Dear Ahmed,
Does free will allow Muslim judges to choose the path of not sentencing someone? For example, you mentioned in class that “adultery, theft, and treason have single fixed penalties, but armed robbery, murder, and manslaughter have multiple penalty options. So judges have the option of sentencing for the latter, but not for the former.”
– former Islam 101 student
This is really the only part I do not quite get. If God granted man free will so that man could worship God, then why is it taken away in this instance? If a judge has no choice here, does that mean that, in this instance, free will just vanishes? Or does something else happen? It seems implausible that free will just vanishes, so I must have misunderstood something. It seems to me that at any time a Muslim (or a person of any faith) must always have the free will to stop believing in God, correct? Or to choose to not abide by some of God’s law? Or to choose to believe that other people, however well-verified their testimony, are incorrect? Isn’t this an exercise of free will that must always exist?
Isn’t it always possible to choose to do nothing? A leader or judge can always choose to believe that the witnesses were lying, or honestly mistaken, or swayed by other forces unknown. This, to me, would be an exercise of free will, and one that leads to the outcome that nobody is harmed in the name of God. This seems supported by the Prophetic Saying you quoted: “Avoid the Divine Punishments as much as possible. Wherever there is even a mild doubt, release him, for it is better for the judge to release by mistake rather than to punish by mistake.” And, via free will, it seems always possible to do so.
This seems to allow for you to always dismiss applying God’s law. And of course, there is anyways always man-made law to fill in the gaps and keep society together, so I’m not trying to argue that we shouldn’t punish people.
In the Name of God, Most Gracious, Most Merciful
Remember that the purpose behind all the Divine Commandments is to allow Man to live life under God’s Guidance and Beneficence. The commandments (especially the crimes and punishments) are seen as Wise Rules that bring about the best societies. All the crimes that demand punishment are actions that severely harm society and the members within it. So while it is true that the Prophet said, “avoid the Divine Punishments as much as possible,” he also taught the following: If a man sins in private, then we will leave it between him and God; but if his sins are done in public, violating the community, then we will implement the Divine penalties.
So you are correct that in cases were the evidence of guilt is not overwhelming, the judge can find person not-guilty, he can be lenient in sentencing. Likewise, if he finds the person guilty of tazir (condemnation) instead of hudud (transgression), he can sentence that person with some lessor punishment like a fine or jail time. However, if the accused used his free will to commit a crime such that the evidence of guilt is overwhelming, beyond a shadow of a doubt, and shamelessly public, then the judge is required to act in the interest of the society and be strict in sentencing the convicted according to the penalty prescribed by Divine Law.
This is the only case where it would injustice for the judge to be lenient with the convicted. Since God is Just, it only makes sense that His laws would abhor any injustice. For this reason, judges can be lenient in dubious cases because that would further the cause of establishing justice on earth and giving the accused a chance to repent and reform. On the other hand, judges should NOT be lenient in clear-cut cases because to do so would undermine the cause of establishing justice on earth and it would fail to deter would-be criminals from abstaining from their deeds or at least to keep those deeds from being committed in the open public sphere.
And God knows best.
May peace be with you,
Ahmed
