Open Sentencing as a Mechanism for Realizing Participatory Criminal Policy in Islamic Law: Legislative Opportunities and Executive Challenges

Abstract

Contemporary criminal justice systems increasingly face structural challenges arising from overreliance on imprisonment, including prison overcrowding, high recidivism rates, and weakened reintegration outcomes. These challenges have encouraged the development of alternative sentencing models that emphasize rehabilitation, social participation, and proportional punishment. Among such models, open sentencing has emerged as a significant mechanism capable of reconciling accountability with reintegration. This article examines open sentencing as a practical instrument for realizing participatory criminal policy within the framework of Islamic law, focusing on its jurisprudential foundations, legislative opportunities, and executive challenges. The study adopts an analytical–doctrinal approach, combining Islamic legal theory with contemporary criminological perspectives. First, the theoretical and jurisprudential foundations of participatory criminal policy in Islamic law are explored, demonstrating that Islamic criminal justice historically emphasized moral reform, social harmony, discretion in punishment, and community involvement. These principles reveal strong compatibility between Islamic jurisprudence and modern restorative and participatory justice models. The article then analyzes legislative opportunities for integrating open sentencing into Islamic criminal policy, highlighting how discretionary punishments, public interest considerations, and human dignity principles provide normative justification for adopting non-custodial and semi-custodial sanctions. The findings indicate that open sentencing aligns with the objectives of Islamic criminal justice by preserving social ties, facilitating rehabilitation, reducing institutional burdens, and strengthening public legitimacy of punishment. However, the successful implementation of such policies depends on overcoming significant executive and normative challenges, including institutional resistance, limitations in supervisory infrastructure, judicial culture shaped by incarceration, and public perceptions equating punishment with strict confinement. Effective implementation therefore requires coordinated legislative reform, administrative capacity-building, and gradual cultural transformation. The article concludes that open sentencing represents a viable and theoretically grounded model within Islamic criminal policy, capable of advancing a participatory and humane approach to punishment while maintaining social security and legal accountability.