veiled4allah: questions of torture, retaliation, and vindication

At first, it wouldn't seem like there was anything unusual about the story of a brutal torture-execution in Iran. The criminal himself was a sicko who lured young children into the desert, sexually molested them, and then killed them; the execution involved flogging him and his victims were allowed to enact retribution on him, then he was executed by hanging. One would think this was just another story about the barbarity of the Muslim world and what is called the Islamic penal system. As usual, one expects that right-wingers in particular would work up a righteous fury, perhaps use it to argue why we need to make war on Iran to liberate it, or something.

But, in what seems to me at least to be a strange twist, conservative blogger and law professor Eugene Volokh announced that he agreed with what happened in Iran, because he feels that retribution should be an important element in punishment. He even went so far as to say that the Constitution should be amended if the Eighth Amendment (against cruel and unusual punishment) would get in the way of this.

Say what?

While most of the liberal blogosphere has erupted in outrage, Mark Kleiman, a professor of publicy policy, has taken a somewhat contrarian view (see also his follow-up). Among other things, he notes that life imprisonment - especially in conditions such as prevail in American prisons - is a more cruel punishment than many people admit. The damage is more psychological than physical, but no less real for all of that. This is a point that I myself have made before:

Some people feel that the existing form of the prison system in America is unjust and inhumane. Some people go even further and say that incarceration as a punishment is itself inhumane. After all, human beings are locked up in what amount to cages (i.e., the prison cells) where they have next to no privacy and have to offer complete obedience at all times to corrections officers and to ask permission for almost anything they do. An argument can be made that imprisonment is really a form of slavery, and a particularly cruel form at that since the prisoners are kept locked up. We're not used to thinking like this. It's taken as a given in America that prison is far more humane than corporal punishment. But is it? The body heals; the mind and the soul may not. When we consider whether the prison system is humane we should look at the psychological damage caused by captivity. It's not as easy to measure as physical damage, but it may be far worse and more lasting.

Kleiman also, especially in the follow-up post, discusses whether there is in fact a value to what is variously called retaliation, retribution, or vindication; Kleiman uses "vindication" to express the positive aspects. He points out that some of our own laws have vindication as their major or primary justification, such as hate crimes laws, and that some prosecutions also can be justified only by the principle of vindication, since deterrance is not enough to explain them.

So the question may not be whether retaliation or vindication is a valid aim of the penal system, but how far we should go in it. Torture and mutilation in the service of vindication cross the line (and thus, so does Volokh; update: it appears that he has changed his mind), but a different form of retaliation or vindication may be acceptable.


At this point, I'm going to wander off onto a diversion, leaving the previous train of thought sort of hanging there.

What exactly does Islamic law say? The quote of myself above came from a blog entry that was primarily about Islamic penal law. I devoted a lot of that entry to the question of due process and standards of proof (something I also discussed here and more briefly here), in order to conclude:

If an Islamic society truly upheld the standards of proof, the harsh corporal punishments like flogging and cutting off the hand would only be meted out on a small number of brazen criminals who deliberately commit their crimes in front of others (and, presumably, in defiance of those others' attempts to stop them or talk them out of it). And the rest of the penal code could be of whatever form that the society felt was best. This could be other types or corporal punishments (as in the past), or incarceration (as in the modern Muslim world), or even (yes) restorative justice.

OK, that's all well and good as far as it goes, but what about this particular case? A man who sexually violates and then murders children and does so over and over again (it's estimated that he had killed more than 20 children this way) is surely a hardened and brazen criminal who deserves the strongest punishment.

And in another part of that entry, I also included this note about retaliation:

Qisas refers to the principle of retaliation for assault and murder. The Quran permits, but does not require, retaliation in kind. What do I mean, it doesn't require? The decision rests with the victim or the victim's family. The victim or family can seek retaliation, or they can accept a restitutive payment, or they can forgive the offender. Restitutive payment (diya in Arabic) is also the punishment set for manslaughter. The Quran strongly recommends that the victim seek restitution or offer forgiveness because this erases sins and is better in God's sight. Also, remember that the attack must have been witnessed and deliberate.

I didn't really go into the question of retaliation very much except for that note, but linked to an article which does discuss it at greater length. Here is what it says:

A qisas crime is one of retaliation. If you commit a qisas crime, the victim has a right to seek retribution and retaliation. The exact punishment for each qisas crime is set forth in the Quran. If you are killed, then your family has a right to seek qisas punishment from the murderer. Punishment can come in several forms and also may include "Diya." Diya is paid to the victim's family as part of punishment. Diya is an ancient form of restitution for the victim or his family. The family also may seek to have a public execution of the offender or the family may seek to pardon the offender...

...Contemporary common law today still is filled with the assumptions of retribution. The United States federal code contains "mandatory minimum" sentences for drug dealing, and many states have fixed punishment for drugs and violence and using weapons. The United States justice system has adopted a retribution model which sets fixed punishments for each crime. The idea of retribution is fixed in the U.S. system of justice. Qisas crime is simple retribution: if one commits a crime, he knows what the punishment will be.

Diya has its roots in Islamic Law and dates to the time of the Prophet Mohammed when there were many local families, tribes, and clans. They were nomadic and traveled extensively. The Prophet was able to convince several tribes to take a monetary payment for damage to the clan or tribe. This practice grew and now is an acceptable solution to some qisas crimes.

Today, the Diya is paid by the offender to the victim if he is alive. If the victim is dead, the money is paid to the victim's family or to the victim's tribe or clan. The assumption is that victims will be compensated for their loss. Under common law, the victim or family must sue the offender in a civil tort action for damages. Qisas law combines the process of criminal and civil hearings into one, just as the "civil law" is applied in many nations of the world. Qisas crimes are compensated as restitution under common law and civil law...

...Another concept of qisas crimes is the area of punishment. Each victim has the right to ask for retaliation and, historically, the person's family would carry out that punishment. Modern Islamic law now requires the government to carry out the qisas punishment. Historically, some grieving family member may have tortured the offender in the process of punishment. Now the government is the independent party that administers the punishment, because torture and extended pain is contrary to Islamic teachings and Sharia Law.

It's this last paragraph that's perhaps the most interesting, because it applies directly to the situation in Iran, and it echoes the point that Kleiman was making. To have a principle of retaliation in the law does not mean that "anything goes" or that it justifies torture. That is vengeance, not justice. What happened in Iran was vengeance, not justice.


My main point in the blog entry about Islamic penal law was that it is not a fixed and static system. Rather, it has certain fixed points, the maximum punishments allowed, and limits on when and how these can be meted out.

And it also has within itself a flexibility that can allow it to adapt when we as a society develop and advance. While it can turn into a system of harsh corporal and capital punishments, as all too often seems to be the case in the Muslim world today, it can also become a system to support concepts such as restorative justice. Rather than giving in to our lowest impulses, we can seek towards our highest ideals.

I'd like to close with a quote from an article about how and why torture is forbidden in Islamic law, which I think sums the issue up well:

It has been found that one cannot use criminal means to fight crimes. If that is the case, then there is no difference between criminals in uniform and criminals without uniform, both carry AK-47. If, Prime Minister Nawaz Sharif is interested in Sharia, then he must remember that it came to us through Mohammad (PBUH) and not Machiavelli. Machiavelli wrote "Prince" and not the Quran and Sunna. Crime is the anti-thesis of Islam.

Prophet Mohammad (PBUH) was Rahmat-ulil-Al-amin, and he was not a Marcus, Shah of Iran, Pinochete or Stalin. Islam is very clear, there is no such thing "crime for the good of Islam." Unfortunately Pakistani wolves use Islam as a camouflage for their criminal ends...

...Torturers, aren't you afraid of Allah, have you ever thought about the day of judgment, what if in future your sons, daughters or wife are subjected to the things which you practice on others. Would you like it? If not, don't do it to others.

Kleiman stresses this point as well. We should not ourselves become criminals in our policies against crime. We sell our souls to the devil and the price is higher than we realize; we may not be able to bear its full measure when the judgment is called in on us.