#14036 - Joseph Schacht Criminal Law - Islamic Law

Joseph Schacht: Criminal Law notes

The penalties foreseen by Islamic Law consist of two disparate groups. The first set of group has survived in Islamic law almost without modification. The second group is represented only by crimes against religion, in particular, certain acts which have been forbidden or sanctioned by punishments in the Quran and have thereby become crimes against religion – these consist of:

• Unlawful intercourse (Zina)

• False accusation of unlawful intercourse (Kadhf)

• Drinking wine (Shurb Al Khamr)

• Theft (Sariqa)

• Highway robbery (Kat-al-tarik)

The punishments laid down for them are called hadd, Allah’s restrictive ordinances – and they are: the death penalty, either by stoning (the more severe punishment for unlawful intercourse) or by crucifixion or with the sword (for highway robbery with homicide); cutting off hand or foot (for highway robbery without homicide and for theft); and in other cases, flogging with various numbers of lashes.

Lashes can also be awarded by the kadi as tazir chastisement; this takes the place of the hadd, in cases in which this last is not fully incurred, and it can also be awarded by the kadi at his discretion, starting with as little as a disapproving look or a reprimand, for any unlawful act.

The number of lashes in the less-severe hadd for unlawful intercourse is 100, in the hadd punishments for false accusation of unlawful intercourse and for drinking wine it is 80 lashes, and in the tazir not more than 39. – The intensity of lashes, which is different in each case and other details of carrying out the punishments, are regulated too.

Imprisonment is only a punishment as of Tazir.

There are no fines in Islamic law.

The hadd is a right or claim of Allah (hakk Allah), therefore no pardon or amicable settlement is possible – On the other hand, prosecutions for false accusation of unlawful intercourse and for theft, crimes, which include infringing a right of humans, take place only on the demand of the persons concerned.

In the case of zina, the witnesses play a corresponding part; if they are not present (if they are not present and the punishment is stoning, the punishment is not carried out)

The religious character of the hadd punishment manifests itself also in the part played by active repentance; if the thief returns the stolen object before an application for prosecution has been made, the hadd lapses.

Duress is recognized to a wide extent, in the case of zina and of drinking wine to the extent that it must be proved that the act was voluntary.

There are short periods of limitation, in general, one month; in the case of drinking wine, according to the prevailing opinion, the time during which the smell of wine or drunkenness persists – this does not mean that the offence is not punishable any longer, but that the kadi does not accept evidence, if there is a justification for the delay in reporting the offence, such as distance, the period of limitation does not run.

The confession of an offence involving a hadd can be withdrawn.

Proof is made difficult. High demands are made of witnesses as regards their numbers, their qualification and the content of their statements.

The demands of proof are most severe with regard to evidence on unlawful intercourse, on the basis of surah 24, which refers to an accusation that had been raised against Muhammad’s wife, A’isha; in this case, four male witnesses are required instead of the normal two, and they must testify as eyewitnesses to unlawful intercourse (zina) as such.

A confession of unlawful intercourse in order to bring about the hadd punishment must be made on four separate occasions.

The liability of the slave to hadd punishments is less, he is punished with half the number of lashes applicable to a free person, and he is not subjected to the penalty of being stoned to death.

The approach of Islamic law to the jinayat, i.e. homicide, bodily harm, and damage to property, is different. Whatever liability is incurred through them, be it retaliation or blood money or damages, is the subject of a private claim.

Hadd punishments: -

Unlawful intercourse (Zina): - It is described as intercourse without milk, milk is the right to it arising from marriage or ownership of a female slave.

Whether hadd is applicable or not is disputed in some cases, for example if the intercourse has taken place with a woman hired for that purpose or for homosexuality – in these cases hadd is not applicable and tazir may be applicable.

The hadd is stoning to death for the muhsan (married person) and 100 lashes for others. (50 for the slave in every case)

Drinking wine (shrub al-khamr): - there are two grounds for punishment, drinking wine in any quantity and being drunk and incapable from whatever cause. The application of this hadd is made difficult by the required proof that the act was voluntary; therefore the hadd cannot be applied, without further prood, to a person found drunk and incapable. The punishment is 80 lashes.

Theft (sariqa): -

• Sariqa occurs if a mukallaf (the responsible) including a slave, takes by stealth something of the value of at least ten dirhams, in which he has no right of ownership and if it is out of custody. The stipulation of milk excludes everything that belongs to the class of things in which the absence of the ownership is possible, for example grass and birds. The same stipulation excludes things, which cannot be objects of property, such as a free person, also wine and musical instruments. It finally excludes thing of which the culprit is a part owner, including public property. The stipulation of stealth excludes open robbery and snatching things unexpectedly. The stipulation of property excludes theft from a near relative, from a house, which the accused had been permitted to enter.

• The stipulation of taking implies that the object must have been removed from the hirz (custody); a thief who is caught red handed within the hirz, for example within the house, is therefore not subject to hadd according to some, hadd does not even take place if the thief from inside the hirz hands the object to an accomplice outside.

• The punishment consists of cutting off the right hand and in the case of a second theft, the left foot, in the case of further thefts, the thief is imprisoned until he shows repentance.

Qisas: -(homicide, bodily harm and damage to property)

• The scale of punishments is developed in most detail for homicide. There are, on the one hand, degrees of culptability, and on the other, degrees of legal sanctions, where a distinction is made between retaliation, expiation...