BARRASĪ MUJĀZĀT ZENDĀN BĀ TAKYE BAR FIQH WA ḤUQŪQ ISLĀMĪ [EXAMINATION OF IMPRISONMENT PUNISHMENT BASED ON ISLAMIC JURISPRUDENCE AND LAW]. By Leila Haqiqi. Mashhad, Iran: Minufar, 2018. Pp. 321. Paper, 300,000 IRR.
Throughout human history, there have always been individuals who acted contrary to the laws and regulations of society. Governmental systems have, therefore, established punishments for such individuals in order to prevent societal deviation and uphold laws and ethics. Imprisonment is one such method for both punishment and, on the other hand, for reintegrating offenders into normal life within society.
Numerous works have been written on this subject; however, this particular piece examines the status of imprisonment and prisoners within the five major Islamic sects (Imami, Maliki, Shafi’i, Hanbali, and Zaydi), alongside Islamic jurisprudence, Iranian law, and Islamic legal principles.
This work is divided into three chapters. In the first chapter, the author defines key concepts, provides a historical overview of imprisonment, and discusses the various forms of legitimate imprisonment. In common parlance, crime is referred to as the commission of wicked and dishonorable actions that oppose truth and justice. In legal terms, it refers to actions prohibited by Sharia, where God deters individuals from such actions through the enforcement of fixed or discretionary punishments. The term “prison” has various interpretations in language, Quran, and Hadith, including meanings such as seclusion, confinement, retention, restriction, and exile. Numerous narrations from the infallible Imams and Sunni sources indicate that imprisonment is legitimized for punishing offenders, although during the era of the Prophet Muhammad and Abu Bakr, there were no designated spaces for detaining offenders; instead, they were confined in corners of the mosque. Additionally, the Prophet Muhammad provided special accommodations for women and children. According to some reports, the first prison was constructed during the caliphate of Umar, while another report states it was during the caliphate of Imam Ali. During the Umayyad era, prisons became centers for political dissent against the Umayyads. Torturing prisoners in the prisons of Muawiyah was common, and gradually, imprisonment became a tool of power wielded by the Umayyad caliphs, with torture taking on a horrific form during the Abbasid caliphate. Nonetheless, the early decades of Islam can be referred to as the golden age of respect for human dignity, where the rights of prisoners were observed according to the practices of the Prophet Muhammad and Imam Ali.
In ancient Persia, punishments were exceedingly severe. Imprisonment was not one of the punishments but rather a means to quietly eliminate prominent individuals whose presence posed a danger to the king and the state. During the Qajar period, punishment through imprisonment was particularly painful, serving as a means of depriving freedom. Similarly, under the Pahlavi regime, the methods of managing prisons and dealings with illegal detainees were contrary to Islamic law. According to documents and records, until the early 1332 SH (Solar Hijri Calendar), there was no dedicated prison for women, rather, a rented house in one of Tehran’s neighborhoods was designated as a women’s prison. In the past, the imprisonment of women was more about detention and punishment, but today, prisons have largely transformed into facilities for holding offenders and implementing corrective and educational programs while simultaneously restricting their freedom.
Prisoners in Islam are categorized. One categorization based on jurisprudential principles is gender segregation and classification. Additionally, detained prisoners are kept separate from convicted prisoners due to the negative impact of experiential crime and other factors. There is also classification based on the age of offenders, dividing them into categories for minors, adolescents, young adults, and adults, as well as classification based on the nature of the crime and personality.
The author continues by discussing the various types of imprisonment during Imam Ali’s rule, including punitive, preventive, coercive, and imprisonment for fulfilling commitments by the accused. According to Islamic jurists, imprisonment has several types, including reformative imprisonment, investigative imprisonment, and torture-related imprisonment. The duration of imprisonment, according to the four main schools of thought, is categorized into two types: time-limited imprisonment defined by Sharia and indeterminate imprisonment, the duration of which is at the discretion of the ruler and judge. Based on the viewpoint of Ayatollah Makarem Shirazi, a categorization of imprisonment is presented, differentiating between reasonable and unreasonable prisons based on their objectives. Reasonable prisons include punitive, reformative, disciplinary, preventive, political, and meritocratic prisons, while unreasonable prisons encompass retaliatory imprisonment, imprisonment for alleviating disturbances, imprisoning innocent individuals, and imprisonment aimed at demoralizing individuals. In any case, Islam recognizes imprisonment as both a fixed punishment and a discretionary punishment. According to certain Quranic verses (4:15, 5:33, 5:106), imprisonment is legitimized in certain contexts despite differences in interpretation. The author also considers imprisonment as legitimate based on narrations, consensus, and reason. Among the founders of reformative prisons in Islam is Imam Ali, who instituted them for the purpose of reforming offenders. During his caliphate, prisoners were allowed to participate in religious practices, and he instructed his officials to treat prisoners with leniency.
The second chapter discusses the status of imprisonment in Islam. From the Islamic perspective, prisons are places that, although physically confining an individual, are recognized as some of the best means for reform, spiritual education, purification, and safeguarding society from crime. Thus, it is a location that can elevate the sullied soul of offenders to perfection and felicity. For this reason, Imam Khomeini stated that prisons should transform into universities, aimed at liberating individuals from their base instincts. Some legal scholars argue that imprisonment in the Islamic penal system should be the last resort because when a person is imprisoned, a family disintegrates, and many temporary detentions can be replaced with fines. Ayatollah Shahroudi posits that, in our jurisprudence, imprisonment is not intended to punish and torment the offender, and within Islamic jurisprudence, the punishment of an offender is not imprisonment; rather, imprisonment should be a deterrent, serving to protect society from crimes. In contemporary times, penal law scholars believe that imprisonment, apart from its preventive role, is a primary factor in reforming and rehabilitating the convicted. Thus, it is argued that the prison environment has a significant positive or negative impact on the formation of the personalities of incarcerated offenders.
Imprisonment has both supporters and detractors. Proponents argue that without the punishment of imprisonment, it is unclear how society should deal with dangerous criminals and repeat offenders, and by what means society can be safeguarded from such individuals. Conversely, opponents claim that imprisoning individuals lowers societal productivity, advocating for the use of alternatives to imprisonment, such as fines, though this approach is applicable primarily for minor offenses. Furthermore, the prison environment often enables criminals to develop greater skills in executing crimes.
The third chapter delineates the ruling on imprisonment in Islamic law. Punishments are categorized based on crimes into: Hudud, Qisas, Diat, Ta’zirat, and Kaffarat. Hudud corresponds with acts that violate decency, ethics, and infringements upon others’ property and honor. Ta’zirat are punishments whose severity is determined by the authority. Qisas pertains to bodily harm, Diat relates to financial penalties, and Kaffarat refers to specified punishments for certain crimes related to Qisas, Diat, and some Ta’zirat. In Islamic jurisprudence, imprisonment is considered a form of Ta’zirat in cases such as detaining a debtor who, despite having financial means, refuses to repay their debt. The term “Ta’zir” in linguistic terms refers to discipline and reproach, while in religious context, it signifies a punishment whose degree and form are not fixed in Sharia, with the authority to determine them resting with the ruler, unlike Hudud, for which the punishment is explicitly stated in Sharia. According to Shia foundations, the authority to issue rulings during the presence of the Imam rests with the infallible Imam, and during his absence, it is the responsibility of the marja taqleed (religious authority). The author subsequently discusses various aspects of imprisonment and its rulings according to Islamic sects, such as the detention of suspects, imprisonment of insurgents, robbers, captives, instigators of murder, murderers, adulterers, debtors, those abandoning alimony, embezzlers, and those who harm others and assault their spouses.
From the Islamic perspective, prisoners possess direct rights such as the right to sustenance, clothing, suitable accommodation, access to health services and education, freedom in transactions and employment, freedom in sports, freedom to perform religious acts such as participating in Eid prayers, the right to marry and divorce, as well as indirect rights such as rights pertaining to a spouse and parents. However, there are critics of this viewpoint. From an Islamic standpoint, treatment of prisoners should be humane and dignified. In Islam, tormenting and torturing prisoners is impermissible, and if an offender suffers harm due to torture, the torturer is held liable, an issue endorsed by jurists. Furthermore, specific rights for incarcerated women—such as providing facilities for childbirth and maintaining communication with their children—are recognized in Islamic law. The author also refers to the law regarding the pardon of crimes and its types, indicating that this pardon can be granted either completely or partially.
Hossein Baqeri
Tolou International Institute, Qom, Iran.
