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Criminal Law in IslamCriminal Law is the body of laws that regulates the power of the state to inflict punishment i.e. suffering on persons in order to enforce compliance with certain rules
Nature of Islamic law: -
Duties under the Shari'ah are divided broadly speaking into two types
1. Those duties that an individual owes to its Creator 'ibadat'
2. Those duties that he owes to his fellow people 'mumalat'----
Criminal Law in Islam falls under 'Muamalat' (The individual's duty towards his fellow people) Islamic Law regards many aspects of crime as private law i.e. relationship between the individuals Unlike the English Criminal System which refers to Public i.e. the relationship between state and public, since it is not the individual who is responsible for the dictating of punishment, but the state Islamic Law does not conform to the notion of law as found (unlike common law or civil law systems) Thus rather than a uniform and unequivocal formulation of the law, Islamic law is found on a scholarly discourse who argues on the basis of the text of the Quran and the Prophetic Hadith and consensus amongst the first generation of Muslim scholars Following on that since these scholars interpreted the sources in different ways there are often various opinions regarding one legal issue However, in order to ensure some coherence, rulers could instruct a jurist to apply the law according to the opinions of one school From the view point of Islam when certain primary rights are violated the wrong is called 'Masa'at' i.e. a crime or offence and this gives rise to certain public rights in the form of 'Uqubat' i.e. punishments. 'Uqubat' denotes the punishments instituted in the Quran and Sunnah Criminal Offences mostly concern:
Honour State Religion Public Peace and tranquility Decency or morals
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.
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 there's 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 of sinful or forbidden behavior acts. 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: The unchangeability of the Hadd punishment is supported by the interpretation of the Quranic verse: "These are the limits of Allah. Do not transgress them"
- The word hadd is plural for hudud, which means restrain or prohibition
- It refers to offences specified in the primary sources and here when we refer to primary sources, we are referring to the Quran/Sunnah and their punishments are provided therein
- Hadd crimes are defined as offences with fixed mandatory punishments that are based on the Quran or the Sunnah
- Rudolph Peters talks about criminal law and he says that when we refer to hadd crimes, we are essentially referring to those offences with have fixed mandatory punishments that are based on the Quran or the Sunnah - if we are to follow this definition, it includes not only the specific offences mentioned in the quran or the sunnah but also includes homicide and unlawful wounding (what we refer to as qisas) so also refers to qisas
- There are some differences - you have hanafi scholars and shia scholars who add another element to the definition and for them a hadd crime must be completely or substantially a violation of what is considered to be a claim of God (something that violates the public interest) - if we were to incorporate this in to the definition, this would exclude homicide and wounding, because retaliation of qisas is a claim of human being and not a claim of God.
- Distinguishing feature = a claim of God. If something is categorized as a claim of God, we are saying that unlike claims of human beings, claims of God can not be waived - so as soon as the prerequisites have been established for any of the hudud offences which are the claims of God then they can not be waived, they have got to be implemented, the judge/kadi has no discretion in the matter.
- According to Rudolph Peters, the main purpose of hadd offences is deterrence from acts which are considered to be
harmful to humanity and to pursue this objective, fixed penalties must be carried out in public to deter others from the commission of the same offence. (The term harmful is subjected to difference in opinions). Umar -ibn-khattab - His son committed adultery, was not married - the person who was responsible for giving the lashes was said to not be giving them hard enough - Umar then undertook to do the whipping himself - after this finished his son had passed away - this goes back to the principle that punishment must be ordained, when the conditions of the crime are there.
The punishment in hudud offences is classified as haq Allah (the right of God) has certain aspects to it: - Firstly it is said that such a punishment is prescribed in the public interest (to protect the public and society)
- Second aspect is that the punishment can not be lightened or lessened
- Third aspect of what is considered to be a claim of God is that after its been reported to a kadi/judge in the courtroom, the judge is not able to pardon the individual concerned, nobody can exercise pardon.
**The fact that it can not be changed is supported by a interpretation of a quranic verse which goes as follows 'these are the limits of God, do not transgress them' - so as hadd punishments are fixed by God, they are considered to be immutable and unlike retaliation under Qisas for example murder, they can not be waived.When we talk about the commission of murder as an offence, there are a number of imperitivements, you have retribution, so the family of the individual concerned is able to insist on life for life. But they have a option, they do not have to insist on this, they can insist on compensation and not insist on the life of the perpetrator of the crime and the best option is considered to be forgiveness and that is because it is a claim against another human being whereas when you talk about claims against God, you don't have any such option, the penalty must be carried out. Even the leader of the state can not change it, it has got to be implemented, carried out.
What are these hudud offences?
** 6 in total - this is not universally accepted in the sense that according to some there's more or less but generally 6 are recognized
1. The drinking of alcohol (shurb al khamr)
5. Theft (sariqa) Armed Robbery (hiraba) Illicit sexual relations (zina) Slanderous accusations of unchastity against another individual (Qazhf)
6. Apostasy (ridda) (debate as to whether this is a hadd offence)-
Professor El Awa in his book focuses entirely on criminal law from a shariah perspective, states that to classify an offence in the category of Hadd, it must be established that the punishment for it is determined in fixed terms in the Quran or the Sunnah - so in many ways he is echoing what professor peters also says. El Awa says there are differences in opinion and some add to this list and some reduce this number from 6 to 4 for example. He goes on to say that as Hadd punishments are punishments defined by God in the Quran or the Sunnah, it appears that only 4 of the 6 mentioned can be classified as offences of Hudud. He therefore says that appostacy and drinking of khamr(alcohol) can not be so classified - why? Because neither of them warrants are punishments which have been strictly defined in the words of the Quran or the Sunnah - these are some of the controversies that apply in this area - there are differences - it is not universally accepted.
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
? 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
Zina: -Zina is a broad term, it refers to adultery and fornication where one engages in illicit sexual intercourse and the main difference here is whether the individual is married or unmarried - the majority opinion makes a difference on the implementation of the punishment Zina is sexual intercourse between a male and a female not married to each other - generic term and refers to both adultery and fornication Adultery is illicit sexual intercourse by a married person, according to some also by a once married person. Fornication refers to the act by an unmarried person. The Quran, chapter 17 verse 32, prohibits coming near to adultery and its referred to as an indecent deed and a evil way and this is complimented by a hadith of the prophet SAW where its reported for him to have said that there is no sin
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