#14032 - Criminal Law In Islam - Islamic Law

Criminal Law in Islam

• Criminal 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:

1. Person

2. Property

3. Honour

4. State

5. Religion

6. Public Peace and tranquility

7. 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)

2. Theft (sariqa)

3. Armed Robbery (hiraba)

4. Illicit sexual relations (zina)

5. 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...