ICPA Staff Training Platform
The devout Muslim will tell you that Islam began long before the prophet Muhammad introduced it in 610 A.D. Others trace the origin of Islam to 7th century Saudi Arabia when Muhammad in 610 A.D. experienced what he called an angelic visitation. Muhammad dictated the Qur’an, the sacred book of Islam, but it was not originated by him. The Qur’an itself says that it was given by God through the angel Gabriel to the prophet Muhammad.
The Qur’an defines standards of human conduct, but it does not contain a detailed legal code. Only a few verses in the Qur’an actually deal with legal issues. Muhammad helped clarify the law by interpreting provisions in the Qur’an and acting as a judge in legal cases. After the death of Muhammad in 632 A.D., as the Muslim Empire expanded through conquest, parts of Jewish, Greek, Roman, Persian, and Christian church law were used in the development of Sharia. Shariais an Arabic word meaning “the right path” and refers to traditional Islamic law.
The Umayyad dynasty caliphs (political-religious rulers), who took control of Muslim Empire in 661 A.D., appointed Islamic judges, kadis, to decide cases involving Muslims. Non-Muslims kept their own system. In 750 A.D., the Umayyads were overthrown and replaced by the Abbadisds who transferred a large part of the criminal law from the kadis to the government. By around 900 A.D., handbooks for judges to use in making decisions had been produced.
Criminal procedure that had developed over time followed due process, including the right to remain silent, presumption of innocence and a fair and public trial before an impartial judge. The use of preventive detention is to be severely limited. Interrogation should only be conducted by designated officials of good character and the use of intimidation is not allowed.
The 1800’s brought either control or influence to the region by colonial powers and Western-style laws, courts, punishments modified or, in some cases such as Turkey, replaced Sharia. Beginning around 1980, nations such as Iran and others with Islamic regimes attempted to bring back classic Sharia. There is a body of Islamic legal scholars who believe that Sharia can be adapted to modern conditions without abandoning the spirit of Islamic law or its religious foundations.
Islamic Penal Systems
Islamicpenal systems, like those of any other kind of system, are generally based on and governed by a specific theory or philosophy. The typical Islamic penal system is primarily a religious system, so it deals with "sin" and "culpability." "Speaking of goodness and shunning evil" represents the philosophical background for every system governing social relations in Islam. In the final analysis, this background reflects the social solidarity of the Islamic world in its move to reach its ultimate goal, the idealistic society and the idealistic human being.
The idealistic society must be based on mutual aid and goodness. Allah (God of Islam) said, "Help ye one another in rightness and piety, but help ye not one another in sin and rancor." Social solidarity has many aspects in the Islamic world, solidarity for existence and protection of society, solidarity in settling any dispute or contract between Muslims.
Idealistic society as a final goal must depend on social justice and social defense; consequently the criminal policies in Islamic society seek the determination of individual responsibility to confirm the guilty and to apply sanctions cited in the Koran (Qur’an - holy book of Islam) and the Sunna (traditional Moslem law).
One of the objectives of Islamic legislation is maintaining the essential basic needs of the individual because depriving them of any of these items would disrupt their lives. There are five basic needs: the religion, the soul, the mind, the descendants, and the property. Therefore, incrimination is related to the object-matter of the crime. Major crimes like apostasy and transgression affect religion; adultery and slander affect descendants; alcoholism affects the mind; crimes against property affect property and public security, etc.
Sanctions can be divided in most of the Arab criminal law to principal sanctions and complementary sanctions.
Principal sanctions are those cited in the criminal code and implemented by the court. Complementary sanctions are those that "makes perfect" the principal sanctions. They are to seek preventive goals such as deprivation of rights and privileges, interdiction of certain occupation or profession, police control and confiscation. Criminal doctrine considers principal sanctions as typical and essential for treating criminality and criminals, but complementary ones are marginal and additional, so they cannot be implemented alone.
Sanctions in Arab societies are governed by Sharia Islamic Law and are used according to the trichotomy qualifications: Hedud crimes (serious crimes or violations to the rights of God), Taazir crimes (real criminal code or violations to the rights of the collective), and Kasas crimes (vendetta or violations to the rights of the individual).
Alternative compensative sanctions, such as Dia (blood money paid to the relatives of the victim on condition for them not to ask for vendetta) are normal substitutes not only in Islamic society, but also in customary laws among tribes. Another is Arsh, a moral compensation declaring culpability without demanding equal punishment. It is a sort of pardon and mercy. The Islamic doctrine does not permit Kasas to be combined with Dia. Dia is an essential tool to realize the balance between tribes, and it still governs social relations in Yemen, Jordan, and Egypt. Hashm (another form of compensation) is a sanction for involuntary homicide paid beside the Dia calculated according to Sharia.
Two essential principles govern the law: one deals with legality and the other deals with responsibility. The principle of "No crime, no penalty, unless quoted" is accounted for in Islamic legislation. Hedud and Kasas crimes and their penalties are accounted for in the Koran and Sunna; as for Taazir crimes, the majority of penalties are left to the State's authority to be assigned according to the seriousness of the offense. Legality is supported in the following Sura (section from the Koran), "Our Lord! Impose not on us that which we have not the strength to hear!" Responsibility is supported in the Sura, "Every soul is a pledge for its own deeds." Another supports equality before the law saying, "Oh God, if Fatima, daughter of Mohammed, stole she would cut her hand off."
The "cut her hand off" statement above is probably the best known and least understood example of the realities of Islamic law. The severe penalties in the Islamic system were formulated in such a way that society was compelled to proceed for mitigation which "de facto" suspends its unpleasant consequences. Hedud penalties usually lead to corporal sanctions governed by the "law of evidence" strictly applied by judges. Consequently those corporal sanctions are rarely applied by the judges because of the principle "In dubio pro Reo" (when in doubt find in favor of the offender). For example, the penalty for adultery (a Hedud offense) for unmarried men or women is 100 stripes (flogging), and for the married man or woman the penalty is death. However, it is necessary that there be four eye- witnesses to the adultery, or the judge can qualify the act as Taazir. Thus there is a tendency to restrict the application of the Hedud punishments as much as possible. So the severeness of the penalty is counteracted with the need for an attested proof to insure that the penalty is rightfully inflicted. Another example of mitigation can be found in Kasas crimes involving homicide and bodily harm. The corporal punishment will be replaced with Dia or other compensation, if the harmed party allows it. Pardon is another form of mitigation which opens the door to friendly settlement. In the above example, it should be noted that the term “adultery” in Western law is defined as voluntary sexual intercourse of a married person with a person other than the offender’s husband or wife. In Islam, adultery is called Zena and has the general meaning of all kinds of unlawful intercourse.
Penalties sanctioned in Islamic sources are correlated with a specific classification of crime. Hedud crimes repre- sent a majority of acts considered a violation of God's rights, duly restricted by God. The second group is Kasas which deals with acts considered a violation of individual rights. Taazir are the third kind of crimes and sanctions. These are left to be determined by the leaders of the Islamic society with a specific goal of reformation and correction. Hedud crimes are the object of discussion between Islamic scholars. Some cite seven offenses (adultery, alcoholism, theft, robbery, apostasy, transgression). Others accept only four offenses in this category (adultery/Zena, slander, theft, and highway robbery -). There are five Kasas crimes (premeditated murder, quasi-premeditated murder, negligent murder, intended crimes which cause injury other than homicide, and unintended crimes which cause injury other than homicide). Taazir can be compared with other modern crimes and the sanctions are developed by the caliph or the ruler of the Islamic society, in line with what is felt to be society's needs.
By restrictive ordinance in the Hedud, restrictive penalties exist: death penalty either by stoning or crucifixion or with the sword; cutting off of the hand or foot; and flogging with a varied number of lashes. For Kasas, punishment is the subject of private claims and generally executed according to the principle of "life for the life, eye for the eye, nose for the nose, ear for the ear, tooth for the tooth, and for wounds, retaliation." There are several preventive or punitive measures in the case of Taazir besides corporal punishment including banishment, imprisonment, confiscation, blame, losing a job.