An analytical Study of the Islamic Penal Code (original) (raw)
A Comparative Analysis of Punishments Awarded in Islamic Legal System and Western Legal System
Research Paper, 2014
When the authority imposes something disobliging upon a person due to his unacceptable behaviour to that authority is known as punishment. Different theories of criminal behaviour or criminality have suggested justifications for imposition of punishment. The justifications for punishment are deterrence, incapacitation, retribution, or rehabilitation. The object of punishment in all legal systems is the prevention of crime in order to provide a cleaner society. However, there is remarkable difference between Islamic legal system and western legal system in imposition of punishments. The encounter between the two legal systems shows that Islamic law have certain unique features that have increased its effectiveness in achieving its goals as compare to its western counterpart.
Quilliam Religious Reform Series 5, 2020
This week, inspired by the Saudi announcement that they will abolish flogging as a form of criminal punishment, Quilliam have published a new paper on the Hudood. The Hudood are the classical corporal and capital punishments in medieval Islam, including lashing/flogging, amputation of hands/arms/feet/legs, stoning to death, beheadings, crucifixion and other forms of execution. This paper considers: (i) the theological-jurisprudential basis of corporal and capital punishment (Hudood) under Islamic Law/Ethics (Sharia), (ii) the Islamic case for the abolition of Hudood, and (iii) the significance of the issue to islamist groups from ISIS and Al Qaeda to the Jamaat-e-Islami, Muslim Brothers, Khomeinists and islamists of other persuasions, whether Sunni or Shia, Salafi or Sufi. We stress that the Ottoman Tanzimat reforms of the mid-19th century, passed by the Ottoman Caliph and Sultan after backing from their senior Sharia scholars including the Grand Mufti, had already repealed the classical hudood punishments. We also propose a jurisprudential framework for the replacement of hudood laws based on the classical Islamic jurisprudential principle of ta’zir or discretionary punishments for crime.
139CURENTUL Juridic the Sanctions Ofthe Islamic CRIMINALLAW.ASPECTS
2016
ABSTRACT: Islamic penal law is a system of rules based on the religion of Coran and, most of the penalties applicable to the penal crimes are in discordance with the actual age and the culture of democratic law, which guards human life and the property observing the principles of The Universal Declaration of Human Rights. This work presents, from an intrinsic point of view, a possible classification of the
Capital Punishment in the Lens of the Shari’ah
International Journal of `Umranic Studies Jurnal Antarabangsa Kajian `Umran, 2020
Shari’ah as a legal system of law in Islam is greatly misunderstood by a cross section of the intellectuals due to the prescription of capital punishments in the legal system. The paper provides explanation for capital punishment in the Shari’ah using the absolute sources of Islam (Qur’an and Sunnah) and to explain that the Shari’ah and Islamic system provide for reform, forgiveness and pardon. The paper concludes that the revulsion against the Shari’ah and its prescriptions is misplaced as Islamic system is replete with prescriptions of mercy and pardon for offenders.
Comparative General Criminal and Sharia Laws
Comparative General Criminal & Islamic Laws
ABSTRACT This book offers, in its introduction, an analysis of the correct position of the Islamic jurisprudence suitable for codifying criminal Islamic jurisprudence of explicit punishments (ĥudud) and disciplinary penalties (ta’zir). Starting with the wide traditional definition of Ĥudud and Ta’azir by Ibn al Qayyim, using the comprehensive term “Shar’” indiscriminately without distinction between the two concepts despite their different peculiarities besides the plurality of Sharia sources of legislation. For beside the Quran and the Sunnah, jurisprudence has recognized other sources, though all emerging from the reasoning efforts (ijtihad) to apply one or the of the main two legislative sources, the Quran and the Sunnah. The secondary sources should be resorted to only in the absence of a clear ruling in the primary sources for derivation by analogy to the express rulings in the Quran and Sunnah in general. Failing any possibility of applying such qiyas or analogy, resort would be made to general consensus, if any, and general interests maśaliĥ or istiĥsan preferences. However, regarding criminal jurisprudence, such process of ijtihad by qiyas reasoning does not apply; either the ruling exists clearly in the Quran and Sunnah or it does not. Just as there is no ijtihad (independent reasoning) in the existence of text, equally there is no ijtihad in the absence of any legislative text. Therefore, ĥudud and ta’zir must either exist in the Quran and Sunnah, though by general authorisation, or they may not exist at all. To distinguish between ĥudud and ta’zir in more detail, the author has adopted the simplest definition that: ĥudud are those acts and punishments that are both explicitly defined in the Quranic text. Ĥudud are, therefore, by definition and punishment established only by the Quranic text and at times, by the Quran associated Sunnah that applies the Quranic ĥudud texts, which I have termed ‘Sunnah associated with ĥudud’, thereby excluding general Sunnah unrelated to ĥudud. The origin of ĥudud is the Quranic text, while the Sunnah associated with ĥudud only clarifies and applies them. This is the first disagreement with traditional jurisprudence. Ta’zir, unlike ĥudud, is defined by the Quran, but its punishment is defined by the Sunnah, not by the same Quranic text defining the prohibition of the act of ta’zir, though the Quran does not define all ta'zir acts exhaustively. Or, both its definition and punishment are expressed by the Sunnah only, or it is defined by the Sunnah without penalizing, leaving its penalty to the ruler after the Prophet ﷺ This definition leads to several important conclusions, the most significant of which is that ĥudud are established only by the Quran not by any other legislative source, even if it is the Sunnah associated with ĥudud, as it only specifies their application. The ĥudud established by the Quran are five only: cutting off the hand for theft, cutting off the hand and foot on opposite sides for highway robbery, lashing for adultery and slandering of adultery, and retributive killing (qisas) for murder. Another conclusion is the distinction between the nature of ĥudud as punitive sanctions and Ta'azir (disciplinary measures). Ĥudud are real deterrent punishments to protect permanent general and private interests and rights, which are unchanging with time, place, because they are determined by the Creator, who knows the changing and unchanging interests of His human creatures, therefore ĥudud punishments cannot be pardoned. On the other hand, ta’zir are disciplinary measures based on changing public interests with the changing conditions of time and place and persons, so the Creator left determination of their penalties to the discretion of the rulers of the time and place. They include the interests of individuals, the wrongdoer, the victim, and society, and therefore can be pardoned by the guardians of public and privates rights. The variability of ta’zir interests means that successors are not bound by the ta’zir penalties determined by their predecessors in their time, as interests change with time, place and person. They can also be modified in type, severity, mitigation, and gravity without changing their status as prohibited sins and evils by the Quran and Sunnah. We are only talking about their penalties. With this definition of ĥudud, the author excludes the punishment of stoning due to the abrogation of its text along with the associated Sunnah that applied it. There is no alternative text other than that of lashing in Surat An-Nur, which must have replaced it because lashing is the only remaining punishment after abrogation of the stoning for the same forbidden sexual offence, which is adultery. Similarly, the punishment for apostasy is excluded due to the absence of any punishment for it in the Quran. Also, the designation of the penalty for drinking alcohol is also excluded as ĥadd because it is a clear ta’zir penalty subject to the rules of ta’zir outlined above, which include the variability of the penalty according to the changing of interests and the liability to modification of penalty in type, gravity, and individualization for each case. The author also attempted to correct many erroneous fundamental jurisprudential concepts, as well as interpretative conceptions of Quranic historical discourse, political legitimacy or legitimate politics, and governance. These erroneous concepts have persisted through the centuries since the time of the Companions, their followers, and the followers of their followers, to the modern imitation jurists of and active Salafists who stand against the mere idea of reconsidering the traditional jurisprudential heritage. Their ready but void argument is to question a modern thinker, “Are you more knowledgeable than the predecessors of this Ummah to see contrary to their opinion?” In fundamental jurisprudential issues, the book addressed the issue of women’s testimony and pointed out the confusion that has existed through the centuries and continues to this day in distinguishing between testimony (from testify) (telling about what is seen, heard or sensed) and witnessing (being present to see, hear, know or execute a document). Verse 282 (Cow) applies only to witnessing or executing debt transactions requiring the presence of two men witnesses or one man and two women together. This is the only case when women’s testimony is reduced to half that of men in this particular situation without affecting women's witnessing any other transaction, including even marriage concluding, or their testimony in any other respect except where the text stipulates for the testimony of men only as will be seen below. However, such confusion in the traditional thinking has the effect of generalising the reduced testimony of women to everything, even making a women half of a man in the eyes of the general public and the imitation jurists, and that they are deficient in intellect and religion, even preventing their testimony in ĥudud. The author clarified the shortage in women’s testimony is restricted to debt transactions or deferred financial obligations only. Otherwise, and except if the Quranic text specifically stipulates for men only, by employing such phrase like “from or among your men” not the general phrase like “from or among you” or “two just (a'dl) witnesses of or from you,” because the masculine twofold and plural form in Arabic, used without qualifier phrase like the above, will include both feminine and masculine unless made specific for masculine only. The result is that the feminine testimony is generally equal to the masculine even in ĥudud to which women are equally eligible to witness (istishhad) and testify. Regarding the Quranic discourse on jihad for fighting disbelievers and polytheists, the book relegates such discourse to the Prophet ﷺ and his followers at the beginning of his message. He was permitted to fight them after they started attacking him and his followers and tried to kill him and suppress his message in its infancy and prevent its completion and spread. Thus, the fighting was initially in self-defence for temporary circumstances, and that such permission to fight was to end with the completion of the message, the perfection of the religion, when the righteous path would become clear and distinct from the wrong, as was actually announced by the Prophet ﷺ in his Farewell Pilgrimage. Then the call to the completed message turned to be through wisdom and good guidance instead of fighting. This the Prophet ﷺ applied in his external conquests, where he secured the people of different religions and pagans as citizens in his state without discrimination between them and Muslims, except in matters of Sharia transactions and personal status, where he equated them with Muslims in the citizenship tax by paying zakat from Muslims and jizya from non-Muslims. The book also refers to the evolution and progress of the rules of war and prisoners of war, which started by killing captives, hence enslavement was called “mann” because its alternative was killing, and then progressed to captivation for enslavement not killing, as killing was banned and mann in the sense of enslaving lost sense and purpose. So, when killing was cancelled, the rule became captivity for prisoning only, with enslavement being nullified because no other alternative was possible except release or escaping. So, the rule for the prisoner of war became either release or ransom, with “mann” in this case meaning release without ransom. The Prophet ﷺ applied this final rule in his external conquests, where he did not kill or enslave any polytheist or pagan prisoner. The book then discusses the enslavement practiced in the external conquests of the Islamic caliphate after the Prophet ﷺ as contrary to Islamic law of war. The book emphasizes the prohibition of offensive jihad by attacking non-Muslims just because they are disbelievers or polytheists ...
Islamic-Criminal-Law-The-Divine-Criminal-Justice-System-between-Lacuna-and-Possible-Routes.pdf
Journal of Forensic and Crime Studies, 2018
The Islamic legal system differs from other legal attitudes, as civil law traditions described by law’s codification or common law practices based on binding judicial precedents. In Islamic law, there is neither history of law’s classification, nor an understanding of binding legal precedents. The process of ijtihad (analogical deduction) in Islamic (Sharie‘a) law, though, is alike to Case law model. This article discusses the main principles of criminal law substantially and procedurally and the rules of evidence for each crime is so strict and need a lot of work to proof its commission and to apply the punishments, so it sounds stricter in application than the positive laws without any contradiction to them, so it outlined and described the essential features of Islamic criminal law. Some scholars argued that international human rights values should be interpreted, applied, and practiced by domestic cultural and religious ideals. Islamic criminal law is genuinely rooted in the revelations’ tests and as such is divinely based and driven, not to remark circuitously mingled with spirituality and ethics while instructing human dignity’s philosophies and life appreciation’s values. So, in the end, as the Islamic human rights law charter is earlier than the Human Rights Declaration, so we may not ask ourselves if Islamic law is compatible with HR so, instead, we may ask which parts of the that law or the Sharie‘a norms are similar to the HR Declaration and how they are applied in each country