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Islamic criminal jurisprudence

This is a sub-article of fiqh and criminal law.

Islamic criminal law (Arabic: فقه العقوبات) is criminal law in accordance with Sharia. Strictly speaking, Islamic law does not have a distinct corpus of "criminal law". It divides crimes into three different categories depending on the offense – Hudud (crimes "against God",[1] whose punishment is fixed in the Quran and the Hadiths), Qisas (crimes against an individual or family whose punishment is equal retaliation in the Quran and the Hadiths), and Tazir (crimes whose punishment is not specified in the Quran and the Hadiths, and is left to the discretion of the ruler or Qadi, i.e. judge).[2][3][4] Some add the fourth category of Siyasah (crimes against government),[5] while others consider it as part of either Hadd or Tazir crimes.[6][7]

Traditional sharia courts, unlike modern Western courts, do not use jury or prosecutors on the behalf of society. Crimes against God are prosecuted by the state as hudud crimes, and all other criminal matters, including murder and bodily injury, are treated as disputes between individuals with an Islamic judge deciding the outcome based on sharia fiqh such as Hanafi, Maliki, Shafi'i, Hanbali and Jafari followed in the Islamic jurisdiction.[8]

In practice, since early on in Islamic history, criminal cases were usually handled by ruler-administered courts or local police using procedures which were only loosely related to sharia.[9][10] In the modern era, sharia-based criminal laws were widely replaced by statutes inspired by European models, although in recent decades several countries reintroduced elements of Islamic penal law into their legal codes under the growing influence of Islamist movements.[11][12]

Evidences/testimonies

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The issue of whose testimony will be accepted and whose testimony will not be accepted, which is one of the most important determinants in the establishment of judgement, is one of the most important topics in sharia law:

Women and non-Muslims are not allowed to testify in hudud punishments[13] Proving the crime of adultery is separated from ordinary testimonies and is tied to the testimony of 4, and 2 males for other hudud cases. The rules of evidence in Islamic criminal law exclude all men who lack credibility in society (non-adl) who commit major sins (fasiq), or slaves. In other cases, the testimony of women is accepted as 1 man + 2 women, provided that there is at least one man present as a witness.[14]

"O people of faith! When you lend money to each other for a specified period, write it down. Let a scribe write it down between you with justice. Let the scribe not refuse to write as Allah has taught him, but let him write it down. And whoever incurs a debt, let him record it and let him fear his Lord and pay his debt." If the debtor is unsound, or weak, or helpless, or is unable to dictate, let his guardian dictate in fairness; and if there are not two men, one man and two women, whom you may accept with your consent. So that if he gets confused/forgets, the other one can remind him..." (Surat al-Baqara, 282)

In ta'zir penalties, there are no obligations for judges or administrators to prove the crime, find witnesses or evidences.

Hudud

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Main article: Hudud
 
 
Cross amputation survivors, Adam Ismaeel (left) and Ibrahim Osman (right), of the September 1983 Laws in Sudan, pictured in 1986; According to the understanding, these people must have declared war against Allah and the Prophet.

Traditional Islamic jurisprudence divides crimes into offenses against God and those against man. The former are seen to violate God's hudud, or 'boundaries'. These punishments were specified by the Quran, and in some instances by the Sunnah.[15][16] The offenses incurring hudud punishments are zina (unlawful sexual intercourse), unfounded accusations of zina,[17][18] consuming intoxicants, highway robbery, and some forms of theft.[19][20] Jurists have differed as to whether apostasy and rebellion against a lawful Islamic ruler are hudud crimes.[15][21]

Hudud punishments range from public lashing to publicly stoning to death, amputation of hands and crucifixion.[22] Hudud crimes cannot be pardoned by the victim or by the state, and the punishments must be carried out in public.[23] However, the evidentiary standards for these punishments were often impossibly high, and they were infrequently implemented in practice.[16][24] For example, meeting hudud requirements for zina and theft was virtually impossible without a confession, which could be invalidated by a retraction.[25][16] Based on a hadith, jurists stipulated that hudud punishments should be averted by the slightest doubts or ambiguities (shubuhat).[25][16] The harsher hudud punishments were meant to deter and to convey the gravity of offenses against God, rather than to be carried out.[16]

During the 19th century, sharia-based criminal laws were replaced by statutes inspired by European models nearly everywhere in the Islamic world, except some particularly conservative regions such as the Arabian peninsula.[11][12][26] The Islamic revival of the late 20th century brought along calls by Islamist movements for full implementation of sharia.[12][27] Reinstatement of hudud punishments has had particular symbolic importance for these groups because of their Quranic origin, and their advocates have often disregarded the stringent traditional restrictions on their application.[12] In practice, in the countries where hudud have been incorporated into the legal code under Islamist pressure, they have often been used sparingly or not at all, and their application has varied depending on local political climate.[12][26] Their use has been a subject of criticism and debate.

Qisas

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Main article: Qisas

Qisas is the Islamic principle of "an eye for an eye". This category includes the crimes of murder and battery.

Punishment is either exact retribution or compensation (Diyya).

The issue of qisas gained considerable attention in the Western media in 2009 when Ameneh Bahrami, an Iranian woman blinded in an acid attack, demanded that her attacker be blinded as well.[28][29] The concept of punishment under Qisas is not based on "society" versus the "individual" (the wrong doer), but rather that of "individuals and families" (victim(s)) versus "individuals and families" (wrong doer(s)).[30] Thus the victim has the ability to pardon the perpetrator and withhold punishment even in the case of murder. Bahrami pardoned her attacker and stopped his punishment (drops of acid in his eyes) just before it was to be administered in 2011.[30]

Diyyat

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Main article: Diya (Islam)

Diyya is compensation paid to the heirs of a victim. In Arabic the word means both blood money and ransom.

The Quran specifies the principle of Qisas (i.e. retaliation), but prescribes that one should seek compensation (Diyya) and not demand retribution.

We have prescribed for thee therein (the Torah) 'a life for a life, and an eye for an eye, and a nose for a nose, and an ear for an ear, and a tooth for a tooth, and for wounds retaliation;' but whoso remits it, it is an expiation for him, but he whoso will not judge by what God has revealed, these be the unjust.[31]

Tazir

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Main article: Tazir

Tazir includes any crime that does not fit into Hudud or Qisas and which therefore has no punishment specified in the Quran. Tazir in Islamic criminal jurisprudence are those crimes where the punishment is at the discretion of the state, the ruler or a Qadi, for actions considered sinful or destructive of public order, but which are not punishable as hadd or qisas under Sharia.[32]

See also

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References

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  1. ^ Dammer, Harry; Albanese, Jay (2011). Comparative Criminal Justice Systems (5th ed.). Cengage Learning. p. 60. ISBN 9781285067865. Retrieved 19 May 2015.
  2. ^ Criminal Law, Oxford Islamic Studies, Oxford University Press (2013)
  3. ^ Mohamed S. El-Awa (1993). Punishment in Islamic Law. American Trust Publications. pp. 1–68. ISBN 978-0892591428.
  4. ^ Silvia Tellenbach (2015). Markus D. Dubber and Tatjana Hornle (ed.). The Oxford Handbook of Criminal Law. Oxford University Press. pp. 251–253. ISBN 978-0199673599.
  5. ^ Tabassum, Sadia (20 April 2011). "Combatants, not bandits: the status of rebels in Islamic law". International Review of the Red Cross. 93 (881): 121–139. doi:10.1017/S1816383111000117. S2CID 56196822.
  6. ^ Omar A. Farrukh (1969). Ibn Taimiyya on Public and Private Law in Islam or Public Policy in Islamic Jurisprudence. OCLC 55624054.
  7. ^ M. Cherif Bassiouni (1997), "Crimes and the Criminal Process", Arab Law Quarterly, Vol. 12, No. 3 (1997), pp. 269-286
  8. ^ Knut S Vikor. Between God and the Sultan: A History of Islamic Law. Oxford University Press: 2005. pp. 281-285
  9. ^ Calder, Norman (2009). "Law, Legal Thought and Jurisprudence". In John L. Esposito (ed.). The Oxford Encyclopedia of the Islamic World. Oxford: Oxford University Press. Archived from the original on November 21, 2008.
  10. ^ Ziadeh, Farhat J. (2009c). "Criminal Law". In John L. Esposito (ed.). The Oxford Encyclopedia of the Islamic World. Oxford: Oxford University Press. Archived from the original on November 1, 2008.
  11. ^ a b Rudolph Peters (2009). "Ḥudūd". In John L. Esposito (ed.). The Oxford Encyclopedia of the Islamic World. Oxford: Oxford University Press. ISBN 9780195305135.
  12. ^ a b c d e Vikør, Knut S. (2014). "Sharīʿah". In Emad El-Din Shahin (ed.). The Oxford Encyclopedia of Islam and Politics. Oxford University Press. Archived from the original on 2017-02-02. Retrieved 2017-07-06.
  13. ^ Criminal procedure under shariah does not allow cross-examination of witness, or rebuttal testimony by the accused. The rules of evidence in Islamic criminal law exclude all men who lack credibility, and integrity in society (non-adl). Women and non-Muslims are not allowed to testify. Dr. Etim E. Okon European Scientific Journal May 2014 edition vol.10, No.14 ISSN: 1857 – 7881 (Print) e - ISSN 1857- 7431
  14. ^ Peters, Rudolph (2006). Crime and Punishment in Islamic Law: Theory and Practice from the Sixteenth to the Twenty-First Century. Cambridge University Press. pp. 53–55. ISBN 978-0521796705.
  15. ^ a b Silvia Tellenbach (2015), "Islamic Criminal Law", In The Oxford Handbook of Criminal Law (Ed: Markus D. Dubber and Tatjana Hornle), Oxford University Press, ISBN 978-0199673599, pp. 251-253
  16. ^ a b c d e A.C. Brown, Jonathan (2014). "5. Muslim Martin Luthers and the Paradox of Tradition". Misquoting Muhammad: The Challenge and Choices of Interpreting the Prophet's Legacy. Oneworld Publications. pp. 180–181. ISBN 978-1780744209.
  17. ^ Z. Mir-Hosseini (2011), Criminalizing sexuality: zina laws as violence against women in Muslim contexts, SUR-International Journal on Human Rights, 8(15), pp 7-33
  18. ^ Asifa Quraishi (2000). Windows of Faith: Muslim Women Scholar-activists in North America. Syracuse University Press. p. 126. ISBN 978-0-815-628514.
  19. ^ Otto, Jan Michiel (2008). Sharia and National Law in Muslim Countries. Amsterdam University Press. pp. 663, 31. ISBN 978-90-8728-048-2.
  20. ^ Philip Reichel and Jay Albanese (2013), Handbook of Transnational Crime and Justice, SAGE publications, ISBN 978-1452240350, pp. 36-37
  21. ^ Campo, Juan Eduardo (2009). Encyclopedia of Islam, p.174. Infobase Publishing. ISBN 978-0816054541.
  22. ^ Hadd Oxford Dictionary of Islam, Oxford University Press (2012)
  23. ^ Terrill, Richard J. (2009) [1984]. World Criminal Justice Systems: A Comparative Survey. Routledge. p. 629. ISBN 9781437755770. Retrieved 19 November 2015.
  24. ^ Wael Hallaq (2009), An introduction to Islamic law, p.173. Cambridge University Press. ISBN 9780521678735.
  25. ^ a b Wael, B. Hallaq (2009). Shariah: Theory, Practice and Transformations. Cambridge University Press. p. 311. ISBN 978-0-521-86147-2.
  26. ^ a b Otto, Jan Michiel (2008). Sharia and National Law in Muslim Countries: Tensions and Opportunities for Dutch and EU Foreign Policy (PDF). Amsterdam University Press. pp. 18–20. ISBN 978-90-8728-048-2.
  27. ^ Mayer, Ann Elizabeth (2009). "Law. Modern Legal Reform". In John L. Esposito (ed.). The Oxford Encyclopedia of the Islamic World. Oxford: Oxford University Press. Archived from the original on November 21, 2008.
  28. ^ Visions of Sharia Archived 2009-04-19 at the Wayback Machine| orlando sentinel
  29. ^ "In Iran, a case of an eye for an eye"| Phillie Metro| March 29, 2009
  30. ^ a b Burki, Shireen (2013). The Politics of State Intervention: Gender Politics in Pakistan, Afghanistan . Lexington Books. pp. 238–9. ISBN 9780739184332. Retrieved 19 May 2015.
  31. ^ [Quran 5:45]
  32. ^ Mark Cammack (2012), Islamic Law and Crime in Contemporary Courts, BERKELEY J. OF MIDDLE EASTERN & ISLAMIC LAW, Vol. 4, No.1, p. 2

Further reading

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Short surveys

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  • Ziadeh, Farhat J. (2009). "Criminal Law". In John L. Esposito (ed.). The Oxford Encyclopedia of the Islamic World. Oxford: Oxford University Press. Archived from the original on November 1, 2008.
  • M. Cherif Bassiouni (1997), Crimes and the Criminal Process, Arab Law Quarterly, Vol. 12, No. 3 (1997), pp. 269–286 (via JSTOR)
  • Basic features of Islamic criminal law Christine Schirrmacher (2008), Islam Institute, Germany
  • Islamic Criminal Law and Procedure Matthew Lipman, Boston College International and Comparative Law Review, Volume XII, Issue 1, pp. 29–62
  • Silvia Tellenbach (2014). "Islamic Criminal Law". In Markus D. Dubber; Tatjana Hörnle (eds.). The Oxford Handbook of Criminal Law.

Books

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  • Vikør, Knut S. (2005). Between God and the Sultan: A History of Islamic Law. Oxford University Press.
  • Peters, Rudolph (2006). Crime and Punishment in Islamic Law: Theory and Practice from the Sixteenth to the Twenty-First Century. Cambridge University Press.
  • Wael B. Hallaq (2009). Sharī'a: Theory, Practice, Transformations. Cambridge University Press.
  • Olaf Köndgen (2022). A Bibliography of Islamic Criminal Law. Brill.
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