Islamic Criminal Law In Accordance With Sharia

Introduction:

Islamic criminal law in accordance with Sharia Firmly speaking, Islamic law does not have a separate body of ‘criminal law.’ (Dammer et al; 2011)

It splits crimes into 3 different categories depending on the offense, they are:

1. Hudud
2. Qisas
3. Tazir

Hudud is an Arabic word meaning ‘borders, barrier, boundaries, limits’. In the religion of Islam, it refers to punishments that under Islamic law are directed and fixed by Allah. “These punishments were rarely applied in pre-modern Islam, and their use in some modern states has been a source of controversy”. (Wael Hallaq, 2009)

Hudood meaning Prescribed punishments.

Ta’zeer meaning Unprescribed punishments. Eg. Beating, exiling, etc.

Hudood of Allah-the prohibited acts which we are not allowed to do. Technical meaning of Hudood is a prescribed punishment legally decreed to be executed when certain sins are committed, in order to prohibit re-committing them.

• Punishment
• Legally Prescribed by Allah.
• For a sin
• Purifying the sinner, warning him & others from doing it.

Proofs for Hudood:

1. Quran
2. Sunnah
3. Ijmaa

Types of Crimes on which Hudood is obligatory

1. Zina
2. Theft
3. Banditry
4. Drinking intoxicants
5. False accusation of Zina. Others will have Ta’zeer (unprescribed/discretionary punishments), which are lesser than above mentioned ones.

Severity of punishment in lashing:

1. Zina-100 lashes
2. False accusation of zina-80 lashes
3. Drinking intoxicants-40 lashes
4. Other discretionary punishments

Zina includes: Adultery-when at least 1 is married, Fornication between 2 people who are not married. Among the signs of Qiyaamah-Zina would become widespread and would happen in public places.

Allah has given the hudood punishments in order to protect the limits which He has forbidden us to disobey, and so as to protect the rights of His slaves which He has commanded are to be protected, and as a means of compensation and purification for those who commit the deeds in request. He has designed that as part of religion so as to know who truly believes in Him and His laws, and will hear and obey, as different from those who pay no attention to that and do not see anything wrong with transgression of the limits set by Allah, and He has made it as a warning to those who are tempted to disobey the limits set by Allah.

“Ibn al-Qayyim (may Allah have mercy on him) said: Those whom the Messenger of Allah ﷺ stoned for zina were well known and few in number, and their stories were recorded and are well-known. They were the Ghaamidi woman, Maa‘iz, the woman who committed adultery with the hired worker, and the two Jews”. End quote from at-Turuq al-Hukmiyyah (p. 53)

“And do not approach unlawful sexual intercourse. Indeed, it is ever an immorality and is evil as a way”. (Quran: Al Isra: 32)

• In Theft Acts, offensive is punished with removal of a hand. (Cherif Bassiouni 1997; Silvia et al 2015)
• Theft is haraam according to the Qur’an, Sunnah and scholarly consensus. Allah has destined this action and decreed an appropriate punishment for it. The hudood punishment for a thief is to cut off his hand. Allah says: “And (as for) the male thief and the female thief, cut off (from the wrist joint) their (right) hands as a recompense for that which they committed, a punishment by way of example from Allah. And Allah is All Powerful, All Wise” (Quran: al-Maa’idah 5:38)
• In Hirabah, Mufsed-e-filarq and Hirabah, Qat’ al-Tariq Acts, are considered to be a fight against god, corruption on earth and highway robbery. Here the attacking person is punished with execution, another form of the death penalty, amputation of the right hand and the left foot, or banishment. (Cherif Bassiouni 1997; Silvia et al 2015)

Hudud is outdated because:

• Hudood punishments range from public lashing to publicly stoning to death, amputation of hands and crucifixion.
• “Hudood crimes cannot be pardoned by the victim or by the state, and the punishments must be carried out in public”. (Terrill et al 2009)
• “The evidentiary standards for these punishments were often impossibly high, and they were infrequently implemented in practice. (Brown, et al 2014). For example, “meeting Hudood requirements for zina and theft was virtually impossible without a confession, which could be invalidated by a renunciation”. (Wael et al 2009; Brown, et al 2014).
• The Islamic revival of the late 20th century brought along calls by Islamic movements for full implementation of sharia. (Mayer et al 2009; Vicar, et al. 2014). Their use has been a topic of criticism and discussion. There are a number of alterations in views between the different madhhabs with respect to the punishments suitable in specific situations.

Case studies for calling Hudood outdated:

Hudood punishments have been called incompatible with international norms of human rights and sometimes simple justice. At least one observer (Sadakat Kadri) has complained that the inspiration of faith has not been a guarantee of justice. (Sayyid Abul Ala Maududi (2000).) In the Islamic Republic of Iran—the dissidents waging war by organizing unarmed political protests.

The Hudood Ordinance in Pakistan led to the jailing of thousands of women on zina-related charges, were used to file ‘nuisance or harassment suits against disobedient daughters or estranged wives”.

The sentencing to death of women in Pakistan, Nigeria, Sudan for zina caused international uproar, being perceived as not only as too harsh, but an ‘odious'[, punishment of victims not wrongdoers. (Sayyid Abul Ala Maududi 2000).

Conclusion:

A number of western scholars have suggested that traditional hudud penalties ‘may have been suitable for the time of “Muhammad lived’ but are no longer, or that ‘new expression’ for ‘the underlying religious principles and values’ of Hudud should be developed. It is against the Human rights and is discouraged in many countries and considered as barbaric Act. Hence it is outdated.

Bibliography

1. Comparative Criminal Justice Systems (5th ed.). Dammer, Harry; Albanese, Jay (2011). Cengage Learning. p. 60. ISBN 9781285067865. Retrieved 19 May 2015.
2. Crimes and the Criminal Process Archived 2018-09-27 at the Wayback Machine, Cherif Bassiouni (1997), Arab Law Quarterly, Vol. 12, No. 3 (1997), pp. 269–286.
3. End quote from at-Turuq al-Hukmiyyah (p. 53)
4. https://islamqa.info/en/answers/198400/stoning-and-amputations-are-hadd-punishments-that-allah-has-prescribed-for-his-slaves-in-accordance-with-his-wisdom-and-out-of-mercy-towards-his-slaves
5. Shariah: Theory, Practice and Transformations. Wael, B. Hallaq (2009). Cambridge University Press. p. 311. ISBN 978-0-521-86147-2.
6. Surah al-Maa’idah 5:38
7. Surah Al Isra: 32
8. ‘Islamic Criminal Law’, In The Oxford Handbook of Criminal Law , Silvia Tellenbach (2015), (Ed: Markus D. Dubber and Tatjana Hornle), Oxford University Press, ISBN 978-0199673599, pp. 251-253
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