The Abolition of Punishment: A Comparative and Research-Based Study between Islamic Sharia‘h and Positive Laws

Abstract

This study aims to provide a comparative analysis of the abolition and mitigation of punishment in Islamic Sharīʿah and Positive (Civil) Law. It investigates their theological, legal, and philosophical foundations to explore how each system conceptualizes justice, clemency, and punishment. Using a doctrinal legal approach, this study examines primary sources of Islamic jurisprudence—including the Qurʾān, Sunnah, and classical juristic interpretations—alongside statutory and case law from secular legal systems such as France and the United States. Comparative legal theory and penal philosophy frameworks are employed to identify core distinctions and similarities. The analysis reveals that Islamic Sharīʿah views fixed punishments (ḥudūd, qiṣāṣ, diyah) as divinely ordained and largely immutable, with exceptions grounded in repentance or victim pardon. Discretionary punishments (taʿzīr) permit judicial leniency under public welfare considerations. In contrast, Positive Law systems broadly apply statutes of limitations, clemency procedures, and rehabilitative models that prioritize procedural fairness and administrative efficiency. The divergence is rooted in each system’s legal anthropology—Sharīʿah centers on divine authority, while Positive Law privileges human agency. The findings support the hypothesis that Sharīʿah and Positive Law adopt fundamentally different frameworks for punishment mitigation and abolition. The study contributes to comparative penal theory by bridging secular and religious paradigms and offering normative insights for cross-cultural legal harmonization.