Imprisonment And Its Application Injunction In Islamic Law

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Mohammad Hakam Shariati, Sayed Hayatullah Hidaree, Azizulrahman Aziz, Zabihullah Mufakker


There are various theories about the Habus punishment injunction that leads to some misconceptions, misunderstandings, and ambiguity in societies. The goal of the study was to clarify the permissibility of imprisonment as a punishment in the view of Sharia in junction in relation to rational, legislative, and statutory laws. In the Holy Qur’an, Hadith, and Islamic Fiqah, the term "Habus" is frequently used instead of "imprisonment". As result of this study, it was found that the legitimacy of Habus is proven by verses of Qur’an, Hadiths, consensus of Sahaaba, jurists (Foqaha) and Mujthahidin, as well has in rational and civil law. According to the evidence, imprisonment punishment has been applied before Islam, during Islam, and during and after the Khulafa-e Rashidin regime in different places such as in houses, tents, Masjed and prisons. In order to control criminals, and to have an organized and disciplinary community, Habus punishment is recognized as a necessity. In certain conditions particularly when the rights of the community members are not acquired in other ways, some of the Islamic scholars (Foqaha) consider imprisonment as obligatory (Wajib). However, the Habus can’t be a replacement for Islamic rule (Hudud). The rational, legislative, and statutory legitimacy of imprisonment is also proven.

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