Early Muslim scholars and jurists did not distinguish between the religious, ethical, and legal aspects of Sharia, let alone identify specific legal fields. Their treatises and manuals discussed wide ranges of subject matter, from doctrine of belief to ritual practices, principles of organization of the state, conduct of war and inter-religious relations (constitutional and international law), as well as private law matters of family relations, and so forth. Consequently, principles and rules of Sharia relevant to modern fields of criminal law, evidence, and procedure were not conceived as such, and can be extracted only from general and extensive treatises of Islamic jurisprudence.
Regarding penal or criminal law aspects, modern scholars have identified three main categories of offenses: hudud, jinayat (qisas), and ta`zir. The category of Hudud encompasses those named offenses for which a specific punishment is strictly applied without allowing discretion to either official or private body or person. Jinayat cover homicide and bodily harm and are punished by either qisas (exact retaliation) or payment of diya (monetary compensation) to the victim or his or her surviving kin. The last category, tazir, refers to the residual discretionary power of the ruler and his judges and deputies to reform and discipline their subjects.
In view of the indiscriminate nature of the early treatises on Islamic jurisprudence, we cannot expect specialized treatment of questions of evidence and procedure. Moreover, since some of the relevant texts of the Quran and Sunna specified special evidentiary requirements for specific hudud offenses, the jurists stated and explained those requirements as part of the ingredients of the particular offense. For example, the hadd (singular of hudud) for zina (fornication) requires proof through the testimony of four male witnesses to the actual act of intercourse. This requirement and its details regarding the qualifications of the four witnesses and the implications of their testimony are discussed by early Muslim jurists as part and parcel of the definition of the offense itself.
With regard to procedural and practical aspects of criminal law enforcement, Sharia is extremely rudimentary and informal. The broad and unstructured administrative discretion of the rulers and their officials characterized all aspects of government, including the administration of criminal justice. For example, it was left to the discretion of the caliph whether to appoint specialized judges and how to supervise or regulate their activities. Those judges who were appointed (and other officials charged with judicial or quasi-judicial functions) had broad discretion over the conduct of pretrial and trial procedure. As explained in the last part of chapter 22, certain processes emerged in practice which can be considered as the modern equivalent of evidence and procedure, but those were matters of judicial practice and not Sharia principles in the sense of being derived from the Quran and Sunna through the methodology of usul al-fiqh.
In view of the lack of reliable specialized historical information, it is difficult to provide a detailed survey of the actual administration of criminal justice in various Islamic societies. Moreover, whatever may have been the precise arrangements for criminal justice in various parts, and the degree of the conformity of those practices to Sharia principles at different periods in history, it is clear that the administration of criminal justice came to be governed by European codes and state institutions during the colonial administration by the time of independence of Muslim-majority countries during the mid-20th century. What is significant to note for our purposes here is that European codes and procedures continued to be applied after independence in the vast majority of Muslim-majority countries. There is no trace of Islamic criminal law principles in the legal systems of more than 35 Muslim-majority countries around the world.
However, Islamic criminal law principles are supposed to form the basis of the administration of criminal justice in Saudi Arabia and have been partially re-introduced in Iran, Pakistan, and Sudan since the 1980s. Moreover, some of these principles have also been reintroduced at the provincial or local level in northern Nigeria, Ache in Indonesia and Kelantan in Malaysia. It is difficult to assess the scope and manner of application of Sharia criminal law principles in those limited areas, but it is clear that there are strong demands for broader and more systematic enforcement of these principles.
The following extensive excerpt is intended to first explain the general principles of Sharia criminal law, evidence and procedure, and to highlight some of the difficulties or problems associated with the modern application of those principles.
Abdullahi Ahmed An-Naim, Toward an Islamic Reformation: Civil Liberties, Human Rights, and International Law(Syracuse University Press, 1990), pp. 107-124.
Source, Definition, and Penological Justification of Hudud
Horrific images of amputations of hands and feet, crucifixion, execution, and whipping, which are the punishments specified by Sharia for hudud, are the dominant popular perceptions of the application of Sharia. Although the enforcement of these punishments appears to be the highest priority of those Muslims who advocate the total and immediate application of Sharia, there are several serious problems with the identification and definition of these offenses. It would not be possible to discuss here the detailed ingredients of all the offenses that are usually included in this class, but we can discuss some initial and fundamental problems with respect to the source from which this class of offenses is derived, give some examples of the definitional problems associated with these offenses, and reflect on the question of the relevance of penological justifications in relation to them.
Source of Hudud
The main distinguishing feature of hudud is the invariability of punishment, that is, the requirement that the specified punishment must be imposed once the offense reaches the knowledge of the authorities and is proved in accordance with Sharia, regardless of the wishes of the victim or the authorities. Neither the victim nor the authorities have any discretion in the matter once the offense is reported. This is the crucial distinction between hudud, on one hand, and jinayat (homicide and other bodily harm) and ta’zir (discretionary punishments), on the other. Although the punishments for jinayat are provided by express texts of the Quran, the same texts permit discretion as to whether to prosecute, as well as allowing a choice between exacting qisas (exact retaliation) or accepting diya (monetary compensation).
Except for the doubtful hudud of sukr (intoxication) and ridda (apostasy), there is no Islamic religious authority for abolishing any hadd offense in principle, although there may be much room for varying the general and specific conditions for the particular offense within the usually broad limits of Quran and Sunna. In other parts of this study, a radical approach to reforming the public law aspects of Sharia has been suggested because Quranic authority can be cited for the alternative modern principle. There is no such Quranic authority for abolishing the hudud in principle. What can be done, from the Islamic point of view, is to restrict their application in practice.
One of the fundamental questions in determining the number of hudud and the definition of each hadd is the source from which they are derived: are they restricted only to those offenses for which the punishment is strictly prescribed in the Quran, or do they include offenses for which punishment is prescribed by Sunna alone? The position taken by the majority of the founding jurists is that hudud are offenses for which punishment is strictly prescribed by either the Quran or Sunna. According to this view, hudud are six, namely, sariqa (theft), haraba (rebellion or highway robbery), zina (fornication), qadhf (unproven accusation of fornication), sukr (intoxication), and ridda (apostasy from Islam).
Some of the treatises on Islamic jurisprudence mention a seventh hadd, called al-baghy, which involves armed rebellion against the Muslim state. But since the verse of the Quran usually cited as the source of this alleged hadd does not contemplate an individual punishment, the independent existence of hadd al-baghy is doubtful. If there is to be a hadd punishment for violent rebellion against the state, it may be based on another source, possibly the verse on hamba, as will be suggested later in this section.
In view of the extreme harshness of the prescribed punishments and the negative political consequences of their enforcement, I believe that it is better, as a matter of principle as well as policy, to restrict the requirement of invariability of punishment for hudud to those offenses for which the Quran provides the specific invariable punishment. If this is to be the criterion, hudud would be restricted to the first four offenses, sariqa, hamba, zina, and qadhf, because these are the only offenses for which specific punishments are strictly prescribed by the clear and definite text of the Quran. Moreover, this restrictive view of the source of hudud is recommended by certain problems associated with the other two alleged hudud sukr and ridda. With respect to sukr (intoxication), neither the Quran nor Sunna prescribed a specific punishment. In view of the wide difference of opinion among Muslim jurists over many aspects of this offense, including the specific number of lashes to be administered upon conviction, it is curious that the jurists have agreed on classifying the offense as a hadd. Since the Prophet did not administer any punishment for drinking alcohol in some cases and ordered the infliction of an indeterminate number of lashes in others, it can be argued that the cases in which he did order punishment were specific instances of his exercise of the power of ta’zir (discretionary punishment) rather than prescribing a specific and invariable punishment that makes the offense a had.
Again, although ridda (apostasy) is condemned by the Quran in the strongest terms, the Quran does not prescribe any punishment for apostasy in this life. Nevertheless, the majority of Muslim jurists have classified apostasy as a hadd punishable by death as prescribed in Sunna. Such classification violates the fundamental right of freedom of religion, sanctioned by the Quran in numerous verses. Relying on the higher authority of the Quran for freedom of conscience, and arguing that the available Sunna imposing the death penalty can be explained by the special circumstances of the cases in question, some modern Muslim writers have maintained that apostasy is not a hadd. This approach, however, does not address the other negative consequences of apostasy under Sharia, nor does it preclude the imposition of another punishment for apostasy under the discretionary power of ta’zir. To remove all constitutional and human rights objections, the legal concept of apostasy and all its civil and criminal consequences must be abolished…
One problem with excluding Sunna as a source of hudud is that the punishment of stoning to death for zina (fornication) when committed by a married person is based on Sunna. The Quran specified one hundred lashes for zina, without reference to the marital status of the offender, while Sunna makes the punishment stoning to death if the offender is a married person. The use of Sunna to support the harsher punishment in this case may be distinguished from its use as a source of hudud, as such, in that zina is a hadd by virtue of the Quran, with Sunna merely imposing a harsher punishment under certain specified aggravating circumstances.
Problems of Definition
Even when taken from the Quran alone, hudud raise serious problems of definition and scope. Because the Quran is a religious text, it gives little guidance in the relevant verses as to the legal definition and specific ingredients of each hadd. The founding jurists constructed their own understanding of each hadd through the use of Sunna and other available traditions. Since the matter can be taken to be one of juristic judgment on the authenticity and interpretation of the relevant traditions, there may still be substantial room for legislative discretion in determining the definition and ingredients of each hadd. This is so because the strict invariability of punishment for hudud presupposes the establishment of both the general and specific conditions for liability.
Legislative discretion can, of course, go either way. It can be used either to restrict or to expand the scope of the offense and its application in practice. It is submitted, however, that sound modern policy suggests a restricted rather than a broad scope for any of the hudud. To illustrate the definitional problem, its potential for abuse, and possibilities of a restrictive interpretation, I will discuss the hadd of haraba. The same logic would apply, I submit, to other hudud.
The starting point of our discussion of this hadd is, of course, its Quranic foundation, namely verse 5:33 of the Quran, which may be translated as follows: “The punishment of those who wage war (uharibun) against God and His Apostle, and strive with might to effect mischief or corruption (fasadan) through the land, is to be executed, or crucified or to have their hands and feet from opposite sides amputated [cross-amputation of the right hand and left foot], or be banished from the land. That is their disgrace in this life, and great punishment awaits them in the next life.” This verse is cited in classical treatises as authority for the offense of haraba, which translates as rebellion, although the same offense is sometimes called qat al-tariq, which translates as highway robbery. It is obvious that beyond the difference in terminology is a much more serious difference in the conception of the offense itself and of its necessary ingredients. The definition of the offense and its essential ingredients clearly depend on the answer to the basic question: is this simply a property offense aggravated by the use of force against an isolated and defenseless victim, or is it a political offense, involving armed dissent, civil war, and large-scale strife with incidental loss or destruction of property? Which conduct warrants the extremely harsh punishment prescribed in the verse quoted above?
It may be argued that only armed rebellion, threatening the very fabric of society and security of the state, warrants this degree of harshness. Specific instances of homicide and bodily harm may be punishable as jinayat (homicide and bodily harm) and the forcible taking of property per se may be punished through the discretionary power of ta’zir, since it would not constitute the hadd of sariqa (theft) as defined by the jurists. Moreover, property interests are also protected by the civil remedy of restitution.
A possible objection to the above interpretation is that directing the offense under verse 5:33 of the Quran to political dissent carries a greater risk of abuse by official authorities. This danger may be reduced by restricting the hadd offense contemplated by the verse to violent serious rebellion and not merely to pacifist nonviolent political dissent. The key word in verse 5:33, uharibun (which translates as wage war), clearly indicates violent armed rebellion rather than peaceful political dissent or disagreement.
Alternatively, it may be argued that the verse is addressed to all armed attacks, whether motivated by political objectives and directed against the state or seeking unlawful gain through terrorizing private persons. This broader interpretation can be supported by the language of the verse in that highway robbery is also, in a sense, waging war against God and His Apostle and effecting mischief or corruption (fasadan) in the land. It can be argued that this conduct also threatens the fabric of society and the prospects of peaceful life under the law.
The broad scope of the term fasadan (mischief or corruption) mentioned in verse 5:33 opens the way to extremely broad and oppressive interpretations when used as a separate category independent from the use of force. The grammatical construction of the verse may permit the inclusion of nonviolent “mischief and corruption” if the first part, “waging war,” is taken in a metaphorical sense. Such a broad and oppressive interpretation can only be excluded by a definite policy decision in favor of a restrictive interpretation.
It is not within the scope of the present book to make the policy determination upon which the choice between these, and possibly other, competing interpretations should be made. What is emphasized here is that these problems of scope and definition must receive the widest possible debate among Muslims and be resolved at the broadest and deepest political level, with due regard to appropriate policy and practical considerations, prior to attempting any implementation of hudud today. Such debate and resolution, it would seem, should take into account the penological justifications of hudud and the political and sociological circumstances within which they are supposed to apply.
Relevance of Penological Justification
The initial question here is whether, to what extent, or in what sense are penological and sociological justifications and political realities relevant to the conception and application of hudud? Is the principle of hudud a religious imperative or is it open to question in penological and sociological theory and practice? Assuming that the principle is a religious imperative for Muslims, is the application of hudud nevertheless subject to political and other considerations with respect to non-Muslims? How are both aspects of the principle and practice affected by social and political pluralism in the modern nation-state?
According to the logic of Sharia as a religious law, once the Quran and Sunna speak clearly and definitely, the believer has no choice but to comply. When all consideration of the relevant texts and their interpretations is exhausted, compliance with the conclusion becomes imperative for the believer. Search for rational justification may help the believer to understand the wisdom and rationale of the rule, but failure to find sufficient objective justification does not relieve him or her of the duty to comply. In this way, and as far as Muslims are concerned, penological and sociological considerations cannot affect the principle of hudud. In other words, the existence of hudud as part of the criminal law of an Islamic state is not dependent on the existence or strength of penological or sociological justifications. Nevertheless, it seems obvious to me that the practical application of hudud is subject to political factors, part of which is the strength of the religious commitment of the community as a whole and its sense of penological and sociological justification of these offenses.
Contemporary penological literature seeks to determine penal policy in considerations such as retribution, deterrence, and reform of the offender. The application and implications of a given penological justification are usually discussed at a theoretical level to formulate a hypothesis, which is then tested through empirical research. Underlying both levels of arguments, however, is a value judgment on the appropriateness of penalizing the particular conduct and the reasonableness and efficacy of the prescribed punishment. Whether or not it is admitted, penological debate is based on a personal or collective view of the seriousness of the conduct in question and the reasonableness of the punishment.
This is particularly true of retribution but is also relevant to deterrence and reform. Retribution, the sense that the conduct of the offender deserves to be punished in a particular way, is obviously based on a value judgment of the moral culpability of the conduct. This, in turn, is based, in part, on an assessment of the magnitude of the harm done to some individual or social interest. Considerations of deterrence, whether of the particular offender or of other potential offenders, and reform of the offender through punishment are based on certain assumptions regarding patterns and motivations of human behavior. Nevertheless, the decision to implement a particular punishment for a given offense, even when justified as deterrent or reformative, is based on the value judgment that it is not too excessive or disproportionate to the offense. In other words, the excessive unreasonableness of a given punishment may be deemed to outweigh its deterrent value or defeat its potential for reform and therefore lead to its exclusion.
When applied to hudud, this analysis may lead to the following conclusions. Our independent human sense of justice may find that, for example, amputation of the right hand is excessively harsh punishment for sariqa (theft). Again, we may feel that stoning to death is excessively harsh punishment for zina (fornication) by a married person. Such views of the appropriateness of the hudud punishments are based on our value judgment of the moral culpability and social consequences of the conduct in question. From the religious point of view, however, a believer must hold any human value judgment to be subordinate to divine judgment as expressed in revelation. He or she should accept divine value judgment and seek to justify and understand it rather than reject it on the basis of his or her own independent human value judgment.
Given this religious imperative, a Muslim is supposed to believe that the specified hudud punishments are appropriate and will achieve any conceivable social and personal good because God prescribed them. From this point of view, it is futile to look for cultural indication of hudud punishments. For the believer, the punishment is strictly prescribed because God said so.
Nevertheless, and however convincing religious logic may be to a believer, it should be conceded that it has no validity for a nonbeliever. Unless hudud can be justified on rational grounds, these laws cannot be reasonably enforced against non-Muslims because they would not appreciate their religious rationale and would not be able to benefit from their ultimate religious good….… It must be emphasized, however, that Muslims’ belief that hudud are in the best interests of non-Muslims as well as Muslims is irrelevant from the point of view of non-Muslims, who do not share in that belief. Yet there is high authority in Shariafor the enforcement of certain hadd punishments on non-Muslims. On the understanding that stoning to death for zina by a married person is part of Jewish law, the Prophet is reported to have applied this punishment to Jews under his rule in the Medina state. Does this mean that enforcement of the criminal law will depend on the religion of the offender? Who has the competence to determine the religious law of non-Muslims, and according to which sources and interpretation? Is Jewish or Christian religious law, for example, to be determined by Jewish or Christian theologians from their own sources or is it to be determined by Muslims with reference to Muslim sources on what that law is supposed to be?
To exempt non-Muslims from the application of hudud may create other serious practical problems of enforcement, including the question of determining the religious affiliation of the offender. If hudud apply only to Muslims and ridda (apostasy) is not punishable by death, as suggested earlier, an offender may attempt to avoid a hadd punishment by repudiating his or her faith in Islam. Could this problem be resolved by relating the imposition of hudud punishments to the religious belief of the offender as it was objectively determined to have been at the time of the commission of the offense and not at any subsequent point?
Such an approach to criminal punishment may be challenged as discrimination on grounds of religion in violation of the constitutional right of equality before the law. In other words, a Muslim citizen may object to being subjected to punishments not applicable to non-Muslims. Can this objection be sufficiently answered by the voluntary nature of the negative consequences of discrimination? Can it be convincingly argued that a Muslim has voluntarily accepted being subjected to hudud by becoming or remaining a Muslim in the knowledge that such religious belief will make him or her subject to the prescribed punishment?
In conclusion, I would suggest that purely religious rationalization of hudud is insufficient justification for including these offenses and their punishments in the criminal law of a modern nation-state. Yet no effort has been made to justify hudud in cross-cultural, cross-religious penological and sociological terms. From an Islamic point of view, I would argue that the fundamental Islamic principles of freedom of religion and justice in government clearly indicate that Islamic penal measures should not be imposed on non-Muslims against their will.
Moreover, penological and sociological justification of hudud is relevant at another level. As suggested above, Muslim religious obligation to accept hudud in principle is consistent with efforts to restrict their practical application. A desire to restrict the application of hudud in practice seems to be the reason behind the elaborate technical requirements developed in historical Islamic jurisprudence. Given the lack of clear definitions of individual hudud and clear specification of the general conditions for their application, modern efforts in this regard, I believe, should take full account of contemporary knowledge of psychology, penology, sociology, and other relevant disciplines of learning. In particular, the general orientation of such modern efforts must seek the most restrictive definitions and the strictest general conditions for the application of hudud.
The general conclusion of this section is that there is too much uncertainty and potential for abuse for hudud to be enforced under the current state of Shariaon the subject. More final and general conclusions will be offered after further discussion of other aspects of the criminal law of Sharia.
Problems with Sharia’s Concept of Jinayat
Homicide and bodily injury are covered by several texts of the Quran and Sunna. In relation to the question of the juridical nature of these offenses, we need only quote verses 2:178 and 5:45 of the Quran to illustrate the problem. These verses may be translated as follows:
Oh believers, the law of qisas, exact retaliation, is prescribed for you in cases of murder: A free person for a free person, a slave for a slave, and a woman for a woman: But if any remission is made by the brother (kin) of the slain, then grant any reasonable demand, and compensate him with handsome gratitude. This is a concession and a mercy from your Lord. Whoever exceeds this limit shall receive great penalty.
We have ordained [in the Torah] that a life [should be taken] for a life, an eye for an eye, a nose for a nose, an ear for an ear, a tooth for a tooth, and wounds [are to be punished] by qisas, exact retaliation. But if anyone remits exact retaliation by way of charity, that will be an act of atonement for himself. Whoever fails to judge in accordance with what God has revealed shall be of the unfair ones.
The element of discretion granted to the victim or his or her kin in both verses excludes jinayat from the category of strict hudud where there is no equivalent discretion. As can be expected, this discretion in jinayat was previously interpreted in light of tribal customs prevailing in early Muslim society. Both the person authorized to exercise that discretion and the appropriate compensation (diya) were determined by the customary tribal practice of seventh-century Arabia. Sunna and early Muslim practice supplied the details of the principle of jinayat.
The question now is whether that body of rules is to be accepted in its entirety or be modified with reference to modern Islamic policy considerations. Some aspects of those rules seem to be inconsistent with the principle of equality before the law. For example, diya (monetary compensation) for killing a woman was deemed by the founding jurists to be half the amount of compensation for killing a man. This is partly because the first verse quoted above provides that a woman should be killed for a woman and partly because of the general principle of Sharia, based on other verses of the Quran, that a woman has half the testimonial competence of a man and receives half his share in inheritance. The need to remove all forms of gender discrimination has been discussed in Chapter 4 [of Toward An Islamic Reformation the source of excerpt] Removing such discrimination in the payment of diya would seem to follow logically from the same principle.
Similar reform is needed to remove other objectionable rules of the historical law of jinayat. For example, according to the majority of the schools of jurisprudence, a Muslim may never be killed for killing a non-Muslim. Moreover, the founding jurists have held that diya for killing a non-Muslim is less than that for killing a Muslim. Again, this is an example of discrimination on grounds of religion discussed in Chapter 4 [Toward An Islamic Reformation]. The constitutional imperative established in that chapter would also require the removal of all manifestations of such discrimination in the administration of criminal justice.
Another question that needs to be addressed is whether proceedings for homicide and bodily injury should be classified as criminal or civil in nature. It is true in principle that criminal proceedings may conclude with a finding for monetary compensation as well as imposing a punishment on the offender. But it is nevertheless important to determine the basic nature of the proceedings in view of the significant differences in the rules of evidence and procedure applicable to each type of proceeding. As a matter of policy, I think it is essential to maintain those differences and their application in daily law enforcement at the pretrial, trial, and post-trial stages of the proceedings.
That the Quran and Sunna grant private individuals control over the initiation of proceedings for jinayat (homicide and bodily harm) and a choice between qisas or payment of diya does not exclude public interest, including the interest of the person accused of having committed the act. This consideration would require certain safeguards to be introduced in the modern administration of justice. For example, the discretion not to prosecute and choice or mode of punishment vested in the victim or his or her kin can be exercised through some appropriate mechanism built into the system while still allowing for public official supervision.
As a general proposition, and in view of the nature of the conduct in question and serious consequences to the accused person, it is suggested that all jinayat be characterized as criminal proceedings. In consequence, criminal rules of evidence and procedure should apply. Private discretion can contribute to the decision whether to prosecute and also whether to accept diya in appropriate cases. The courts must retain the right to rule on guilt or innocence and determine the amount of diya in light of established principles for the assessment of damages without being bound by archaic rules discriminating against women and non-Muslims because these rules would be unconstitutional in the context of a modern nation-state.
This suggestion raises the question of the degree of control that is allowed to private persons, whether the victim or his or her kin. In other words, who should have the final word on whether to prosecute and whether qisas or diya should be imposed in case of conviction? Is it possible to vest the power to make final decisions on these matters in official organs (prosecutorial decisions in an executive office and sentencing decisions in the courts) provided that such organs act in light of the circumstances of the offense and the antecedents of the offender? The main problem with this approach is that it may be seen as infringing on the rights of the victim or his or her kin entrenched by the clear and definite text of verses 2:178 and 5:45 of the Quran quoted above. There may be room for executive and judicial discretion in determining the conditions for private choice to arise, but the logic of Sharia as a religious law would prevent the elimination of private choice because it is granted by the express terms of the Quran.
The answer proposed here is that official reaction to the private wishes of the victim (or his or her kin) should depend on the nature and reasonableness of those wishes. If the private person(s) wish to forfeit her (their) interest, the state may still wish to prosecute to enforce its view of the public interest. This may be done through the discretionary power of ta’zir. If, however, the victim (or his or her kin) insists on prosecuting under circumstances which, in official estimate, do not warrant a prosecution, the official organs could decline to prosecute on the grounds that the conditions necessary for the exercise of private discretion had not arisen. If a prosecution was warranted and conviction followed, the terms of verse 5:45 of the Quran would not permit denying the victim (or his or her kin) the choice between qisas or diya.
As in the case of hudud, the religious approach to jinayat raises difficulties with non-Muslims, who may not accept the religious imperative or share in the religious motivation that underlies the approach. If the non-Muslim is the victim, it may be argued that he (or his kin) may decline the option of insisting on qisas out of his personal convictions and receive monetary compensation instead if he wishes. The real problem arises when the non-Muslim is the offender and the victim (or his kin) is (are) Muslim(s). In such a case, the option of qisas would depend on the wishes of the victim (or his kin), who can cite the Quran in support of his or her right to do so. In light of the standards explained in Chapter 4 of this book, is it unconstitutional to discriminate between offenders on the grounds of the religious beliefs of the victim (or his kin)?
Thus the ultimate question is whether jinayat can be included in the criminal law of a modern nation-state without violating constitutional imperatives. Assuming that penalizing homicide and bodily harm is acceptable to all segments of the population, the question remains as to whether imposing qisas (exact retaliation) as punishment for the offense is equally acceptable irrespective of religious authority that is binding on Muslims alone? Another question is whether it is possible to eliminate all discrimination on grounds of gender or religion in the definition and application of jinayat.
Discretionary Power of Ta‘zir
As indicated earlier, historical Islamic jurisprudence vested the ruler of an Islamic state or his judges with a residual power and discretion whether to penalize and how to punish what they consider to be reprehensible conduct which is not covered by the specific categories of hudud and jinayat. It was considered to be appropriate, in the historical context of the early formulation of Islamic criminal law, for the ruler and his judges to enjoy this residual discretionary power of discipline and reform. The founding jurists have attempted to provide some guidelines for the power of ta’zir. But these guidelines were so vague and purely advisory in nature that they are inadequate for structuring and controlling this power in the context of a pluralistic modern nation-state.
The largely theoretical formulation of Sharia tended to assume an ideal state of affairs in which the ruler and his officials would feel constrained by their personal religious obligation to maintain justice and fairness in the execution of their duties. Whatever may have been their reasons, the early Muslim jurists hypothesized that there was no conflict between the individual and the state and that persons in power will naturally act in the best interest of both the individual and the community. In view of the long and painful historical experience with abuses of discretion, it is now generally accepted that there is no justification for such hypotheses or assumptions. On the contrary, we must proceed on the assumption that there is at least potential conflict between the individual and the state and that no official can be entirely trusted with the task of identifying and maintaining a proper balance between individual and collective interests. In particular, we must assume that official self-restraint and subjective scruples are inadequate bases for fair and impartial government, especially in the administration of criminal justice.
One of the primary mechanisms for checking abuse of the powers of government is the principle of the rule of law whereby officials are authorized to act only in accordance with predetermined rules of law of general application. As applied to the administration of criminal justice, the rule of law requires that no punishment may be inflicted except in accordance with preexisting, published, and easily understandable penal legislation. This principle also requires strict interpretation of penal legislation and the structuring of judicial discretion in sentencing to achieve the objectives of public penal policy and to avoid abuse and corruption in individual cases.
Some modern Muslim scholars maintain that Sharia was completely consistent with the fundamental principle that there can be no punishment without prior criminal legislation. Abd aI-Qadir Auda, for example, argued that the principle of legality is fully observed even in ta’zir offenses in that the discretion of the ruler and his judges is restricted by a variety of texts, general principles, and the spirit of Sharia. It is difficult to accept this position in view of Auda’s own admission that Sharia authorizes the judge to apply in his discretion any of the punishments sanctioned by Sharia for any act or state of affairs that affects the order or interest of the community. It is precisely this wide discretion in determining, after the fact, whether the particular act or state of affairs affects the order or interest of the community in a way that warrants punishment (and the wide range of possible punishments that may be imposed in such cases) which is objectionable from the point of view of the principle of legality.
I submit that it is imperative to eliminate the individual residual power of discretionary ta’zir previously enjoyed by the ruler and his judges under Sharia. Whatever Quranic and Sunna authority may exist for general administrative discretion should not be interpreted to include the administration of criminal justice. The power to impose criminal punishment must lie in the community at large and must be exercised in accordance with the principle of the rule of law. It is now generally accepted that penal power should be exercised by the legislature through penal legislation of general application, which is interpreted and applied by an independent and technically competent judiciary, whose decisions are strictly enforced by the executive organ. It is true that there is some disagreement as to the exact details of the principle of separation of powers. There may also be room for cultural and ideological variations on its application to the various functions of government. These differences and variations do not affect, in my view, the universal validity of this principle as applied to the administration of criminal justice.
When exercising collective discretion on which conduct to penalize and how to punish it through the criminal process, the community as a whole, both Muslim and non-Muslim alike, must enjoy the freedoms of expression and association and effective access to the policy formulation process. Decisions should not be based exclusively on the religious sense or rationale held by Muslims as part of their faith but also on general social utility and consensus. Unless Muslims can convince all segments of the population of the need to penalize certain conduct and of the appropriateness of the particular type and degree of punishment to be imposed, the imposition of penal punishment would be tantamount to perversion and manipulation of the formal legislative process to legitimize Muslim domination of the other segments of the population.
Because of the discretionary nature of the original power of ta’zir, penal policy questions in this area may lend themselves more readily to compromise and consensus than in the areas of hudud and jinayat. Muslims are not generally bound by the fundamental tenets of their faith to penalize certain conduct or to inflict a given form of punishment other than in cases of hudud and jinayat. It is true that the Quran, in verses such as 4:15-16, authorizes some sanction against conduct other than hudud and jinayat, but it does so in very general terms permitting wide discretion in interpretation, including the use of nonpenal measures. After all, criminal sanction is not the only mechanism for enforcing morality and promoting the public good. What needs to be emphasized, however, is that in determining the scope of the criminal law, a certain level of tolerance and goodwill must prevail in the debate if it is to succeed in producing fair and widely accepted legislation and enforcement policies. Due consideration must be given to the wishes of all segments of the population in every aspect of the criminal law.
General Principles of Criminal Responsibility, Evidence, and Procedure
Several issues pertaining to the general principles of criminal responsibility, evidence, and procedure may be discussed together because they all seem to be equally underdeveloped in Sharia. Modern Islamic legislation may be more readily adopted in these areas not only because there is little, if any, authority against their adoption, but also because such legislation can be easily supported by general authoritative underlying principles of justice and utility.
Sharia principles of Islamic criminal law were formulated by the early jurists in the three separate categories of hudud, jinayat, and ta’zir. The ingredients of each offense were specified, and the applicable rules of evidence and procedure were discussed separately without attempting to develop general principles applicable to all offenses.
This approach is too complex and fragmented to sustain a modern penal system. The development of principles of criminal responsibility, evidence, and procedures of general application is not inconsistent with the application of additional special ingredients and special rules of evidence and procedure to any specific offense or class of offenses.
In relation to the general principles of criminal responsibility, it is now commonly accepted as necessary to determine the threshold of liability in terms of mental and physical elements of crime. The complexity of criminal activity, moreover, requires general consideration of questions such as liability for attempts falling short of the complete crime, abetting another person to commit a crime, and the joint liability of a number of participants in the commission of a single crime. Again, recent experience seems to show the need to provide for general defenses and exceptions to criminal responsibility. The early Muslim jurists dealt with some of these issues in relation to some specific offenses and categoriesbut never as general principles applicable to all offenses. All these aspects of modern criminal law have to be linked and rationalized, as much as possible, with reference to a comprehensive and consistent penal policy and theory of criminal responsibility in accordance with the constitutional and international standards discussed earlier in this chapter.
A few questions will illustrate the need to address these issues before implementing Islamic criminal law today. In relation to the mental element in crime, is a specific intent to be required as a general rule and how is it to be proved? Does Islamic criminal law accept implied or constructive intent or accept the notion of strict liability regardless of the mental state of mind? The question of causation is, of course, essential to the physical element of crime. How do we determine that the accused person’s conduct caused the prohibited result or state of affairs? What is the effect of intervening causes or an interruption in the chain of causation?
The separate categories approach of historical Islamic jurisprudence would have all action falling short of one of the specific hudud and jinayat punishable under the residual power of ta’zir at the discretion of the ruler or his judges. As suggested earlier, ta’zir power has to be exercised collectively through the legislature. Legislation will now have to define the general principles for punishing attempts, that is, action falling short of satisfying the requirements of criminal responsibility for a specific offense. Similarly, legislation must regulate the liability of an abettor as distinguished from the liability of the direct perpetrator of a crime. For example, legislation should determine whether and how the fact that the abetted person was a minor or mentally disabled should affect the responsibility of the abettor. Legislation will also have to regulate the relative responsibility of several participants in the same criminal activity. The early Muslim jurists tended to deal with each issue in relation to the offense under discussion, as when the offense was committed by several persons acting jointly. Even if we are to generalize from the rule as formulated in relation to a specific offense, we would find too much diversity of views among the jurists and too little concrete authority for their opinions to sustain a coherent and comprehensive set of general principles.
Finally, in relation to general defenses and exceptions, what is the effect of mental disorder short of complete insanity? How far, if at all, are psychological or psychiatric disorders to be taken into account? What are the limits of the right to private defense? How are these limits affected by public policy considerations mandating resort to the public authorities as opposed to self-help? Is there a difference between private defense of a person and defense of purely property interests? Does the right to private defense extend to defending the person and property of others? What is the effect of the consent of the victim in running the risk of injury or even requesting it as in cases of so-called mercy killing? Should there be an exception from criminal liability for police officers as public servants acting in the course of their duties?
To illustrate the need for authoritative treatment of these issues, take the case of the effect of the consent of the victim. The idea that homicide is a civil wrong or tort rather than a crime led Muslim jurists to opposite views on the effect of consent of the deceased. The Hanafi, Shafi’i, and Hanbali schools are reported to hold that consent of the deceased precludes qisas (exact retaliation). Using the same logic of civil wrong, however, Malikiss held that qisas must be enforced because the right thereto belonged to the heirs of the victim and could not be affected by the victim’s consent. Zahiri and Zaydi jurists agree with this conclusion but on the different ground that the victim, by consenting to something God had forbidden, became impious and unworthy of having his wishes respected. This latter view is accepted by some Hanafi and Shafi’i jurists. Which of these conflicting views is the correct position of Shariaand which of the opposing grounds is its proper rationale?
The list of unresolved issues is much longer. Each of the questions raised above subsumes a number of equally important issues. None of these issues had been addressed and resolved authoritatively before the recent application of Islamic criminal law in countries such as the Sudan, in part for political reasons. But I submit that it is the nature of the criminal law of Sharia, with its serious deficiencies and inconsistency with modem standards, that made political manipulation possible, if not inevitable. Before assessing this recent experience and concluding with a new agenda for the application of Islamic criminal law, it is important to note the other two sets of fundamental questions of evidence and procedure which are also being disregarded in the head-on rush to apply Sharia criminal law first and ask questions later.
Although linked to the separate categories of hudud, jinayat, and ta’zir, the rules of evidence previously articulated by the early jurists raise some common problems. Discrimination against women and non-Muslims was carried into the law of evidence by denying women and non-Muslims testimonial competence in some cases or restricting their competence in others. When the testimony of women is accepted, for example, it takes two female witnesses to make a single male witness. As suggested in the previous chapter, these features of discrimination against women and non-Muslims can be removed only by a fundamental revision of some of the basic assumptions and orientation of historical Sharia. It would seem obvious that a reformulation of existing rules of evidence by basing testimonial competence on objective and fair criteria other than gender and religion is imperative for the modern application of Sharia in general, and criminal law in particular because the most discriminatory rules apply in the criminal law area.
Resolution of other questions of evidence may not involve fundamental revision of historical Sharia. Previous formulations of the impact of coercion on the admissibility of confessions, for example, simply reflected the views of the specific jurists or school of jurisprudence, which are not linked to the basic assumption and orientation of Sharia as a whole as is the case with the status and rights of women and non-Muslims. Again, the adoption of modern rules of evidence regulating the admissibility and weight of, for example, the opinion of expert witnesses or physical or documentary evidence does not seem to be inconsistent with general principles of Sharia. The early jurists had no need to address these issues because they were inconceivable at the time.
There are also very few general rules of procedure for pretrial, trial, and post-trial stages. Being consistent with the structure and functions of the state in their own historical context, the early jurists were naturally unaware of the currently much-appreciated need to regulate and control the powers of arrest, search and seizure, and so forth. For the same reason, questions of pretrial release on bail or other security and the regulation of trial procedure, sentencing process, and post-trial review and appeal were not discussed by the early jurists. Once again, it is obvious that the modern application of Islamic criminal law cannot be undertaken in a humane and effective manner without addressing and resolving all these and other related questions. As will be shown in the following assessment of recent experience of the Sudan, it is wrong and counterproductive to superimpose Sharia principles on the preexisting secular legal system without first working out the details and possibilities of conflict.
Transition and Transformation into State Legal Systems
The transformation of the Muslim-majority regions of the world from pre-modern political systems to present “nation states” with their European inspired legal systems was a deeply contextual process. Relevant factors include the previous political history, manner of the spread of Islam in the region, social and economic relations, as well as the manner and progression of the colonial experience of the region. Consequently, this transition worked very differently for various regions. In the Ottoman Empire of the Middle East and North Africa, which was not formally colonized by European powers, the transformation was an internal process driven by the desire of Ottoman elites to incorporate European models of state administration and legal systems. In the Indian subcontinent, however, the transformation was achieved through direct British colonial rule. There were also variations within the same region, for instance, between Indonesia, colonized by the Netherlands and Malaysia, colonized by Britain. Indonesia emerged at independence with a civil law legal system and state structures, while Malaysia adopted English common law and British parliamentary government. Another dimension of the transition relates to developments since independence. Our limited objective here, however, is to understand how those transitions influenced the status or role of Sharia in the post-colonial legal system of Muslim-majority countries.
The following two excerpts sketch the transition to nation states in two major regions, namely, the Ottoman Empire in the Mediterranean region and the Mogul Empire in the Indian Sub-continent. Upon the collapse of the Ottoman Empire following its defeat in the First World War, Britain and France ruled the Middle East and North Africa under the Mandate system of the League of Nations from which the present countries of Syria, Lebanon, Iraq, and Jordan emerged. Egypt had already achieved a significant degree of independence from the Ottoman Empire earlier in the 19th century when it was made a “protectorate” of Britain in 1882. Ottoman influence had extended earlier to North Africa until it was displaced by French control of what is now Tunisia, Algeria and Morocco. The Mogul Empire in India was gradually displaced by British colonial rule until the present countries of India, Pakistan and Bangladesh since 1947. However, the consequences of the transformation of these two empires were not limited to the modern countries which emerged from the Ottoman and Moghal Empires. This change has affected the Arabian Peninsula all the way down to Yemen and Oman, the Gulf States, as well as Iran and Afghanistan.
 See generally Mohamed Salim El-Awa, Punishment in Islamic Law (1982).