Comparative Criminal Law and Enforcement: Islam
COMPARATIVE CRIMINAL LAW AND ENFORCEMENT: ISLAM
Islamic law is traditionally equated with the shari'a, the compendium of rules and applications devised over the centuries by the jurists of the Islamic empire. The main form and content of the shari'a arose during the first three and a half centuries after the death of Muhammad in A.D. 632, through the development of "schools of law," which were groupings of legal specialists. There are today four major surviving schools of law in orthodox, or Sunni, Islam. They are the Maliki, the Hanafi, the Shafi, and Hanbali. But Islamic law is far broader than the shari'a, particularly in regard to the law on crimes.
The portion of the shari'a dealing with criminal matters is one of its least developed parts. Early on, the Islamic state removed criminal (and other) jurisdiction from the qadi, the religious judge, and vested it in state-appointed judges serving under the direction of the political authorities. A number of political devices of the empire outflanked the requirements of the shari'a and continued in some form or other in later centuries. To begin with, the police or shurta began to investigate, apprehend, try, and punish offenders independently of the shari'a courts.
One of the most important jurisdictions belonged to the muhtasib, or inspector of the market, who not only established regulations for the conduct of merchants and traders, but enforced them as well. With so much of the commercial activity of the Islamic empire centered on trading, the jurisdictional power of the muhtasib was enormous. In fact, it fell to him to enforce Islamic morals as well.
In addition to his powers of appointing qadis and constricting their jurisdiction at will, the Islamic sovereign has always possessed an independent right of legislation. Called the siyasa shar'iyya, it signifies the ability of the caliph to pass "administrative regulations" to help effectuate the shari'a. Strictly speaking, "sovereign" and "legislation" are misnomers when applied to the Islamic state. Only God is sovereign, and only He "legislates," that is, only He can literally "make law." Nonetheless, through the mechanism of siyasa, the Islamic state (including conservative modern states like Saudi Arabia) has been able to contend with problems in ways that are outside of, and in some ways even contradictory to, the approach of the shari'a.
Without the constant contact with real cases, the jurists' thinking on criminal matters became dormant. In contrast to the portions of the shari'a dealing with civil law, such as contracts and property, the criminal law sections seem intellectually undeveloped. After about A.D. 1000, the development of the shari'a as a whole slowed almost to a halt. The jurists themselves disparaged jurisprudential thinking and innovation. Both practically and intellectually, then, the criminal parts of shari'a had little chance of further growth.
Today, when some radical Islamic regimes seek to "restore" the ancient shari'a, they often turn to the formulas of the criminal law as a first step. In doing so, they impose a criminal structure that was often ignored by the Islamic empire itself. Its relation to applied criminal law was frequently tangential.
Much research still needs to be done on the actual application of criminal laws in different eras and different parts of the Islamic empire. However, because the jurists of Islam redacted the rules of the shari'a over the centuries, we have a source of the Islamic law of crimes that represents the juridical tradition, if not the entire political and legal practice. What follows then, is a summary of the Islamic law of crimes as found in the books of the shari'a.
The shari'a categorizes its offenses by the types of punishments they engender:
- offenses to which are affixed a specified punishment (hadd );
- those for which the punishment is at the judge's discretion (ta'zir );
- those offenses in which a form of retaliatory action or blood money is inflicted against the perpetrator or his kinsmen by the victim's kinsmen (jinayat );
- offenses against the public policy of the state, involving administrative penalties (siyasa ); and
- offenses that are corrected by acts of personal penance (kaffara ).
The shari'a, however, deals primarily with hadd, ta'zir, and jinayat offenses. Those offenses are to be adjudicated before the qadi unless the state has removed jurisdiction to one of its own courts. At the very least, secular tribunals handle administrative offenses under the state's siyasa jurisdiction. Acts of personal penance, or kaffara, are usually undertaken voluntarily by the individual outside of any tribunal or court.
Islamic law denotes five "Qur'anic offenses," which are regarded as offenses directly against Allah and which compel a specific punishment. Theoretically, these offenses find their source in the Qur'an, although many aspects are post-Qur'anic developments.
Unlawful intercourse ( zina ). Unlawful intercourse consists in having sexual relations with any person not one's lawful spouse or concubine. Thus, if a man marries and has intercourse with a woman not legally capable of becoming his wife, such as a near relative, a fifth wife while four are still living, or a girl below the age of puberty, he violates the prohibition against unlawful intercourse. Necrophilia is included in the prohibition. There is, however, no prohibition against concubinage. Zina should not be confused with the Western notion of adultery as a violation of the marital contract between two persons. In Islam, adultery is not a legal basis for divorce.
The punishment for zina is either death by stoning or lashes. Some Hanbali jurists require flogging and stoning for the offender. The penalty of death by stoning is not in the Qur'an but was inflicted as punishment by the first caliphs who succeeded Muhammad. According to some scholars, stoning was adopted from Mosaic law and was incorporated into Islamic law by a later tradition in which Muhammad was said to have approved the practice. Stoning can only be inflicted on one who has been convicted of unlawful intercourse, is not a minor, is mentally competent, is free, and has already had lawful sexual intercourse in marriage. For all others, the punishment is one hundred lashes, or fifty lashes if the convicted person is a slave. In some cases, banishment is added as a penalty.
As with most hadd offenses, an action for zina must normally be brought against an accused within one month of the offense. The proof must affirmatively show not only that unlawful intercourse took place but also that the act was voluntary. 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.
The witnesses must be competent adult male Muslims. Non-Muslims may testify in cases in which a non-Muslim is charged with zina. The witnesses must testify that they all saw the same act of unlawful intercourse at the same time. The magistrate who receives their testimony is charged with examining the witnesses assiduously, for they must not only testify to the fact of intercourse, but also to its unlawfulness—that is, they must testify that the parties were not married to each other and that the act was voluntary.
Many jurists hold that it is meritorious for witnesses to refrain from coming forward so that the accused can settle the offenses privately with God. An additional incentive for silence lies in the fact that if the accusation is dismissed, those who testified are subject to the hadd punishment for false accusation of adultery (kadhf ). Even if the case is dismissed for a technical reason, such as the minority of one of the witnesses, all the other witnesses can be charged with false accusation of adultery. If one is convicted by testimony, the four witnesses must be present at the execution and must throw the first stones. Otherwise, the death penalty is not carried out.
Alternatively, one can be convicted of zina by a personal confession. Again, however, the offender is encouraged to be silent and to turn to God privately for forgiveness. If he does confess, a retraction at any time will void the confession and the sentence. The magistrate should give the self-accused every opportunity for retraction. Some opinions hold that if the convicted person attempts to escape from his place of execution, it will be presumed that it is a retraction of his confession and the sentence may no longer be carried out. If one is convicted of multiple counts of adultery, the hadd —whether by stoning or lashes—is satisfied by a single punishment. Any person who is not liable for the hadd punishment for zina because of any of the limitations listed above may still be prosecuted under the criminal law of discretionary punishment, or ta'zir.
False accusation of unlawful intercourse (kadhf )
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 (kadhf ) occurs also when one is charged with being illegitimate. Only those who are the objects of the slander (the alleged fornicator or the alleged bastard) or their heirs may bring a charge of kadhf. The prohibition arose in the Qur'an after a man insinuated that an escort of the Prophet's wife A'isha may have engaged in intimate conduct with her.
The hadd punishment for kadhf is eighty lashes for free persons or forty lashes for a slave. Proof is obtained by normal Islamic penal procedure, either by confession (in this case retraction will not be suggested by the judge) or by the testimony of two adult male free Muslims. The person accused of slander may defend himself by proving that unlawful intercourse actually took place, but he would have to produce the four male witnesses as required by the law on zina. Those slanders not falling under the strict rules regarding kadhf are punished under ta'zir.
Islamic law treats as a special case the accusation by a husband of his wife's adultery, either directly or by denying paternity of her child. The procedure is known as li'an. A husband may charge his wife with infidelity without risk to himself if he swears four times by Allah that he is speaking the truth and, at a fifth oath, calls down a curse upon himself if he is lying. The wife may answer the charge similarly by swearing four times by Allah that she has not sinned and, at a fifth oath, by calling down a curse upon herself if she is not speaking the truth.
If the husband makes an accusation of adultery without using the li'an formula, he is liable to the hadd punishment for kadhf. The Hanafi school would imprison the husband until he pronounces the li'an. If he still refuses, he is declared a liar and given the lashes. If, after an accusation by li'an, the wife does not deny the charge by the li'an formula, this is taken as a tacit confession, and she is subject to the hadd punishment for zina. The li'an is the only legal means by which a man may contest the paternity of his child.
Drinking of wine (shurb )
The animus against drinking wine grew by historic stages in the Qur'an. It was not, in the beginning, completely forbidden. Ultimately, drinking was prohibited altogether as Muhammad became scandalized at the drunkenness present in much of Arabic society at the time.
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 kadhf. 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 Hanafi school punishes drinking wine but not the imbibing of other alcoholic beverages unless drunkenness ensues.
Theft (sariqa )
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 of a certain kind of item of a minimum value that is owned by another person.
Stealth. The item taken must be in a place of safekeeping (hirz ), such as a private residence, or a storehouse where goods are kept under guard. Invited guests cannot be charged with theft, nor can pickpockets, nor even one who enters a hirz stealthily but has not yet departed when apprehended or has left the place openly. An accessory who receives the stolen good is not normally subject to the hadd.
Minimum value ( nihab ). Unless the value of stolen goods meets or exceeds a certain value, the hadd penalty may not be applied. The jurists of the different schools set varying minimum values, but for all, the minimum was not negligible, and roughly corresponds with the common law offense of grand as opposed to petty theft.
Type of good ( mal ). The crime of theft applies only to chattels that are capable of being owned by a Muslim. Thus, the stealing of wine or pork does not incur the hadd. Nor do items of idle amusement, such as games or pets. Holy items are also exempt, as is real and intellectual property.
Property of another. Taking a piece of property in which one, knowingly or not, has a part interest, does not constitute theft. Thus, embezzlement or stealing from the public treasury is not theft, because every Muslim has a part interest in the fisc. The taking of the property of a near relative will not make one subject to the penalty nor things in a wild state, such as game.
If one is convicted of theft, the right hand is amputated and the wound cauterized. Demonstrating that much of the law on crimes in the shari'a came from jurists' speculations rather than actual practice, the rule requires that if there are subsequent thefts, amputation of the left foot, left hand, and right foot will proceed respectively.
Highway robbery (qat'al-tariq )
The crime of highway robbery is an extremely serious offense, since it threatens the calm and stability of society itself. Two kinds of offenses are covered by the prohibition: 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.
If one is convicted of qat'al-tariq, 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. The body is to be hung for three days. Unlike the normal case of murder, where the relatives of the victim have a choice of retaliation, blood money, or pardon of the offender, the death penalty here is mandatory. All accomplices must be treated in the same way. If one (a minor, for example) cannot be given the hadd punishment, neither can any of the others.
Discretionary punishment (ta'zir )
Ta'zir developed in the early Islamic empire of the Umayyads (A.D. 661–750) and grew out of the discretionary punishments the qadi imposed when he was part of the imperial bureaucratic apparatus.
The objectives of the punishment were prevention of the recurrence of the crime, deterrence to others, and reform of the guilty party. The judge attempted to accomplish those objectives by varying the punishment according to the circumstances of the case, of the convicted party, and of society. Consequently, acts of reparation and repentance by the offender are relevant to a judge's sentence. So also are interventions made before the court on behalf of the offender; though such interventions are forbidden in cases dealing with hadd offenses.
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;
- suspended sentence;
- imprisonment; and
The general rule in all of the schools, except the Maliki, is that no punishment in ta'zir can exceed a hadd penalty. Although the death penalty is to be used only in extreme cases, all the schools allow it.
The standard of proof is less strict than in cases of hadd : either a confession or the testimony of two witnesses is sufficient for conviction. In ta'zir, a confession is not retractable.
Offenses under ta'zir include perjury, usury, and slander. Many thefts, acts of unlawful intercourse, and false accusations of adultery that escape the rigorous rules under the hadd punishments can be dealt with under ta'zir. Selling wine may be punishable under this rule of discretionary jurisdiction.
For example, only under ta'zir can a non-Muslim be protected from the kadhf. Analogizing from adultery, jurists declare sodomy punishable by death, sometimes by stoning, but often with a public ignominy attached to the execution, such as being thrown from a high building or buried alive. As with adultery, four witnesses are required. Similarly, one who accuses another of homosexual acts or child molestation can be liable under kadhf. Bestiality, however, is not analogized with adultery because another person is not involved. The perpetrator, though not executed, is severely punished, and, in the Hanbali school, the animal is killed.
Because the central aspect of ta'zir is discretionary punishment by the judge, and because Islamic law categorizes offenses according to their penalties, there has never developed a rigorous code of penal offenses under ta'zir within the classical schools of law.
Homicide and bodily harm ( jinayat )
Pre-Islamic Arabia treated attacks against one's tribesman as an attack on the tribe itself. Such an attack could result in a blood feud between the two tribes where any member of the other tribe was an object of vengeance. Through arbitration, justice could sometimes be secured by retaliation against the specific offender or by the payment of blood money to the victim's tribesmen.
Islamic law accepted the basic structure of the traditional Arabic law of homicide and bodily harm, but modified it in three ways:
- the blood feud was abolished;
- vengeance could be exacted only after a trial before a judicial authority, which determined the guilt of the accused; and
- punishment was scaled according to the offender's degree of culpability and the harm inflicted on the victim.
There is a wide variety in the interpretation of the rules by the various schools of law.
Three kinds of punishments can be permitted in cases of proven homicide or bodily harm:
- retaliation (qisas ),
- blood money (diya ),
- 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 most schools, 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. So, for example, with a few exceptions among the opinions of the jurists, a father may not be killed in retaliation for murdering his child, but the child can be subject to the penalty for patricide. The same formula applies to homicidal actions between masters and slaves. The Hanafi school is alone in holding that a freeman may be subject to retaliation if he kills the slave of another.
Retaliation can come about if, after proper conviction, the nearest relative of the victim (or the master, in the case of a slave) demands it. The schools differ on the question of which relatives have standing to demand retaliation and which have the right to inflict a capital retaliation. If the victim has no living relatives, the right of retaliation falls to the state, which can execute the offender.
In the case of wounding, only the victim can demand retaliation. Before he dies from his injuries, a wounded man can, on his own, remit retaliation for the offender. If the guilty party dies before retaliation can be inflicted, the cause lapses entirely in the Maliki and Hanafi schools, but the shafi'i and the Hanbali schools allow blood money (diya ) to be paid. If many persons participated in the murder, all can suffer retaliation if the action of any one of them would have resulted in death.
A murderer is to be killed in the same way as he killed, according to the Maliki and shafi'i schools. The Hanafi require execution by the sword and punish any other form of execution by ta'zir. The Hanbali jurists are divided on the issue. If a person is entitled to inflict retaliation but inflicts it before proper judicial procedure has been completed, he is subject to ta'zir. If a man avenges a killing without any possible legal entitlement, he himself is subject to the law of retaliation.
In cases of bodily harm, an exact equivalence of harm is inflicted on the perpetrator: a hand for a hand, a tooth for a tooth. Loss of sight can be avenged, but not the loss of an eyeball, for the injury cannot be exactly duplicated. Neither can retaliation be inflicted for the loss of the nose or penis. Only blood money is permitted as punishment in those cases.
If there was an attack by many, all the perpetrators suffer the same loss as the wounded victim, but this is not permitted in the Hanafi school. Nor do the Hanafi permit retaliation for wounding between men and women or between slaves. When retaliation is allowed, all schools except the Maliki allow the victim to return the wound. The Maliki assign an expert to inflict the punishment. Any excess harm is punishable by ta'zir.
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 traditional diya, as taken over from Arabic custom, is set at two levels. In serious cases the heavier diya is imposed, set at one hundred female camels equally divided between one, two, three, and four year olds. In less serious cases the lighter diya is imposed, amounting to eighty female camels, similarly divided by age, in addition to twenty one-year-old male camels.
The near relatives of the offender pay the diya to the heirs of the deceased, or to the wounded victim. If the near relatives cannot be found, the state assumes the obligation to pay the diya. In all but the Hanafi school, the full amount of the diya is due only when the victim is a free male Muslim. If the victim is a dhimmi (a non-Muslim protected by treaty) or a musta'min (a non-Muslim under safe-conduct pass), the diya ranges from one-third to one-half of that for a Muslim except in the Hanafi school, which requires full payment. The diya for a murdered slave is his market value.
The diya for bodily injury is a proportion of the payment for loss of life. If there is only one of a bodily part, such as the nose, the diya is the same as for loss of life. If there are more than one, the diya is proportionately smaller—for example, one-half for an arm, a leg, or an eye; one-tenth for a finger; a third of one-tenth for each joint of a finger; and one-twentieth for a tooth. The jurists have established an elaborate scale of payments. If an injury falls outside of the defined examples, compensation is paid on the basis of the "actual harm suffered" (but does not include any pain and suffering endured). The diya for a woman is half that of a man, but in no case, such as for partial injuries, is it to fall below a third of what a man would receive.
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. Generally speaking, Islamic law holds that those entitled to retaliation or diya may remit the punishment on their own accord or may agree to any level of settlement, although not normally higher than the legal diya.
Procedurally, the charge of homicide must be brought by the nearest relative of the deceased, or by the wounded victim prior to his death. Proof is by retractable confession or by testimony of two male witnesses. In addition, there is the unusual procedure known as kasama, whereby the oaths of fifty reliable persons who are not witnesses are accepted as proof where incomplete evidence has created a presumption of guilt. The Maliki school utilizes kasama to complete proof. The Hanafi use it to prevent a conviction.
In a number of instances, killing or inflicting bodily injury is excused. Of course, retaliation properly applied after an adjudication of guilt is permitted. There is no culpability if a man kills his wife, daughter, or sister as well as her lover if he discovers them in an act of unlawful intercourse, and none, except in the Maliki school, for harm or death inflicted with the consent of the victim.
Self-defense is permitted if it is an act of resistance to an unlawful assault and if it is proportionate to the danger. Preemptive action is allowed to forestall an imminent attack. However, in the Hanafi school, one must pay the heavier diya if he uses a deadly weapon to kill a minor or insane person in self-defense. Killing combatants in lawful war is, of course, permitted and, in many cases, may take on an obligatory nature. One is permitted to kill male non-Muslims who refuse to pay the obligatory poll tax and who also refuse to convert to Islam.
Most schools divide homicide into three categories (the Hanafi have developed five):
- Willful homicide is an action resulting in death that was undertaken with no legal excuse, with the intention to wound or kill, and by means of an instrument that normally causes death. The punishment is retaliation or, if remitted, the heavier diya, plus loss to the offender of any rights of inheritance from the deceased. All schools except the Hanafi categorize as willful homicide death resulting from intentional false testimony at trial, as well as death caused by intentionally withholding food and water. The shafi'i and the Hanbali also term as willful homicide any fatal action resulting from repeated blows, no one of which would normally cause death.
- Quasi-willful homicide is intent to kill or wound with an instrument not normally known to be fatal. If death results, the punishment consists of the heavier diya, acts of penitence, and loss of inheritance rights. If only bodily harm results, the offense is then one of willful wounding, the punishment for which is retaliation or, if remitted, the appropriate proportion of the diya.
- Accidental homicide occurs when the offender either did not intend to kill a person or he did intend to kill a person but believed that he was acting legally. For example, if one shoots at an animal but misses and kills a person instead, or if one believes he is shooting at a deer but in reality is shooting at a human being, or if during wartime one kills a Muslim under the impression that he is a non-Muslim, the case will be treated as accidental homicide. The punishment is payment of the lighter diya, the obligation to perform acts of penitence, and in some schools the loss of inheritance rights.
Apostasy (ridda )
There is also the special case of the apostate from Islam. Many jurists classify apostasy as a hadd offense. He who kills an apostate is, in some schools, free from the law of retaliation. In the Hanafi school, a male apostate is given three days to repent before execution; a female is imprisoned and beaten until she repents. Some modern Muslim jurists assert that the penalty for apostasy was a later accretion from the offense of treason and has no authority from the Qur'an or elsewhere. In addition to apostasy, some jurists classify rebellion (baghi ) as a hadd offense, but not in the Hanafi school.
Discretionary administrative penalties (siyasa )
Under Islamic law, the secular authorities do not possess a power to legislate independently of the shari'a, but the state may develop public policies by enacting and enforcing administrative regulations. The regulations are designed to help effectuate the shari'a and to regulate those areas in which the shari'a has left gaps. Siyasa regulations are not supposed to conflict with the provisions of the shari'a. Nonetheless, it has been through the mechanism of siyasa that the Islamic states have supplanted many of the penal requirements of the shari'a. The combination of siyasa and the power over jurisdiction effectively shifted the definition and enforcement of criminal regulations to the state, although the shari'a significantly influenced the content of the secular criminal law.
Acts of penitence (kaffara )
Kaffara consists in the performance of certain acts of penitence to cover or expiate sinful acts. The acts of penitence are the freeing of a Muslim slave, fasting during daylight hours (while also abstaining from sexual intercourse), or, in some cases, giving alms to the poor. In rare cases, kaffara is accomplished by the sacrifice of a goat, sheep, camel, or cow.
Although the law books prescribe kaffara for certain sins, the imposition of the penance is almost always voluntary. Only in exceptional cases can a qadi require kaffara. Offenses for which kaffara is prescribed include breaking an oath, perjury, breaking fast during the holy month of Ramadan, or hunting or breaking other rules while in a consecrated state for the holy pilgrimage to Mecca.
At the dawn of the twenty-first century, the criminal portions of the shari'a remain an artifact. In an unhappy irony, some modern Islamists believe they are reinstituting a purer Islam when they use the formulaic notions of crime of the ancient shari'a. By an unreflective copying of that part of a legal code that was at once undeveloped and often impractical of application, they obscure the grander sweep of classical Islamic civilization, and, in some cases, erect an unnecessary barrier to the full realization of fundamental human rights.
David F. Forte
See also Corporate Punishment; Criminal Procedure: Comparative Aspects.
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