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outdated rules of fixed punishments for all crimes.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 Sharia
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 "Hudoud," Retaliation (Qisas)and
Discretionary (Ta'zir) 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
Center 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 Quran 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. Mohammed the Prophet was called by God
to translate verses from the Angel Gabriel to form the most important book in Islam, the
Quran, Muslims believe.
There are over 1.2 billion Muslims today worldwide, 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. Sharia 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 favor 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 (Qadi)
Another myth concerning Islamic Law is that there are no judges.
Historically the Islamic Judge (Qadi) 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
Sharia 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 Quran, but they
possess much greater freedom in punishment for less serious (non-Had) 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 Sharia Law
Islamic law is known as Sharia Law, and Sharia means the path to
follow God's Law. Sharia Law is holistic or eclectic in its approach to guide the
individual in most daily matters. Sharia Law controls, rules and regulates all public and
private behavior. 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 behavior, but both do regulate some private matters.
Sharia Law can also be used in larger situations than guiding an
individual's behavior. It can be used as guide for how an individual acts in society and
how one group interacts with another. The Sharia 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.
Sharia 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 Sharia Law is the Quran. It is the final arbitrator and there is no
other appeal. The second element of Sharia Law is known as the Sunna, the teachings of the
Prophet Mohammed not explicitly found in the Quran. 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 Quran may not have all the information about behavior
and human interaction in detail; the Sunna gives more detailed information than the Quran.
The third element of Sharia Law is known as the Ijma. The Muslim
religion uses the term Ulama as a label for its religious scholars. These Ulamas are
consulted on many matters both personal and political. When the Ulamas reach a consensus
on an issue, it is interpreted as a ijma. The concepts and ideas found in the ijma are not
found explicitly in the Quran 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 Sharia Law. The Qiyas are not
explicitly found in the Quran, 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 Sharia 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 Quran 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 Sharia 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. Had Crimes (most serious).
2. Ta'zir Crimes (least serious).
3. Qisas Crimes (revenge crimes restitution).
Had crimes are the most serious under Islamic Law, and Ta'zir
crimes are the least serious. Some Western writers use the felony analogy for Had
crimes and misdemeanor label for Ta'zir crimes. The analogy is partially
accurate, but not entirely true. Common Law has no comparable form of Qisas
crimes.
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 Quran 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...
Had Crimes
Had crimes are those which are punishable by a
pre-established punishment found in the Quran. These most serious of all crimes are found
by an exact reference in the Quran to a specific act and a specific punishment for that
act. There is no plea-bargaining or reducing the punishment for a Had crime. Had
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 Had crimes of Islamic Law.
No judge can change or reduce the punishment for these serous
crimes. The Had crimes are:
1. Murder;
2. Apostasy from Islam
(making war upon Allah and his messengers);
3. Theft;
4. Adultery;
5. Defamation
(false accusation of adultery or fornication);
6. Robbery;
7. Alcohol-drinking.
The first four Had crimes have a specific punishment in
the Quran. The last three crimes are mentioned but no specific punishment is found
(Schmalleger, p.603).
Some more liberal Islamic judges do not consider apostasy from
Islam or wine drinking as Had crimes. The more liberal Islamic nations treat
these crimes as Ta'zir or a lesser crime.
Had crimes have fixed punishments because they are set
by God and are found in the Quran. Had crimes are crimes against God's law and Ta'zir
crimes are crimes against society. There are some safeguards for Had 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 Had 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 Had crime, the judge must
treat the crime as a lesser Ta'zir crime. If there is no confession to a crime or
not enough witnesses to the crime, Islamic law requires the Had crime to be
punished as a Ta'zir crime.
Ta'zir Crimes
Modern Islamic Society has changed greatly from the time of the
Prophet. Contemporary Sharia 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 Ta'zir 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.
Ta'zir crimes are less serious than the Had
crimes found in the Quran. Some common law writers use the analogy of misdemeanors, which
is the lesser of the two categories (felony and misdemeanor) of common law crimes. Ta'zir
crimes can and do have comparable "minor felony equivalents." These "minor
felonies" are not found in the Quran 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):
Ta'zir 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.
Ta'zir crimes are acts which are punished because the
offender disobeys God's law and word. Ta'zir crimes can be punished if they harm
the societal interest. Sharia 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 Ta'zir 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 Sharia Law is that they must answer to Allah and to the greater community
of Muslims. Some of the more common punishment for Ta'zir crimes are counseling,
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, Ta'zir 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 Ta'zir
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.
Qisas Crimes and Diya
Islamic Law has an additional category of crimes that common law
nations do not have. A Qisas crime is one of retaliation. If you commit a Qisas
crime, the victim has a right to seek retribution and retaliation. The exact punishment
for each Qisas crime is set forth in the Quran. If you are killed, then your
family has a right to seek Qisas 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 Qisas
crimes include:
1. Murder (premeditated and non-premeditated).
2. Premeditated offenses against human life, short of murder.
3. Murder by error.
4. Offenses by error against humanity, short of murder.
Some reporters in the mass media have criticized the thought of
"blood money" as barbaric. They labeled the practice as undemocratic and
inhumane. Qisas 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. Qisas crime is simple
retribution: if one commits a crime he knows what the punishment will be.
Diya has its roots in Islamic Law and dates to the time
of the Prophet Mohammed when there were many local families, tribes and clans. They were
nomadic and traveled 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 Qisas 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. Qisas law combines the process of criminal and civil hearings into one,
just as the "civil law" is applied in many nations of the world. Qisas
crimes are compensated as restitution under common law and civil law.
The Qisas crimes require compensation for each crime
committed. Each nation sets the damage before the offense 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 behavior. 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 Ta'zir crime by accepting money which was not mandated by a
judge: taking diya must be carried out through proper governmental and judicial
authority.
Another concept of Qisas 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 Qisas 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 Sharia 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 Sharia Court
System. There are four Had crimes that do have fixed punishments set forth in the
Quran, but not all the Had 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 Mohammed
whose translation of Allah or God's will is found in the Quran. Muslims are held
accountable to the Sharia 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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Above article first appeared
in
Belfast Islamic Center News and republished here
with permission.
