THE POSISION OF ISLAMIC LAW ON ALTERNATIVES TO IMPRISONMENT

Abstract

This study examines the ruling of Islamic Sharīʿah regarding the replacement of imprisonment with alternative discretionary (taʿzīr) penalties. The issue is of contemporary significance, as several Arab and non-Arab states—such as Jordan, Bahrain, Morocco, Algeria, the Netherlands, and Brazil—have adopted penal alternatives. Its importance lies in society’s urgent need for an effective system to deter crime, especially since empirical evidence shows that imprisonment fails to prevent recidivism, while prison populations continue to rise. Given that the matter relates to the principle of maṣlaḥa (public interest), and that current practice proves imprisonment ineffective in realizing its intended benefits, the topic requires Sharʿī examination. The study employed a qualitative descriptive method, supported by deductive (istidlālī) and inductive (istiqrāʾī) reasoning. It was divided into four sections: the first discussed the Sharʿī philosophy of diversifying taʿzīr punishments; the second addressed the legal position of imprisonment as one form of taʿzīr; The study adopted a qualitative descriptive method with deductive and inductive reasoning, divided into five sections on Sharīʿah philosophy, imprisonment’s status, objectives of punishment, regulatory conditions, and imprisonment’s inconsistency with intended aims.; and the fourth outlined Sharʿī conditions for applying discretionary penalties, especially imprisonment. The findings indicate that imprisonment is one of the harshest taʿzīr measures, permissible only after lighter alternatives are exhausted. In its current form, however, it contradicts both Sharʿī principles of taʿzīr and the higher objectives of punishment. Thus, the need to replace imprisonment with alternatives that fulfill the maqāṣid and align with Sharʿī rulings has become urgent.