Islamic Criminal Law

1
Islamic Criminal Law

• Evolution
• Pre-Islamic Arabia Blood revenge against the
  tribe of the alleged offender severe retaliation
• Islam Replaced blood revenge with uniform
  criminal offences, punishments and procedures
  stresses individual rather that collective
  responsibility

2

• Reception of European Criminal Law
• French Code as Model for the Ottoman Penal Code
  abolishment of severe quranic punishments
• 1875 Egypt adopted the French penal code
  restriction of Scharia to matters of personal
  status
• Arabian Peninsula remained immune to the
  influence of European laws

3

• Sources of Islamic Criminal Law
• About 30 verses of the Quran deal with penal law
  and 13 with evidence and criminal procedure
• Categories of crimes
• Hudud crimes, punishable by a hadd, penalty
  prescribed by Quran and Sunna
• Taazir offences, sentences not fixed in
  religious sources, prosecution is discretionary
• Qisas crimes, combination of crimes against the
  person and torts of the same type punishable by
  retaliation

4

• Hudud crimes
• Theft (sariqa)
• Adultery and fornication (zina)
• Slander (qadhf)
• Highway robbery (haraba)
• Consumption of wine or other intoxicating
  substances (shrub al-khamr)
• Controversial Apostasy (ridda)
• Controversial Rebellion (baghi)
• Evidence circumstantial evidence not admitted to
  establish guilt in hadd offences (pregnancy or
  reek of alcohol)

5

• Theft (sariqa)
• 538
• Elements Taking the property of another person
  value exceeds a prescribed amount property must
  be in the custody of the other person secret
  manner
• Punishment First and second acts of theft
  amputation of the hands third and forth offence
  amputation of the feet
• Reason Severe punishment because theft deprives
  an individual of his property and creates fear,
  distrust and apprehension in the community

6

• A thief who steals to survive is not subject to
  hadd
• Theft of some items is not subject to hadd, but
  to taazir immovables items available in large
  quantity objects normally not subject to
  ownership perishables religious icons and
  texts property deemed to be of no value musical
  instruments
• Also excluded from hadd is theft by a relative

7

• Highway robbery (haraba)
• 533
• Banditry affects public security, particularly
  dangerous, group criminality two or more
  persons
• Severe punishment execution, cutting off hands
  and feet or exile from the land

8

• Adultery (zina)
• 242, 244 numerous hadith 1715
• Sexual intercourse between persons of the
  opposite sex who are not married to one another
• Evidence Four male eyewitnesses or four
  confessions on four separate occasions by the
  defendant suspension of punishment if defendant
  recants confession

9

• Penality
• Married persons Stoning to death (hadith)
• Unmarried persons 100 lashes

10

• Slander (qadhf)
• 244
• Someone who falsely accused a Muslim of zina
• Penalty 80 lashes

11

• Consumption of wine or other intoxicating
  beverages (shrub al-khamr)
• 244, 2219, 591 graduality
• Hadith He who drinks wine, whip him
• By analogy extended to drugs

12

• Apostasy (ridda)
• 2217 hadith
• Intentional rejection of Islam by word or deed,
  denial of the existence of God, the Prophet or
  the sanctity of the Quran
• Certain time to repent and recant length of time
  controversial
• Much disputed issue

13

• Transgression / rebellion (baghi)
• 499 hadd and its penalty established by Sunna
• Unlawful uprising against the legitimate ruler by
  use of force but Muslims are entitled to rebel
  against unjust rulers

14

• Qisas crimes
• Qisas equivalence a person who has committed a
  given violation will be punished in the same way
  and by the same means that he used in harming
  another person
• Defined both in the Quran and the Sunna
• Two categories 1) homicide (intentional and
  unintentional) 2) assault and battery
• Two types of sanctions retaliation (equivalent
  infliction of physical or bodily harm against the
  person who committed the act) or compensation
  (diyya) 2178-179 violation of the rights of
  individuals, which provide the basis for the need
  to satisfy and compensate the victim or his
  family.
• Limitation of retaliation equivalency of
  treatment inflicted on the offender. Preference
  for compensation (diyya) and for forgiveness.

15

• Taazir crimes
• Crimes that are less severe than hadd and qisas
  crimes
• Inconclusively established or insufficiently
  proven hadd and qisas charges
• Regular offenses causing individual, social or
  public harm
• A broad range of sanctions discretionary power

16

• Criminal procedure
• Nulla poena sine lege
• No retroactive application of criminal law,
  1715 2859 4165
• Presumtion of innocence
• Protection of life, freedom and property
• Due process of law
• Fair and public trial before an impartial judge
• Confrontation and cross-examination
• No compulsory self-incrimination
• No arbitrary arrest and detention
• Rapid final judgement
• Right of appeal
• Search and seizure, 2427, 28

17

• Criminal Law in the Middle East
• In most countries Islamic criminal law has been
  replaced by modern law.
• (Re-)introduction of Islamic criminal law is a
  powerful ideological discourse
• Egypt between 1976 and 1982 a islamic criminal
  code was drafted, but never implemented

18

• Saudi Arabia
• Uninterrupted application of Islamic criminal law
• In principle uncodified (but code of criminal
  procedure)
• King uses power to exercise justice for reasons
  of utility

19

• Pakistan
• 1979 Reintroduction of Islamic criminal law,
  five presidential decrees with provisions
  regarding hadd crimes
• Amendments of the Penal Code in 1980, 1982, 1986,
  1990, 1991 the defiling of the Prophet and his
  wives is a capital offense

20

• Iran
• From 1979 Reintroduction of Islamic criminal law
• Very detailed code
• Bloodprice of woman is half that of a man
• In general, the code sticks to the strict rules
  of evidence of classical fiqh legal practice
  problematic