#14042 - Criminal Law - Islamic Law

Criminal Law in Islam

The sources: -

• Ijitihad is the generic umbrella term for most if not all of the secondary sources of Islamic law.

• Primary and secondary sources

Private law: -

What is meant by private law? It is a dispute/interrelationship between citizens themselves as opposed to public law, which is to do with the state and the individual. The state may get involved when it comes to criminal law but essentially its seen as a private law matter. So private law within Islamic law, you have criminal law that falls within private law – so it is a matter that is considered to be personal to the parties – concerning the victim and the perpetrator of the offence as such. But in English criminal law, you have a difference, it is the state and the individual, its not considered to be a private law matter, it’s a public law matter – there you have a fundamental difference between the two and in English criminal law it’s the state that is responsible for the prosecution and the punishment of the offender. Within Islamic law, the state is there to ensure that the law is upheld but as far as the offence is concerned and the rights of the victim are concerned, its considered to be a private law matter. There have been changes recently in English law and these recent changes are becoming such that the victim of a crime is given a role in the punishment of the offender whereas previously that was not the case – so criminals can be compelled to pay compensation to their victims by a criminal court – so although criminal law in English law is essentially a public law issue, you do have strands of private law.

The aims: -

• The aim is to uphold certain values, to reinforce certain values and to lay down rules as a means of upholding certain principles.

• Other aims of criminal law in Islam: - aims of punishment: - to deter individuals, means of deterrence and according to Nabeel, deterrence operates on two levels – individual deterrence and general deterrence – so when you have laws, those laws are in place to deter individuals and to deter society so the individual is punished and through that punishment there’s deterrence but also there’s a general deterrence and when talking about general deterrence, we are saying that, people within society are aware of a particular type of punishment, they know that if they transgress the boundaries, they will be subject to penalties, which can be in the form of fines for example. It is sending a message to society and that message ensures general deterrence, so there’s general deterrence and individual deterrence.

• Within Islamic law, the rationale behind punishment is not just one, not only one aim. Another aim can be reformation – to reform the individual or rehabilitation – to correct a particular person within the body of Islamic law – in Islamic law we have Tazir offences – in a way tazir is a means of correcting different types of behaviors – so can be seen as a aim – we have this in many different types of jurisdictions.

Hudud = fixed penalty

Tazir = no fixed penalty and the penalty is up to the kadi/judge and when the judge implements such penalties, the aim is to correct, reform, rehabilitate the individual amongst other aims.

• Another aim is to uphold justice and this is something that is marked within the literature and the jurisprudence of Islamic law. When we talk about punishments in criminal law, it’s all about upholding the rule of law, the idea that everyone is a part of the law.

• When talking about upholding justice, we talk about a system of retribution – this implies upholding justice. There is something unique about retribution, within this idea is a principle of ‘a ye for an eye’, ‘a tooth for a tooth’ – if you’ve been wronged in a particular way, for certain types of offences you can assist on the same punishment for the person who is responsible for the offence committed – principle of equality – this aim of punishment is unique which you find in Islamic criminal law.

• Retribution (talks about justice, punishing the individual for the wrong committed) as an aim of punishment is different to deterrence (aims to deter) and different to reform (aims to reform) and rehabilitation – how is it different? Retribution is the consequence and deterrence and reform are moral imperatives – wright or wrong. Retribution as a aim of punishment is an end in itself to meet justice, you don’t punish for any purpose above that, the whole idea behind the punishment is that it is just and right to punish. There is a legal philosophical doctrine named after a legal academic which sums up what we mean by consequentialists = utilitarianism as a concept is consequential and is named after Jeremy whose remains are in a glass encasement at the UCL.

• So in Islamic criminal law = 2 main aims = retribution, as a means of upholding justice and utilitarianism, it looks at the consequences, the certain aims in mind, it looks to make society safe through deterrence, though reform and through rehabilitation

• Another aim of punishment which you don’t get everywhere is the concept of purification known as expiation – so within Islamic law if you have commited an offence and you undergo a punishment then it’s a means of self purification, you’ve been absolved and it’s the belief that if you receive the punishment in this world then there’s no punishment for it in the afterlife and within history, certainly in the early days, you see individuals who have committed criminal activity perhaps in the heat of the moment and its appeared that they have voluntarily come forward and have said ‘ I confess, I have committed this crime, purify me’ – so they have volunteered to be punished because of the realization that they had – question of ones conscious

• Retribution

• Utilitarianism

• Expiation

• Criminal law covers both public and private matters, its said that there is a need for punishment in any system, issued by any government to meet these particular aims

• The Uqubat or the uquba – the penal law or criminal law in Islam is called uqubat.

Two duties that a individual is under, under the shairah; these are duties that a individual owes to its creator (personal duties) and theres also duties that he or she owes to their fellow people – category which is known as mu’amalat and criminal law comes under this category of mu’amalat.

What are the more specific aims?

• 5 primary concerns in criminal law; these aims are often refered to as the muqasir (the goals or the purposes)

• there are said to be 5 general goals:

1. the preservation of religion

2. the preservation of life

3. the preservation of progeny

4. the preservation of intellect

5. the preservation of wealth

Three types of offences, although some would argue two: -

1. Qisas – the law of equality also known as revenge crimes, retaliation based and these essentially refer to life and bodily injuries (focus is not too much on this category) (in reading focus on Tazir and Hudud offences)

2. Hudud offences – known as the rights of God, the haq of God, considered to be the most serious crimes and these are normally prescribed for in the quran or the sunnah, so theres a fixed penalty that has been prescribed for each one of these. The word hadd is a plural for hudud so theres more than one hudud offence. It means punishment, which is been prescribed by god in the revealed text, the quran or the sunnah and the application of the penalty of these offences is considered to be of the right of God.

3. Tazir offences – the discretionary punishments. Less serious offences, offences that are punishable at the discretion of the courts.

Hudud = more serious

Tazir = less serious

In American and English law, there is also a distinction between minor and major offences – similarities in terms of classification

Hudud offences: -

• plural for had which means restraint or prohibition

• it refers to offences specified in...