Abstract
There are two types of “punishment”, which is defined as “sanctions for the violation of the orders and prohibitions of the judge to protect the interests of the individual and the society, and the punishment given to the person for the crime he committed” in the Islamic penal law. Criminal sanctions can be directed towards the body, life, liberty and assets, as well as the spiritual personality of the person, and sometimes several of them can be found together. The material punishment is considered the heaviest among the sanctions in question and is also named as physical or physical punishment. Spiritual punishment, on the other hand, is characterized as a psychological and spiritual form of punishment that leaves deeper traces in a person's soul than physical punishment. Such penalties; depending on the type of crime committed, to wear out, act cold, create pressure, advise, warn, condemn, scold, threaten to punish, expose, etc. It is applied in ways. It is seen that the uniform punishment of almost every crime, which is one of the general purposes in punishment, can’t establish the crime-punishment balance, does not contribute to the correction of the criminal and the reduction of crimes, and yet it can’t perform enough deterrent function in the criminal and potential criminals in the society. When we look at the Qur'an, Sunnah and the sources of fiqh, It is seen that, in addition to the main punishment, which includes legality rather than a uniform punishment method, complementary, admirable and al-ta’zir spiritual punishments are applied as a kind of criminal sanction for the purpose. The general purpose of such spiritual punishments in Islamic criminal law; is to establish the balance between crime and punishment. In addition, to ensure effective regret of the criminal because of his or her criminal act, to comfort the victim, to protect the public order by contributing to the positive changes in the criminal, and to ensure the continuity of the public interest. In this context, in the research, in addition to the original punishment in the Islamic penal law system, supplementary, complementary and al-ta’zir spiritual punishment types were determined and the general characteristics of these penalties and their function in an individual and social context were evaluated.
Summary
Crime is a social phenomenon that has been mixed with us since the existence of humanity and forms the basis of the law of punishment. Criminals are punished for committing crimes and penal laws are regulated to prevent committing crimes. As it is known, crimes in Islamic criminal law; It is possible to divide the sentence as crimes requiring "al-hadd" determined by the Qur'an and Sunnah, crimes requiring "shortening and blood money" and crimes requiring "al-ta'zir", whose sentence is left to the discretion of judges. When the penalties given for these crimes are analyzed, it is seen that these are mainly material penalties. The full execution of the punishment, which is a legal requirement, depends on the establishment of a criminal-criminal balance. Islamic criminal law has maximized the crime-punishment balance, which is one of the most important qualities of the sentence rather than a uniform punishment (imprisonment) for every crime. In addition, by adopting the principle of personality in punishment, it has adopted a criminal system based only on the criminal. The punishment, which is never prioritized in Islam, is a mercy for humanity as well as a sanction when necessary to protect individuals and society, to correct criminals and to prevent possible crimes. It is possible to come across spiritual punishments that we can define as a “spiritual / psychological sanction”, although there are some crime and sins imposed on people in both the Qur'an and the sunnah. These spiritual punishments are applied in the form of embarrassing the individual for a crime or sin that the person has committed rather than being a material punishment, breaking it, treating him, exempting him, in one word, and having a negative effect on his spirit and spirituality. Therefore, we see that spiritual punishments have a very close relationship with the concepts of "crime", "sin" and "repentance". In the Qur'an and the Sunnah, some sanctions were imposed on the sins and their physical punishments were left to the Hereafter, with the door of repentance open. While the limits of punishment, shortening, diet and bail determined in Islamic penal law have a universal nature; ta'zîr punishments have sanctions that can vary within the framework of person and community charges, provided that they are not contrary to evil nasses. Considering the classical fiqh sources, there are had and punishment penalties, the amount and the limit of which are determined by Şârii. We see that there are many moral punishments as well as material punishments among the punishment penalties for which the sentence was left to the head of state or competent authorities (judges). The fact that spiritual punishments as well as material punishments correspond to the crime committed is important in terms of both deterrence and correction of the criminal and the observance of the public interest. In the Qur'an, we see that there is a rejection of witnessing, a stamp of perversity and exile punishment, as a spiritual punishment of the infirmary type. The fact that these spiritual punishments are given in addition to the punishments (material penalties) by Şarii shows us that both individual and social balance and conscience are observed in terms of the penalty imposed on crime. In addition, we see that some spiritual punishments in the Qur'an are spiritual and conscientious punishments. When looking at sunnah, It is seen that the Prophet Muhammad applied various moral punishment of the infirmary type methods in some events. Among these; There are moral punishments such as social boycott (loneliness) turning face, condemnation / reprimand, threat. In addition, we see that there are non-destructive moral punishments such as giving advice with effective words, exposing the sin not the criminal, silence, spreading the land to the face, abandoning the assembly, exposing the curse, removing God's patronage, and moving away from God's mercy. When the classical fiqh sources are examined, as the type of the penalty; we come across some kinds of spiritual punishments such as being summoned to court, advice, condemnation, threat, abandonment, exposition, exile, rejection of witnessing, qualifying by a sprinkler. It is fixed by various studies that the prison sentence imposed on almost every crime cannot be sufficiently deterrent in a number of crimes. In today's law, committed against personality; slander, false testimony, insults, threats, etc. In addition to imprisonment, judicial money or moral compensation, as well as reducing the quality of witness and exposing the crime he committed. kinds of spiritual punishment can be pursued. We are of the opinion that the imposition of these moral punishments will play a more deterrent role in preventing crimes, and that the victim will suffer a great deal of loss of moral rights.