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Joseph Schacht Criminal Law Notes

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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.

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