The general public and many academics have several
preconceived notions about Islamic Law. One such notion is that Islamic judges are bound by ancient and outdated rules of
fixed punishments for all crimes. This paper explores that idea and looks at other myths in an attempt to present Islamic
Law from a non-biased view of Shar'iah Law.
Some contemporary scholars fail to recognize Islamic
Law as an equal to English Common Law, European Civil Law and Socialist Law. A few academics have even attempted to place
Islamic Law into the Civil Law tradition. Other writers have simply added a footnote to their works on comparative justice
on the religious law categories of Islamic Law, Hindu Law, which is still used in some parts of India, and the Law of Moses
from the Old Testament which still guides the current thought of the Israeli Knesset (Parliament) today. This survey will
attempt to alter some of these inaccurate perceptions and treatments in both the contemporary literature and academic writings.
Mohammed Salam Madkoar explains the theoretical assumptions
of Islamic Law:
In order to protect the five important indispensables
in Islam (religion, life, intellect, offspring and property), Islamic Law has provided a worldly punishment in addition to
that in the hereafter. Islam has, in fact, adopted two courses for the preservation of these five indispensables: the first
is through cultivating religious consciousness in the human soul and the awakening of human awareness through moral education;
the second is by inflicting deterrent punishment, which is the basis of the Islamic criminal system. Therefore "Hudud,"
Retaliation (Kisas) and Discretionary (Tazir) punishments have been prescribed according to the type of the
crime committed. Islamic
Law and Jurisprudence is not always understood by the western press. Although it is the responsibility of the mass media to
bring to the world's attention violations of human rights and acts of terror, many believe that media stereotyping of all
Muslims is a major problem. The recent bombing at the World Trade Centre in New York City is a prime example. The media often
used the term "Islamic Fundamentalists" when referring to the accused in the case. It also referred to the Egyptian connections
in that case as "Islamic Fundamentalists." The media has used the label of "Islamic Fundamentalist" to imply all kinds of
possible negative connotations: terrorists, kidnappers and hostage takers. Since the media does not use the term "Fundamentalist
Christian" each time a Christian does something wrong, the use of such labels is wrong for any group, Christians, Muslims,
or Orthodox Jews.
A Muslim who is trying to live his religion is indeed
a true believer in God. This person tries to live all of the tenets of his religion in a fundamental way. Thus, a true
Muslim is a fundamentalist in the practice of that religion, but a true Muslim is not radical, because the Qur’an teaches
tolerance and moderation in all things. When the popular media generalizes from the fundamentalist believer to the "radical
fundamentalist" label they do a disservice to all Muslims and others.
No Separation of Church and State To understand Islamic Law one must first understand the assumptions of Islam
and the basic tenets of the religion. The meaning of the word 'Islam' is "submission or surrender to Allah's (God's) will."
Therefore, Muslims must first and foremost obey and submit to Allah's will. Mohammad the Prophet was called by God to translate
verses from the Angel Gabriel to form the most important book in Islam, the Qur’an, Muslims believe.
There are over 1.2 billion Muslims today world-wide,
over 20% of the world's population. "By the year 2000, one out of every four persons on the planet will be a Muslim," Rittat
Hassan estimated in 1990. There are 35 nations with population over 50% Muslim, and there are another 21 nations that have
significant Muslim populations. There are 19 nations which have declared Islam in their respective constitutions. The Muslim
religion is a global one and is rapidly expanding. The sheer number of Muslims living today makes the idea of putting Islamic
Law into a footnote in contemporary writings inappropriate.
The most difficult part of Islamic Law for most westerners
to grasp is that there is no separation of church and state. The religion of Islam and the government are one. Islamic Law
is controlled, ruled and regulated by the Islamic religion. The theocracy controls all public and private matters. Government,
law and religion are one. There are varying degrees of this concept in many nations, but all law, government and civil authority
rests upon it and it is a part of Islamic religion. There are civil laws in Muslim nations for Muslim and non-Muslim people.
Shar'iah is only applicable to Muslims. Most Americans and others schooled in Common Law have great difficulty with
that concept.The U.S. Constitution (Bill of Rights) prohibits the government from "establishing a religion." The U.S.
Supreme Court has concluded in numerous cases that the U.S. Government can't favour one religion over another. That concept
is implicit for most U.S. legal scholars and many U.S. academicians believe that any mixture of "church and state" is inherently
evil and filled with many problems. They reject all notions of a mixture of religion and government.
To start with such preconceived notions limits the
knowledge base and information available to try and solve many social and criminal problems. To use an analogy from Christianity
may be helpful. To ignore what all Christian religions except your own say about God would limit your knowledge base and you
would not be informed or have the ability to appreciate your own religion. The same is true for Islamic Law and Islamic religion.
You must open your mind to further expand your knowledge base. Islamic Law has many ideas, concepts, and information that
can solve contemporary crime problems in many areas of the world. To do this you must first put on hold the preconceived
notion of "separation of church and state."
Judge (Qazi) Another myth concerning Islamic Law is that there are no judges. Historically the Islamic Judge (Qazi)
was a legal secretary appointed by the provincial governors. Each Islamic nation may differ slightly in how the judges are
selected. Some nations will use a formal process of legal education and internship in a lower court. For example, in Saudi
Arabia there are two levels of courts. The formal Shariah Courts which were established in 1928 hear traditional cases. The
Saudi government established a ministry of justice in 1970, and they added administrative tribunals for traffic laws, business
and commerce. "All judges are accountable to God in their decisions and practices" (Lippman, p.66-68).
One common myth associated with Islamic Law
is that judges must always impose a fixed and predetermined punishment for each crime. Western writers often point to
the inflexible nature of Islamic Law. Judges under Islamic Law are bound to administer several punishments for a few very
serious crimes found in the Qur’an, but they possess much greater freedom in punishment for less serious (non-Hadd)
crimes. Common law is filled with precedents, rules, and limitations which inhibit creative justice. Judges under Islamic
Law are free to create new options and ideas to solve new problems associated with crime.
Elements of Shar'iah Law Islamic law is known as Shariah Law, and Shariah means the path to follow
God's Law. Shar'iah Law is holistic or eclectic in its approach to guide the individual in most daily matters. Shariah
Law controls, rules and regulates all public and private behaviour. It has regulations for personal hygiene, diet, sexual
conduct, and elements of child rearing. It also prescribes specific rules for prayers, fasting, giving to the poor, and
many other religious matters. Civil Law and Common Law primarily focus on public behaviour, but both do regulate some private
Shar'iah Law can also be used in larger situations
than guiding an individual's behaviour. It can be used as guide for how an individual acts in society and how one group interacts
with another. The Shar'iah Law can be used to settle border disputes between nations or within nations. It can also
be used to settle international disputes, conflicts and wars. This Law does not exclude any knowledge from other sources and
is viewed by the Muslim world as a vehicle to solve all problems civil, criminal and international.
Shar'iah Law has several sources from which to draw
its guiding principles. It does not rely upon one source for its broad knowledge base. The first and primary element of Shar'iah
Law is the Qur’an. It is the final arbitrator and there is no other appeal. The second element of Shar'iah Law
is known as the Sunna, the teachings of the Prophet Mohammad not explicitly found in the Qur’an. The Sunna are a composite
of the teachings of the Prophet and his works. The Sunna contain stories and anecdotes, called Hadith, to illustrate
a concept. The Qur’an may not have all the information about behaviour and human interaction in detail; the Sunna
gives more detailed information than the Qur’an.
The third element of Shar'iah Law is known as the
Ijma. The Muslim religion uses the term Ulama as a label for its religious scholars. These Ulama's
are consulted on many matters both personal and political. When the Ulama's reach a consensus on an issue, it is interpreted
as Ijma. The concepts and ideas found in the Ijma are not found explicitly in the Qur’an or the teachings
of the Prophet (Sunna). Islamic judges are able to examine the Ijma for many possible solutions which can be applied
in a modern technical society. They are free to create new and innovative methods to solve crime and social problems based
upon the concepts found in the Ijma.These judges have great discretion in applying the concepts to a specific problem.
The Qiyas are a fourth element of Shar'iah
Law. The Qiyas are not explicitly found in the Qur’an, Sunna, or given in the Ijma. The Qiyas
are new cases or case law which may have already been decided by a higher judge. The Shar'iah judge can use the legal
precedent to decide new case law and its application to a specific problem. The judge can use a broad legal construct to resolve
a very specific issue. For example, a computer crime or theft of computer time is not found in the Qur’an or Sunna.
The act of theft as a generic term is prohibited so the judge must rely on logic and reason to create new case law or Qiyas.
The fifth element of Shar'iah Law is very broad
and "all encompassing." This secondary body of knowledge may be ideas contained in the other written works. The New Testament
is an example of this area of information, and legal discourses based upon Civil Law or Common Law may be another example.
All information can be examined for logic and reason to see if it applies to the current case. It also may be a local custom
or norm that judge may find helpful in applying to the issue before him. The judge may also weigh the impact of his decision
upon how it will effect a person's standing in the community.
Crimes in Islam Crimes under Islamic Law can be broken down into three major categories. Each will be discussed in greater
detail with some common law analogies. The three major crime categories in Islamic Law are:
1. Hadd [plural Hudud] Crimes
(most serious). Hadd crimes are the most serious under Islamic
Law, and Tazir crimes are the least serious. Some Western writers use the felony analogy for Hadd crimes and
misdemeanor label for Tazir crimes. The analogy is partially accurate, but not entirely true. Common Law has no comparable
form of Qesas crimes.
2. Tazir Crimes (least serious).
3. Qesas Crimes (revenge crimes restitution).
Fairchild, in her excellent book on comparative justice,
makes the following observation of Islamic Law and punishment (Fairchild, p.41).
Punishments are prescribed in the Qur’an and
are often harsh with the emphasis on corporal and capital punishment. Theft is punished by imprisonment or amputation of hands
or feet, depending on the number of times it is committed . . .
Hadd Crimes Hadd crimes are those which are punishable by a pre-established
punishment found in the Qur’an. These most serious of all crimes are found by an exact reference in the Qur’an
to a specific act and a specific punishment for that act. There is no plea-bargaining or reducing the punishment for a
Hadd crime. Hadd crimes have no minimum or maximum punishments attached to them. The punishment system is
comparable to the determinate sentence imposed by some judges in the United States. If you commit a crime, you know what your
punishment will be. There is no flexibility in the U.S. determinate model or in the punishment for Hadd crimes of Islamic
No judge can change or reduce the punishment for these
serious crimes. The Hadd crimes are:
1. Murder; The first four Hadd crimes have a specific punishment
in the Qur’an. The last three crimes are mentioned but no specific punishment is found (Schmalleger, p.603).
2. Apostasy from
1. (making war upon Allah and His messengers)
2. (false accusation of adultery or fornication)
2. Alcohol-drinking [any intoxicants]
Some more liberal Islamic judges do not consider apostasy
from Islam or wine drinking as Hadd crimes. The more liberal Islamic nations treat these crimes as Tazir or
a lesser crime.
Hadd crimes have fixed punishments because
they are set by God and are found in the Qur’an. Hadd crimes are crimes against God's law and Tazir crimes
are crimes against society. There are some safeguards for Hadd crimes that many in the media fail to mention. Some
in the media only mention that if you steal, your hand is cut off. The Islamic judge must look at a higher level of proof
and reasons why the person committed the crime. A judge can only impose the Hadd punishment when a person confesses
to the crime or there are enough witnesses to the crime. The usual number of witnesses is two, but in the case of adultery
four witnesses are required. The media often leaves the public with the impression that all are punished with flimsy evidence
or limited proof. Islamic law has a very high level of proof for the most serious crimes and punishments. When there is
doubt about the guilt of a Hadd crime, the judge must treat the crime as a lesser Tazir crime. If there is no
confession to a crime or not enough witnesses to the crime, Islamic law requires the Hadd crime to be punished as a
Tazir Crimes Modern Islamic Society has changed greatly from the time of the Prophet.
Contemporary Shar'iah Law is now in written form and is statutory in nature. Islamic concepts of justice argue that a person
should know what the crime is and its possible punishment. For example, Egypt has a parliamentary process which has a formal
penal code written and based upon the principles of Islamic Law, but Saudi Arabia allows the judge to set the Tazir
crimes and punishments. Modern Islamic Law recognizes many differences between these two nations. It also allows for much
greater flexibility in how it punishes an offender. The major myth of many people is that judges in Islamic nations have
fixed punishments for all crimes. In reality the judges have much greater flexibility than judges under common law.
Tazir crimes are less serious than the
Hadd crimes found in the Qur’an. Some common law writers use the analogy of misdemeanors, which is the lesser of
the two categories (felony and misdemeanor) of common law crimes. Tazir crimes can and do have comparable "minor felony
equivalents." These "minor felonies" are not found in the Qur’an so the Islamic judges are free to punish the offender
in almost any fashion. Mohammed Salam Madkoar, who was the head of Islamic Law at the University of Cairo, makes the following
observation (Ministry of the Interior, 1976, p.104):
Tazir punishments vary according
to the circumstances. They change from time to time and from place to place. They vary according to the gravity of the crime
and the extent of the criminal disposition of the criminal himself. Tazir crimes are acts which are punished because the offender
disobeys God's law and word. Tazir crimes can be punished if they harm the societal interest. Shar'iah Law places an
emphasis on the societal or public interest. The assumption of the punishment is that a greater "evil " will be prevented
in the future if you punish this offender now.
Historically Tazir crimes were not written down
or codified. This gave each ruler great flexibility in what punishments the judge was able to dispense. The judge under
Islamic Law is not bound by precedents, rules, or prior decisions as in common law. Judges are totally free to choose
from any number of punishments that they think will help an individual offender. The only guiding principle for judges under
Shar'iah Law is that they must answer to Allah and to the greater community of Muslims. Some of the more common punishments
for Tazir crimes are counselling, fines, public or private censure, family and clan pressure and support, seizure of
property, confinement in the home or place of detention, and flogging.
In some Islamic nations, Tazir crimes are set
by legislative parliament. Each nation is free to establish its own criminal code and there is a great disparity in punishment
of some of these crimes. Some of the more common Tazir crimes are: bribery, selling tainted or defective products,
treason, usury, and selling obscene pictures. The consumption of alcohol in Egypt is punished much differently than in Iran
or Saudi Arabia because they have far different civil laws. Islamic law has much greater flexibility than the Western media
portrays. Each judge is free to punish based upon local norms, customs, and informal rules. Each judge is free to fix
the punishment that will deter others from crime and will help to rehabilitate an offender.
Qesas Crimes and Diya Islamic Law has an additional category of crimes that
common law nations do not have. A Qesas crime is one of retaliation. If you commit a Qesas crime, the victim
has a right to seek retribution and retaliation. The exact punishment for each Qesas crime is set forth in the Qur’an.
If you are killed, then your family has a right to seek Qesas punishment from the murderer. Punishment can come in several
forms and also may include "Diya." Diya is paid to the victim's family as part of punishment. Diya is an ancient
form of restitution for the victim or his family. The family also may seek to have a public execution of the offender or the
family may seek to pardon the offender. Traditional Qesas crimes include:
1. Murder (premeditated and non-premeditated).
Some reporters in the mass media have criticized the thought of "blood money" as barbaric. They labelled the practice
as undemocratic and inhumane. Qesas crimes are based upon the criminological assumption of retribution. The concept of retribution
was found in the first statutory "Code of Hammurabi" and in the Law of Moses in the form of "an eye for an eye." Muslims
add to that saying "but it is better to forgive." Contemporary common law today still is filled with the assumptions of
retribution. The United States federal code contains "mandatory minimum" sentences for drug dealing, and many states have
fixed punishment for drugs and violence and using weapons. The United States justice system has adopted a retribution model
which sets fixed punishments for each crime. The idea of retribution is fixed in the U.S. system of justice. Qesas
crime is simple retribution: if one commits a crime he knows what the punishment will be.
2. Premeditated offences against human life, short of murder.
3. Murder by error.
4. Offences by error
against humanity, short of murder.
Diya has its roots in Islamic Law and
dates to the time of the Prophet Mohammad when there were many local families, tribes and clans. They were nomadic and travelled
extensively. The Prophet was able to convince several tribes to take a monetary payment for damage to the clan or tribe. This
practice grew and now is an acceptable solution to some Qesas crimes.
Today, the Diya is paid by the offender to the
victim if he is alive. If the victim is dead, the money is paid to the victim's family or to the victim's tribe or clan. The
assumption is that victims will be compensated for their loss. Under common law, the victim or family must sue the offender
in a civil tort action for damages. Qesas law combines the process of criminal and civil hearings into one, just
as the "civil law" is applied in many nations of the world. Qesas crimes are compensated as restitution under common
law and civil law.
The Qesas crimes require compensation for each
crime committed. Each nation sets the damage before the offence and the judge then fixes the proper Diya. If an offender
is too poor to pay the Diya, the family of the offender is called upon first to make good the Diya for their
kin. If the family is unable to pay, the community, clan or tribe may be required to pay. This concept is not found in common
law or the civil law of most nations. It acts as a great incentive for family and community to teach responsible behaviour.
What happens to the debt if the offender dies and has not paid it? Historically, it was passed on to the offender's heirs.
Today, most nations terminate the debt if the offender left no inheritance.
One question that is often raised is "What happens
if a victim takes the Diya without government approval?" The victim or family has committed a Tazir crime by
accepting money which was not mandated by a judge: taking Diya must be carried out through proper governmental and
Another concept of Qesas crimes is the area
of punishment. Each victim has the right to ask for retaliation and, historically, the person's family would carry out that
punishment. Modern Islamic law now requires the government to carry out the Qesas punishment. Historically,
some grieving family member may have tortured the offender in the process of punishment. Now the government is the independent
party that administers the punishment, because torture and extended pain is contrary to Islamic teachings and Shar'iah Law.
Conclusions Contemporary treatment of Islamic Law and "Radical Muslims" is filled with stereotypical characterizations.
Some in the Western media have used the "New York City bombings" as a way to increase hate and prejudice. They have taken
the views of a few radicals and projected them onto all Muslims. This action has done a great disservice to the Muslim world.
Some academic writings also have been distorted and not always completely accurate and some researchers have concluded that
Islamic Law requires a fixed punishment for all crimes. These writers also have concluded that Islamic judges lack discretion
in their sentences of defendants in the Shar'iah Court System. There are four Hadd crimes that do have fixed
punishments set forth in the Qur’an, but not all the Hadd crimes are bound by mandatory punishment.
Islamic Law is very different from English Common Law
or the European Civil Law traditions. Muslims are bound to the teachings of the Prophet Mohammad whose translation of Allah
or God's will is found in the Qur’an. Muslims are held accountable to the Shar'iah Law, but non-Muslims are not
bound by the same standard (apostasy from Allah). Muslims and non-Muslims are both required to live by laws enacted by the
various forms of government such as tax laws, traffic laws, white collar crimes of business, and theft. These and many other
crimes similar to Common Law crimes are tried in modern "Mazalim Courts." The Mazalim Courts can also hear civil
law, family law and all other cases. Islamic Law does have separate courts for Muslims for "religious crimes" and contemporary
non-religious courts for other criminal and civil matters.
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