The Criminal Law of Islam

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About the Book

I have tried my best throughout this book to contact the original and authentic books on Islamic jurisprudence (Fiqh) on every problem of Islamic Criminal Law, I have discussed the arguments on which the jurists have based their opinions. While describing different problems of Islamic Criminal Law, I have produced the opinions of all schools of thought so that the reader may understand the whole background and form his own opinion there from. I have also utilized the work of the later and contemporary Muslim jurists arid lawyers who have developed Islamic Criminal Law in their respective surroundings. I hope this book will be useful for the judges, lawyers, teachers and students of Islamic Law and those interested to know Islamic Law.

Preface

In this book I have attempted to write and explain the Islamic Criminal Law in the method which is generally adopted in the modern law books. Islam has presented a comprehensive criminal law but unfortunately this part of Islamic law has been abandoned for a long time. The earlier Muslim jurists have done an intensive work on the Islamic Criminal Law but their books do not contain a proper list of contents which makes it extremely difficult to trace in them provisions relating to a particular problem. However, the valuable work of the earlier Muslim jurists gives us sufficient guidance and vigour to compile and implement Islamic Criminal Law in this modern time. On the other hand, due to their ignorance, most of the modern lawyers consider Islamic Criminal Law impracticable in the present day circumstances. It is thus imperative to write proper books on Islamic Criminal Law in the modern legal perspective. Proper books on Islamic Criminal Law are also required in view of the fact that some Islamic states of the modern world have implemented Islamic Criminal Law in twentieth century. This book is an initial step towards the noble objective of writing comprehensive books on Islamic Criminal Law in order to meet the modern requirements.

I have tried my best throughout this book to contact the original and authentic books on Islamic jurisprudence (Fiqh) on every problem of Islamic Criminal Law. I have discussed the arguments on which -the jurists have based their opinions. While describing different .problems of Islamic Criminal Law, I have produced the opinions of all schools of thought so that the reader may understand the whole background and -form his own opinion therefrom. I have also utilized the work of the later and contemporary Muslim jurists and lawyers who have developed Islamic Criminal Law in their respective surroundings. I hope this book will be useful for the judges, lawyers, teachers and students of Islamic Law and those interested to know Islamic Law.

Introduction

Criminal law in a broad sense is the body of law that defines criminal offences, regulates the apprehension, charging and trial of suspected persons and fixes punishments and modes of treatment applicable to the offenders. The object of criminal law is to control the commission of the crimes so as to protect the rights and interests of the public and ensure peace in the society. A law is an obligatory rule of conduct imposed and enforced by the state. Islamic criminal law has indicated various crimes and has provided deterrent, reformative, retaliative and other kinds of punishments for them in order to maintain peace in the society and reform the offenders. In the absence of a proper criminal law, the entire social structure of a society stands on a very weak footing. Merely prohibiting the commission of an offence by the Government does not guarantee its compliance by the public but it is the sanction that guarantees the effectiveness of such prohibition, and if there had been no punishments, a11 prohibitions and restrictions would have been ineffective and of no use. I The Qur’an states, “Whoever works evil, will be requited accordingly.” (4:123) The jurists, therefore, unanimously agree that the enforcement of Islamic criminal law is the foremost duty of an Islamic State so as to protect the society from the evil effects of the crimes and reform the offenders and evil-doers.

Social values vary from society to society and culture to culture, but some values have been universally recognised and all the ancient and sensate as well as the modern and idealist societies have given them due regard in their respective circumstances. These universally recognised values include the protection of life and the protection of property. Islamic .criminal law being a universal law revolves around the following five fundamental points:

(i) protection of religion,

(ii) protection of life,

(iii) protection of the sanctity of family,

(iv) protection of property and

(v) protection of reason/or intellect.

Islamic criminal law contains fixed and variable punishments.

Punishments are for offences that are universally recognized, and the variation of time and place have no impact on them. These fixed punishments are called hudud. Punishments for other crimes are variable according to the heinousness of the offence. Such a punishment is called la ‘zir.

The principles on which the Islamic theory of criminality focuses include the following:

(i) human beings are potentially capable of being driven to the right as well as the wrong path,

(ii) crimes are committed by people of their own free will and

(iii) everyone is liable for his wrong doings.

According to Islamic criminal law the benefit of the doubt goes to the accused. It is supported by the saying of the Prophet (p.b.u.h): “Avoid punishing whenever you find scope for it.”) The Prophet (p.b.u.h.) also said, “Try to avoid punishing Muslims whenever possible and if there is a way for an accused to escape punishment, let him off. An error of the judge in letting off an accused is better than one in punishing him.,,4 Besides providing deterrent punishments, Islamic criminal law has provided escape valves such as benefit of doubt, non-availability of the prescribed quantum and standard of evidence. However, the deterrent aspect of these fixed punishments plays its role and the criminal has the idea in his mind that these valves may not necessarily operate in his case.

One of the prominent aspects of Islamic criminal law is that it is so comprehensive and flexible that it is applicable to all the acts and omissions arising in every age, in every phase of social development, in the ever-changing circumstances of the society and fulfils the multifarious social needs at all times. The Islamic criminal law contains provisions which are so sublime and developed that they never fall below the social standard at any time.

There are seven sources of Islamic criminal law. These are as under:

1. The Holy Qur’an

2. The Sunnah of the Holy Prophet Muhammad (p.b.u.h)

3. Ijma’ (consensus of opinion)

4. Qiyas (analogy)

5. Ijtihad (interpretation)

6. Maslahali (Public interest)

7. ‘urf (custom)

The vital difference between the Qur’an and the Sunnah, and the remaining five sources has to be taken into consideration. The Qur’an and the Sunnah constitute the bases of Islamic criminal law whereas the remaining five sources neither constitute the bases of Islamic criminal law, nor do they lend legitimacy to any new principles thereof. In fact, these sources are instrumental in drawing, from the Qur’an and the Sunnah, corollaries that are compatible with their injunctions.

A considerable part of Islamic criminal law consists of crimes for which punishments have not been prescribed by the Holy Qur’an or Sunnan of the Holy Prophet, and it has been left to the discretion of the legislators to prescribe punishments for them keeping in view the requirements of the circumstances ‘relating to the time, place, convict and the state. It is for this reason that legislators and the jurists have developed Islamic Criminal Law in different times and places according to the relevant requirements and have established certain principles and rules which govern various aspects of the Islamic criminal law. Punishments prescribed by legislators change with the change in the requirements of the time, place and other circumstances. Further, with the passage of time new offences appear for which punishments have to be prescribed accordingly.

Contents