Islamic criminal jurisprudence

This is a sub-article of fiqh and criminal law.

Islamic criminal law (Arabic: فقه العقوبات) is criminal law in accordance with Sharia. Strictly speaking, Islamic law does not have a distinct corpus of "criminal law".

Islamic law divides crimes into three different categories depending on the offense – Hudud (crimes "against God",^[1] whose punishment is fixed in the Quran and the Hadiths), Qisas (crimes against an individual or family whose punishment is equal retaliation in the Quran and the Hadiths), and Tazir (crimes whose punishment is not specified in the Quran and the Hadiths, and is left to the discretion of the ruler or Qadi, i.e. judge).^[2][3][4] Some add the fourth category of Siyasah (crimes against government),^[5] while others consider it as part of either Hadd or Tazir crimes.^[6][7]

Crimes against God are prosecuted by the state as hudud crimes, and all other criminal matters, including murder and bodily injury, are treated as disputes between individuals with an Islamic judge deciding the outcome based on Sharia fiqh such as Hanafi, Maliki, Shafi'i, Hanbali and Ja'ari followed in the Islamic jurisdiction.^[8] According to the some interpretations, classification made with the phrase "against God's borders", unlike other crimes, hudud crimes are excluded from the scope of amnesty, even if the people against whom these crimes are committed give up their rights.^[9]

In practice, since early on in Islamic history, criminal cases were usually handled by ruler-administered courts or local police using procedures which were only loosely related to sharia.^[10][11] In the modern era, sharia-based criminal laws were widely replaced by statutes inspired by European models, although in recent decades several countries reintroduced elements of Islamic penal law into their legal codes under the growing influence of Islamist movements.^[12][13]

Evidences/testimonies

The following statement in the Quran is thought to be the general rule of testimony in Islam, except for crime and punishment - for example, debt, shopping, etc.;

O believers! When you contract a loan for a fixed period of time, commit it to writing. Let the scribe maintain justice between the parties. The scribe should not refuse to write as Allah has taught them to write. They will write what the debtor dictates, bearing Allah in mind and not defrauding the debt. If the debtor is incompetent, weak, or unable to dictate, let their guardian dictate for them with justice. Call upon two of your men to witness. If two men cannot be found, then one man and two women of your choice will witness—so if one of the women forgets the other may remind her.....^[14]

In a different example, in the necklace story of Aisha, which is called Asbab al-Nuzul for surah An-Nur:11-20 in Islamic terminology, four witnesses were required for the accusation of adultery. In addition, those who made accusations that did not meet the specified conditions would be punished with 80 lashes. The jurisprudence of later periods stipulates that witnesses must be men, covering all hadd crimes and people who did not have credibility and honesty in society (slaves, non-adl; sinners, infidels) could not testify against believers.^[15][16] In addition, the Islamic judiciary did not require strict proofs for the issues defined as tazir. The situation where sufficient conditions are not met for the hudud, or a weak sign or evidences that provides the Judicial discretion is sufficient such penalties.^[17]

Hudud

Main article: Hudud

Cross amputation survivors, Adam Ismaeel (left) and Ibrahim Osman (right), of the September 1983 Laws in Sudan, pictured in 1986; According to the understanding, these people must have declared war against Allah and the Prophet.

Traditional Islamic jurisprudence divides crimes into offenses against God and those against man. The former are seen to violate God's hudud, or 'boundaries'. These punishments were specified by the Quran, and in some instances by the Sunnah.^[18][19]

Hudud laws prescribe fixed punishments for between five and seven types of crimes, depending on the particular school of thought.^[20] The offenses incurring hudud punishments are zina (unlawful sexual intercourse), unfounded accusations of zina,^[21][22] consuming intoxicants, highway robbery, and some forms of theft.^[23][24] Jurists have differed as to whether apostasy and rebellion against a lawful Islamic ruler are hudud crimes.^[18][25]

Hudud punishments range from public lashing to publicly stoning to death, amputation of hands and crucifixion.^[26] Hudud crimes cannot be pardoned by the victim or by the state, and the punishments must be carried out in public.^[27] However, the evidentiary standards for these punishments were often impossibly high, and they were infrequently implemented in practice.^[19][28] For example, meeting hudud requirements for zina and theft was virtually impossible without a confession, which could be invalidated by a retraction.^[29][19] Based on a hadith, jurists stipulated that hudud punishments should be averted by the slightest doubts or ambiguities (shubuhat).^[29][19] The harsher hudud punishments were meant to deter and to convey the gravity of offenses against God, rather than to be carried out.^[19]

During the 19th century, sharia-based criminal laws were replaced by statutes inspired by European models nearly everywhere in the Islamic world, except some particularly conservative regions such as the Arabian peninsula.^[12][13][30] The Islamic revival of the late 20th century brought along calls by Islamist movements for full implementation of sharia.^[13][31] Reinstatement of hudud punishments has had particular symbolic importance for these groups because of their Quranic origin, and their advocates have often disregarded the stringent traditional restrictions on their application.^[13] In practice, in the countries where hudud have been incorporated into the legal code under Islamist pressure, they have often been used sparingly or not at all, and their application has varied depending on local political climate.^[13][30] Their use has been a subject of criticism and debate.

Qisas

Main article: Qisas

Qisas is the Islamic principle of "an eye for an eye". This category includes the crimes of murder and battery.

Punishment is either exact retribution or compensation (Diyya).

The issue of qisas gained considerable attention in the Western media in 2009 when Ameneh Bahrami, an Iranian woman blinded in an acid attack, demanded that her attacker be blinded as well.^[32][33] The concept of punishment under Qisas is not based on "society" versus the "individual" (the wrong doer), but rather that of "individuals and families" (victim(s)) versus "individuals and families" (wrong doer(s)).^[34] Thus the victim has the ability to pardon the perpetrator and withhold punishment even in the case of murder. Bahrami pardoned her attacker and stopped his punishment (drops of acid in his eyes) just before it was to be administered in 2011.^[34]

Diyyat

Main article: Diya (Islam)

Diyya is compensation paid to the heirs of a victim. In Arabic the word means both blood money and ransom.

The Quran specifies the principle of Qisas (i.e. retaliation), but prescribes that one should seek compensation (Diyya) and not demand retribution.

We have prescribed for thee therein (the Torah) 'a life for a life, and an eye for an eye, and a nose for a nose, and an ear for an ear, and a tooth for a tooth, and for wounds retaliation;' but whoso remits it, it is an expiation for him, but he whoso will not judge by what God has revealed, these be the unjust.^[35]

Tazir

Main article: Tazir

A convict receiving a caning sentence in Banda Aceh under sharia, 19 September 2014. Tazir punishments can range from a simple scolding, to flogging, exile and execution,^{[36][37][38][39]} depending on the judge's discretion, and the judge's opinion.^[40]

Tazir includes any crime that does not fit into Hudud or Qisas and which therefore has no punishment specified in the Quran. Tazir in Islamic criminal jurisprudence are those crimes where the punishment is at the discretion of the state, the ruler or a Qadi, for actions considered sinful or destructive of public order, but which are not punishable as hadd or qisas under Sharia.^[41]

See also

• Capital and corporal punishment in Islam
• Hudood Ordinances
• Repentance in Islam

References

1. Dammer, Harry; Albanese, Jay (2011). Comparative Criminal Justice Systems (5th ed.). Cengage Learning. p. 60. ISBN 9781285067865. Retrieved 19 May 2015.
2. Criminal Law, Oxford Islamic Studies, Oxford University Press (2013)
3. Mohamed S. El-Awa (1993). Punishment in Islamic Law. American Trust Publications. pp. 1–68. ISBN 978-0892591428.
4. Silvia Tellenbach (2015). Markus D. Dubber and Tatjana Hornle (ed.). The Oxford Handbook of Criminal Law. Oxford University Press. pp. 251–253. ISBN 978-0199673599.
5. Tabassum, Sadia (20 April 2011). "Combatants, not bandits: the status of rebels in Islamic law". International Review of the Red Cross. 93 (881): 121–139. doi:10.1017/S1816383111000117. S2CID 56196822.
6. Omar A. Farrukh (1969). Ibn Taimiyya on Public and Private Law in Islam or Public Policy in Islamic Jurisprudence. OCLC 55624054.
7. M. Cherif Bassiouni (1997), "Crimes and the Criminal Process", Arab Law Quarterly, Vol. 12, No. 3 (1997), pp. 269–286
8. Knut S Vikor. Between God and the Sultan: A History of Islamic Law. Oxford University Press: 2005. pp. 281–285
9. http://ndl.ethernet.edu.et/bitstream/123456789/61846/1/Tahir%20Wasti.pdf
10. Calder, Norman (2009). "Law, Legal Thought and Jurisprudence". In John L. Esposito (ed.). The Oxford Encyclopedia of the Islamic World. Oxford: Oxford University Press. Archived from the original on November 21, 2008.
11. Ziadeh, Farhat J. (2009c). "Criminal Law". In John L. Esposito (ed.). The Oxford Encyclopedia of the Islamic World. Oxford: Oxford University Press. Archived from the original on November 1, 2008.
12. Rudolph Peters (2009). "Ḥudūd". In John L. Esposito (ed.). The Oxford Encyclopedia of the Islamic World. Oxford: Oxford University Press. ISBN 9780195305135.
13. Vikør, Knut S. (2014). "Sharīʿah". In Emad El-Din Shahin (ed.). The Oxford Encyclopedia of Islam and Politics. Oxford University Press. Archived from the original on 2017-02-02. Retrieved 2017-07-06.
14. "Surah Al-Baqarah – 282". Quran.com. Retrieved 2024-12-16.
15. Criminal procedure under shariah does not allow cross-examination of witness, or rebuttal testimony by the accused. The rules of evidence in Islamic criminal law exclude all men who lack credibility, and integrity in society (non-adl). Women and non-Muslims are not allowed to testify. Dr. Etim E. Okon European Scientific Journal May 2014 edition vol. 10, No. 14 OCLC 885580767
16. Peters, Rudolph (2006). Crime and Punishment in Islamic Law: Theory and Practice from the Sixteenth to the Twenty-First Century. Cambridge University Press. pp. 53–55. ISBN 978-0521796705.
17. Oudah supports the ‘medieval’ classifi cation of crimes into hudud, qisas and diyat, and tazir. The key factors that determine the classifi cation of these crimes, he states, are the element of pardoning the accused, taking into account mitigating circumstances and the requirement of strict proof in proving the offences http://ndl.ethernet.edu.et/bitstream/123456789/61846/1/Tahir%20Wasti.pdf
18. Silvia Tellenbach (2015), "Islamic Criminal Law", In The Oxford Handbook of Criminal Law (Ed: Markus D. Dubber and Tatjana Hornle), Oxford University Press, ISBN 978-0199673599, pp. 251–253
19. A.C. Brown, Jonathan (2014). "5. Muslim Martin Luthers and the Paradox of Tradition". Misquoting Muhammad: The Challenge and Choices of Interpreting the Prophet's Legacy. Oneworld Publications. pp. 180–181. ISBN 978-1780744209.
20. http://ndl.ethernet.edu.et/bitstream/123456789/61846/1/Tahir%20Wasti.pdf
21. Z. Mir-Hosseini (2011), Criminalizing sexuality: zina laws as violence against women in Muslim contexts, SUR-International Journal on Human Rights, 8(15), pp 7–33
22. Asifa Quraishi (2000). Windows of Faith: Muslim Women Scholar-activists in North America. Syracuse University Press. p. 126. ISBN 978-0-815-628514.
23. Otto, Jan Michiel (2008). Sharia and National Law in Muslim Countries. Amsterdam University Press. pp. 663, 31. ISBN 978-90-8728-048-2.
24. Philip Reichel and Jay Albanese (2013), Handbook of Transnational Crime and Justice, Sage Sublications, ISBN 978-1452240350, pp. 36–37
25. Campo, Juan Eduardo (2009). Encyclopedia of Islam, p. 174. Infobase Publishing. ISBN 978-0816054541.
26. Hadd Oxford Dictionary of Islam, Oxford University Press (2012)
27. Terrill, Richard J. (2009) [1984]. World Criminal Justice Systems: A Comparative Survey. Routledge. p. 629. ISBN 9781437755770. Retrieved 19 November 2015.
28. Wael Hallaq (2009), An introduction to Islamic law, p. 173. Cambridge University Press. ISBN 9780521678735.
29. Wael, B. Hallaq (2009). Shariah: Theory, Practice and Transformations. Cambridge University Press. p. 311. ISBN 978-0-521-86147-2.
30. Otto, Jan Michiel (2008). Sharia and National Law in Muslim Countries: Tensions and Opportunities for Dutch and EU Foreign Policy (PDF). Amsterdam University Press. pp. 18–20. ISBN 978-90-8728-048-2.
31. Mayer, Ann Elizabeth (2009). "Law. Modern Legal Reform". In John L. Esposito (ed.). The Oxford Encyclopedia of the Islamic World. Oxford: Oxford University Press. Archived from the original on November 21, 2008.
32. Visions of Sharia Archived 2009-04-19 at the Wayback Machine| orlando sentinel
33. "In Iran, a case of an eye for an eye"| Phillie Metro| March 29, 2009
34. Burki, Shireen (2013). The Politics of State Intervention: Gender Politics in Pakistan, Afghanistan. Lexington Books. pp. 238–239. ISBN 9780739184332. Retrieved 19 May 2015.
35. ^{[Quran 5:45]}
36. Ibn Nujaym, Zayn al-Dīn Ibrāhīm (1997). al-Baḥr al-rāʾiq sharḥ Kanz al-daqāʾiq. Dar al-kutub al-ʿilmiyya. pp. V: 68.
37. James E. Baldwin (2012), Prostitution, Islamic Law and Ottoman Societies, Journal of the Economic and Social History of the Orient, 55, pp. 117-52
38. Terrill, Richard (2013). World criminal justice systems : a comparative survey. Anderson Pub. pp. 562–563. ISBN 978-1-4557-2589-2.
39. Gerald E. Lampe (1997). Justice and human rights in Islamic law. Washington, D.C.: International Law Institute. p. 88. ISBN 978-0-03-532984-0.
40. Ta'azir or discretionary punishment may also be used when offenses for which penalties are prescribed in law are attempted but not completed or where mitigating circumstances or weak evidence make the prescribed penalty unreasonable.https://www.ojp.gov/ncjrs/virtual-library/abstracts/taazir-crimes-islamic-criminal-justice-system-p-211-225-1982-m
41. Mark Cammack (2012), 'Islamic Law and Crime' in "Contemporary Courts", Berkeley J. of Middle Eastern & Islamic Law, Vol. 4, No. 1, p. 2

Further reading

Short surveys

• Ziadeh, Farhat J. (2009). "Criminal Law". In John L. Esposito (ed.). The Oxford Encyclopedia of the Islamic World. Oxford: Oxford University Press. Archived from the original on November 1, 2008.
• M. Cherif Bassiouni (1997), "Crimes and the Criminal Process", Arab Law Quarterly, Vol. 12, No. 3 (1997), pp. 269–286 (JSTOR 3381843)
• Basic features of Islamic criminal law Christine Schirrmacher (2008), Islam Institute, Germany
• "Islamic Criminal Law and Procedure" Matthew Lipman, Boston College International and Comparative Law Review, Volume XII, Issue 1, pp. 29–62
• Silvia Tellenbach (2014). "Islamic Criminal Law". In Markus D. Dubber; Tatjana Hörnle (eds.). The Oxford Handbook of Criminal Law.

Books

• Vikør, Knut S. (2005). Between God and the Sultan: A History of Islamic Law. Oxford University Press.
• Peters, Rudolph (2006). Crime and Punishment in Islamic Law: Theory and Practice from the Sixteenth to the Twenty-First Century. Cambridge University Press.^{[ISBN missing]}
• Wael B. Hallaq (2009). Sharī'a: Theory, Practice, Transformations. Cambridge University Press.^{[ISBN missing]}
• Olaf Köndgen (2022). A Bibliography of Islamic Criminal Law. Brill.^{[ISBN missing]}