ISLAMIC Criminal Law
Sadiq Reza, New York Law School
David F. Forte, Cleveland State University
Taken in its broadest sense, the Islamic law on crimes includes the classifications within the juristic Shari‘a, the ordinances established by the “state,” the practices of the police (shurta), tribal law, the “morals police” (hisba), and the customs of self-enforcement among the people. Within the Shari‘a, the law on crimes is one of the least developed portions, in large part because various caliphs appropriated criminal jurisdiction to the state and relieved the qadi of exclusive control.
Nonetheless, the law of crimes within the Shari‘a remains critical for a number of reasons. It had great influence on how the numerous Islamic regimes formulated and enforced its own criminal law. The ulama, the elite that guarded and was the advocate of Shari‘a, had particular sway within certain regimes, such as the Ottomans. The Shari‘a was the “written” law that Western imperial powers naturally turned to in varying degrees when they established indirect rule over North Africa, the Near East and the Asian subcontinent. The Shari‘a, and in particular its criminal elements, have become emblematic of modern Muslim regimes seeking to assert an Islamic identity over the populace. Modern Islamist movements, including revolutionary parties, have made the Shari‘a the substance of their politicized version of Islam. As such, some elements of the Shari‘a are apparently in conflict with the modern system of international human rights law.
The Shari‘a categorizes crimes primarily according to a schedule of penalties: (1) hadd crimes for which there is a fixed penalty; (2) ta‘zir crimes for which the penalty is variable, and (3) jinayat, corporal interpersonal crimes for which the penalty is retaliation or a fixed compensation.
These crimes are called “Qur'anic offenses,” although the penalties for some have come to be different from those declared in the Qur'an. Repentence or reparation by the convicted person cannot derogate from the severity of the sentence.
The offense of unlawful intercourse consists in having sexual relations with any person not one's lawful spouse or concubine. Strictly speaking, Islamic law has no general conception of adultery as a violation of the marital contract between two persons. The punishment for zina is either death by stoning or a specified number of lashes. For conviction, Islamic law requires either the testimony of four eyewitnesses, instead of the normal two, or the confession of the accused. Some jurists require that the confession must be repeated four times. The pregnancy of an unmarried woman can be sufficient proof against her.
Anyone who is competent and adult, whether male or female, Muslim or not, slave or free, is liable if he falsely charges another person with unlawful intercourse if the slandered party is free, adult, competent, Muslim, and not previously convicted of unlawful intercourse. False accusation (qadhf) occurs also when one is charged with being illegitimate. Only those who are the objects of the slander or their heirs may bring a charge of qadhf. The hadd punishment for qadhf is eighty lashes for free persons or forty lashes for a slave.
The punishment for drinking intoxicants or for drunkenness is eighty lashes for a freeman and forty for a slave. The punishment is not prescribed in the Qur'an but was established later and analogized from the punishment for the qadhf. The Shafi‘i school limits the punishment to forty and twenty lashes, respectively. In many cases, the schools extend the prohibition to other intoxicating substances, such as drugs. Besides proof by a retractable confession, evidence can be given by two male adult Muslims who saw the accused drinking an intoxicant, smelled the odor of alcohol on his breath, or saw the accused in a state of drunkenness.
The hadd punishment for theft is the amputation of a hand. To be guilty of theft, one must be a competent adult and have the mental intention to steal. The act must consist of the removal by stealth from a secure place of a certain kind of item of a minimum value that is owned by another person.
Two kinds of offenses are covered by the prohibition against highway robbery: robbery of travelers who are far from aid and armed entrance into a private home with the intent to rob it. Both Muslims and non-Muslims are protected from robbers by this law. The punishment is amputation of the right hand and left foot for the first offense and amputation of the left hand and right foot for the second offense. If murder took place during an attempted robbery, the punishment is death by the sword. If there was murder accompanied by an actual theft, the penalty is crucifixion.
Rebellion against a lawful leader consists in seeking his death or overthrowing the established order. The punishment is beheading.
Apostasy or a falling away from Islam is punishable by death. The evidence for apostasy need only be circumstantial. Impious behavior, such as failing to pray or offending Islamic morals, can be taken as evidence of apostasy. In the Hanafi school, the male apostate is given three days to recant before being executed. The female apostate is imprisoned and beaten until she recants. In all schools, the killing of an apostate does not engender liability for retaliation or compensation. He is literally an outlaw.
All non-hadd crimes engender discretionary punishment by the judge depending on the circumstances of the crime, the offender, and his level of remorse or purpose of amendment.
The punishments cover a range of severity:
private admonition to the guilty party, sometimes by letter;
public reprimand in court;
public proclamation of the offender's guilt;
Some crimes, such as blasphemy, are not included in the hadd crimes, but can incur the death penalty and can, especially in modern times, be used against non-Muslims. Under the Shari‘a, ta‘zir crimes are not defined, and hence there is a problem of fair notice and due process. In fact, most crimes will have been defined by the Islamic state through its own legislation or decrees.
The attitude of Islamic law toward homicide and bodily harm straddles the areas of tort and of crime.
Three kinds of punishments can be permitted in cases of proven homicide or bodily harm: retaliation (qisas), blood money (diya), and penitence (kaffara). Where retaliation (qisas) is applied, the guilty party is liable to the same degree of harm as he inflicted on his victim. In the case of homicide, the nearest kinsman of the victim performs the retaliation. Where there is bodily harm, the victim himself is entitled to perform the act of vengeance. In all schools except the Hanafi, the general rule is that retaliation is allowed only in cases in which the victim was equal or superior to the attacker in terms of freedom and religion.
The second form of punishment is blood money. The diya is sometimes an alternative to retaliation, at the option of the nearest relative of the slain person or of the wounded victim. At other times, depending on the circumstances of the crime, diya and forgiveness are the only options available.
The third form of punishment is penitence (kaffara), but penitence is never the sole required punishment. When imposed, it is attached in certain kinds of cases to the payment of diya. An act of penitence consists in freeing a Muslim slave or, if one has no slaves, in fasting during daylight hours for two consecutive months.
David F. Forte