Posted by Zia Shah
Written and collected by Zia H Shah MD
Epigraph: “And as for the man who steals and the woman who steals, cut off their hands in retribution of their offence as an exemplary punishment from Allah. And Allah is Mighty, Wise.” (Al Quran 5:39)
The Benjamin Franklin National Memorial, located in the rotunda of The Franklin Institute in Philadelphia, Pennsylvania, features a colossal, 20 feet tall, statue of seated Benjamin Franklin
Harvard Law School Library’s website, Words of Justice, says about Benjamin Franklin’s quote, which makes the title of my article:
In addition to being a statesman/diplomat, inventor/scientist and founding father, Benjamin Franklin (1706-1790) was also a publisher. This quotation is one of many proverbs in his publication Poor Richards Almanac, issued annually from 1732 to 1758. This best-selling pamphlet in colonial America also contained weather, poems, puzzles, astrological/astronomical information and other items that made it a popular publication with the general public. The quotation, published in the 1756 Almanac, suggests the need for proportionality in sentencing and warns against extremes of punishment in society’s laws. It advises that penalties must be severe enough to deter people from the censured behavior, but not so severe that people are reluctant to enforce them. The quote is very similar to a statement by Lord Keeper Finch in 1742 in which he stated “In making of laws, it will import us to consider, that too many laws are a snare, too few are a weakness in the government; too gentle are seldom obeyed, too severe are as seldom executed.”
Benjamin Franklin (January 17, 1706 – April 17, 1790) was one of the Founding Fathers of the United States. A noted polymath, Franklin was a leading author, printer, political theorist, politician, postmaster, scientist, musician, inventor, satirist, civic activist, statesman, and diplomat. As a scientist, he was a major figure in the American Enlightenment and the history of physics for his discoveries and theories regarding electricity. He invented the lightning rod, bifocals, the Franklin stove, a carriage odometer, and the glass ‘armonica’. He facilitated many civic organizations, including a fire department and a university.
His statement, ‘Laws too gentle are seldom obeyed; too severe, seldom executed!’ is very profound and no wonder Harvard Law School Library’s website, chose it among a few dozen quotes in Words of Justice. It is self evident that if punishment of speeding, for example, was only a dollar and associated police harassment of the minority population, was not added unofficial punishment, everyone will be speeding, in USA. My evidence? Almost everyone does go beyond the speed limit a little, with the expectation of some grace zone, above the officially posted speed limit.
To illustrate the other spectrum of Franklin’s quote, we observe that no one has appetite, in this day and age, for stoning anyone to death, which is prescribed as a punishment for several crimes, in the Bible, but not in the Quran. For a list of some of the crimes for which stoning is prescribed, see an article: Violence in the Bible and Jihad in the Quran.
Benjamin Francklin’s quote is profound in both of its clauses.
Let us now move to the issue of deterrence of crime by fear of punishment. The idea of deterrence is certainly built in, ‘Laws too gentle are seldom obeyed.’
Many of us in the West have seen the deterrent effect of financial penalties and high interest rates, for failing to pay federal taxes in time. On several occasions, I have paid, almost 10% of the money due, as fines, to the Government, for delay of as little as a day, in paying withheld taxes of my employees. It has certainly created respect and awe of Law in my mind and has shaped my practice of making it a priority to pay in time.
Saudi Arabia has drawn considerable criticism for cutting of hands of thieves in recent decades. But before we study Saudi Arabia, let us focus on Three Strikes Laws. These laws in principle approve of the idea of deterrence, otherwise a scenario can be constructed, where by, life imprisonment will seem very harsh for three petty thefts, for example.
Three Strikes Laws are statutes enacted by state governments in the United States which mandates state courts to impose harsher sentence on persons convicted of three or more serious criminal offenses. In most jurisdictions, only crimes at the felony level qualify as serious offenses. Depending on the seriousness of the felony, the sentence can range from a minimum of 25 years to a maximum of life imprisonment (typically the defendant is given the possibility of parole with a life sentence). Twenty-four states have some form of habitual offender law.
The three strikes law significantly increases the prison sentences of persons convicted of a felony who have been previously convicted of two or more violent crimes or serious felonies, and limits the ability of these offenders to receive a punishment other than a life sentence. Violent and serious felonies are specifically listed in state laws. Violent offenses include murder, robbery of a residence in which a deadly or dangerous weapon is used, rape and other sex offenses; serious offenses include the same offenses defined as violent offenses, but also include other crimes such as burglary of a residence and assault with intent to commit a robbery or murder.
The practice of emposing longer prison sentences on repeat offenders (versus first-time offenders who commit the same crime) is nothing new, as judges often take into consideration prior offenses when sentencing. However, there is a more recent history of mandatory prison sentences for repeat offenders. For example, New York State has a Persistent Felony Offender law that dates back to the late 19th century. But such sentences were not compulsory in each case, and judges had much more discretion as to what term of incarceration should be imposed.
The first true “three strikes” law was passed in 1993, when Washington state voters approved Initiative 593. California passed its own in 1994, when their voters passed Proposition 184 by an overwhelming majority, with 72% in favor and 28% against. The initiative proposed to the voters had the title of Three Strikes and You’re Out, referring to de facto life imprisonment after being convicted of three felonies.
The concept swiftly spread to other states, but none of them chose to adopt a law as sweeping as California’s. By 2004, twenty-six states and the federal government had laws that satisfy the general criteria for designation as “three strikes” statutes — namely, that a third felony conviction brings a sentence of life in prison, with no parole possible until a long period of time, most commonly twenty-five years, has been served.
The Western conscience has grown comfortable to life imprisonment for even relatively small felonies, if these are committed more than twice, because of the deterrence value of these punishments.
The Quranic punishment of theft, which is in vogue in Saudi Arabia, needs to be examined in the light of the principles high lighted by Benjamin Franklin and the three strikes laws.
It is very likely that this deterrent punishment against theft, created law and order in human societies, over the centuries, especially, when the medieval societies did not have resources to provide humane conditions in prison systems.
However, today, it is relatively easy to understand that this teaching of the Quran is not to be taken literally and in an absolute sense.
Every Quranic verse should be interpreted in the light of other verses of the Quran, which have important and fundamental bearing on the issue. A simple proof that can be offered to the literalists is that the verse talks about cutting of both hands, but, the history of 14 centuries is a witness that it has never been interpreted as such and only as cutting of one hand. So, it has never been taken literally.
Mitigating circumstances have always been considered and it is recorded that Caliph Umar, may Allah be pleased with him, waived off the punishment in times of famine.
The punishment was not to be given for petty theft.
Narrated Abdullah ibn Amr ibn al-‘As: The Apostle of Allah was asked about fruit which was bung up and said: If a needy person takes some with his mouth and does not take a supply away in his garment, there is nothing on him, but he who carries any of it is to be fined twice the value and punished, and he who steals any of it after it has been put in the place where dates are dried to have his hand cut off if their value reaches the value of a shield. If he steals a thing less in value than it, he is to be fined twice the value and punished. (Abu Dawud 38:4377)
In another Hadith we read, narrated Rafi’ ibn Khadij: Muhammad ibn Yahya ibn Hibban said: A slave stole a plant of a palm-tree from the orchard of a man and planted it in the orchard of his master. The owner of the plant went out in search of the plant and he found it. He solicited help against the slave from Marwan ibn al-Hakam who was the Governor of Medina at that time. Marwan confined the slave and intended to cut off his hand. The slave’s master went to Rafi’ ibn Khadij and asked him about it. He told him that he had heard the Apostle of Allah say: The hand is not to be cut off for taking fruit or the pith of the palm-tree. The man then said: Marwan has seized my slave and wants to cut off his hand. I wish you to go with me to him and tell him that which you have heard from the Apostle of Allah. So Rafi’ ibn Khadij went with him and came to Marwan ibn al-Hakam. Rafi’ said to him: I heard the Apostle of Allah say: The hand is not to be cut off for taking fruit or the pith of the palm-tree. So Marwan gave orders to release the slave and then he was released. (Abu Dawud 38:4375)
Every Quranic teaching should be interpreted in the context of the prevalent circumstances, as only then Quran can fulfill its promise of being a dynamic book, which rises to the needs of the time. Otherwise, it stands the risk of becoming obsolete and redundant at least on some issues. Such is the portrait of the Quran painted by one of the greatest legal minds of the last century, Sir Zafrulla Khan. He writes in his book, Islam: Its meaning for modern man:
It is this comprehensiveness of the Quran, the need to make provision for guidance in every respect for all peoples for all time, that made it necessary that the guidance should be conveyed in verbal revelation. The Quran is literally the Word of God and possesses the quality of being alive, as the universe is alive. It is not possible to set forth at any time the whole meaning and interpretation of the Quran or, indeed, of any portion of it with finality. It yields new truths and fresh guidance in every age and at every level. It is a standing and perpetual miracle (18:110).
The world is dynamic and so is the Quran. Indeed, so dynamic is the Quran that it has always been found to keep ahead of the world and never to lag behind it. However fast the pace at which the pattern of human life may change and progress, the Quran always yields, and will go on yielding, the needed guidance in advance. This has now been demonstrated through more than thirteen centuries, and that is a guarantee that it will continue to be demonstrated through the ages.
The Muslims should realize that people today have no appetite for gruesome chopping of hands in the public square. We should acknowledge Benjamin Franklin’s wisdom, when he said, ‘Laws too severe are seldom executed!’
In a broad context, the Quranic prescription of penalty against theft, ‘cut off their hands,’ can be considered to be a metaphorical representation of deterring crime, by suitable measures.
Cutting hands of thieves, even if taken literally, in the present day circumstances, can certainly be interpreted in milder tones and mean cutting of a little finger in a modern operating room or a short jail term, as is mentioned in the Holy Quran that Allah is the Gracious and the Merciful and He is the Most Forgiving, scores if not hundreds of times. There is a Hadith in the Book of Bukhari, “Allah’s mercy surpasses or far outweighs His anger.”
In a recent informal discussion at a dinner table, with my friends, I asked half jokingly, God forbid, if one of them was convicted of theft and given a choice of a finger cut off or ten years in a federal prison in USA, which one would they prefer. To my surprise I did not find any takers for 10 years of prison, which they would otherwise tout as very civilized, modern and humane punishment!
Judges can certainly offer two sets of punishments and let the criminal choose, a principle used in plea bargaining. The guilty could sacrifice a finger in an advanced operative room or ten, fifteen or 25 years of his life in a prison. Choice could be left to the guilty!
We may be surprised to find how many would go for the Islamic punishment and it may turn out to be a panacea to unload the prisons in USA, which now have 2.2 million inmates.
Once we look at any Islamic teaching, without hype and prejudice and compare apples with apples, we find Islamic teachings, if interpreted properly, to be very profound and find in them great utilitarian value.