What good does punishment do for the victim?

Let us continue our reflections on justice and law, which we began from the fact that the 433,520 people in Turkey's prisons amount to roughly 503 prisoners per 100,000 people. First let us say that, although our situation looks very grave compared with the European countries we cited on this point, if it is any consolation, we are comparatively better off than the United States. In the US the number of prisoners per 100,000 people is 580, and the total number of detainees and convicts reaches 2 million. But of course our benchmark should not be the US; a bad example is no example.

We had ended our previous piece by asking what we gain for the victim by throwing a person into prison for years.

Truth be told, this question leads us to an issue to which modern criminal law has not paid sufficient attention, while Islamic law, from a very early date, handled it in a distinctive and remarkably striking balance: Against whom is a crime committed, and to whom does the right to punish belong?

With the development of modern criminal law, crime has increasingly been conceptualized as an act committed against public order and the state. When one person wounds another, takes his property or harms him in some other way, the incident begins between two people; but once the state steps in, the matter largely turns into a "defendant-state" relationship. The prosecutor brings the case on behalf of the public, the court passes the sentence on behalf of the public, and the sentence is carried out in the state's prison. Meanwhile, what the real victim of the crime wants, and the extent to which the harm he suffered is repaired, can often become one of the secondary matters of criminal procedure.

The perpetrator goes to prison for five years, but the victim may not get his money back; the income he lost because of his injury may not be compensated, the destruction in his life may not be made good. Because the state has punished the criminal, it has, from its own standpoint, fulfilled its duty of justice, but the victim is sometimes left alone with his harm.

The distinction in Islamic law between the right of God and the right of the individual (haqq Allah and haqq al-abd) may of course come to your mind right away. Of course, this distinction should not be understood as identical to today's distinction between public law and private law. In fiqh there are rights of God, rights of the individual, and rights in which the two combine; moreover, the ruling may change depending on which element predominates. But behind the distinction lies a very important idea: Not every injustice is of the same nature, and the authority to dispose of the punishment of every crime does not belong wholly to the state.

We can see a very striking example of this especially in crimes against human life and bodily integrity.

In intentional homicide, retaliation (qisas) is the principle, but alongside qisas the doors of pardon, blood money (diya) and reconciliation (sulh) are also open. Moreover, these are not secondary or extra-systemic exceptions; they are ways of exercising a right that belongs to the victim or, in the case of killing, to his guardians.

From whichever side you look, it is a magnificent balance. The balance of the One who knows best the servant He created and society, and who sets the most fitting rule for them.

What must be seen here is the change in the philosophy of punishment. The state does not merely say, "My law has been violated, therefore I punish you"; first it looks at what the right of the person whose right was violated shall be. In my opinion, this is precisely the point we need to reconsider today.

PRESCRIBING PARDON ALONGSIDE QISAS

To explain Islamic criminal law solely through qisas is a major deficiency. For the same system that commands qisas also places pardon within the law. Moreover, pardon appears not as the state forgiving the criminal in spite of the victim's will, but as the holder of the right giving up his own right. Here the victim ceases to be a passive witness and becomes one of the actors of the process of justice.

SULH: ANOTHER PATH OF JUSTICE

And there is the concept of sulh, which we have almost forgotten today.

Sulh is not covering up a crime, nor the strong silencing the weak. On the contrary, it is the parties' ending the dispute by consent after the rightholder's right has been recognized. For this reason, the first condition of true sulh is the victim's free will. In recent days we mentioned the kind of controversy that arose over cases of sulh reached in the East through the mediation of some civil society figures and opinion leaders, or, in the latest instance, HÜDA PAR.

Transposing this into today's criminal law must of course be done very carefully. A system in which a woman is forced under family pressure to "forgive" her violent husband, or in which an economically powerful perpetrator buys the pardon of a poor victim, would be not restorative justice but a new injustice.

But once the necessary safeguards are in place, why should we not widen the scope of sulh?

If the perpetrator has admitted his crime, has truly repaired the victim's harm, has paid compensation, has, if necessary, taken part in a treatment or rehabilitation program, and the victim, under no pressure whatsoever, has reconciled with him, why should it be contrary to justice for all this to have a serious effect on the sentence to be given?

Perhaps, on the contrary, justice itself requires it.

DIYA IS NOT A FINE; IT IS THE REPAIR OF A RIGHT THAT HAS BEEN VIOLATED

The concept of diya needs to be dwelt on separately. With our present-day mind we can easily understand diya as "the offender pays the money and gets off." Yet this is an extremely superficial reading.

The logic of diya accepts that the harm created by a crime has an addressee. The person who was killed may have been supporting a family; the person who was wounded may be unable to work for months; permanent damage may occur in his body. The crime has not merely violated an abstract legal norm; it has caused a real loss in the lives of real people.

It is therefore highly meaningful that part of the sanction be directed at making good that loss. In classical fiqh, diya serves a function of financial compensation in various cases of killing and violations of bodily integrity where qisas is not applied; even in intentional homicide, it is possible for the rightholders to forgo qisas and accept diya.

In today's world, of course, we do not have to take the classical diya amounts as they are. It is more important to rethink the legal idea here: One purpose of punishment should be to repair, as far as possible, the right violated by the crime.

A person causes another a loss of one million lira. We send the perpetrator to prison for three years. For those three years the state covers his housing and execution costs; the perpetrator is cut off from production, his family perhaps becomes dependent on social assistance, and the victim still has not received the million lira he lost.

In this case, could not a sanction in which the perpetrator continues to work, a certain portion of his income is transferred to the victim, he is kept under electronic monitoring, performs public service and, where necessary, is subject to other restrictions of rights, be, for some crimes, fairer than three years in prison, for the victim, for society and for the perpetrator alike?

MOREOVER, SUCH A SYSTEM DOES NOT MEAN IMPUNITY.

The perpetrator is still subjected to a sanction; but at the center of the sanction is placed, rather than inflicting pain, taking on responsibility and repairing the violated right.

In my view, it is precisely here that we can make speak together what the modern world has begun to rediscover under the name of "restorative justice" and the balance Islamic law establishes among qisas, diya, pardon and sulh.

The way Islamic law achieves justice seeks, more than punishing the offender, the path of compensating the victim's suffering and repairing the damaged relationship.

At a time when hundreds of thousands of people are in Turkey's prisons, we can begin rethinking our penal policy precisely from this path.

Because the way to shrink prisons is not merely to reduce sentences. Sometimes it may be necessary to do what is harder but fairer: to place, at the center of punishment, before the state, the person whose right has been violated.

NOTE: Inna lillah. On the day I set out for Uzbekistan, I received the news of the death of Kemal Kelleci ağabey, the esteemed man of the cause, servant of the Qur'an, a world in himself. I grieved separately over his passing, and separately over not being able to attend his funeral and offer condolences. I ask God's mercy for him, and God willing, after my impression pieces on Uzbekistan, I will try to express my condolences through a testimony (shahada) piece about him.