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." It 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]

Sharia courts, unlike other legal systems in the world, do not use jury or prosecutors on the behalf of society. 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 Jafari followed in the Islamic jurisdiction.[8]

Hudud

Main article: Hudud

Hudud, meaning "limits", includes crimes specified in the Quran, considered crimes against God.[1] These are:[9]

  1. Drinking alcohol (sharb al-khamr, شرب الخمر)
  2. Theft (as-sariqah, السرقة)
  3. Highway robbery (qat`a at-tariyq, قطع الطريق)
  4. Illegal sexual intercourse (az-zinā', الزناء)
  5. False accusation of illegal sexual intercourse (qadhf, القذف)
  6. Apostasy (irtidād or ridda, ارتداد) - includes blasphemy.

The Shafi'i school of Islamic jurisprudence does not include highway robbery. The Hanafi school does not include rebellion and heresy.

Punishments

Dira Square in Saudi Arabia where hadd punishments, such as beheading by sword, are enforced.

Except for drinking alcohol, punishments for all other hudud crimes are specified in the Quran or Hadith to be amputation, stoning, flogging, beheading or crucifixion.[10]

Amputation

The punishment for stealing is the amputation of the hand (Quran 5:38).[11] This practice is still used today in countries like Iran,[12] Saudi Arabia,[13] and Northern Nigeria.[14] In Iran, amputation as punishment was described as "uncommon" in 2010,[15] but in 2014 there were three sentences of hand amputation, and one of eye gouging in 2015.[16] Fingers, but not the complete hand, were amputated as punishment four times in 2012-13.[16]

Stoning

Rajm, which means stoning,[17][18] is the Hudud punishment wherein an organized group throws stones at a convicted individual until that person dies. Under Islamic law, it is the prescribed punishment in cases of adultery or homosexual acts committed by a married man or married woman.[18][19][20] The conviction requires a confession from either the adulterer/adulteress, or the testimony of four witnesses (as prescribed by the Quran in Surah an-Nur verse 4), or pregnancy outside of marriage.[21][22]

Lashing

Lashing is the hudud punishment for premarital sex (a type of zina) and for the accusation of rape without providing four male witnesses to the rape.[23][17][24] This form of punishment is sometimes combined with stoning for zina-related hudud crimes.[25][26]

Beheading

Public beheading is one of the hudud punishments for crimes such as those related to intoxicants such as drugs and the crime of apostasy.[27][28] It is in use in modern era sharia-based justice system of Saudi Arabia.[28][29]

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.[30][31] 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)).[32] 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.[32]

Diyyat

Main article: Diyya

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.[33]

Tazir

Main article: Tazir

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.[34]

See also

References

  1. 1 2 Dammer, Harry; Albanese, Jay (2011). Comparative Criminal Justice Systems (5th ed.). Cengage Learning. p. 60. 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). The Oxford Handbook of Criminal Law (Ed: Markus D. Dubber and Tatjana Hornle). 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.
  6. ↑ Omar A. Farrukh (1969). Ibn Taimiyya on Public and Private Law in Islam or Public Policy in Islamic Jurisprudence.
  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. ↑ Between Vision and Reality: Law in the Arab World, Guy Bechor, IDC Projects Publishing House, 2002. pp. 105-110
  10. ↑ Silvia Tellenbach (2015), The Oxford Handbook of Criminal Law (Ed: Markus D. Dubber and Tatjana Hornle), Oxford University Press, ISBN 978-0199673599, pp. 251-253
  11. ↑ [Quran 5:38]
  12. ↑ 16 October 2010 Last updated at 21:00 ET Share this pageFacebookTwitter ShareEmail Print Iranian chocolate thief faces hand amputation
  13. ↑ http://www.monstersandcritics.com/news/middleeast/news/article_1371270.php/Saudi_Arabia_chops_off_hand_of_Egyptian_for_theft
  14. ↑ Bello, Ademola (25 May 2011). "Who Will Save Amputees of Sharia Law in Nigeria?". Huffington Post.
  15. ↑ IRAN: Man convicted of theft loses hand, October 24, 2010
  16. 1 2 "Amputation and Eye-Gouging". Human Rights & Democracy for Iran. Retrieved 20 May 2015.
  17. 1 2 E. Ann Black, Hossein Esmaeili and Nadirsyah Hosen (2014), Modern Perspectives on Islamic Law, ISBN 978-0857934475, pp. 222-223
  18. 1 2 Rudolph Peters, Crime and Punishment in Islamic Law, Cambridge University Press, ISBN 978-0521796705, pp. 37
  19. ↑ Nisrine Abiad (2008), Sharia, Muslim States and International Human Rights Treaty Obligations, British Institute of International and Comparative Law, ISBN 978-1905221417, pp. 24-26
  20. ↑ Nigerian scholars promoting Sharia law as support for women's rights. September 13, 2005
  21. ↑ Muhsan The Oxford Dictionary of Islam (2012)
  22. ↑ Ismail Poonwala (2007), The Pillars of Islam: Laws pertaining to human intercourse, Oxford University Press, ISBN 978-0195689075, pp. 448-457
  23. ↑ Quran 24:2, Quote - "The woman and the man guilty of adultery or fornication,- flog each of them with a hundred stripes: Let not compassion move you in their case, in a matter prescribed by Allah, if ye believe in Allah and the Last Day: and let a party of the Believers witness their punishment.";
    A. Quraishi (1999), Her honour: an Islamic critique of the rape provisions in Pakistan's ordinance on zina, Islamic studies, Vol. 38, No. 3, pp. 403-431
  24. ↑ Ali, Kecia (2006). Sexual ethics and Islam : feminist reflections on Qur'an, hadith, and jurisprudence. Oxford, England: Oxford University Press. pp. Chapter 4. ISBN 978-1-85168-456-4.
  25. ↑ OU Kalu (2003), Safiyya and Adamah: Punishing adultery with sharia stones in twenty‐first‐century Nigeria, African Affairs, 102(408), pp. 389-408
  26. ↑ Nisrine Abiad (2008), Sharia, Muslim States and International Human Rights Treaty Obligations, British Institute of International and Comparative Law, ISBN 978-1905221417, pp. 24-25
  27. ↑ Patterson, David (2011). A genealogy of evil. Cambridge New York: Cambridge University Press. p. 151. ISBN 978-0-521-19747-2.
  28. 1 2 Racehl Saloom (2005), Is Beheading Permissible under Islamic Law-Comparing Terrorist Jihad and the Saudi Arabian Death Penalty, UCLA Journal Int'l Law & Foreign Affairs, Vol. 10, pp. 221-224
  29. ↑ Jacqueline M. Young (1992), Torture and Inhumane Punishment of United States Citizens in Saudi Arabia and the United States Government's Failure to Act, Hastings Int'l & Comp. Law Review, Vol. 16, pp. 663-667
  30. ↑ Visions of Sharia| orlando sentinel
  31. ↑ "In Iran, a case of an eye for an eye"| Phillie Metro| March 29, 2009
  32. 1 2 Burki, Shireen (2013). The Politics of State Intervention: Gender Politics in Pakistan, Afghanistan .. Lexington Books. p. 238-9. Retrieved 19 May 2015.
  33. ↑ [Quran 5:45]
  34. ↑ Mark Cammack (2012), Islamic Law and Crime in Contemporary Courts, BERKELEY J. OF MIDDLE EASTERN & ISLAMIC LAW, Vol. 4, No.1, p. 2

External links

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