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Criminal Justice under Shari’ah in the 21st Century – An

Inter-Cultural View

Michael Bohlander* and Mohammad M. Hedayati-Kakhki*

Introduction

Throughout the Arab and Muslim World, there are calls for a re-Islamisation of the
legal systems, either for the strict application of the Shari’ah in its traditional form
based on taqlid, or for a return to the roots of the Maqasid al-Shari’ah, a re-opening
of the door to ijtihad,1 or even for a move towards the practice of Islam in a secular
state2 or a combination of some of these – yet even amongst Islamic scholars there is
no agreement on the path to be taken. Such disagreements are exacerbated by the
differences in interpreting primary sources of law between the Shi’a and Sunni
schools of thought. At the same time, one can notice that some Arab and Muslim
States have taken steps that have resulted in a certain rapprochement of Islamic and
secular principles. The recently enacted constitutions of States such as Iraq and
Afghanistan, countries that have in recent history come under the influence of
Western law-makers and policies, contain provisions which, on the one hand, declare
the Shari’ah to be the highest source of the law of the land, while at the same time
subscribing to the ideals of democracy. Many Muslim countries to this day have laws
and justice systems based to a large extent on post-colonial and in fact secularised
models left behind by the colonial powers and adopted by the former colonies. The
government of the Maldives recently enlisted the services of an eminent American

*
Professor of Law, Durham Law School, UK – My contribution to this article is a modified and
augmented version of a paper I presented at the conference on Islamic criminal justice at Sharjah
University from 30 April – 1 May 2008. I would like to thank the former Dean of the Sharjah Law
College, Professor Dr Mohammad Shallal Al-Ani,, for the invitation and the College’s generous
hospitality. I thank Dr Mohamed Elewa Badar, Brunel Law School for his helpful comments on an
earlier draft of the paper.
*
BA, Ph.D (Dunelm); Former Iranian Barrister (First Class), Legal Consultant on issues of Human
Rights and Law in the Middle East, Research Associate in the Centre for Iranian Studies and Special
Advisor to the Centre for Criminal Law and Criminal Justice at Durham University.
1
Firouz Mahmoudi. On Criminalisation in Iran (Sources and Features). European Journal of Crime,
Criminal Law and Criminology 10, 2002 and Abdul Karim Soroush. Reason, Freedom and Democracy
in Islam. Oxford University Press, 2000.
2
See e.g. Abdullahi Ahmed An’Naim, Islam and the Secular State, 2008.

Electronic copy available at: http://ssrn.com/abstract=1592914


law professor, Paul Robinson, a non-Muslim, to help them revise its criminal code3 –
based on the Shari’ah4. Arab States are engaged in international relations which are in
fact dominated by Western thinking. Many Muslims live in Western countries where
they enjoy and actively exercise the rights and freedoms granted under their laws.
Globalisation, in which especially countries such as the United Arab Emirates and
Kuwait are some of the main players, will result in an ever closer contact between our
societies and different spheres of law. Such globalisation-influenced processes are not
uniform in the Islamic world, however, as alongside liberalisation in some countries,
radicalisation and more literal interpretation of Islam occurs in others, who feel
threatened by such Western interference. Despite the outward tendency towards such
literalism within these countries, underlying currents of liberalism, often in the form
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of prominent intellectual and social figures, flow beneath the surface and create a
potential for reform.

The clock cannot realistically be turned back and both sides will have to find solutions
to the many problems caused by those facts, on which the policy-makers can rely for
their decisions. How will this affect the relationship between Shari’ah and secular
thought in the field of criminal justice? Is there a way to harmonisation or will there
remain insurmountable differences? What this article is meant to do is to present
Islamic scholars with a combined analysis, from both Western and Islamic
perspectives, of the potential for reform in the Islamic Penal system insofar as
compatible with the fundamental principles of Islam. As both the Western and
Islamic viewpoints are limited in isolation, it is our hope that approaching this issue in
unison can facilitate greater mutual understanding and cooperation towards reform by
Islamic and secular legal systems. It is by no means meant to be exhaustive, and can
only scratch the surface of the problems; its purpose is not to propose concrete means

3
See on this phenomenon also Knut S. Vikor, Between God and the Sultan, Hurst and Company, 2005,
pp. 254 ff who calls the codification efforts “Shari’a through Siyasa”, i.e. implementing Shari’ah
through state-sponsored codification. On the situation in Pakistan, see Tahir Wasti, The Application of
Islamic Criminal Law in Pakistan – Sharia in Practice, Brill, 2009.
4
See the materials at his website under www.law.upenn.edu/fac/phrobins/draftislamicpenalcode/ and
www.law.upenn.edu/fac/phrobins/books/CLRG_11%203%2006%20SNT.pdf
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One of the most powerful moderate dissident clerics in Iran, now marginalized from power, is Grand
Ayatollah Hossein-Ali Montazeri, once a successor to Ayatollah Khomeini, who was disqualified due
to his opposition to infringement of citizens’ freedom in the name of Islam.

Electronic copy available at: http://ssrn.com/abstract=1592914


of reform, but rather examine the possibility of significant modernisation in light of
Islamic constraints. We wish to make clear at the outset that it is not our intention to
cause offence by naming the issues as directly as we do, but it is our experience that
clarity of expression furthers the debate more than treading on egg-shells. The fact
that one of the authors has had extensive experience in the application of Islamic law
in Iranian practice will help reduce the risk of commenting on such complex issues
merely from an academic perspective, and the lessons he learned from that experience
help shape this article’s approach accordingly.

By considering potential problems within Islamic law as applied in the Arab and
Muslim world, we mean no criticism of the religion on which it is based. The sole
intention is to suggest potential mechanisms of reform, as calls for such changes are
increasingly vocal from even moderate Islamic scholars such as Dr. Abdul Karim
Soroush, who portray Islamic countries, in particular Iran, as falling behind in the
contemporary, globalised world due to their continued reliance on literal
interpretations of religious texts: “To me, with its emphasis on religious jurisprudence
and ecclesiasticism, the Islamic Republic has produced a great gap between itself and
the modern world...”6

What is Shari’ah?

Before we even address specific questions of criminal justice, the first and
fundamental question that presents itself to an external observer and which will have
an impact on any discussion in any field of law is: What are we talking about when
we talk about Shari’ah?

Islam these days is mainly divided into the Sunni and Shi’a families of thought.
Among those, there are at least the four major Sunni schools of law and several Shi’a
schools, whereas there were hundreds of them in the early period of Islam. It is well-
known that while they agree on most basic principles, there is a substantial area of
disagreement among them based on their views on certain issues deduced through the
method of usul al-fiqh on the basis of the Qur’an and the Sunna. The Sunni and Shi’a

6
Interview with Dr. Soroush, 03/07/2001 [http://www.drsoroush.com/English/Interviews/E-INT-
20010307-Religion-Thought_and_Reformation.html]

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factions between themselves disagree on a number of partially fundamental teachings.
One important difference and a key issue for legal reform is the consistency of
analogical reasoning, qiyas, which creates religious prescriptions for novel, modern
problems by referring to wider principles set out in the Qur’an and the Hadith. In
contrast to the Sunni adoption of this method as a valid source of law, the Shi’a
scholars believe that the Sunni use of this principle is too liberal, particularly with its
emphasis on equitable considerations (istihsan) and only accept its use in very
restricted circumstances. It is believed, on the basis of Hadith,7 that resorting to this
method may result in flawed conclusions on issues of Fiqh.

It is another well-known fact that, on the one hand, as a Muslim, and maybe even as a
scholar, one is not bound to follow the same school on all questions, but that one may
choose between the findings of different schools on different issues, under the
principle of takhayur. On the other hand, some Muslim states decree that the
interpretation of the law in that state has to follow one particular school; one such
country is Iran, which constitutionally prescribes exclusive obedience to the Twelver
Ja’fari Shi’a School.8 Is there, as some scholars have asked, one Islam or are there
actually several “Islams”?9 Is there a spiritual, individual Islam as perhaps the Sufis
practice it, and is that position, if it exists, in exclusive contradiction to those streams
of thought that desire the establishment of an Islamic State?

To what extent is Shari’ah compatible with the idea of democracy? Is democracy the
same as Shura? What is the role of shura in usul al-fiqh, and what is the role of the
ulu al-amr in the process of finding the rules of Shari’ah? What, consequently, is the
view in the community of Islamic scholars on the approach of scholars such as
Mohammad Hashim Kamali, after all a more traditional Islamic author, who writes:

7
Usul Al-Kafi, H 103, Ch. 11, h. 9:“Those who act on the basis of analogy will face their destruction
and lead others to their destruction”.
8
Article 12 of the Iranian Constitution.
9
H. Patrick Glenn, Legal Traditions of the World, 2nd ed., 2004, OUP, at p. 194 with references at
footnote 124.

4
“Neither usul al-fiqh nor ijtihad would fulfil their desired objectives if they
did not entertain novel situations and the idea of developing the law in the
light of the changing needs of society.”10

“There are two areas where improvement could be made in conventional


usul al-fiqh. We note, on the one hand, that the methodology of usul has not
integrated the Qur’anic principle of consultation into its doctrines and
procedures. The second shortcoming of usul al-fiqh, not unrelated to the first,
is its detachment from the practicalities of government, and its near-total
reliance on private ijtihad by individual jurists.”11

In other words, how much flexibility is there in Shari’ah and to which extent does it
take the fact into account that good government often means compromise? This
article’s discussion of potential legal reforms to liberalise Islamic governments would
be without purpose unless methods existed to implement such changes without
defying Islam. However, as such an optimistic evaluation of the legal mechanisms
necessary for reform is controversial, we will briefly consider the support for these
methods’ existence in Islamic Law.

Can Ijtihad offer a less literal interpretation of Shari’ah without undermining its
fundamental principles?

As mentioned, the very use of Ijtihad is controversial in Islamic law12. The lines of
contention are drawn between proponents, in Shi’a scholar circles, of static Shari’ah
(fiqh-e sonnati) and dynamic jurisprudence (fiqh-e pouya). The former believe that
only those principles and rules stated in religious texts are enforceable against
Muslims in the modern world, regardless of subsequent developments in science,
society or technology—for instance, only those taxes allowed in the Qu’ran/Hadith
can be imposed on citizens. By contrast, the ‘dynamic’ scholars believe that more
leeway is available for interpreting religious texts in response to social conditions, for

10
Principles of Islamic Jurisprudence, 2003, p. 514.
11
Ibid, p. 508.
12
For an overview of the methodology, see Imran Ahsan Khan Nyazee, The Methodology of Ijtihad,
The Other Press, 2002.

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instance requiring less or more taxes than set out in these texts13. To clarify, the
‘dynamic’ scholars do believe in maintaining the framework of Shari’ah, but adopting
a more responsive interpretation, principally by means of Ijtihad: “...if the door to
Ijtihad is to remain shut once and forever, then Shari’ah will become a lifeless corpse.
The raw material is available: verses from Qu’ran, Hadiths, Ijma, logic, ijtiihad and
dynamics of Shari’ah.”14 As Ijtihad is obviously seen as the key means of bringing
Shari’ah in line with the demands of modern society and law, we will briefly consider
its origins and acceptability to Islamic governments and scholars. This technique is to
be used by a Mojtahed, when attempting to define the law on a novel issue, where the
classical religious texts are either silent on that point or do not elucidate the provisions
for a principle’s application sufficiently. This reasoning process must be conducted
with reliance on logic and within the fundamental principles of Shari’ah. In this way,
it is not truly a revolutionary approach but one that is firmly grounded in Islamic
teachings, particularly the responsibilities given to ulu al-amr in the absence of dicta
from the Prophet Mohammad or, for the Shi’a, the Imams. As early as in 1898, the
Egyptian scholar Mohammad ‘Abduh15 advocated reinterpreting Islamic principles to
bring the law in line with contemporary society; other scholars believed that Islam not
only prefers but actually demands the updating of the law through Ijtihad. In practical
terms, a common accusation against Shi’a reformists who utilise this method,
however, is that they are utilising Sunni methods of interpretation which are
discouraged in Shi’a Islam; whether such methods really are used is a matter of
academic contention.16

Having shown that Ijtihad is not a novel development in Islamic law, the issue of
whether its use is acceptable merits some consideration. The main conflict in this
regard, as set out by the Shi’a scholar Mohammad Mojtahed Shabestari, is between

13
Wael B. Hallaq, Islamic Legal Theories, Cambridge University Press, 1997, pp. 214 ff, calls the
different strands of reform efforts in the Sunni sphere “religious utilitarianism” and “religious
liberalism”, and points out that they all struggle to a larger or lesser degree with the right place of
ijtihad on the one hand and with the restriction of the genuinely divine element of Shari’a as admitting
of no relativisation through human thinking.
14
Ayatollah Musavi Ardebili, “Fegh va Moqtaziyat-e Zaman, Ejtehad dar Bastar-e Tarikh va Ejtehad-e
Mamnu” [Shari’a and the Demands of the Times, Ijtihad throughout History and Forbidden Ijtihad].
Keyhan. June 3rd 1987, pp. 17-18.
15
See Malcolm Kerr, Islamic Reform: The Political and Legal Theories of Muhammad ‘Abduh and
Rashid Rida, University of California Press, 1966.
16
Azadeh Niknam, “Islamisation of Law in Iran: a Time of Disenchantment”, Middle East Report,
Number 212, 1999 pp. 17-21.

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the imposition of a ‘monopolistic’ religion by the religious authorities and the
citizens’ right to assert an individual interpretation of Islamic law. He rejects the idea
of a single-source for religion, controlled by the clerical structure. Shabestari notes
that "there can be multiple readings [of the Qur’an]. In order to achieve the truth we
must critique any interpretation...and specify its degree of accuracy.”17 It is the
contention of the dynamic scholars that ijtihad was the creation of the Prophet himself
and thus has religious validity, whilst taqlid was created by the clergy to impose
greater control; the former is said to promote social unity by involving everyone in
Islam whilst the latter produces division and class-based society as only a few top
scholars determine the status quo in Shari’ah.

Scholars supportive of Ijtihad rely on the principle that God prescribes values, not
laws, as Allah’s function is not primarily legislative but inspirational: “Eternal divine
mercy only requires the determination of the direction of human resolutions and
measures, and not the determination of laws ... The primary reason for sending the
prophets was to proclaim truths and lay down eternal values, not to make laws.”18
Historical evidence for this proposition is found in the fact that most current
provisions of Shari’a are based not on direct statements of the Prophet but rather
societal attitudes and customary law in the Muslim societies during the first years
following the religion’s establishment. Despite the preparedness of many scholars to
move away from a literal interpretation of Shari’a, it is argued that it is the Islamic
governments which impose statutes not entirely in line with theoretical Islam, whilst
also resisting attempts at reform. In particular, scholars take issue with governments’
use of zarurat and maslahah19, which they claim is not done on true religious grounds
but rather as a means of facilitating governance or political policy.

It must be noted that a number of arguments are deployed by the anti-dynamic


scholars against ijtihad; reliance is placed on the alleged “confusion engendered by
the untrammelled speculation of the independent jurists of the seventh and eighth

17
Mohammad Mojtahed Shabestari, Naqdi Bar Qara'at Rasmi Az Din [A Critique of the Official
Reading of Religion] Tehran, Tarh-e No Press, 2001, p.7
18
Asghar Schirazi, ‘Criticism from Outside’ Chapter 16, in The Constitution of Iran, I.B.Tauris,
London, New York, 1997, pp. 277-287, see also the interview with Shabestari in the journal Howzeh,
No. 42, 1991
19
Both are forms of executive religious decrees, permitting a bypass of Shari’a, used when a clear need
for that action is apparent. The former means ‘necessity’ and the latter means ‘expediency’.

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centuries”20 when ijtihad was also used. The argument that the use of this method
would introduce excessive uncertainty into Islamic law can be parried by reliance on
the findings of Wilfred C. Smith21 in his study of the resuscitative effects of ijtihad on
post-colonial Islamic societies of Pakistan, Turkey etc.22 Smith’s study found that this
practice has positive effects on society, rather than the destructive ones contended by
Fareed. On a theological level, arguments have been made that ijtihad is condemned
by the classical religious texts with reference to the following Hadith in Bukhari
Volume 6, Book 61, Number 577:

Narrated 'Ali:
I heard the Prophet saying, "In the last days (of the world) there will appear
young people with foolish thoughts and ideas. They will give good talks, but
they will go out of Islam as an arrow goes out of its game, their faith will not
exceed their throats. So, wherever you find them, kill them, for there will be
a reward for their killers on the Day of Resurrection."

In a similar vein, an apparent condemnation of this interpretative method in Islam


is found narrated by 'Abdullah bin 'Amr, in Bukhari Volume 9, Book 92, Number
410
I heard the Prophet saying, "Allah will not deprive you of knowledge after
he has given it to you, but it will be taken away through the death of the
religious learned men with their knowledge. Then there will remain ignorant
people who, when consulted, will give verdicts according to their opinions
whereby they will mislead others and go astray."

With regard to the capabilities of ijtihad to subtly modernise the law without
contradicting the text of the Qu’ran, one of the key methods is to prescribe additional
conditions on the imposition of a harsh sentence or punishment, where the original
textual source is not explicit on that topic. For instance, the Iranian Penal Code has
already taken the step of ‘softening’ the applicability of the amputation punishment
20
Muneer Fareed, “Against Ijtiihad” [http://www.muneerfareed.com/storage/articles/
AGAINST_IJTIHAD1.pdf] Accessed 20th November 2008.
21
Canadian theologian, Wilfred Cantwell Smith, (1916-2000), was a scholar of Islam and comparative
religions who encouraged dialogue and the interchange of ideas between faiths.
22
Muneer Fareed, op.cit, fn 20.

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for the Hadd crime of theft by imposing a list of 16 requirements, which must all be
fulfilled for amputation to occur. This can be compared to the simple two-line
formulation in the Qu’ran itself, with no such requirements or limitations:

“[As for] the thief, the male and the female, amputate their hands in recompense
for what they earned [i.e. committed] as a deterrent [punishment] from Allah.
And Allah is Exalted in Might and Wise.” [Qu’ran 5:38]

In practice, this means that although the punishment for this crime is divinely
prescribed as set out above, for social and policy reasons, a number of states have
chosen to limit its practical implementation by defining ‘theft’ through extensive
conditions imposed by the fuqaha. A significant gap is therefore created between
theoretical Shari’ah and practical law; for instance, in Iran, a country which
subscribes to Shari’a completely, it is unheard of for amputation to occur for theft due
to the extensive requirements imposed by the Penal Code. As this interpretation of
Shari’a clearly took place through Ijtihad/ijma, it appears inconsistent for the Islamic
scholars/government to then deny its practical use in other areas. It is therefore
apparent that they are entirely willing to use such techniques by means of zarurat or
maslahah where necessary for political or social purposes, but reluctant to conduct
reforms in other areas criticised for incompatibility with human rights.

As is evident from the analysis of Ijtihad, it cannot be classified as a novel or


revolutionary interpretive technique—having both historical support and that of
contemporary scholars. In addition, it is clear that the Islamic authorities’ opposition
to its use cannot be a principled one, but rather based on a case-by-case decision, with
reliance on political motives. For instance, the well-known discriminatory element of
Shari’ah requiring the payment of a smaller diyah for non-Muslims’ death has been
recently amended by the Iranian Expediency Council. This occurred despite the veto
by the Guardian Council of this bill on the basis of its discrepancies with Shari’ah, but
the decision was overruled after support from the supreme jurisprudent (Vali Faqih),
the Aytollah Khameini. The Guardian Council in its approval stated: "If the Vali
Faqih...deems it right that a certain amount should be paid to the family of a non-

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Muslim victim in addition to his diyah to equal that of a Muslim,23 we will act
according to his directive”24 Consequently, the only barrier to the modernisation of
Shari’ah law and achievement of greater compatibility with international human rights
standards is the absence of a political will to initiate such changes. The debate over
ijtihad as well as other theological interpretations of Shari’ah, both inside particular
Islamic countries and between different schools of thought, raises understandable
confusion as to whose interpretation is representative of the Shari’ah, especially for
outsiders. This confusion can be accurately summed up by adapting the words of a
former US Foreign Secretary when talking about the European Union: “Where is that
one phone number that one has to call in order to speak to the Shari’ah?”

The sources of Shari’ah

Coming closer to our topic of criminal justice, we need to take a brief look at the
major recognised sources of Islamic Law and how they present themselves to a
Western observer:

 The Qur’an
 The Sunna
 Qiyas
 Ijma
 Ijtihad

Strictly speaking, the last three are methods for deducing from the first two what the
law is on a question that is not explicitly answered in the Qur’an or the Sunna. Yet to
that extent, they become a source in themselves and to say they do not is reminiscent
of the old debate in legal philosophy of whether judges find or make law when they
interpret existing provisions. For any Muslim, the Qur’an is the word of God, it is
divine revelation. There can by definition be no human argument with God’s orders to
humanity. “Human rights” as such do not mean anything if what humans mean by

23
The conflict with Shari’ah was resolved by labelling the additional payment something other than a
‘diyah’ payment; therefore, although the jurisprudential discrimination remains the same, the de facto
amount paid is now equivalent.
24
Payvand News, 15/04/03 [http://www.payvand.com/news/03/dec/1200.html]

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them is in conflict with God’s will. Yet we also know that God has given his
revelation to the benefit of Man, and this has been highlighted by the Prophet in the
Sunna, too:

Bukhari Volume 1, Book 3, Number 69:

Narrated Anas bin Malik:


The Prophet said, "Facilitate things to people (concerning religious matters),
and do not make it hard for them and give them good tidings and do not
make them run away (from Islam)."

Bukhari Volume 9, Book 92, Number 392:

Narrated Sa'd bin Abi Waqqas:


The Prophet said, "The most sinful person among the Muslims is the one
who asked about something which had not been prohibited, but was
prohibited because of his asking."

The conclusion is that while God cannot be bound by human ideas of human rights,
his revelation is actually in support and ultimately the source of the very principles
that underlie human rights approaches. Yet it is also obvious that while we all,
Muslims, Jews and Christians, will have no trouble in accepting the goodness of God
as the basis for why humans should treat each other well, we may already disagree
among us as to what the exact meaning of that will be in a certain case.

The Prophet had foreseen this for the Muslims themselves as is evidenced in Bukhari
Volume 9, Book 92, Number 467:

Narrated Jundab bin 'Abdullah:

Allah's Apostle said, "Recite (and study) the Qur'an as long as your hearts
are in agreement as to its meanings, but if you have differences as regards its
meaning, stop reading it then."

And in Volume 6, Book 61, Number 582:

11
Narrated Abdullah:

That he heard a man reciting a Quranic Verse which he had heard the
Prophet reciting in a different way. So he took that man to the Prophet (and
told him the story). The Prophet said, "Both of you are reciting in a correct
way, so carry on reciting." The Prophet further added, "The nations which
were before you were destroyed (by Allah) because they differed."

If we widen the field to include people of other faiths, be they of the ahl al-kitab or
maybe even mushrikun, as the Qur’an calls them, or people who have no faith at all,
the problems increase exponentially. Because of this, the history of Europe and its
former colonies with so many faiths on a relatively small territory, and the many
bloody wars and times of oppression allegedly caused by issues of faith, has led to a
secular system of accommodating everyone as much as possible, and this was
possible because essentially none of the other major faiths require their
implementation as a public state structure, but can be lived in an individual manner.
Islam is different in that respect, because its fundamental revelation contains
instructions to Muslims and to some extent also about the treatment of non-Muslims
for life in a society based on Muslim faith. It is here where the problems of
understanding and dialogue really start. In some places where the implementation of
Shari’ah is forced on the non-Muslim population by a Muslim government, for
example as happened in the Sudan in the 1980s, the consequences may even be civil
war.

While for an Islamic scholar it may be a matter of deduction within taqlid and
previous ijma to find out what the law says on a new situation, a Western lawyer
would instinctively begin to look at something like individual ijtihad with the aim at
arriving at a solution under a new ijma that was fit for the time in which the new
situation arose. Western lawyers do, of course, look to the existing law and the
historical development, but because all of their law is man-made, they are much freer
than Islamic scholars to depart from a previous interpretation if it no longer fits the
times as they perceive them to be. Adopting ijtihad generally, as has been done part-
and-parcel on individual issues such as non-Muslim diyya, may have the beneficial
effect of bringing together the legal processes of Western and Islamic lawyers, so as

12
to ensure greater compatibility and uniformity with international standards in the
penal sphere, whilst maintaining reliance on Islamic fundamentals.

Examples within criminal justice

Ijtihad as practised by Western lawyers is based on similar principles as those applied


in usul al-fiqh. Analogy arguments (qiyas) and deductions a maiore ad minus or vice
versa are, we believe, identical to both traditions, with minor differences in
application. We all subscribe to principles that guarantee that nobody is subjected to
criminal punishment unless it is absolutely necessary to do so. One of them is the
principle of legality, meaning that no one can be punished for an act unless it was an
offence with a prescribed punishment at the time of its commission. It is obvious that
there is a tension here with the category of Ta’zir offences which under traditional
Shari’ah allow the imposition of punishment based on the discretion of the Ruler or
judge.

The famous Muslim jurist Ahmad Ibn Naqib al-Misri in his Reliance of the
Traveller25 says:

Someone who commits an act of disobedience to Allah Most High that


entails neither a prescribed legal penalty nor expiation... is disciplined to the
extent the caliph deems appropriate.

While Western criminal codes and justice systems also contain wide sentencing
frames and scales for some offences, the idea of punishing for something that may a)
not be an offence otherwise and b) applying an otherwise unspecified sanction at the
judge’s or Ruler’s sole discretion would violate the Western understanding of the
legality principle. There is also disagreement among the Islamic schools as to how
wide the judge’s discretion is under Ta’zir and whether he is bound by certain

25
At p. 619 - References are to The Reliance of the Traveller (‘Umdat al-salik wa ´uddat al-nasik -
The Reliance of the Traveller and Tools of the Worshipper), Translated by Nuh Ha Mim Keller,
Amana Publications, revised ed., 1994

13
maximum punishments. It is highly interesting in this context that the United Arab
Emirates, for example, have restricted the use of Ta’zir offences to those previously
laid down in its Federal Law. A similar process of limiting judges’ discretion to
ensure greater legal certainty had occurred in Iran, by means of largely enumerating
the array of Ta’zir offences within the Penal Code and setting out minimums and
maximum ranges for punishment. As the result, the amount of legal unpredictability
and uncertainty present in day-to-day Ta’zir cases is significantly curtailed.
Consequently, it becomes evident that uncertainty and overly wide discretion in such
offences may be remedied by means of extensive codification and is therefore not an
inflexible element in Shar’iah.

Even more opposition is to be expected from Western observers for the hudud crimes
and their severe punishments. While a number of Western countries still have the
death penalty, it is also no secret that the United Nations are in principle opposed to
its use, which was one of the main reasons, for example, why the UN did not
officially support the training of the judges and prosecutors who work on the Iraqi
High Tribunal. The countries that have the death penalty are concerned in applying it
in a way that is not cruel and unusual punishment, as the Constitution of the United
States, for example, says. For them, public beheading by the sword is cruel and
unusual punishment, not least because of the practical effects: often the executioner
will have to strike more than once to effect decapitation. To avoid this, instruments
such as the guillotine were invented centuries ago which ensured that while the death
sentence is carried out but the gruesome spectacle of several slashes of the sword or
axe was avoided. Even Western lawyers who might in principle support capital
punishment will wonder why this unnecessarily painful and degrading method is still
being used. Even where these more cruel methods are no longer used, some Islamic
countries insist on public hangings or floggings to serve as a deterrent against further
crimes of that type; this is arguably unnecessary and a violation of personal dignity.
Talionic punishments or qisas that mirror the offence in type, degree and method,
such as cutting off a hand in return for an equivalent injury, or the Hadd punishment
for theft, namely amputation of hand, are unacceptable for Western eyes and
considered to be barbaric. Similar considerations apply to other corporeal
punishments including flogging, whether in private or in public.

14
Apart from these constitutional matters of legality and sentencing, Western observers
also strongly object to the offences themselves, well aware that they are hudud, i.e.
they are found in the Qur’an itself, although not necessarily their punishments. The
one that causes the greatest objection is the hadd of ridda, or apostasy from Islam.
Hadiths such as the following create strong aversion in the West:

Bukhari Volume 9, Book 89, Number 271:

Narrated Abu Musa:

A man embraced Islam and then reverted back to Judaism. Mu'adh bin Jabal
came and saw the man with Abu Musa. Mu'adh asked, "What is wrong with
this (man)?" Abu Musa replied, "He embraced Islam and then reverted back
to Judaism." Mu'adh said, "I will not sit down unless you kill him (as it is)
the verdict of Allah and His Apostle.

Al-Misri in the Reliance of the Traveller lists numerous sub-categories of behaviour


that can be viewed as “leaving Islam” or ridda, including even the mere intention or
hesitation to commit unbelief in the future.26 Quite independently from the religious
freedom practised in the Western hemisphere, Western observers have enormous
difficulties understanding how Islamic scholars are capable of reconciling the death
penalty for a hadd such as ridda with the Qur’an’s own statement that there shall be
no compulsion in religion – can it be right to say that you are free to choose or not to
choose a religion for the first time, but once you have chosen Islam you are not
allowed to convert? This is regardless of the fact that according to some scholars and
clerical fitwas, 27 the offender can expiate the ridda by recanting his conversion and
re-embracing Islam. It was a source of great irritation in this context that in the recent
Afghan case of Abdul Rahman, a Muslim who had converted to Christianity, there
was discussion that the penalty was to be avoided because he was deemed to have
been insane when he made the conversion, and that later on, after an intense
international outcry, the case was dropped because of “lack of information” and “a lot

26
At pp. 596 – 598.
27
Ayatollah Khomeini within the Tahrir-ol-Vasileh pronounced a fitwa: “An apostate will be asked to
repent and in case of refusing to repent will be executed. And it is preferable to give a three-day
reprieve and to execute him on the fourth day if he refuses.” This is another example of the supreme
jurisprudent’s authority being used to ‘soften’ the impact of Shari’ah by adducing ‘conditions’.

15
of legal gaps” in the case28. Abdul Rahman had admitted the conversion and refused
to repent and recant29. To be sure, Muslims would be right to point out that
Christianity, for example, also knows of an offence similar to ridda, namely that of
the sin against the Holy Spirit, which leads to eternal damnation; yet on the one hand
Christian doctrine considers that sin in particular as a matter between God and the
individual with no discernible command in the scriptures for state or community
sanctions, and on the other hand, theologians are more or less in the dark as to what it
actually means.

The last example to be listed here is that of women and non-Muslims in the
calculation of diyah, which we already touched upon above. Al-Misri, for example,
states in the Reliance of the Traveller 30 that the diyah for a woman is half of that of a
man, and that for a Jew or Christian (as members of the ahl al-kitab) it is a third, and
for Zoroastrians one fifth of that amount. The treatment of non-Muslims with respect
to diyah as advocated by Al-Misri and the madhhahib he relies upon would, in our
eyes and that of many a Western observer, be a clear discrimination based on
religious affiliation that degrades them to second- or third-class human beings. This is
also clearly brought out by another passage from al-Misri in the Reliance of the
Traveller31 which puts non-Muslims on the same level with animals:

“Someone whom a Muslim is trying to kill is entitled to kill the Muslim,


though it is not obligatory to. Someone whom a non-Muslim or animal is
trying to kill is obliged to defend himself.”

How does that go together with the saying of the Prophet:

28
See e.g. Daniel Cooney, "Afghan court drops case against Christian," Associated Press, 26 March
2006.
29
See also the report in the Washington Times, 27 March 2006:

A Supreme Court spokesman, Abdul Wakil Omeri, said the case had been dismissed because
of "problems with the prosecutors' evidence." He said several of Mr. Rahman's relatives
testified he is mentally unstable and prosecutors have to "decide if he is mentally fit to stand
trial." Another Afghan official involved with the case said the court ruled there was
insufficient evidence and returned the case to prosecutors for further investigation.
30
Reliance of the Traveller, at p. 590.
31
Reliance of the Traveller, at p. 594.

16
‘People are equal like the teeth of a comb. No Arab is nobler than a non-Arab,
save by virtue of righteousness’?

Modern Islamic scholars in multicultural societies such as Malaysia, as opposed to the


more homogenous communities in the Arab world, have recognised the problem. As
Syed Ahmad S.A. Alsagoff has pointed out, there are three major schools of thought
in the several madhhahib32 about the question whether a non-Muslim counts the same
as a Muslim33 for diyah and quisas. He argues:

`Considering the contemporary cosmopolitan society in Malaysia and the


international community throughout the world, such distinctions based on faith
in matters of worldly affairs are no longer the norm. The equality in treatment
as advocated by the scholars of the Hanafi madhhab appears more rational in
today’s society. This is the trend amongst contemporary scholars who
advocate consistency in applying the rule of law to all parties. It is also in line
with modern legislations that make no difference in punishment among the
people of different religions.’ 34

It is, however, important to point out that Alsagoff is able to arrive at this conclusion
only because the sources of Shari’ah cited and preferred by the different madhhahib
do not paint a uniform picture. Usul al-fiqh therefore undoubtedly can involve an
element of human choice between a variety of divine sources. How else can one
explain the differences between the madhhahib?

Yet, things become much more difficult when there is almost no difference of opinion
between the madhhahib. Alsagoff reports that as far as the diyah for a woman is
concerned, there is virtual consensus among the madhhahib that it is half of that of a
man. 35 One may be able to understand the reasoning behind the different treatment of

32
In the same manner Ibn Rushd in The Distinguished Jurist’s Primer (Bidayat al-Mujtahid wa Nihayat
al-Muqtasid), vol. II, translation by Imran A K Nyazee, Great Books of Islamic Civilization, The
Center for Muslim Contribution to Civilization, 1996, at p. 500.
33
Al-Diyah as Compensation for Homicide and Wounding in Malaysia, International Islamic
University Malaysia, 2006, at pp. 289 – 295.
34
Ibid., at p. 295.
35
Ibid., at p. 297 – 302.

17
women at the time, because they were not supposed36 to provide financial support for
the household and the loss of their life may not have had the same economic impact
on a family as that of a man. However, we would argue that to retain this view today
is incompatible, from the view of outside observers, with the equality of men and
women, and unconvincing not least because many Muslim women are highly
educated and do work and although they may not be expected to contribute to the
maintenance of the family, in fact many of them will do so, especially with younger
couples of less affluent background. Indeed, that is also the approach taken by
Alsagoff, who in his analysis refers to the laws of Pakistan, Sudan, Malaysia and
Iran.37 He states:

‘There is universal agreement in the Shari’ah that the diyah for a woman is
half that of a man. The traditional role of men as the economic foundation in
Islamic societies justifies this distinction. The justification was not for
absolute equality but rather for criminal justice policy at a time when the
Muslim male enjoyed a more prominent social and economic role.

Times have changed. In the circumstances of the contemporary society in


Malaysia where women enjoy equal rights with men and play an important
role in the administrative, economic, social and industrial life of the country, it
appears unacceptable that a distinction be made in the payment of diyah to a
woman as compared to a man for homicide and wounding. Modern
legislations in Pakistan, Sudan and Kelantan have recognised this change and
Malaysia could follow suit.’38

In stark contrast to the issue of diyah for non-Muslims, this would appear to be a clear
break from taqlid and from a consensus among the madhhahib based on a change in
societal attitudes, and it also shows the ulu al-amr, who make the modern laws, in
conflict with the non-dynamic ulama. This approach is a welcome step for Western
scholars, but will this pattern of reforms be able to attract the more literalist Islamic
countries?

36
And indeed are not today.
37
Ibid., at pp. 300 – 301.
38
Ibid., at p. 301.

18
Where do we go from here?

The examples used, the comments made and the questions asked above may have
irritated some of our Muslim readers, or have merely confirmed the persuasion that
Westerners simply do not understand how Islamic law works. It is a truism that they
do find it difficult to understand a lot of it. The true understanding is hindered by the
fact that only very few Arab Muslim scholars write in languages that non-Arabic
speakers will be able to read, and many of those Muslim writers who do so, live in the
West or Asia in the first place, which inevitably influences the way they perceive
things. While we can have access to English translations of historical texts like those
of Ibn Rushd’s Bidayat al-Mujtahid wa Nihayat al-Muqtasid and Al-Misri’s Reliance
of the Traveller, what is lacking is access to current, contemporary thinking in Islamic
law on a diversity of topics. Learning Arabic to a degree of proficiency that a
Westerner may begin to understand the source material and be instructed in the usul
al-fiqh will take some time, longer, we fear, than for Arab scholars to learn English to
a similar level. For the short to mid-term the furtherance of the dialogue therefore
rests more on the shoulders of the Arabic-speaking scholars, to help Western scholars
and policy-makers understand, and to avoid misunderstanding that leads to confusion
and conflict. International conferences are important as first steps, but they are not
enough. What is needed is more substantial cooperation.

Durham Law School in the UK and the Sharjah University Law College, for example,
have begun a project of jointly editing a major treatise in English on principles of
criminal law under Shari’ah. The knowledge of these principles outside the Arab or
Muslim world is very limited. Not many up-to-date descriptions or accounts of this
area of law exist in languages other than Arabic, especially publications of an
academic and analytical nature that go beyond the recounting of general historical
lines of development, studies of the human rights compatibility or chapters in
comparative, sociological or political science publications. What is missing for the
purposes of the so-called “Western” legal community is an in-depth analytical and
legally sound treatise that will allow non-Arabic speakers and non-Islamic legal
scholars to compare their own categories of legal nomenclature with those of the
criminal law of Islam. Islamic criminal law does not operate on the same basic

19
principles as, for example, the tripartite structure of offences in secular civil law
systems, or the offence-defence dichotomy in Anglo-American law. In addition, some
systems have over time achieved a mixed status, a combination of Shari‘ah as divine
law, and state-sponsored secular law. Some systems, such as Turkey, have made a
total shift to a secular system, while others are at different stages in the process of
going back to a clear supremacy of Shari‘ah even in previously state-sanctioned
legislation, such as for example Pakistan and Iran. In states like Afghanistan and Iraq,
these problems are exacerbated by additional difficulties of countries in transition
from one system to another under the influence of non-Muslim external powers. The
treatise will try to remedy this glaring deficiency by analysing the Islamic law
according to a Western-style research grid and will aim to present the law and practice
of as many different Islamic countries as possible under each heading. Authenticity
will be guaranteed by the fact that all contributors are seasoned and highly regarded
Islamic legal scholars who will write in their native Arabic, which will then be
translated into English by a team of specialist translators; the participation of those
responsible for operating within the relevant legal environments may also add a note
of authenticity to this collaboration. It is unavoidable that the Islamic concepts will in
some cases be put in an uncomfortable straitjacket, but the effort will be worth the
trouble, because for the first time it will produce a treatise that will present the Islamic
law in as much a Western style as possible, giving a previously unavailable
conceptual access to the wider global legal audience. It will in this way help Islamic
law make its voice heard in international and comparative legal research, by
overcoming in one fell swoop the linguistic and conceptual barriers that prevent
Islamic principles from becoming the object of serious legal research.

However, projects such as this book will not be enough. We need to establish a
permanent dialogue that is fully up-to-date in every field of law. We have a vision of
a Centre for Global Ijma39, in which Islamic and non-Islamic scholars would gather
on a regular basis to address the burning questions of the day and provide guidance
based on the effort to strive for global Ijma, so that those who make decisions on the
political level will have no more excuse to say that nobody was there that they could
have asked. Societal problems are increasingly becoming global in nature, and we
39
By this we do, of course, not mean that Western or non-Muslim scholars would be meant to be
involved in the internal process of the Islamic usul al-fiqh by Islamic scholars.

20
think we need a council that will bring together people of good intentions from all
religions and ideologies, so that a common ground may be found without losing one’s
own identity. Across all the religious divides, we need to do what we can to fulfil
God’s command to us, that is, to live peacefully together and to do what we can to
ensure peace in our and our children’s times. Will such a project have the same appeal
to Islamic scholars?

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