criminal justice system and multi-religious, pluralist societies

11. Basis for Islamic Law • There are two primary sources of Islamic law • Qur’an • Sunnah/Hadith, the life, sayings, and example of the Prophet Muhammad (PBUH) • There are three methods for deriving the law from these sources • Ijma’: consensus of community (democratic) • Qiyas: analogies (precedent-based) • Ijtihad: independent reasoning

12. Islam and Restorative Justice: Crime • Human nature and Society derive from the nature of God – which is restorative in essence: • “If anyone does evil or wrongs his own soul, but afterwards seeks Allah’s forgiveness, he will find Allah oft-Forgiving, most Merciful.” (al-Nisa:110) • “If you stretch your hand against me, to slay me, it is not for me to stretch my hand against thee: for I do fear Allah, God of the Universe.” (al-Maidah: 28) • “The recompense for an injury is an injury equal thereto (in degree); but if a person forgives and makes reconciliation, his reward is due from Allah.” (al-Shura:40)

13. Islam and Restorative Justice: Punishment • Crimes are viewed as offending both God and society in different aspects • Crimes are thus categorized into three main types and require distinct punishments: • Hudud • Quisas • Ta’zir

14. Islam and Punishment: Hudud • Hudud – Theft, adultery, slander, rebellion, apostasy • The most serious of crimes whose punishment is mandated by the Qur’an, not by a judge • Difficult to prove guilt because it requires: • lack of coercion, • full mental capacity of offender, • knowledge of the law by the offender and • evidence that shows guilt beyond any doubt

15. Islam and Punishment: Hudud • Hudud crimes apply only in a just society, thus such charges have been nulled when society itself was not just • Cutting-off hands for stealing was universally dropped during the reign of the second Caliph due to a famine – i.e. a starving society is not just • In practice, the grave punishments for Hudud crimes (death, cutting-off of hands) prevents reconciliation • However, the harsh retributive punishments of Hudud crimes and evidentiary burdens may cause the judge or decision-maker to nullify the Hudud crimes and press for Quisas or Ta’zir crimes, which enable more restorative efforts

16. Islam and Punishment: Quisas • Quisas – murder (voluntary & involuntary), crimes against person (battery, etc.) • Qur’an does not demand a specific punishment • Qur’an presents a range of retaliatory/punitive, compensatory and reconciliatory measures from which to choose, and often suggests relying on restorative principles

17. Islam and Punishment: Quisas • Restorative punishments • Complete Forgiveness: requires victim to forgive before death • All other cases require Diyya and Sohland are victim-initiated: • Diyya – offender agrees to monetary payment to victim • Sohl– negotiated reconciliation in the presence of a WaliAmr– appointed guardian

18. Islam and Punishment: Quisas • Qur’an cautions against relying on retaliatory measures • “We ordained therein for them life for life, eye for eye, nose for nose, ear for ear, tooth for tooth and wounds for equal. Anyone remits the retaliation by way of charity, it is an act of atonement.” (al-Maidah:45) • “O ye who believe the law of equality is prescribed to you in cases of murder: the free for the free, the slave for the slave, the woman for the woman. But if any forgiveness is made by the brother of the slain, then grant any reasonable demand, and compensate him with handsome gratitude. This is a concession and a mercy from God.” (al-Baqarah: 178)

19. Islam and Punishment: Ta’zir • Ta’zir – chastisement of bad behavior; applies mostly to violations of private rigths • All crimes where the Qur’an or Sunna do not prescribe a specific punishment or where evidence to support a Hudud or Quisas verdict was questionable • Rule-makers have discretion on instituting penalties • Focus on forgiveness and minimum of punitive measures • Aim is to rehabilitate the criminal and restore the public good

20. The Medina Charter • Written by the Prophet Muhammad (PBUH) shortly after the Hijra, his migration to Medina in 622 • Favored achieving justice through communal action based on law, not military action • Tool for conflict resolution • Tribal factions would bring disagreements to the Prophet • As a trusted mediator throughout the region, he would serve as the single mediator in these conflicts

21. The Medina Charter • Views conflict as a communal, not individual, matter so solution is a communal matter also • Articles 19, 21, 22, 40 explicitly establish communal laws for the city of Medina and state the ability to seek justice is a communal right • Individuals cannot aid perpetrators, but they also cannot punish them; it must be a communal matter

22. Sulha • From the Arabic word for reconciliation (musalaha), Sulha is a process used in various parts of the Arab world, especially Palestine/Israel • Today centers on the mediation process of • a peace council, called a jaha, • that is comprised of local respected mediators, called muslihs, • who usually know both parties socially; this stands in contrast to the Western idea that mediation must be done by a neutral third party • Sulha built around principle that reconciliation is possible if victim and offender approach each other with • musamaha, forgiveness; • musafaha, shaking hands; • and mumalaha, mutual partaking of bread and salt

23. Sulha • Popularized in the Palestinian context by Elias Jabbour • First aim to shorten period of conflict • Second aim is to emphasize that peaceful resolutions to violent acts are possible • Sulha in the international peace process • Leads to greater understanding of cultural values that drive and inhibit various forms and methods of reconciliation for Arabs • Affirms that those who are victims can have power in the restorative process • Can be used on a local level to educate Israelis about indigenous Arab reconciliation processes and to mobilize Palestinians in approaching negotiations as equals

24. Jirga • Process in Pakistan, especially among Pashtun people • Council comprised of tribal leaders • Intervene in conflicts • Come to a resolution through consensus • Process • Disputants find neutral mediator • Mediator hears both sides and then includes supporters of each side in a council • Council’s decision is final

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