Penalty through a Fine

[Ansari]

Assalaamu Alaykum,

I was researching the issue of giving a fine, when I heard from a schoar that this is not allowed in the Shariah.

However, does it matter for what issue the fine is given? For example, when a person delivered his library books too late, would it be forbidden for the library worker to give the person a fine?

What about late payments if the customer deliberately was late with his payment?

So far I have found this Fatwa from Mufti Desai:

The concept of penalty for late payments is also not acceptable in Shari’ah.

http://www.askimam.org/fatwa/fatwa.p...dd81ed9e365334

If there are any other texts explaining this issue, please post it. Whether in Urdu, Arabic or English.

[SA7]

"Ta'azir in the Islamic Penal System," Muhammad el-Awa, Journal of Islamic and Comparative Law, VI, 1976, pages 47-48.

Fines and Seizure of Property (al-Gharramah Wal-Musadarah):

It has been said before that the Prophet imposed and ordered financial punishment in the case of ta'azir. But the jurists are divided into three groups as to its legality. According to some it is illegal to punish by fine or by seizure of property. Others regard it as legal, while a third group regards it as legal only if the offender does not repent.

The first view is held by the Hanafi school and some of the Shafi'is.32 According to Malik, Ahmad b. Hanbal, Abu Yusuf (the famous Hanafi jurist), and some of the Shafi'is, financial punishment are allowed as ta'azir.33 The Hanafi commentators explained that the view of Abu Yusuf means that the judge, or the ruler, should keep the offender's money away from him until he has repented. They support this view by saying that nobody is allowed to take another's money otherwise than for a legal reason (bisabab shari'i). If it seems, afterwards, that the offender will not repent then the ruler may order the money to be spent on public requirements. The reason they give for this explanation is that to allow the judge or the ruler to take the offender's money for the public treasury straight away, would be open to abuse by unjust judges or rulers.

On the other hand the jurists who deny financial punishment as a legal ta'azir punishment claim that it was legalized in the beginning of Islam and abrogated afterwards. The first jurists who expressed this view was the Hanafi jurist Tahawi in his famous book "Sharh Ma'ani al-Athar" (Explanation of the Meanings of Traditions).

This abrogation claim was strongly rejected by Ibn Taymiyya and his successor Ibn al-Qayyim on evidence taken mainly from the Prophet's practices and from some of his companion's decisions.34 Ibn al-Qayyim added, "These are well-known cases which have been truly related. Those who claim that financial punishment was abrogated are wrong. Their view may be refuted by the cases ascribed to great companions of the Prophet. Neither the Qur'an nor the sunna can help them in supporting their claim, nor is there any consensus about it. Even if there was a consensus, it would have no power to abrogate the sunna. The best they may say is: In our school's view it is not allowed; that means they take their own view as a standard of what is accepted and what is not."35 Other Hanbali, Hanafi and Maliki commentators hold this view and defend it mainly in Ibn al-Qayyim's words. In light of Ibn al-Qayyim's evidence, both kinds of the financial punishment (i.e. fine and seizure of property) are allowed in Islamic law. In some cases its amount was determined by the Prophet e.g. In the case of a theft where a stolen property does not reach the minimum value required for inflicting the hadd punishment, failure in paying zakat etc. In other cases it is left to the judge to decide how much the culprit should be fined. Indeed, there is nothing to stop the lawmaker of any Muslim country from listing offenses and their fines as he requires them to be applied by the courts.

In the view of the above, the statement that: "There are no fines in Islamic law"36 should be regarded as incorrect. The most which can be claimed is that financial punishment is controversial, but it cannot be justifiably said that the Islamic penal system does not recognize it.

32: Ibn al-Humam, Fath al Qadir, Cairo (n.d.) Vol. IV. p. 212; Shubramulsi, a commentary on Sharh al-Minhaj, of al-Ramli, Vol. VII, Cairo, 1292, A.H., p. 174.
33: Ibn Farhun, p. 203.; Ibn al-Qayyim, al-Turuq al-Hukmiyya, Cairo, 1961, p. 286-290
34: Ibn Taymiyya, al-Hisba, Cairo, (n.d.), p. 43.; Ibn al-Qayyim, al-Turuq, pp. 286-90.
35: Ibn al-Qayyim, al-Turuq, p. 287-8.
36: J. Schacht, An Introduction to Islamic Law, p. 176.