Criticizing the Generalization of Imprisonment to Non-Stipulated Legal Crimes

Imprisonment is undoubtedly the most common punishment used in all legal systems in the world. The Islamic legal system has legislated imprisonment for some of the crimes. This paper claims that Islamic law (Shari'a) has confined imprisonment to the cases stipulated in the Quran and Islamic traditions and it cannot be used for non-stipulated cases. Therefore, in spite of the legislator’s view, the offenders cannot be sentenced to imprisonment – based on ta'zīr or hadd- (except the cases stipulated in the clear Text), as it has been stipulated in Islamic Penal Code. This article proves its claim through discussing the traditional arguments of imprisonment.