Scenario Paper Assignment Instructions: Islamic Law and Islamic States

Due: May 2, 2021 by 11:59 a.m.

In this assignment you will find yourself in various countries as a criminal! In the scenario and analysis you create you will truly be an international criminal. The “crime” committed can be of your choosing is long as it is illegal in the country we are studying.  You will find that this very deep dive into the criminal justice systems of each country we study will help you become a world criminal justice system expert.

The following is your prompt for the setting of your paper:

1) You are a US Citizen that is travelling to the country we are studying

2) You arrive at the country

3) You commit a crime

a. Make the crime interesting enough to write about

b. Make the crime of a nature that you will work through the country’s criminal justice system

c. Do not get caught up in the detail of the crime at the expense of the analysis – this will lead to failure of the assignment!

4) You are caught by the country’s law enforcement officers

5) You do not have diplomatic immunity and the country is balking at any means of negotiation with the US for your release from the crime and subsequent punishment

The following is an outline of what you should cover in your paper: 

1) Begin your paper with a brief analysis of the following elements:

a. Country analysis

i. Introduction to the country

ii. People and society of the country

iii. Economy

iv. Transnational issues (if applicable) that may impact law enforcement

v. Relations with the United States

b. What is the basic government structure and its relationship to the criminal justice system

c. What is the “legal family” or basis of law in the country

d. What are the major components of the criminal justice system in the country

2) Please explain the following elements:

a. What crime did you commit? How were you caught? In other words, briefly set up the scenario.

b. Explain the country specific law

c. Explain from first contact through arrest and questioning your experience with the country’s law enforcement officials

d. Explain the detention process you will experience as a foreign national for the crime you committed

e. Explain the judicial process you’ll experience for the crime you committed

f. Explain the detention, corrections, and/or incarceration process you’ll experience for the crime you committed

g. Provide an analysis on:

h. The effectiveness of the criminal justice system in the country

i. The human rights perspective of how you were treated through the lens of the country where you were caught

j. A Holy Bible comparison/analysis of the criminal justice system of the country where you were caught

Each research paper should be a minimum of 8 to 12 pages. The vast difference in page count is due to the fact that some countries are quite easy to study and some countries have very limited information. In some instances there will be a plethora of information and you must use skilled writing to maintain proper page count.  Please keep in mind that this is doctoral level analysis and writing – you are to take the hard-earned road – the road less travelled – the scholarly road in forming your paper.

The paper must use current APA style, and the page count does not include the title page, abstract, reference section, or any extra material. The minimum elements of the paper are listed above.

You must use the following sources:

· At least 8 recent, peer reviewed sources (past 10 years unless waived by professor): some countries may have more recent research articles than others

· 2 verses/citations from the Holy Bible

· 1 recent newspaper article on the country of study

· Books may be used but are considered “additional: sources beyond the stated minimums.

· You may use .gov sources as your recent, relevant, and academic sources as long as the writing is academic in nature (authored works).

Again, this paper must reflect graduate level research and writing style. If you need to go over the maximum page count you must obtain professor permission in advance! Please reference the Research Paper Rubric when creating your research paper.

Note: Your assignment will be checked for originality via the SafeAssign plagiarism tool

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CHAPTER 7: ISLAMIC LAW

Islamic Law

Book Reference

 

Terrill, R. J. (2016). World criminal justice systems: A comparative survey. Routledge.

Concepts to Know

· Prophet Muhammad

· The Quran

· The Sunna

· The Pillars of Islam

· Sunni

· Shia

· Ulama

· Sharia

· Mazalim

· Siyasa Sharia

· Madhahib

· Ijma

· Ijtihad

· Hudud

· Quesas

· Tazir

· Muhammad ibn Abd al-Wahhab

· Consultative Council

· Senior Council of the Ulama

· Supreme Judicial Council

· Bureau of Investigation and Public Prosecution

· Commission for the Promotion of Virtue and the Prevention of Vice

· Matawain

· Mujtahid

· Ayatollah Ruhollah Khomeini

· Faqih

· Council of Guardians

· Basij

· Mustafa Kemal Ataturk

· Supreme Council of Judges and Public Prosecutors

· Constitutional Court

Introduction

IN THE INTRODUCTION to this text it was mentioned that some countries view the purpose and function of law in a different context from that which emerged in the West. For our purposes, Islamic law will illustrate this fact. It is important to point out that Islam is primarily a religion, a belief system that espouses a specific moral code. Islam means submitting to God’s will. From its inception, the most important group associated with Islam was the umma, the community of believers, and the ultimate goal of Islam was to establish a theocratic society. In such a context, the state is viewed as a vehicle to enhance and foster the revealed religion throughout the community of believers.

Islam is often referred to as one of the three Abrahamic faiths; the other two are Judaism and Christianity. What these three religions have in common is monotheism, the belief in one God. Today, Islam is the second largest religion in the world with more than 1.3 billion followers; Christianity is the largest with more than 2.1 billion adherents, of which 1.1 billion are Roman Catholic.

The Quran

It should be noted that it was not the intent of the Prophet Muhammad (570?–632) to establish a new religion; rather, his objective was to reform the religion of one God. The Quran (trans. 2004) clearly states:

We sent Jesus, son of Mary, in their footsteps, to confirm the Torah that had been sent before him: We gave him the Gospel with guidance, light, and conformation of the Torah already revealed—a guide and lesson for those who take heed of God. So let the followers of the Gospel judge according to what God has sent down in it. Those who do not judge according to what God has revealed are lawbreakers.

We sent to you [Muhammad] the Scriptures with the truth, confirming the Scriptures that came before it, and with final authority over them: so judge between them according to what God has sent down (5:46–48).

Thus, Muslims believe that Muhammad was the last of the great prophets. Those preceding him were Abraham, Moses, and Jesus.

Before proceeding further, it should be noted that when citing the Quran, the first number following the quote refers to the chapter, and the number or numbers following the colon indicate the specific verse(s). Because there is not one standard method of transliteration of Arabic to English, names and terms often have several different spellings. I have attempted to use a simplified form that is free of many diacritical marks. Any quotations, however, are retained in the original form.

As the aforementioned passage indicates, according to the Quran, Muhammad received messages from God through the angel Gabriel. These messages represented God’s final revelations to humankind, with the previous noteworthy revelations coming to Moses and Jesus. As a result, Muslims believe that Islam supersedes Judaism and Christianity, for it is the culmination of God’s message to humankind.

Muhammad received the revelations over a 23-year period, which represented two distinct phases of the Prophet’s life in Mecca and Medina. Initially, Muhammad had tried to introduce the revelations to the people of Mecca, but they were unwilling to believe in the principal feature of his message: that there was one God. As such, he left Mecca, the place of his birth, for Medina, where he would establish the first Islamic government and where he also died in 632.

While the largest number of revelations was received during the initial 12 and one-half years in Mecca, it was during Muhammad’s time in Medina that the legal rules and various regulations pertaining to everyday life were revealed. According to the Quran, “We sent it in this way to strengthen your heart [Prophet]; We gave it to you in gradual revelation” (25:32). In light of this approach, the Prophet and his Companions were able to memorize the Quran. The Quran also states: “[Prophet], do not rush your tongue in an attempt to hasten [your memorization of] the Revelation: We shall make sure of its safe collection and recitation. When We have recited it, repeat the recitation and We shall make it clear” (75:16–18). Because the Arab population was largely illiterate at the time, they found this gradual method of revelation beneficial. During the Prophet Muhammad’s life, parts of the Quran were written. It was not until after his death, however, that a single authorized version of the entire text became available.

Thus, the Quran is Islamic scripture; it is the primary source of these revelations or the Word of God. The Quran consists of 114 chapters or surats (surah, singular) and 6,342 verses or ayas (ayah, singular). Each chapter has a title, with the longest of the chapters appearing first and the remainder getting progressively shorter in the text. It has been pointed out that the “contents of the Qur’an are not classified subject-wise. The ayat [signs of God] on various topics appear in unexpected places, and no particular order can be ascertained in the sequence of its text” (Kamali, 1989).

Of the 6,342 verses in the Quran, scholars offer differing figures on how many verses deal with legal issues. It ranges from 350 to 500, and many of these are concerned with religious duties, such as prayer and fasting. With regard to the legal verses, it has been suggested that “most of which were revealed in response to problems that were actually encountered. Some were revealed with the aim of repealing objectionable customs such as infanticide, usury, gambling and unlimited polygamy. Others laid down penalties with which to enforce the reforms that the Qur’an had introduced. But on the whole, the Qur’an confirmed and upheld the existing customs and institutions of Arab society and only introduced changes that were deemed necessary” (Kamali, 1989). It was further estimated that approximately 30 verses dealt with crimes and corresponding sanctions, while another 30 pertained to matters of justice, equality, and rights and obligations of people.

In the introduction to his translation of the Quran, which is used in this chapter to cite Quranic verses, M.A.S. Abdel Haleem pointed out:

The Qur’an was the starting point for all the Islamic sciences: Arabic grammar was developed to serve the Qur’an, the study of Arabic phonetics was pursued in order to determine the exact pronunciation of Qur’anic words, the science of Arabic rhetoric was developed in order to describe the features of the inimitable style of the Qur’an, the art of Arabic calligraphy was cultivated through writing down the Qur’an, the Qur’an is the basis of Islamic law and theology; indeed, as the celebrated fifteenth-century scholar and author Suyuti said, “Everything is based on the Qur’an.” The entire religious life of the Muslim world is built around the text of the Qur’an.

Muslims consider the Quran as a moral and ethical blueprint for a civilized society, which is neither unique to nor restricted to the society of believers, that is, the Muslim community. The Quran explains the importance of compassion, fairness, honesty, and justice. Although the Quran addresses how a devout Muslim should conduct himself or herself with regard to other people, it is especially concerned with the relationship that a devout Muslim has with God. Moreover, the right to interpret the Quran was not restricted to an elite group. Anyone with a pious disposition and the willingness and aptitude could study the Quran.

The Sunna

The Quran is the primary source of Islamic scripture, because it reveals the Word of God, but another primary source is the Sunna. Sunna means “clear path” or, in this context, established practice. Various approaches have been taken to organize the Sunna. First and foremost, the Sunna consists of three basic methods in which a message was transmitted: verbal, practical, and approved. The verbal method consists of the sayings of the Prophet Muhammad that are called hadiths. The practical method includes the actual deeds of the Prophet. The approved method encompasses the actions or sayings of the Companions that the Prophet approved. The Companions were the initial small group who were followers of Muhammad and who referred to themselves as his Companions.

The Quran indicates the importance of the Sunna on several occasions:

You who believe, obey God and the Messenger, and those in authority among you. If you are in dispute over any matter, refer it to God and the Messenger, if you truly believe in God and the Last Day: (4:59).

By your Lord, they will not be true believers until they let you decide between them in all matters of dispute, and find no resistance in their souls to your decisions, accepting them totally (4:65).

When the true believers are summoned to God and His Messenger in order for him to judge between them, they say, “We hear and we obey.” These are the ones who will prosper (24:51–52).

What makes the Quran the superior source of Islamic teaching is that it is believed to be received from God. The Sunna, on the other hand, consists of recollections of people who witnessed either a verbal, practical, or approved hadith from the Prophet.

The Sunna is a significant source of Islam in its own right for at least three reasons. It reiterates the rules and standards that were already revealed in the Quran, thereby confirming its authenticity. It is a significant aid in explaining or clarifying Quranic verses that are vague or unclear. Finally, it is the source of pronouncements on which the Quran was silent. The rulings from the Sunna, however, could not contradict or oppose a standard that was clearly stated in the Quran. Obviously, it is this last characteristic that makes the Sunna such an important independent source.

The Pillars of Islam

The central beliefs of Islam that unite the umma, the community of believers, and that are prescribed in the Quran are referred to as the Pillars of Islam. The Pillars of Islam are the five practices that devout Muslims are required to follow. Thus, these practices or tenets unite the worldwide community of Islam. The first tenet is the shahada (testimony): “There is no god but God, and Muhammad is His messenger.” The second tenet is the salat (ritual prayer) that is said each day at five different times: dawn, noon, afternoon, sunset, and evening. The third tenet is sawm (the obligatory fasting) during the month of Ramadan. Fasting includes refraining from food, drink, and sexual activity from sunrise to sunset during this month. Exceptions are made for people who are old, ill, or traveling. The fourth tenet is the obligation to participate in the hajj (pilgrimage) to the Kaba in Mecca at least once in a lifetime. The Kaba is a cube-shaped structure that is the major shrine of Islam. Muslim tradition claims that it was built by Abraham and Ishmael. It contains the Black Stone that Muslims believe was given to Abraham by the angel Gabriel. As such, it is considered the sanctuary of the “House of God.” It should also be noted that the pilgrimage is expected of those who are physically and financially able. The fifth tenet is the imposition of the zakat. Zakat means purification and is considered a religious obligation. It is a tax on Muslims for the care of the poor (see Aslan, 2006; Esposito, 2002).

Sunni and Shia

Christianity is divided into several denominations that embrace the basic Christian message. There are differences among the denominations that often deal with biblical interpretations and church governance. Islam is not divided along these same lines, because all devout Muslims adhere to certain core beliefs that include a belief in God, the Quran as divine revelation, the Prophet Muhammad and his teachings, and the basic tenets found in the Pillars of Islam. It should be noted that there are some differences on theological questions, but those are beyond the scope of our purpose.

The significant division in Islam was over the political and religious leadership of the umma, the community of believers, upon the death of Muhammad. When Muhammad died in 632, his efforts to reform the religion of one God was still in its infancy. Because Muhammad had not designated a successor, the elders of Medina, the seat of his reform movement, selected Abu Bakr as leader. Abu Bakr had excellent credentials in that he was noted for his piety and wisdom and the fact that he was an advisor and father-in-law to Muhammad. Abu Bakr’s tenure as caliph (successor to Muhammad) lasted only two years. Upon his death, he was succeeded by Umar, who ruled from 634 to 644 and is credited with expanding Islam to additional cities in the region. The third caliph was Uthman, who managed to antagonize a number of people in the Muslim community, which led to his assassination in 656. He was succeeded by the fourth caliph, Ali, who was both a cousin and son-in-law of Muhammad. Some within the Muslim community were angry over Uthman’s murder and opposed Ali’s selection. This led to Ali’s murder in 661.

Two groups emerged over the leadership issues that plagued the umma during its first four decades of existence. Sunni Muslims (from followers of the Sunna of Muhammad) are the main or orthodox branch of Islam. They noted that Muhammad did not name a successor; as a result, they were of the opinion that the most qualified person should be selected as leader or caliph, and the selection should not rely on hereditary succession. From the Sunni perspective, because Muhammad was the last prophet, a caliph’s authority would be limited to the political realm and would not be given a theocratic status. Of course, the caliph was expected to be a protector and defender of the Islamic faith. Thus, Sunnis believe that an Islamic government is a civil matter without any religious authority. Sunni Muslims account for about 85 percent of the adherents to the Islamic faith.

Shia Muslims (from the party of Ali) gradually developed a movement that asserted the hereditary succession of Ali’s descendants to the position of leader, because they believed that Muslims should be ruled by a male descendant of Muhammad. As such, the people should have no voice in determining the ruler, because it is a prophetic matter. These leaders, who were descendants of Ali, were called Imams, and their leadership authority extended to the realms of both religion and politics. As religious leaders, they were considered the interpreters of God’s will. Although they did not have the status of a prophet, the speeches and writings of Imams are considered important religious texts. Shias became the largest sect in Islam, and Shia Muslims, known as Shiites, represent about 15 percent of Muslims worldwide.

Within Shia Islam there are divisions that are based on differences over how many Imams succeeded the Prophet Muhammad. Today, the largest of these divisions are known as Twelver Shias. They believe that Muhammad, the twelfth Imam, who was born in 869 and a descendant of the Prophet Muhammad through his son-in-law Ali, went into hiding in the ninth century. Originally, it was thought that this period of seclusion would not last long. As the period of Occultation continued over centuries, there emerged the belief that the Imam Muhammad would return on Judgment Day.

While the Imam was in seclusion, there emerged the belief among the Shia community that the ulama, the religious scholars, were the only legitimate authority to offer guidance on governance, for it was the ulama who had undertaken long years of study of the Quran and Sunna. The ulama were not mandated to govern, but they were to offer moral and ethical guidance to the Shia community. The Shia community had its greatest concentration and development in Persia (modern-day Iran). Over time, the ulama of the Shia community established a clerical hierarchy. The upper echelons of this hierarchy are senior leaders who are called ayatollahs (signs of God) that are noted both for their piety and religious knowledge.

What makes this sect of Islam significant and different from Sunni Islam is that from its inception Islam had not established a church hierarchy or an ordained clergy, as those terms are used in a Christian context. Any Muslim could lead a prayer service or preside over a religious ceremony. Today, every mosque has an imam. Here, the term imam is used in a different context from that mentioned previously. An imam is a respected member of the community who is recognized for his piety and knowledge; he leads the prayer service and provides a Friday sermon (Alsaif, 2007; Aslan, 2006; Esposito, 2002; Martin, 2003).

It is important to interject here that the ulama is not unique to Shia Islam. The term ulama is associated with all Muslim men of extensive religious learning. They initially studied at a madrassa, an informal Islamic religious school. These men went beyond merely memorizing the Quran though. They studied the subject in greater depth and were identified by their community for their religious learning. They became the guardians of the beliefs, values, and practices of the umma. Some became noted as famous theological scholars, while others were noted for their legal scholarship and were referred to as jurists. The elite among the ulama were called upon to serve as judges in important courts, as teachers at the famous schools, and as preachers in the major mosques.

Historical Development of Islam

As mentioned in the Preface and Introduction, Islamic law will not be examined in the context of a single country, but rather it will be viewed in the manner in which it has influenced the justice system of a few countries associated with Islam. Three countries have been selected; today they are called Saudi Arabia, Iran, and Turkey (see  Figure 7.1 .) Each was selected because the overwhelming majority of their populations are Muslim, but also because each has embraced Islam in distinct ways. Some of the distinctions are based on the cultural traditions of each country that predate the arrival of Islam; some are based on when Islam was received and how Islam evolved in the geographical areas that we call Saudi Arabia, Iran, and Turkey. In light of this, a brief sketch is presented of the historical reception of Islam to these three regions.

The Arabian Peninsula

In pre-Islamic times, the Arabian Peninsula was inhabited by Bedouins, whose culture was based on a patriarchal tribal social structure. The various tribes initially created unwritten rules that over time established customary laws for a tribe. A single executive and legislative authority, as we use those terms today, did not exist. As a result, there was no organization for the administration of a central government in general or for criminal justice in particular. Law and order was based on rules established by the tribes.

Much of the region consisted of a vast desert terrain, and its significance to the rest of the known world was limited to that of providing important trade routes, especially when the principal empires in the region—Persian and Byzantium—were at war with one another. During the fourth, fifth, and sixth centuries, however, these empires experienced a period of peaceful coexistence. As a result, the significance of the region for trade routes declined somewhat. With regard to religion, it should be noted that the Zoroastrian faith was dominant in Persia, while Christianity was establishing a strong foothold in Byzantium. Both of these, along with the Jewish faith, were more sophisticated than the primitive pagan practices of the Arab region. Through the various trade routes across the peninsula, Arabs were becoming familiar with these religions.

 

Figure 7.1  Saudi Arabia, Iran, and Turkey

Map courtesy of Bruce Jones Design Inc.

In or around the year 570, Muhammad was born in the small market town of Mecca. His family was a member of the Quraysh tribe. When Muhammad was about 40 years of age, it is said that he began to receive messages from God through the angel Gabriel. For Muhammad, these were God’s final revelations to humankind. Because of his monotheistic beliefs, he was associated with the prophets of the Jewish and Christian religions. Both of these religions had small communities within the Arabian Peninsula. While Muhammad began to gather around him a small group of followers, most people in the Arabian Peninsula in general and his Quraysh tribe in particular worshipped multiple gods. As such, they rejected his message, which caused him to leave Mecca and move to Medina, an oasis community. In time the people of Mecca would accept Muhammad’s message and welcome him back.

According to one scholar, “Muhammad worked to create a community based on shared religious beliefs, . . . which would transcend the traditional social structure based on families, clans, and tribes and would unite disparate groups into a new Arabian society.” He further pointed out that the “idea of the family was at the core of the Muslim conception of the individual person and the umma, the community of believers. The family ideals reinforced the concept of individuality by stressing the religious importance of individuals as God’s creatures rather than as mere objects in the clan system of society, and by stressing the individual’s responsibility for moral relations within the family” (Lapidus, 2002). It is important to note that the Middle East is another region of the world where there is a long cultural tradition in which the group is more important than the individual. This is a very significant cultural feature that impacts personal responsibility in general and issues associated with criminal justice in particular.

While creating his community of believers in Medina, Muhammad established the first Islamic government. It has been pointed out by one scholar that unlike the founder of Christianity, Jesus of Nazareth, who said, “Render therefore unto Caesar the things which are Caesar’s; and unto God the things that are God’s” (Matthew 22:21), Muhammad was establishing an Islamic state that would be ruled by God’s messenger, Muhammad, on behalf of God. Thus, whereas Christianity made a distinction between the functions of the imperium and sacerdotium, Muhammad did not acknowledge such a division. His state would be governed by a law found in a new scripture that was designed to supplant the two previous religious testaments revealed by this same God.

That scholar has also pointed out:

There is thus a crucial difference between the career of Muhammad and those of his predecessors, Moses and Jesus, as portrayed in the writings of their followers. Moses was not permitted to enter the promised land, and died while his people went forward. Jesus was crucified, and Christianity remained a persecuted minority religion for centuries, until a Roman emperor, Constantine, embraced the faith and empowered those who upheld it. Muhammad conquered his promised land, and during his lifetime achieved victory and power in this world, exercising political as well as prophetic authority. As the Apostle of God, he brought and taught a religious revelation. But at the same time, as the head of the Muslim Umma, he promulgated laws, dispensed justice, collected taxes, conducted diplomacy, made war, and made peace. The Umma, which began as a community, had become a state. It would soon become an empire (Lewis, 1996).

Thus, this was a religious reform movement with a difference. Its leader set out to conquer territory and to preach his spiritual message. The spread of Islam throughout the Arabian Peninsula set the stage for a rapid expansion beyond these borders. Islam would extend its reach throughout the Middle East and beyond to include northern Africa and Spain. While this was carried out by conquest and colonization, a number of scholars have indicated that the objective was not to impose this new faith by force, for the Quran clearly states, “There is no compulsion in religion” (2:256).

When Muhammad died in 632, his reform movement was still limited to the Arabian Peninsula. The caliphs that succeeded him continued the military expeditions that he had initiated. By the end of the reign of the second caliph, Umar, Arabs controlled all of the Arabian Peninsula and areas in the Persian and Byzantium empires that are known today as Iran, Iraq, Syria, and Egypt. By the middle of the seventh century, the political climate in the region had been transformed in a unique way, and it was the direct result of God’s revelation to Muhammad. As Islam spread through Arab conquest, so also did the Arab language. The Quran was the first book written in Arabic. Arabs were given a heightened status because Islam originated in their region. It should also be noted that it was during the reigns of the first four caliphs that the introduction of Islamic law or Sharia began to develop through the interpretation of the Quran. Finally, many of the early converts to Islam tended to live in urban areas. As their numbers grew, Islamic institutions were established. Among the most notable were the mosque and law court. The emergence of these courts will be discussed later.

The Arab empire that had been created as a result of these military conquests was short-lived, however. Like most empires, it failed because of internal decay, which is frequently precipitated by a combination of internal political, social, and economic factors coupled with an external superior military threat. Through various battles in 749 and 750, the Arab Umayyad dynasty was defeated by the Persian leader, Abu’l-’Abbas, which established the Abbasid Caliphate. With this development, the center of political power moved from Medina to Baghdad. Of course, the spiritual center would remain in Mecca, the site of the Kaba. Nevertheless, the Arabian Peninsula receded in significance until oil was discovered and it became a significant resource in the twentieth century.

Persia

Persia had a long and famous cultural tradition that extended back to the Achaemenid dynasty that ruled from 559 to 330 BCE. Among the famous rulers associated with this ancient dynasty were Cyrus II, Darius I, and Xerxes I. It was the Sasanian Dynasty (224–651 CE) of the Persian Empire that was weakened by prolonged wars with the Byzantine Empire that ultimately led to its defeat by the Arabs. In the 650s, Arab culture was in the ascendancy throughout the region, and many Persians converted to Islam. In spite of this change in faith, Persians retained their language and their long-standing cultural traditions. While they may have embraced Islam, they were not Arabs, but Persians. One hundred years after their defeat in 651, the fortunes of war were reversed with the creation of the Abbasid Caliphate. This dynasty would remain in power until 1258.

For our purposes, Persia was important in the development of Islam because of its cultural and intellectual traditions that were enhanced further by the fertilization of Greek and Roman ideas. Two examples, which are intimately related and intertwined at times, will suffice to illustrate both this tradition and its continued significance that has evolved up to the present time. One deals with politics and political theory, while the other example focuses on the long-standing significant place of religion in Persian culture and society.

Ever since the death of the Prophet Muhammad, there was an ongoing debate over who was the legitimate ruler of the umma, the community of believers. Initially, the umma was small and highly localized in Medina. At the time of his death, however, Muhammad had established an Islamic state that was essentially within the boundaries of the Arabian Peninsula. With further military conquests by succeeding caliphs, an Islamic empire had been created that extended well beyond the geographical confines of Arabia. The principal participants in this leadership debate were members of the ulama, the religious scholars. They had long been acknowledged as the only legitimate authority to offer guidance on governance, for it was the ulama who had undertaken long years of study of the Quran and Sunna.

At issue in this leadership debate was not only who should be the legitimate ruler, but also what should be the extent of the leader’s authority. One of the more fruitful areas for this debate occurred in Baghdad, a center of intellectual activity. Two of the contributors to this debate were Abu Al-Hasan Al-Mawardi (972–1058) and Abu Hamid Muhammad al-Ghazali (1058–1111). Al-Mawardi had a distinguished career in the service of the Abbasid Caliphate, which began with a judgeship, progressed to Chief Justice at Baghdad, and also led to ambassadorial service. He was noted for making scholarly contributions as a jurist, sociologist, and political scientist. Al-Mawardi favored a powerful caliphate and indicated that support for this position could be found in the Quran: “You who believe, obey God and the Messenger, and those in authority among you” (4:59). The ultimate purpose of the caliphate was to protect the umma and administer justice that was based on Islamic jurisprudence.

In the matter of the extent of the leader’s authority, a good deal of tension developed over the authority of the ruler and the specific role of the ulama, who were considered the guardians of Islam. Abu Hamid Muhammad al-Ghazali contributed to this issue. He was a scholar who wrote a number of books on such diverse subjects as theology, philosophy, psychology, science, and jurisprudence. From al-Ghazali’s perspective, the caliphate consisted of three parts or duties. First, the caliphate was the appropriate successor to the Prophet as the political leader of the umma. Second, the caliph was also responsible for the administration of government and the military. Finally, the caliph had a duty to guard and defend the faith. Al-Ghazali was of the opinion that each of these responsibilities should be placed in the care of a single person, the caliph. If this was not possible, the caliph should retain the position of successor to the Prophet and the remaining duties should be distributed to others in positions of leadership. The role of the ulama was always that of guardian of the beliefs and practices of Islam. The issue over the amount of power accorded the secular political leaders and the authority granted to the religious leaders of Islam was not resolved in the tenth century, although the debates did help to clarify the issue. As empires emerged and then declined, and as nation states were parceled out of these old empires with populations overwhelmingly Muslim, the issues of power and authority were addressed, and they continue to be addressed in a number of contexts up to the present time.

How this aforementioned political debate specifically played out in Persia and later Iran can be traced in part to the long-standing significant place of religion in Persian culture and society. For our purposes, the significant role of religion for Persia began with Zoroastrianism. Zoroaster (630?–550 BCE) was a Persian religious prophet who taught a form of monotheism. Rather than believing that there were many gods, which was a much more common belief at the time, he maintained that there were two forces in the world. Ahura Mazda is the Creator who represents the powers of light, good, and order. Ahriman is the Destroyer who represents the powers of darkness, evil, and disorder. The concepts of paradise and hell were important features of this religion. People determined their fate regarding the hereafter by the manner in which they responded to the battle between good and evil on earth. A significant feature of Zoroastrian beliefs was social justice, that is, the ultimate goal of humankind’s battle against evil was to improve society for all. It was believed that the elimination of disorder and the establishment of order could be achieved by a powerful king ruling in the name of justice. It is important to note that in this context and period of time the administration of justice was a duty of the king and not a right of an individual. Thus, this religion had not only a spiritual dimension but also a social and political mission. The first king of Persia to acknowledge this religion was Darius I (558?–486 BCE). Zoroastrianism had become the dominant faith in Persia during the period of the Sasanian dynasty and served an important role in supporting the role of the king throughout the Persian Empire. It has been suggested that the “Persian theory of kingship was basically religious. . . . [It] had introduced a kind of state Church, which in turn sanctified the royal power, and took an active part in social and political life” (Lewis, 1996).

Shia Islam, which was explained earlier, emerged as a distinct but small sect in the late ninth century and had devout followers throughout the Islamic world. It was in Persia, however, where a significant number of followers were found, and Persia’s rich intellectual tradition enabled the nurturing and development of the Shia sect of Islam. It would eventually become the state religion of Iran in 1501, when the Safavid dynasty (1501–1736) established it as such. Thus, it has been suggested that “Islam broke the centuries-old Zoroastrian bond between subject and ruler, faith and state. In its place, Muslims were called to commit to something greater than the state—the Ummah, the community of believers whose only boundaries are faith” (Mackey, 1996).

Over time, there emerged the belief among the Shia community that the ulama, the religious scholars, were the only legitimate authority to offer guidance on governance. As noted earlier, although the ulama were not mandated to govern, they were to offer moral and ethical guidance to the Shia community. Within this community, the ulama established a clerical hierarchy that assumed the legitimate mantle of authority to offer guidance on governance. This clerical hierarchy is a unique feature of Shia Islam, for Sunni Muslims, who represent the largest number of adherents to the Islamic faith, do not subscribe to a clerical hierarchy. The role of religious leaders in the Iranian Revolution of 1979 and the subsequent creation of the Islamic Republic of Iran illustrate the most recent chapter in the debate surrounding the amount of power accorded the secular political leaders and the authority granted to the religious leaders of Islam.

The Ottoman Empire

A noted scholar on the history of the Arab world pointed out:

By the end of the tenth century there had come into existence an Islamic world, united by a common religious culture expressed in the Arabic language, and by human links which trade, migration and pilgrimage had forged. This world was no longer embodied in a single political unit, however. There were three rulers claiming the title of caliph, in Baghdad, Cairo, and Cordoba, and others who were in fact rulers of independent states. This is not surprising. To have kept so many countries, with differing traditions and interests, in a single empire for so long had been a remarkable achievement. It could scarcely have been done without the force of religious conviction, which had formed an effective ruling group in western Arabia, and had then created an alliance of interests between that group and an expanding section of the societies over which it ruled (Hourani, 1991).

By the eleventh century, however, another group, the Turks, was moving across the northern frontiers of the Islamic empire. Turkish military slaves had been used in Islam since the eighth century. Now Turks were migrating into Islamic territory and converting to Islam. One group, led by the Seljuk family, was noted for their military prowess. The leader of the family, Tughrul, assumed the title of sultan following his conquest of Baghdad. This illustrated not only his political right to rule as a king but also was claiming the Islamic right to be the defender of the Islamic faith. It was noted that “Turkish Islam was dedicated from the start to the defence or advancement of the faith and power of Islam, and never lost this militant quality” (Lewis, 1996). To illustrate, it was largely Turkish-led armies that fought the medieval European crusaders who sought to recapture the Christian religious sites in and around Jerusalem. As a result of a number of factors, the caliphate was being eclipsed by the Ottoman sultanate.

The conquests would continue under Ottoman sultans. They conquered Constantinople in 1453, which had been the capital of the Byzantine Empire. They seized Athens in 1458, Damascus in 1516, Cairo in 1517, Baghdad in 1534, and Tripoli in 1551. In 1529, they had reached the outskirts of Vienna and were a threat to that city for more than a century. In light of these developments, it is understandable why devout Muslims would view so many successes as proof that they had a sacred duty to continue to expand their true faith over more regions of the world. While retaining the use of their Turkish language, the Ottomans succeeded in centralizing their administrative governing authority and with expanding the size of the Islamic empire through military expeditions. The Western world had not seen such dominance since the time of the Roman Empire.

Scholars have often commented on the large bureaucratic state that was created and that enabled the Empire to operate for so long. One summarized it in this manner: “Ottoman rule was based upon a mixture of imperial and patrimonial modes of governance” (Sunar, 2004). The sultan was at the top of this governing hierarchy. He relied upon two groups to administer the day-to-day functions of the empire. The military corps already had a long tradition among the Turkish people; the development of a civil service bureaucracy benefited from Persian influences. Of course, the sultan had a fundamental duty to defend and protect the Islamic faith. Because Islam was not organized along the lines of a church with a bureaucracy, the sultan recognized the ulama as a third element in the administration of the empire. They were the official guardians of the beliefs and practices of Islam.

The height of the Ottoman Empire was between the sixteenth and eighteenth centuries. This empire, with its capital in Istanbul, had come to dominate all Arab-speaking countries. It has been suggested that the “Turks consider the Ottoman period to have been a golden age of ethnic harmony and cultural diversity” (Kinzer, 2001). Three languages dominated the Middle East: Arabic, Persian, and Turkish. Each contributed in its way to the administrative, legal, religious, and secular culture of the region. The principal centers of power were Turkey, Iran, and Egypt. It would be the Ottoman Empire that was “the last great expression of the universality of the world of Islam” (Hourani, 1991).

The Ottoman Empire began its decline in the nineteenth century. The decline “was due not so much to internal changes as to their inability to keep pace with the rapid advances of the West in science and technology, in the arts of both war and peace, and in government and commerce” (Lewis, 1996). One example will illustrate the dilemma facing the empire. From its inception, the Ottoman Empire employed three sources of law. First and foremost was Sharia, the Islamic law, derived from the Quran and Sunna. Second were the rules and principles established to address issues that were not explained in the Sharia. The very process of creating these rules, however, was guided by the Quran. A third source of law was official rulings or directives to cope with various social circumstances at a particular time and a specific place in the vast empire. A fourth source of law emerged during the nineteenth century. As a result of the importance of commercial enterprises and the borrowing of scientific and technological advances from the West, the empire sought additional assistance with nagging problems in other areas of governance. Initially, the empire adopted legal ideas from the codes of European countries. By the late nineteenth century and with specific reference to criminal justice, they were adopting a Penal Code (1857) and a Code of Criminal Procedure (1879) that was based on the contemporary legal codes of France.

This has been a very brief sketch of the historical reception of Islam to the regions that we now call Saudi Arabia, Iran, and Turkey. We will return to these three countries later in this chapter in order to examine the role that Islamic law plays in the contemporary context of each country. First, it is important to provide the reader with an orientation to Islamic law in general and its application to issues associated with criminal justice in particular.

Sharia

Historical Development

The primary objective of the Prophet Muhammad was religious reform and not the transformation of the customary traditions of Arabia (Khadduri, 1961). Those in opposition to Muhammad maintained that he was indeed violating the tenets of the established law. At the time, religion and law were interrelated in Arabia, as was the case in most primitive societies. It was difficult to suggest that one was reforming one without impacting the other. To illustrate, Muhammad claimed he was simply replacing the idols that had been worshipped in the past with the one true God, Allah. Idolatry, however, was part of the customary tradition of Arabia.

During the early formative years of Islam’s development, law emerged from the decisions of the Prophet and upon his death by his political successors, the caliphs. As a result of these decisions and a familiarity with the Quran and Sunna, jurisprudential debates arose over the interpretation of law in the Muslim community. From these debates emerged the theory that the Sharia was “the comprehensive and preordained system of God’s commands, a system of law having an existence independent of society, not growing out of society but imposed upon society from above” (Coulson, 1969).

Upon the death of the Prophet in 632, the caliphs led a series of military campaigns that significantly expanded the geographical region associated with Islam. These conquests were instrumental in the development of Islamic law. The decrees of the early caliphs introduced answers to some legal problems that confronted them in their new territories. Caliphs could initiate legal rules that were outside the realm of Sharia, for the Quran gave them that authority: “You who believe, obey God and the Messenger, and those in authority among you” (4:59). Issues that tended to deal with a specific local problem, however, were resolved through the customs and legal traditions of the local community.

The caliphs were interested in the introduction of Islamic law, for it was considered both a code of law and a code of morals. Thus, a distinction was not made between the two concepts. The Quran, in particular, is the fundamental vehicle that defines what is appropriate in the Islamic community of believers. Various Quranic verses clearly illustrate what is right and wrong or what is proper or inappropriate. For example, “[T]hey say, ‘Trade and usury are the same,’ but God has allowed trade and forbidden usury” (2:275–276); “You who believe, intoxicants and gambling, idolatrous practices and [divining with] arrows are repugnant acts” (5:90); and “Do not go near the orphan’s property, except with the best [intentions], until he reaches the age of maturity” (17:34).

In Islamic society, religious morality was instilled in people through both religious teachers and preachers but also by public officials, like the Muhtasib, the market inspector, who had some authority to sanction law violators. Islamic law established “the code of life for the Muslim community, covering religious obligations (ibahat) as well as social relations (muamalat). Thus, law (fiqh) plays a more vital role in Islamic society than that played by modern or secular law in western societies” (see Kamel, in Bassiouni, 1982).

For the most part, the caliphs retained the administrative organization that existed in the territories that they conquered. The local chiefs of police and judges that were appointed by the provincial administrator and given the authority to hold a court to adjudicate local disputes were expected to utilize local law or custom to resolve issues. It should be noted that in addition to local customs, some of these new territories had been previously influenced by Roman, Byzantine, and Persian legal ideas. Moreover, because there was no hierarchy of courts from which a local judge could seek guidance, he was left to his own discretion in deciding disputes. Initially, the extent to which Islamic legal norms were integrated into legal decisions was totally dependent on the extent to which the judge understood Islamic law. Even with an understanding of the Quran, the legal verses were still often subject to interpretation when confronting the facts in a specific case. Thus, the judge was still dependent on his discretion. In light of this situation, legal historians of Islam questioned whether the law of the Quran was actually being implemented in these newly conquered territories.

Although there were no appellate judges in a court hierarchy, a litigant could appeal a judgment to the head of state. When the sovereign elected to sit as a court himself or through his designate, it was known as the court of mazalim (complaints). This was based on the notion that the ruler, whether a caliph or a sultan, had a responsibility to correct any wrong and ultimately to guarantee justice to all his people. In the context of criminal cases, the political authority or the delegate exercised a legal prerogative to resolve an apparent wrong that had occurred in an Islamic court. There were no rules or texts that defined the limits of the jurisdiction of mazalim. Whereas judges in the regular Islamic courts were bound by rules based on Islamic law, mazalim judges were free to exercise their discretion beyond such procedural or evidentiary rules in order to achieve the goal of righting a wrong.

The criminal law was singled out as a facet of law in which the jurisdiction had been essentially delegated to the police by the wali al-jara’im, who was the official authorized to handle criminal offenses by the political leader. Thus, criminal law became a particular focus of mazalim jurisdiction. Senior police could hold a court, and they often ignored the procedural rules established by the Sharia. For example, they entertained the use of circumstantial evidence; they heard the testimony of questionable witnesses; they imprisoned suspects; and they extorted confessions. While the police courts could apply the punishments of hudud offenses (which are explained later), they were not required to do so if the Sharia standards of proof were not met. These highly flexible criminal procedural standards enabled them to use a good deal of discretion when determining an appropriate sanction for the convicted offender (Coulson, 1964). Thus, very early in the development of Islam there was a dual court system. One court was clearly Islamic and was presided over by an Islamic judge that handled a host of legal issues, especially those that related to family law (marriage, divorce, and inheritance). The other court was of local origin and dealt with local issues, often assuming in particular the responsibility for issues associated with criminal offenses.

It has been pointed out that there emerged a tension among the jurists, the Islamic legal scholars, who were the guardians of the ideal interpretation of Sharia and how the law was actually interpreted in practice in the various courts that existed throughout the expanding Islamic territories (Coulson, 1969). At issue was the fact that Sharia represented the ideal order of things for Islam, but the political rulers of Islamic territories had to be concerned with practical matters associated with the community of believers or what we would today call the public interest.

By the eleventh century, the tension began to dissipate. The notion of mazalim courts and judges eventually led to the development of the doctrine of siyasa (administrative justice policy). Essentially, siyasa permitted the sovereign a good deal of authority in the administration of justice. It is important to remember that this doctrine was embraced because it was assumed that the sovereign was ideally qualified to serve in his capacity. The most significant qualification was a degree of religious piety and an understanding of God’s purpose for the community of believers.

One of the early responsibilities that the political leaders assumed under the doctrine of siyasa and focused on was the development of criminal procedural rules. While a procedural process could conform to cultural and societal norms, it ultimately had to be in compliance with Sharia. The term siyasa sharia means an administration of justice policy that is essentially in conformity with Sharia. Therefore, a distinction was made between Sharia and siyasa. Sharia is that blend of both a code of law and a code of morals. Siyasa sharia is the method of introducing practical pragmatic policies for the administration of justice that are in conformity with the spirit of Sharia, especially when Sharia does not provide specific guidance.

Many contemporary scholars maintain that Islamic law has a rich and important history that introduced concepts and principles that would not be achieved in other legal systems for hundreds of years. For example, they maintain that the idea of equal treatment before the law was introduced to Muslim societies at the beginning of the Islamic era. In pre-Islamic Arab society, customary criminal law placed more severe sanctions on the accused if his victim was of a higher social rank, which was obviously associated with wealth and power. With regard to a retributive sanction, an entire tribe might suffer the consequences of the crimes of one of their tribe because of the collective responsibility of the tribe for its members. With the advent of Islam, Muslims were guided by Quranic verses that such societal distinctions were no longer applicable. For example, “People, We created you all from a single man and a single woman, and made you into races and tribes so that you should recognize one another. In God’s eyes, the most honoured of you are the ones most mindful of Him: God is all knowing, all aware” (49:13). As such, the laws of Islam did not permit the gradation of sanctions based on the social rank of the perpetrator or the victim.

Madhahib

It has been pointed out that: “The first 150 years of Islam were characterized by an almost untrammeled freedom of juristic reasoning in the solution of problems not specifically regulated by divine revelation” (Coulson, 1969). In the eighth century, however, there emerged conflict in Islamic jurisprudence. The basis for the conflict was the tension between divine revelation from Islamic scriptural sources and human reason associated with legal questions and practical cases. This tension was central to the debates and emergence of Islamic legal theory. From these disagreements emerged an acknowledgment to establish a coherent Islamic legal doctrine that would be found in the Quran and Sunna. There was also a recognition that legal reasoning had to become more consistent and less arbitrary. This would lead to the use of analogical deduction.

Unlike the common law of England, which was originally based on case law decisions of the judiciary, Islamic law was developed by jurists, the legal scholars of Islam. Initially, the term sunna was employed to speak in a general way of established practices of the community of believers and those of the Companions. It has been pointed out that the Sunna of the Prophet Muhammad was introduced as legal theory by jurists at the end of the seventh century, and by the end of the eighth century the juristic use of the term Sunna was in reference solely to the Prophet. It should also be noted that originally, hadith was a narration of some act of the Prophet, while Sunna was an example or law that could be deduced from a hadith. Hadith also was used to cite statements attributed to the Companions and their Successors. Eventually, hadith was only used when mentioning an act or saying of the Prophet. As a result, the distinction between Sunna and hadith was eliminated (Kamali, 1989).

Initially, there were many madhahib (singular, madhhab) or schools of Islamic law. They existed throughout the expanding territories of Islam and participated in the debates on legal theory. Two of the central features associated with the debates focused on jurisprudential methods. The first of these was the importance and emphasis placed on established doctrines that were gleaned from the Quran and Sunna. The second was a significant reliance on reasoning based on analogical deduction rather than the arbitrary views of judges that were expressed in court decisions.

Historians consider the formative period of the development of Islamic law between the seventh and ninth centuries, and this coincides with the emergence of two major schools of Islamic legal theory in the late eighth century. One school was located in Kufa and was therefore influenced by Persian ideas, while the other school was located at Medina, a significant city in Arabia. In addition to Arab and Persian influences on Islamic legal theory, contact with the Byzantine Empire brought another dimension to the discussions on law. Ultimately, Islamic law was developed through the doctrines of the jurists and appeared in medieval texts. It has been suggested that by the tenth century “the law was cast in a rigid mould from which it did not really emerge until the twentieth century” (Coulson, 1964).

Since the fifteenth century, four legal schools in Sunni Islam have continued to exist. What follows is a brief sketch of these schools. The sketches are followed by some examples of how these schools either agree or disagree when addressing various legal issues.

Hanafi

The Hanafi madhhab was founded by Abu-Hanifa (d. 767), who was open to ideas from other legal systems. Given the ongoing territorial spread of Islam at the time and in light of local conditions, this school favored the freedom to recognize supplementary sources of law. This school originated in Kufa, an urban center, and was influenced by Persian ideas. The jurisprudential approach to Sharia of the Hanafi madhhab was adopted by the Abbasid dynasty (750–1258) of Islam. The Hanafi madhhab came to dominate much of the Middle East region. Today, this encompasses Turkey, Syria, Lebanon, Iraq, Jordan, and Egypt in addition to India.

Maliki

Medinan scholar Malik ibn-Anas (d. 796) produced the first compendium of Islamic law. His name is associated with the Maliki madhhab. It is noted for adhering closely to the traditions of Arabian tribal society. It also favors recognizing supplementary sources of law in the name of the public interest. The Maliki madhhab is noted for emphasizing a moralistic approach to law, and it is dominant in various regions of Africa.

Shafii

Muhammad ibn-Idris ash-Shafi-i (767–820) was noted for his theory of the sources from which law is derived. His treatise, Risala, states this theory. According to Shafi-i, there are four principal sources of Islamic law. The first source was obviously the Quran. He interpreted the Quranic verses that commanded devout Muslims to obey God and to obey the Prophet to mean that Muhammad was also a source of law, albeit a secondary source when compared to God. The pronouncement that Muhammad was a lawgiver was an important theme in Shafi-i’s treatise. The second source was the Sunna of Muhammad, which displaced the sunnas of local legal schools. Thus, instead of multiple sunnas representing various schools, there was now recognized in this theory a single Sunna, that of Muhammad. The third source was ijma or consensus. Shafi-i rejected the authority of a single school to establish a consensus. From his perspective, a consensus must be reached among the entire community of Islamic scholars. The fourth source was reasoning by ijtihad or analogy. This method was employed to resolve issues in which the other sources did not provide an answer; however, the other sources should serve as a guide in the resolution of an issue. This source of Islamic law is considered strikingly significant by today’s scholars, because it has enabled Islamic legal scholars to develop new theories of law. This is especially pertinent with the development of modern fields of law. While Shafi’i’s theory acknowledged the obvious importance of God’s will in law, he enhanced the status of human reason through the resolution of legal issues. The Shafii madhhab dominates southern Arabia, east Africa, and Southeast Asia.

Hanbali

Ahmad ibn-Hanbal (d. 855) collected hadiths into a work titled Musnad. He rejected human reason as a source of law and claimed all legal rules could be found either in the Quran or the Sunna of the Prophet. Thus, the followers of this school rejected judicial reasoning by analogy. They were of the opinion that the prophet’s Sunna, in particular, was being compromised through the broadening of the sources of Islamic law by the other schools. They strongly favored the traditional approaches or sources of Islamic law and focused on both the legal and moral teachings that could be derived from the Quran. This madhhab did not dominate a region until it was adopted by the Wahhabi movement in the eighteenth century. It then became the official interpreter of Sharia in Saudi Arabia.

There was agreement among the four madhahib regarding the principal tenets of the Islamic faith, the Five Pillars of Islam. There was also a consensus among the schools regarding the political sovereignty in the Islamic state. All supported the doctrine of the Caliphate, the successor to Muhammad would be the political leader of the Islamic community, and the caliph would assume this position following his election by the qualified representatives of the community of believers. Moreover, his authority would be limited by law. There were differences among the schools, however, when interpreting the actual implementation of certain laws. A few examples that relate to criminal law and procedure should illustrate these differences.

For instance, the Quran states that: “. . . if anyone repents after his wrongdoing and makes amends, God will accept his repentance: God is most forgiving, most merciful” (5:39). Jurists differed on how this verse should be interpreted. While the Hanifa madhhab maintained that repentance did not eliminate punishment in this life, but only in the hereafter, the Shafii madhhab were of the opinion that repentance meant the elimination of punishment in this life and the hereafter. In reference to the conditions of witnesses, Islamic law established certain standards that potential witnesses were required to meet before they were permitted to testify in court. One of the standards was that the witness must be able to speak. The madhahib had varying opinions on the testimony of people who could not speak or hear. The Malik and Hanbali madhahib accepted the written testimony of a person who could not speak, whereas the Hanafi madhhab rejected the testimony.

On the subject of confessions, the Hanafi madhhab maintained that a valid confession had to occur in court, whereas the Maliki, Shafii, and Hanbali madhahib were of the opinion that a confession was valid outside of court, if there were two witnesses to the testimony. In reference to compensation as a legal punishment, it was considered a payment by the perpetrator, as a ransom for a lost life or an injury received. In cases of murder, however, it was argued by some that if the perpetrator was to undergo the penalty of retribution, the victim’s family could not impose upon him a demand for compensation. The Shafii and Hanbali madhahib disagreed with that position and maintained that a murderer was obliged to pay compensation if the victim’s family demanded it. On another matter, the Shafii madhhab employed ijtihad to justify inflicting the penalty of stoning for sodomy. The other schools claimed that this was not necessary, because the legal definition of fornication already included sodomy.

Finally, in the matter of wine drinking as an offense, the various madhahib had been in disagreement over whether it should be expanded to include other alcoholic beverages and other drugs. In addition, the Hanafi and Maliki madhahib maintain that the sanction for this offense is 80 lashes, but the Shafii madhhab is of the opinion that the penalty should be 40 lashes. They make this distinction based on the practices of the first Caliph, Abu Bakr, and the fourth Caliph, Ali.

Legal Theory and Shia Islam

There is agreement between Sunni Islam and Shia Islam regarding the principal tenets of the Islamic faith, the Five Pillars of Islam. With regard to law, Shia Islam maintains that the Quran established a new legal system. The principal sources of Shia law are the Quran and Sunna. As such, customary law was eliminated, unless it was supported in the Quran. One of the major distinctions between Shia Islam and Sunni Islam is associated with legal sovereignty. Sunni Islam supported the doctrine of the Caliphate, that is, the successor to Muhammad would be the political leader of the Islamic community, and the caliph would assume this position following his election by the qualified representatives of the community of believers. Moreover, his authority would be limited by law. With regard to legal sovereignty, the Shia Imam had supreme authority of the divine lawgiver. The difference politically has been characterized as that between a constitutional form versus an absolute form of government. Finally, a significant difference with Sunni Islam is in the area of inheritance. Whereas Sunni Islam emphasized the customary law of the tribal heirs, that is, the male agnate relatives of the deceased person, the inheritance law in Shia Islam emphasized the immediate family. It was based on the closeness of the deceased to the relation. Moreover, gender was irrelevant under this legal interpretation. The origins of these distinct legal interpretations are usually traced to the Ja ‘fari school of jurisprudence. Associated with Ja ‘far as-Sadiq, a sixth-century Imam, this school is noted for the importance it places on ijtihad, that is, the role of applying reason when interpreting the laws of Islam. A further elaboration of ijtihad is offered below. Moreover, the Ja ‘far school is the principal school of jurisprudence in Shia Islam. Shia legal theory has been dominant in Iran, India, East Africa, and Iraq.

Sources of Sharia

Islamic law is characterized as a series of standards that are religious and moral in nature and that are designed to establish and to explain appropriate conduct of the believers of Islam. As the Quran proclaims: “Be a community that calls for what is good, urges what is right, and forbids what is wrong: those who do this are the successful ones” (3:104). Thus, Islamic law emphasizes a series of duties rather than focusing on rights, which is often a major concern of legal systems in the West. The principal sources of the Sharia are the Quran and Sunna.

Quran

Throughout the Quran there are several verses that provide the devout Muslim with an explanation for the legitimacy of Islamic law. For example, scholars cite: “Authority belongs to God alone, and He orders you to worship none but Him: this is the true faith, though most people do not realize it” (12:40), and “Follow what has been sent down to you from your Lord; do not follow other masters beside Him” (7:3).

By extension, the legitimate authority bestowed on the agents of the theocratic community is also noted. One was specifically directed at Muhammad: “So [Prophet] judge between them according to what God has sent down. Do not follow their whims, and take good care that they do not tempt you away from any of what God has sent down to you” (5:49). Scholars have interpreted that other verses are directed at state leaders and those authorized specifically to adjudicate civil and criminal disputes. To illustrate:

You who believe, obey God and the Messenger, and those in authority among you (4:59);

Those who do not judge according to what God has sent down are rejecting [God’s teachings] (5:44);

Those who do not judge according to what God has revealed are doing grave wrong (5:45); and

Those who do not judge according to what God has revealed are lawbreakers (5:47).

It is important to point out that the Quran is not a constitutional document or legal code. The Quran clearly states: “This [revelation] is a means of insight for people, a source of guidance and mercy for those of sure faith” (45:20). The Quran is a blueprint for establishing a civilized society that speaks to such notions as fairness and compassion. Because it is a source of guidance, many of the legal-oriented verses are presented as general principles in recognition that societal conditions might change. The Quran is specific, however, with regard to issues that are considered immutable (Kamali, 1989). The distinction between general principles and that which is immutable will become clear when explaining the range of crimes and corresponding punishments.

It was mentioned earlier that the Quran consists of 6,342 verses and that scholars often differ over how many verses deal with legal issues. The debate ranges from 350 to 500. Those verses that are clearly legal in nature usually begin with either a command to enhance the security of the Muslim community or a prohibition to prevent acts that are detrimental to the well-being of Islamic society. In order to comprehend the meaning of the legal verses, Muslims relied on the analysis of jurists, scholars of Islamic law.

Sunna

Sunna or established practice is also considered a scriptural source for Muslims. The Quran states: “accept whatever the Messenger gives you, and abstain from whatever he forbids you” (59:7). The Sunna consists of the spoken words of Muhammad and deeds attributed to him that were reported by authoritative sources. Whereas the Quran is the revealed Word of God, the Sunna is another source that is both sacred and divinely inspired. The Quran proclaims: “Obey God; obey the Messenger” (24:54). Upon Muhammad’s death, the significance of the Sunna was enhanced in guiding the Islamic community. It has been suggested: “The Sunna plays its significant role as a source of Islamic law either by complementing the Quran or by interpreting its texts” (Sanad, 1991).

For our purposes, the Sunna can be divided between legal and nonlegal criteria. For the most part, the nonlegal consists of the normal everyday activities of the Prophet that had nothing to do with Islamic law. The legal consists of the verbal, practical, and approved that address or explain some aspect of Islamic law found in the Quran. As mentioned earlier, the verbal are the sayings of the Prophet Muhammad; the practical are the actual deeds of the prophet; and the approved are the actions or sayings of the Companions that the Prophet approved. These legal explanations occurred either in the prophet’s capacity as messenger of God, as head of state, or as judge. It should also be noted that reference to the hadiths by the founders of the major legal schools reinforced the importance of the Sunna.

Ijma

In the early years (roughly the seventh through the ninth centuries), when Islam was establishing its foundation in various geographical areas, there was a good deal of diversity in interpreting Islamic law. Part of this diversity was associated with differences of opinion regarding interpreting the Quran or the context of the Sunna. Part had to do with accommodating the local customary law and procedural customs of tribunals with the introduction of the Sharia. As a result of this diversity, there gradually emerged another source of Islamic law, ijma. Ijma is a general consensus about a legal ruling that is reached among jurists, Islamic legal scholars.

In support of the use of ijma, jurists cited the Quranic verse: “[Believers], you are the best community singled out for people: you order what is right, forbid what is wrong, and believe in God” (3:110). A unanimous general consensus among jurists meant that the ruling was binding. Such a consensus, however, could not conflict with rulings based on the superior sources of Islamic law, namely the Quran and Sunna. The Quran is very clear on this point: “if anyone opposes the Messenger, after guidance has been made clear to him, and follows a path other than that of the believers, We shall leave him on his chosen path—We shall burn him in Hell, an evil destination” (4:115). Thus, although inferior to the Quran and Sunna, ijma became another source of Islamic law, as long as it was consistent with the superior sources of law. Of course, a consensus established at one point in time could be overturned with a new consensus. It has been pointed out that a decision based only on ijma was rare (Sanad, 1991).

Ijtihad

A final source of Islamic law is ijtihad or legal reasoning by analogy. Ijtihad is the process in which jurists determine a rule based on analogy. It is utilized when a rule conflicts with another rule or when a rule is rather vague and somewhat questionable. Moreover, jurists turn to ijtihad when neither the Quran nor the Sunna has specifically addressed the issue at hand. The ultimate goal of ijtihad is to resolve a conflict or clarify an issue that is in the best interests of the Muslim community. Originally, the use of ijtihad led to contentious debates over its validity. Opponents cited the Quranic verse, “We have missed nothing out of the Record. . .” (6:38), to justify their position. Proponents, however, also cited the Quran with a rejoinder: “Learn from this, all of you with insight!” (59:2). Ijtihad eventually won the day and is an especially valuable legal source in modern times, because it is the mechanism that allows Islamic law to evolve with time. To illustrate, originally the Quran forbade the drinking of wine, which was common in ancient times. Over time and through ijtihad, all alcoholic beverages were prohibited. More recent translations of the Quran now refer to intoxicants, which enables the inclusion of illegal drugs. Like ijma, ijtihad is not a totally independent source, because it must be consistent with the superior sources of law, namely the Quran and Sunna.

Basic Assumptions

In order to understand Islamic law, it is important to begin with an understanding of two basic assumptions that Muslims embrace. First, God is the sole source of authority and the lawgiver.

The Quran states:

Judgment is for God alone: He tells the truth, and He is the best of judges (6:57);

Your Lord is God, who created the heavens and earth in six Days, then established Himself on the throne; He makes the night cover the day in swift pursuit; He created the sun, moon, and stars to be subservient to His command; all creation and command belongs to Him (7:54); and

Authority belongs to God alone, and he orders you to worship none but Him: this is the true faith, though most people do not realize it (12:40).

While God is the sovereign lawgiver, “God has made a promise to those among you who believe and do good deeds: He will make them successors to the land, as He did those who came before them; He will empower the religion He had chosen for them; He will grant them security to replace their fear” (24:55). This verse has been interpreted as acknowledging that man is God’s trustee on earth and thus has the authority to make law, but it must be in conformity with Sharia. Thus, while God is the lawgiver, man has the authority to be a lawmaker. These passages illustrate the basis for the Islamic theocratic state. Obviously, it differs from the modern political tradition of the West that places sovereignty with the people.

The other basic assumption is the emphasis of both the individual and collective moral duties of Muslims. While many Western societies speak to the importance of individual rights, the Quran focuses on community obligations. One of the most important examples of a collective duty is the call of the community to prayer five times a day, but especially on Friday. “Believers! When the call to prayer is made on the day of congregation, hurry towards the reminder of God and leave off your trading—that is better for you, if only you knew—then when the prayer has ended, disperse in the land and seek out God’s bounty” (62:9–10). Another is related to the notion of man as a trustee of God on earth. “It was He who created all that is on earth for you” (2:29). Collectively, man has a duty to care for all of God’s creations. He has a particular obligation to help maintain the social order of the community. “The believers are brothers, so make peace between your two brothers and be mindful of God, so that you may be given mercy” (49:10). Finally, man has a collective duty to pursue justice. The Quran states: “You who believe, be steadfast in your devotion to God and bear witness impartially: do not let hatred of others lead you away from justice, but adhere to justice, for that is closer to awareness of God” (5:8). Moreover, “God commands justice, doing good, and generosity towards relatives and He forbids what is shameful, blameworthy, and oppressive” (16:90). The importance of community, an obligation to care for one another and all things created, and a duty to pursue justice are lofty objectives. These are among the general assumptions found in the Quran that explain why scholars have referred to it as “a constitution and an organic law which concerns fundamental rights. These general principles are immutable. But particular provisions may be modified as long as they remain subordinate to the spiritual interest of the community” (see Kamel, in Bassiouni, 1982).

Principles of Islamic Criminal Justice

Islamic law deals with a wide range of legal topics that include the person, property, the family, and inheritance. For our purposes, we focus only on that which relates to crime and the penal law. The aforementioned verse of the Quran points out that “God commands justice.” Three principles are gleaned from the Quran that explain how justice is pursued within the realm of Islamic criminal justice. The first principle is that of criminal responsibility. According to contemporary scholars, “Islam guarantees five essential things to all persons and prevents unwarranted infringement of them by the state. These include (1) religion, (2) life, (3) mind, (4) posterity, and (5) property” (see Abd-el-Malek al-Saleh, in Bassiouni, 1982). Collectively, this is known as the theory of protected interests. Essentially, these scholars maintain that this theory is designed to allow a person to live his or her life with dignity.

In order to benefit from participating in this arrangement with the state, people were expected to be individually responsible for their actions. The Quran states: “Each soul is responsible for its own actions; no soul will bear the burden of another” (6:164). Thus, an important condition for imposing a punishment on a person was that he or she intended to commit a criminal act. With reference to criminal justice, the person is also entitled to a degree of security when accused of a crime. It also states, “Whoever does good does it for his own soul and whoever does evil does it against his own soul”(41:46), and “anyone who does wrong will be requited for it and will find no one to protect or help him against God” (4:123). Therefore, a person is responsible only for acts of commission or omission that he or she committed and is not answerable for crimes committed by others. This is a significant change from the ancient notion of collective tribal responsibility, which was the norm in Arab society. But it is important to point out that the collective responsibility of the family was retained with regard to paying any damages for a crime committed by one of its members.

Moreover, degrees of accountability were recognized, based upon the extent to which one participated in a criminal offense; that is, was the person a principal or an accomplice? If a person had not reached the age of majority, he or she could not be held criminally responsible for his or her actions. Thus, legal penalties could not be imposed on children; however, a judge could reprimand young people who had committed a criminal act. Moreover, people with insufficient mental capacity were not held liable. Islamic scholars maintain that the principle of individual responsibility was established in Islamic law much earlier than in other legal systems.

The second principle deals with legality, specifically the issue of crime and punishment. Throughout the Quran, there are countless examples of God refraining from imposing a punishment until he had first told man through a messenger that a specific behavior was wrong. To illustrate, the Quran states: “No soul will bear another’s burden, nor do We punish until We have sent a messenger” (17:15). Moreover, a person cannot be punished for acts that were not criminal at the time they were committed. Islamic scholars cite several Quranic verses to support the origin of this principle. Some verses are general announcements of the important role of the messenger. For example, “They were messengers bearing good news and warning, so that mankind would have no excuse before God, once the messengers had been sent: God is almighty and all wise” (4:165), and “This Qur’an was revealed for me to warn you [people] and everyone it reaches” (6:19). Other verses are a bit more specific and clearly warn that certain conduct will lead to punishment:

Your Lord would never destroy towns without first raising a messenger in their midst to recite Our messages to them, nor would We destroy towns unless their inhabitants were evildoers (28:59); and

We have sent you with the Truth as a bearer of good news and warning—every community has been sent a warner. If they call you a liar, their predecessors did the same: messengers came to them with clear signs, scriptures, and enlightening revelation and afterwards I seized the disbelievers—how terrible My punishment was! (35:24–26).

As a result of such guidance, jurists concluded that no person could be accused of a crime or suffer punishment unless it was specified in a law. This concept is now well known and embraced in the modern world.

In the context of Islam, only those offenses expressly cited by God the lawgiver and those legislated by the duly authorized lawmakers of a government have the force of law. Like the principle of criminal responsibility, the principle of legality is designed to protect the security of an individual from arbitrary, capricious, and discriminatory intrusions by the government. It is also designed to curb the possible excesses of a judge at the sanctioning phase of a criminal procedure. “Those who do not judge according to what God has revealed are lawbreakers” (5:47). Thus, judges were expected to impose sanctions that were in compliance with the Quran.

The third principle addresses the nonretroactivity of criminal law, which is associated with the principle of legality. Once again, this is designed to protect the individual who may be a recent adherent to Islam and ignorant of the law. We turn to the Quran for examples. On the subject of marriage, “Do not marry women that your fathers married— with the exception of what is past—this is indeed a shameful thing to do, loathsome and leading to evil” (4:22). On the subject of usury, “Trade and usury are the same, but God has allowed trade and forbidden usury. Whoever on receiving God’s warning, stops taking usury may keep his past gains—God will be his judge—but whoever goes back to usury will be an inhabitant of the Fire” (2:276). The prohibition against adultery and the drinking of wine are also noted as behavior that did not constitute a crime in the pre-Islamic period but was now deemed forbidden. In modern times, the principle of nonretroactivity tends to focus more on protecting the individual from the abuse of governmental power.

Crime and Punishment

With regard to punishment, the Quran offers a general guideline: “If you [believers] have to respond to an attack, make your response proportionate” (16:126) and “Let harm be requited by an equal harm, though anyone who forgives and puts things right will have his reward from God Himself—He does not like those who do wrong” (42:40). It is important to interject at this point that the sanctions imposed under Islamic law are also considered religious decisions, because they are either directly or indirectly inspired by religious texts. They often not only speak of a temporal punishment for a crime against the community of believers but also indicate that a punishment will be imposed in the hereafter for the sin against God. To illustrate, “if anyone kills a believer deliberately, the punishment for him is Hell, and there he will remain: God is angry with him, and rejects him, and has prepared a tremendous torment for him” (4:93). For the crime of highway robbery or unlawful rebellion, the perpetrator will experience “a disgrace for them in this world, and then a terrible punishment in the Hereafter” (5:33).

With regard to violations of Islamic law, the Quran alerts all Muslims to the consequences of their actions:

These are the bounds set by God: God will admit those who obey Him and His Messenger to gardens graced with flowing streams, and there they will stay—that is the supreme triumph! But those who disobey God and His Messenger and overstep His limits will be consigned by God to the Fire, and there they will stay—a humiliating torment awaits them! (4:13–14)

The significance of this religious element should not be ignored or overlooked, for it has been pointed out that for the devout Muslim “each person becomes in effect his own judge, with his faith in God preventing him from indulging in forbidden pursuits and doing injury to the rights of others” (see Salim al-’Awwa, in Bassiouni, 1982). What makes the Islamic legal system unique compared to other legal systems is that it traces its origins to divinely inspired sources. Therefore, with regard to criminal justice there is no distinction between the criminal law and the moral law.

Islamic law recognizes two categories of crime and punishment. Determined crimes and the corresponding sanctions refer to those offenses and punishments that have been specified either by God in the Quran or by the Prophet Muhammad in the Sunna. Discretionary crimes are those not mentioned specifically in the aforementioned sources; however, the Quran and Sunna did offer examples of sanctions that are associated with discretionary crimes. As such, scholars note that there is an important relationship with these discretionary offenses and the original sources of Islamic law. Discretionary crimes are categorized as criminal by an appropriate authority and process within an Islamic state.

Hudud

Determined crimes are of two types. The crimes of hudud (which means limits), in which a hadd punishment is imposed, are associated with threatening the social order and security of the community of believers. Because hudud crimes are specified in the Quran or Sunna, the corresponding punishment is also cited. In such a context, a judge is not permitted to exercise discretionary judicial authority that might contradict the punishment found in the sacred texts.

Hudud offenses include theft, banditry, and rebellion against a legitimate (political) authority, because they threaten public property and security; adultery and fornication, because they threaten the family structure; defamation, because it threatens a person’s reputation; apostasy, because it threatens the religious order of the community; and the drinking of wine, because it threatens the moral conduct of individuals. Scholars of Islamic law suggest that the rationale for the sanctions of hudud offenses were an early version of general and specific deterrence.

The sanctions associated with hudud crimes are harsh and are designed to protect the public interest of Muslim society. To illustrate, the Quran clearly states what the hadd (singular for hudud) punishment is for theft: “Cut off the hands of thieves, whether they are man or woman, as punishment for what they have done—a deterrent from God: God is almighty and wise” (5:38). Over time there was a good deal of discussion among jurists, usually after consulting the Sunna, as to when such a sanction could be imposed for theft. For example, the intention to take fraudulently another’s property had to be established. It was concluded that the sanction should not be used for petty theft, which was when the value of the item(s) was less than 20 dirhams. The sanction could only be imposed when the theft occurred in a private area rather than a public space. Finally, the sanction would not be imposed if the theft occurred among members of a family.

Banditry or highway robbery and the endangering of public safety through unlawful rebellion were addressed in one Quranic verse: “Those who wage war against God and His messenger and strive to spread corruption in the land should be punished by death, crucifixion, the amputation of an alternate hand and foot, or banishment from the land: a disgrace for them in this world, and then a terrible punishment in the Hereafter” (5:33). The amputation of the right hand and left foot is often associated with highway robbery. In addition, banishment or exile could also be interpreted to mean imprisonment. Given the variety of punishments mentioned, the Maliki madhhab concluded that the judge would determine the sanction in light of the specific criminal act and the person’s involvement in the act. The other Sunni madhahib (Hanafi, Shafii, and Hanabli) developed a rank order of sanctions that was dependent on the gravity of the act committed. Accordingly, “If a bandit kills, he will be subject to execution by sword; If he steals money, his hands and feet will be cut off from opposite sides; If he only threatens the travelers and frightens them without killing or stealing, he will be expelled out of the land (this includes imprisonment); If the bandit kills and steals property at the same time, he will be crucified” (Sanad, 1991). With this system no discretion is extended to the judge. Finally, if an offender repented before being caught and turned himself in, the punishment could be suspended, for it was written: “unless they repent before you overpower them—in that case bear in mind that God is forgiving and merciful” (5:34).

Rebellion against a legitimate political authority was considered a serious offense against the public order. While legal scholars have disagreed over a precise definition, there is agreement that it involves treason or some type of armed rebellion. According to the Quran: “If two groups of the believers fight, you should try to reconcile them; if one of them is oppressing the other, fight the oppressors until they submit to God’s command, then make a just and even-handed reconciliation between the two of them: God loves those who are even-handed” (49:9). Early in Muslim society it was determined that rebels who refuse to be reconciled should be put to death. It has been pointed out by scholars, however, that lesser sanctions had been imposed.

Adultery and fornication were both considered crimes against the family structure and public morality. The Quran warns: “And do not go anywhere near adultery: it is an outrage, and an evil path” (17:32). As for other hudud offenses, the punishment was fixed. In such cases, the Quran states: “Strike the adulteress and the adulterer one hundred times. Do not let compassion for them keep you from carrying out God’s law—if you believe in God and the Last Day—and ensure that a group of believers witnesses the punishment” (24:2). Some jurists, however, made a distinction between offenders who were single and those who were married. If the offender was single, then the aforementioned punishment was considered appropriate. If, however, the offender was married, the Sunna cited the punishment was death by stoning. Not all jurists adopted this position; some imposed exile for a year in addition to the flogging. Others limited the punishment to flogging in order to comply with the Quran. Whereas hudud offenses generally require the testimony of two men of sound reputation, in matters of adultery and fornication, four witnesses or a confession by the adulterer were required. Finally, it is important to note that any sexual activity less than intercourse was not considered a hadd offense. Other acts would fall under the category of a tazir crime, which is explained later. The crimes of adultery and fornication are excellent illustrations in the Islamic context of how the Sharia is both a code of law and a code of morals for the community of believers.

The most common example of defamation cited by Islamic legal scholars is associated with fornication. For those falsely accused, the Quran states: “As for those who accuse chaste women of fornication, and then fail to provide four witnesses, strike them eighty times, and reject their testimony ever afterwards: they are the lawbreakers, except for those who repent later and make amends—God is most forgiving and merciful” (24:4). Only an innocent accused person can file a grievance in such a case.

Apostasy threatens both the public order and the spiritual order of the community in a significant way. As mentioned earlier, Islam is first and foremost a religion. An apostate is a person who once embraced Islam and is now rejecting it. According to the Quran, “If any of you revoke your faith and die as disbelievers, your deeds will come to nothing in this world and the Hereafter, and you will be inhabitants of the Fire, there to remain” (2:217). Moreover, “As for those who believe, then reject the faith, then believe again, then reject the faith again and become increasingly defiant, God will not forgive them, nor will He guide them on any path” (4:137). Obviously, these passages suggest that the punishment for an apostate will occur in the hereafter.

During the formative years of Islam, when the leaders were attempting to establish a theocratic society, a consensus was reached that the sanction for apostasy in this life should be death. Before this sanction is imposed, however, it must be clear that the accused committed an act that illustrates rejection of the Islamic faith. Denying the existence of God or any of the five tenets of the faith (the five Pillars of Islam explained earlier) would be sufficient grounds. In addition, the person must be given an opportunity to repent his or her actions and return to the Islamic faith. A consensus was not reached among jurists on the length of time a person should be given to recant.

The prohibition against drinking wine has been expanded over the years to include all alcoholic beverages and even the use of illegal drugs. As such, a modern translation of the Quran states, “you who believe, do not come anywhere near the prayer if you are intoxicated, not until you know what you are saying” (4:43). It also admonishes: “With intoxicants and gambling, Satan seeks only to incite enmity and hatred among you, and to stop you remembering God and prayer. Will you not give them up? Obey God, obey the Messenger, and always be on your guard: if you pay no heed, bear in mind that the sole duty of Our Messenger is to deliver the message clearly” (5:91–92). The sanction for this offense is 80 lashes, but the Shafii madhhab is of the opinion that the penalty should be only 40 lashes.

It is important to interject that the Quran points out that: “. . .if anyone repents after his wrongdoing and makes amends, God will accept his repentance: God is most forgiving, most merciful” (5:39). Jurists differed on how this should be interpreted. The Shafii madhhab was of the opinion that repentance meant the elimination of punishment in this life and the hereafter, whereas the Hanifa madhhab maintained that repentance did not eliminate punishment in this life, but only applied to the hereafter.

It is also important to note that neither the victim nor the state may pardon a person for a hadd crime. Moreover, because hudud crimes threatened the social order and security of the community, the execution of the sanction was carried out in public. For those who object to such severe hudud penalties, such as amputation, proponents maintain that “[t]hose who protest amputation should consider the welfare of society, since the occasional use of that sanction has proven to be an effective deterrent in Islamic societies” (see Mansour, in Bassiouni, 1982).

Moreover, on the subject of theft, Muslims maintain that one of the Pillars of Islam, the five required practices that devout Muslims are required to follow and that unite the worldwide community of Islam, is specifically designed to reduce the need to steal. The zakat, which means purification, is a religious tax on Muslims. The purpose of the tax is to help the poor, sick, disabled, and elderly. The beneficiaries of such a tax were not limited to Muslims but included the People of the Book, in particular Christians and Jews. Because Christians and Jews did not pay zakat, they were assessed the jizya tax, which not only provided them with a protective status in a Muslim community, but also enabled them to contribute to this community chest for the poor, sick, and elderly.

Finally, scholars of Islamic law offer a final rationale for the use of hudud sanctions. They point out that these are physical penalties over a limited time frame, which inflict severe pain that is designed to prevent the perpetrator from ever forgetting the sanction and to cause the offender to cease his or her criminal lifestyle. In addition, because the sanction occurs over a limited period of time, the perpetrator is able to return to his or her family and assist in their support. Scholars also question the wisdom of relying too much on the use of imprisonment as a sanction. The downside to imprisonment, they maintain, is that imprisonment not only reduces the deterrent effect over a period of time but it also reduces the inmate’s sense of responsibility: a sense of responsibility not only for his or her criminal actions but also for the support of his or her family. In other words, the inmate has all of his or her basic needs provided by the state and often the family of the inmate becomes a recipient of welfare. In addition, the precarious state of the inmate’s family may lead to delinquency and serious criminal activity among other family members (see Mansuor, in Bassiouni, 1982).

Quesas

The other type of determined crimes is quesas (which means equality). These offenses are deemed violations against the rights of an individual. As a result, these offenses are associated with retribution and compensation or diyya (also known as blood money). In light of the fact that there was no organized system of criminal justice administration during the emergence of Islamic societies, this was viewed as a sound method for imposing a sanction on a criminal while at the same time attempting to preserve the social order. The Quran warns: “You who believe, uphold justice and bear witness to God, even if it is against yourself, your parents, or your close relatives. Whether the person is rich or poor, God can best take care of both. Refrain from following your own desire, so that you can act justly— if you distort or neglect justice, God is fully aware of what you do” (4:135). The rationale for the sanctions of quesas crimes were like those for hudud offenses, that is, an early version of deterrence.

Homicide, assaults, and other offenses associated with the physical security of a person are included among these offenses. With quesas crimes, the punishment was of a retributive nature, equal to the harm suffered by the victim. If the victim waived his or her right to retribution (and in some cases this waiver was not necessary), the offender or the offender’s family paid compensation to the victim or the victim’s family for the harm caused.

With regard to homicide, the Quran admonishes: “Do not take life, which God has made sacred, except by right: if anyone is killed wrongfully, We have given authority to the defender of his rights, but he should not be excessive in taking life, for he is already aided [by God]” (17:33). The Quran essentially acknowledges two kinds of homicide: intentional and accidental. With regard to intentional homicide and assaults, the Quran continued the Judeo-Christian tradition of lex talionis (retaliation): “In the Torah We prescribed for them a life for a life, an eye for an eye, a nose for a nose, an ear for an ear, a tooth for a tooth, an equal wound for a wound: if anyone forgoes this out of charity, it will serve as atonement for his bad deeds” (5:45). What this verse clearly indicates is that murder is punishable by death. The Quran offers additional guidance on this matter. “You who believe, fair retribution is prescribed for you in cases of murder: the free man for the free man, the slave for the slave, the female for the female. But if the culprit is pardoned by his aggrieved brother, this shall be adhered to fairly, and the culprit shall pay what is due in a good way” (2:178). In this verse there is the assurance that diyya (blood money or compensation) would be paid, even if the family elected to pardon the murderer and not seek the ultimate form of retribution.

With regard to lex talionis, scholars of Islamic law have pointed out that a number of rules were developed by the various legal schools. They included that the retaliatory punishment inflicted cannot be greater than the harm caused by the offender. In the case of murder, the right to decide to inflict the sanction or forgo it belonged to the male parents of the victim, that is, the father and then the grandfather. Distinctions were made with the killing of a male versus a female. The family of a female victim was only entitled to diyya, and its value was half what it would be if the victim had been a male. If the victim was an infant, insane, or physically handicapped, the victim or the victim’s family was also treated differently, with the sanction less harsh than if the victim were a healthy male.

It is important to keep in mind that these rules were developed in a patriarchal setting, when men were considered the essential economic source for the family in particular and society in general. These rules clearly fail any equality test based on the policies that have emerged in the West. It would be prudent, however, to keep in mind that many of our modern Western policies of equality were primarily introduced during the twentieth century.

In cases of accidental homicide, the Quran states:

Never should a believer kill another believer, except by mistake. If anyone kills a believer by mistake he must free one Muslim slave and pay compensation to the victim’s relatives, unless they charitably forgo it; if the victim belonged to a people at war with you but is a believer, then the compensation is only to free a believing slave; if he belonged to a people with whom you have a treaty, then compensation should be handed over to his relatives, and a believing slave set free (4:92).

In cases associated with assaults and other physical injuries, whether intentional or accidental, reference was again made to the Quranic verse: “In the Torah We prescribed for them a life for a life, an eye for an eye, a nose for a nose, an ear for an ear, a tooth for a tooth, an equal wound for a wound: if anyone forgoes this out of charity, it will serve as atonement for his bad deeds” (5:45). Thus, an equal amount of pain was called for, but a monetary compensation was also expected in those cases that were intentional. It was further determined that only a monetary compensation was required for accidental physical injury.

Although the punishment for quesas crimes is of a retributive nature, equal to that suffered by the victim, scholars of Islamic law have argued that the Quran is supportive of forgoing the retributive sanction and replacing it with a just compensation or diyya. For example, they cited the following Quranic verses: “By an act of mercy from God, you [Prophet] were gentle in your dealings with them—had you been harsh, or hard-hearted, they would have dispersed and left you—so pardon them and ask forgiveness for them. Consult with them about matters, then, when you have decided on a course of action, put your trust in God: God loves those who put their trust in Him” (3:159). Moreover, “God commands you [people] to return things entrusted to you to their rightful owners, and, if you judge between people, to do so with justice: God’s instructions to you are excellent, for He hears and sees everything. You who believe, obey God and the Messenger, and those in authority among you. If you are in dispute over any matter, refer it to God and the Messenger, if you truly believe in God and the Last Day: that is better and fairer in the end” (4:58–59). Acts of mercy and forgiveness are reminders that the Quran is a religious text. Some scholars have suggested that replacing the retributive sanction with the diyya is a predecessor to the modern notions of victimology.

With regard to diyya, it is important to note that it is not completely divorced from having a punitive quality. Moreover, the state is involved in the process to assure that the victim or the victim’s family receives the compensation from the perpetrator or the perpetrator’s family. Debates have occurred among the legal schools as to the responsibility for paying the diyya. As mentioned earlier, one of the fundamental principles of Islamic law from its inception was individual criminal responsibility: “Each soul is responsible for its own actions; no soul will bear the burden of another” (6:164). As a result, why is the family of a criminal required to pay or assist in the payment of diyya? The Quran maintains that there is a collective duty to secure social order and to pursue justice. It was pointed out that “the overriding policy is one of social solidarity by which the family knows that it has responsibility for its members. Such a policy leads to a system of social compliance by having family members exert control over one another because all fear a certain financial responsibility for the deeds of each individual member of the family” (Bassiouni, 1982). It was mentioned earlier in the chapter that the Middle East is another region of the world where there is a long cultural tradition in which the group is more important than the individual. This aforementioned Quranic policy is an illustration of how it impacts personal and group responsibility for issues associated with criminal justice.

Finally, in order to prove a quesas offense, certain evidentiary rules had to be met. For example, some crimes required at least one eyewitness or a confession. The judge had to be assured that the confession was given voluntarily and without coercion. In cases of homicide, two male witnesses were required or one male witness and two female witnesses. In the event there was insufficient evidence to prove a quesas offense, the judge might be able to impose a tazir sanction, which is explained later.

A useful summary of the rules associated with quesas offenses was developed and is cited here.

1. The accused must be an adult who is of sound mind and understanding at the time of the act, and the act must have been done intentionally.

2. The victim must be a male Muslim or a Dhimmi (Christian or Jew), or according to a majority of writers, a Musta’amin (a non-Christian or non-Jew who has entered the Land of Islam pursuant to a peace treaty or guarantee of safe conduct).

3. Only the male blood relative (father or grandfather) in line of ascendancy can claim Quesas in case of the death of the victim. Only the victim can claim it in case of maiming, although some jurists require that the ascendant male parent agree.

4. A Muslim or Dhimmi cannot be executed or maimed (based on the equivalency principle) for the killing or maiming of someone not ma’asoum (immune), that is, in the case of a Kafir (an idolater, not a Musta’amin), one who has abandoned Islam, or a rebellious Muslim (one who commits the Had crime of rebellion as set forth under Islamic law).

5. According to most jurists, the Had crime must be inflicted with the sword (the weapon known in early Islam to be swiftest and least capable of inflicting more pain than necessary).

6. The infliction of the Quesas must be in the least painful manner.

7. As responsibility is personal, the death of the offender extinguishes all other claims.

8. Pardon or forgiveness extinguishes Quesas but not Diyya, according to some jurists, while others say it also extinguishes Diyya.

9. If the offender is a minor or is insane there is no Quesas but only Diyya, which a majority of jurists impute to his family. Others say that there also is no Diyya if the aggressor is a minor or insane.

10. Female Muslim victims or their families are only entitled to Diyya, the amount being equivalent to half that of the male. This rule exists by analogy to the rule that the male’s inheritance is twice that of a female.

11. Reconciliation is encouraged between the parties even before adjudication, although the collectivity retains the right to impose a Ta’azir penalty.

12. The Diyya is otherwise applicable to all other forms of killing and maiming and to those cases in which the requirements of Quesas are not met. The Diyya does not require that the victim or aggressor be an adult, sane, or male. No Diyya is payable for one who is not a ma’asoum (see supra number 4).

13. An exception to Quesas is made in the case of Quesama (oath), that is, when fifty members of the community, who are adult, sane, and devout Muslims, swear that the accused could not have committed the crime (Bassiouni, 1982).

Once again, it is important to be mindful that these rules were developed in a patriarchal setting, when men were considered the essential and often the sole economic source for the family in particular and society in general. Obviously, these rules fail any equality test based on the policies that have emerged in the West during the modern era.

Tazir

Discretionary crimes are referred to as tazir offenses. The rationales for hudud or quesas offenses have already been noted as focusing on deterrence. The sanctions associated with tazir crimes are also designed to seek an effective deterrent, but they also claim that the primary purpose is to achieve a corrective or rehabilitative purpose. It has been suggested that both the Quran and Sunna illustrate examples of sanctions that are associated with tazir crimes. Thus, the sanctions for tazir offenses have a basis in the original sources of Islamic law and are not solely determined by the authorities of the Islamic state (see Salim al-’Awwa, in Bassiouni, 1982). It has also been argued, however, that tazir offenses are not determined by religious law. As a result, the sanction is left to the discretion of the judge or some public authority (see Kamel, in Bassiouni, 1982). Strictly speaking, this discretionary authority actually belongs to the sovereign and is delegated to the judge by the sovereign.

When compared to hudud or quesas offenses, it has been pointed out that “[c]rimes of Ta’azir, by contrast, are not subject to the principle of legality in the same manner. Islamic law has not specified all violations subject to Ta’azir to the same extent as for other crimes. However, it considers that regardless of circumstances, all acts that infringe on private or community interests of the public order are subject to Ta’azir” (see Benmelha, in Bassiouni, 1982). Thus, the goal of maintaining the public and moral order of the community of believers, which is a significant theme throughout the Quran, provides a valid though expanded interpretation of the principle of legality.

Tazir offenses are considered less serious because they do not involve physical injury to a victim. It has been suggested that these crimes can be grouped into two categories: (1) offenses against religion, public order, and public morals, and (2) offenses that violate the rights of individuals. Because the Quran does not state a specific sanction, yet the behavior is clearly prohibited, judicial discretion is relied upon to determine an equitable punishment (Khadduri and Liebesney, 1955).

While violations of religious obligations of Muslims are punished in the hereafter, it is generally recognized in Islamic countries that such failure can also lead to a tazir punishment in this life. In reference to public order and morals issues, the Quran admonishes: “You who believe, intoxicants and gambling, idolatrous practices, and [divining with] arrows are repugnant acts—Satan’s doing—shun them so that you may prosper” (5:90). Here a judge would determine the sanction that is appropriate and in the process take into consideration the age, gender, and social standing of the person in conjunction with the seriousness of the offense. The typical punishments include flogging, imprisonment, warning, and fines.

Fraud is a good example of a tazir offense that violates an individual. The Quran states: “Do not withhold from people things that are rightly theirs, and do not spread corruption in the land” (11:85) and “Give full measure: do not sell others short. Weigh with correct scales: do not deprive people of what is theirs. Do not spread corruption on earth” (26:181–183). These practical examples clearly indicate that it is wrong to violate the rights of individuals and that there was no physical injury to the victim. Moreover, the Quranic verses are silent on an appropriate sanction. Thus, the judge determines the punishment, while always being guided by the Quran and Sunna.

Sanctions for tazir crimes are divided into two categories. One group consists of traditional sanctions that include corporal punishment, deprivation of liberty, and fines. The corporal punishment sanctions consist of the death penalty and flogging. While the death penalty is normally associated with hudud or quesas crimes, there are a few tazir offenses that can lead to a death sentence. They include espionage and heresy. Both are considered a serious threat to the public and moral order of the community. The logic for employing flogging as a sanction for tazir crimes is the same justification for its use with hudud offenses. The sanction can be imposed quickly, which allows the offender to return to his or her family and place of employment. Thus, the offender and the offender’s family do not become a financial burden on the community. Moreover, as a term of imprisonment might lead the offender to become a more dangerous or a persistent violator, that concern is eliminated by imposing a corporal punishment. One scholar has pointed out that flogging is usually carried out by using a stick or an unknotted whip. After protecting those parts of the body that might prove fatal to the whipping, the individual lashes are supposed to be administered over the entire body and not limited to one area, such as the back. Jurists disagree on the number strokes an offender should receive, with the range as high as 65 to as low as three (see Benmelha, in Bassiouni, 1982).

Imprisonment was employed when flogging did not appear to work. The period of incarceration could generally range from one day to one year, with the period of time determined by the judge. Islamic law also utilized an indeterminate sentencing scheme. It was reserved for offenders who were recidivists, especially those deemed dangerous. Moreover, other offenders may be sentenced to a term of restricted liberty or probation.

A fine is another form of traditional sanction for tazir crimes. It was introduced with some degree of reluctance on the part of legal scholars. Part of the concern was that judges might utilize the fine too much. While some jurists viewed a fine as a principal penalty, others considered it only as a supplemental sanction. It is interesting to note that when a fine was imposed by a judge, part of the wealth or possessions of the offender were confiscated. If the offender was contrite for his or her actions and displayed a rehabilitative change in general behavior, he or she might possibly have the money or possessions returned.

The other category of sanctions for tazir crimes tends to have an educational and moral purpose within the context of Islamic society. For example, an offender could be fired from his or her place of employment if the job and actions were a threat to the public interest; the offender could be summoned to court where a judge would admonish him or her either in public or in private; or the offender could be sent a letter indicating the wrong committed and the expectation that the behavior will cease.

Criminal Procedure

It is important to note that Islamic law or Sharia did not provide a detailed process for criminal procedure in general or the investigative and prosecutorial stages in particular. With regard to the practice of justice, the Quran offers a general principle: “God commands you [people] to return things entrusted to you to their rightful owners, and, if you judge between people, to do so with justice: God’s instructions to you are excellent, for He hears and sees everything” (4:58) and “You who believe, be steadfast in your devotion to God and bear witness impartially: do not let hatred of others lead you away from justice, but adhere to justice, for that is closer to awareness of God” (5:8).

The responsibility for developing procedural rules was a delegated authority to the sovereign or ruler. While the process could conform to cultural and societal norms, it ultimately had to be in compliance with Sharia. This delegated authority to a ruler is a feature of siyasa, which literally means administrative justice policy. More specifically, the term siyasa sharia means an administration of justice policy that is in conformity with Sharia. Therefore, a distinction was made between Sharia and siyasa. Sharia is that blend of both a code of law and a code of morals. Siyasa sharia is the method of introducing practical pragmatic policies for the administration of justice that are in conformity with the spirit of Sharia, especially when Sharia does not provide specific guidance.

Ultimately, the objective was to establish an administrative justice process that was in the best interests of the Muslim community. As such, “Islamic law has adopted rules of criminal procedure based on the principle that justice not only requires the offender to be punished for his guilt but also protects the innocent from punishment for crimes committed by another” (see Abd-el-Malek al-Saleh, in Bassiouni, 1982). Originally, the administration of Islamic criminal justice was delegated to a number of different officials, depending on the region in question. Among the officials delegated this authority were the Caliphate, the Office of Complaints, the military commander, the governor, the chief of police, and the judge.

It should be noted that this delegated authority has not escaped criticism from some scholars, especially during the second half of the twentieth century. For example, with specific reference to criminal justice, it was pointed out that:

many state officials have in the past inflicted unwarranted exemplary penalties on suspects on the assumption that the matter was purely political (or administrative) and not a matter for the Shari’a. They wrongly believed it was their right and duty to regulate such matters without restrictions. Their ignorance of the true meaning of the Shari’a cause grave injustice and impermissible changes in administrative practice and policy (siyasa) which were either falsely attributed to the Shari’a or blatantly substituted for it. They have further claimed that the Shari’a was inadequate and failed to protect the public welfare and thereby replaced it with generalities that contradicted sound Shari’a teachings and precepts (see Awad, in Bassiouni, 1982).

What follows is a general sketch of how a criminal offense might be investigated and prosecuted under the rules and guidelines of Islamic law.

Initiation of a Criminal Action

The initiation of a criminal action generally takes one of two forms. If the offense is an act of commission or omission against God, it is considered against the public interest. In such cases, the state would commence the criminal action. While the victim does not have a right to initiate such an action, he or she does have the right to seek damages. For example, in the case of theft, both the state and the victim have an interest in the case. The state would have the right to seek and inflict a punishment on the guilty party, while the victim would have the right to seek compensation or restitution. If an offense is an act of commission or omission solely against an individual, the criminal action is considered a violation of a private right. As such, the victim would initiate the action. Crimes dealing with assault, defamation, and tazir offenses fall under this category. Once the victim requests that an action be taken, then the agents of the state would assume responsibility for the investigation and prosecution of the matter.

Presumption of Innocence

As mentioned earlier, Islamic law embraced the presumption of innocence as a right for all people. Without such a presumption it would generally be difficult in the extreme for people to prove that they had not committed the crimes of which they were accused. As a result, the burden of proof rested with the accuser. Moreover, the evidence produced must lead to a conviction that was based on a certainty of guilt and not based on a mere probability.

An indictment, which was carried out by a specific agency, charged a person with a crime by confronting them with an accusation or in the case of some suspects their arrest and detention for preventive purposes. The indictment limited the rights and freedoms of the accused. This was justified on the grounds that it was in the interests of seeking truth and justice. The person under indictment had a number of rights, however, the most important of which was the right of a defense.

Jurists frequently cited the comment the Prophet Muhammad made to Ali when he named him governor of Yemen. “O’ Ali, people will appeal to you for justice. If two adversaries come to you for arbitration, do not rule for the one, before you have similarly heard from the other. It is more proper for justice to become evident to you and for you to know who is right.” As such, the accused must be informed of what he or she was charged with and be presented with sufficient and valid evidence that supported the accusation. The purpose of the defense was either to deny the accusation by placing doubt on the nature or quality of the evidence or by introducing evidence that proved the person is innocent.

While acknowledging that a person had a right to a defense, this did not necessarily mean that he or she had a right to retain counsel. Islamic law was not explicit in this regard. Moreover, it is interesting to note that scholars have suggested that defendants did not often secure legal counsel. The reason for this was that judges consulted with jurists on complex issues in the course of an investigation and trial. As such, it was often felt that there was no need for an independent and disinterested opinion in the matter at hand, because the jurist had often already provided it to the judge (see Awad, in Bassiouni, 1982).

Criminal Responsibility

In Islamic law a person could not be held criminally responsible for his or her actions under the following conditions or circumstances. The first involved the age of the accused. A child under the age of seven was considered not to have reached the age of reason. Children between the age of seven and the beginning of puberty may be partially responsible for their criminal actions. It should be noted that there was a lack of agreement on defining puberty in Islam. Some jurists were of the opinion that one must differentiate between males and females. In addition, there was disagreement over citing a specific age—11 or 12 were often mentioned—or simply making a determination based on the signs of puberty. While children between seven and the onset of puberty could not be held responsible for either a hudud or quesas offenses, they could be disciplined for any tazir crimes. With reference to tazir cases, the Shafii madhhab maintained that any damages imposed by a court should be paid from the child’s money, while other madhahib suggested that the family should incur the expense. Once puberty had begun, a person was considered criminally responsible, as long as he or she was of sound mind.

The second condition dealt with the mental state of the accused. A person was not held responsible if he or she was insane when they committed the offense. Certain kinds of mental deficiencies, like retardation, might not protect the accused from criminal responsibility unless it was proven that the offender did not know the difference between right and wrong. Voluntary intoxication was another condition. Jurists were of the opinion that hudud or quesas penalties should not be imposed but that tazir sanctions were appropriate.

Investigation

In earlier periods of Islamic society, there was often an investigative phase before a trial. What was different at that time was that there was not a clear distinction between the investigative and trial phases. The reason for this was that it was not unusual for a judge to conduct the investigation and then also sit as the trial judge.

On the subject of searching for evidence, the Quran acknowledged that a person should have a right to privacy. “Believers, do not enter other people’s houses until you have asked permission to do so and greeted those inside—that is best for you: perhaps you will bear this in mind. If you find no one in, do not enter unless you have been given permission to do so. If you are told, ‘Go away’, then do so—that is more proper for you. God knows well what you do” (24:27–28). And “Believers, avoid making too many assumptions—some assumptions are sinful—and do not spy on one another or speak ill of people behind their backs:” (49:12). These verses have been interpreted to mean that a person was free from unreasonable searches and seizures. Moreover, the second verse reminded agents of the justice system that they must be sensitive to and cautious of baseless accusations. Generally, the search of a person or their property was achieved by seeking a warrant from the Mazalim (Minister of Complaints).

There was a recognition that society benefits from permitting agents of the state to enter a home with the purpose of discovering the truth in a criminal case. As such, a person did not have an absolute right to privacy in his or her home, as long as the state abided by various criteria and adhered to certain restrictions. Contemporary laws have been approved that provide the individual person with a right to privacy that extends beyond his or her home. Because the state has a compelling interest in maintaining order and securing the safety of the public, an investigator is permitted to arrest, search, and seize relevant evidence at the home or on the person of the accused and to hold the person in preventive detention. Accused persons are given an opportunity to present a defense to the investigator in the case, which could involve introducing evidence that contradicts that of the accuser or providing witnesses in support of their innocence. This could even involve the use of a technical expert.

The seizure and preventive detention of a suspect was also a concern among Islamic legal scholars. On the one hand, they recognized that preventive detention was a necessary state function. On the other hand, a basic assumption of Islam was that humans should be free. Scholars frequently cited the Quranic verse: “It is He who has made the earth manage able for you—travel its regions; eat His provision—and to Him you will be resurrected” (67:15). As a result, scholars tended to oppose detention unless it was absolutely necessary.

Interrogation

A distinction was made within Islamic law between simple questioning and an interrogation. An interrogation involved charging the suspect and presenting evidence that was the basis for the charges. The interrogation enabled the suspect either to admit guilt or object to the authenticity of the evidence. If the accused admitted guilt, then the interrogation had produced another piece of oral evidence.

During an interrogation, the accused was not required to speak; he or she could remain silent and could not be forced to admit guilt. Legal scholars were in agreement that neither the Quran, Sunna, or ijma condoned tactics that lead to a forced confession. Of course, torture was an acceptable method of securing a confession throughout the ancient world and on into the European Middle Ages. According to one scholar, “Islamic law expressly prohibits torture, beating, and other cruel and inhumane treatment. The Prophet forbade torture[,] saying: ‘God shall torture on the Day of Recompense those who inflict torture on people in life’ “ (see Abd-el-Malek al-Saleh, in Bassiouni, 1982). In the modern era, constitutions and due process rules of procedure have prohibited such conduct. Nevertheless, agents of the criminal justice system in many countries continue to use physical coercion, especially psychological techniques, to intimidate a suspect, which often leads to incriminating statements.

According to scholars of Islamic law, a system was established that was designed to reduce the likelihood of abuse during the interrogation stage. In addition to a judge, the Mohtasib was authorized to receive reports of alleged crimes and to investigate them. The work of the Mohtasib was then submitted to the Mazalim (Minister of Complaints), who referred the matter to a judge who would in turn adjudicate the matter. In the event the complaining party did not prosecute the matter, it was the responsibility of the Mohtasib to prosecute the case at trial (see Abd-el-Malek al-Saleh, in Bassiouni, 1982).

In the case of both hudud and quesas crimes, the accused could not be forced to take an oath during an investigation. With specific reference to hudud offenses, the accused had the right to remain silent and refuse to answer the questions of an investigator. Moreover, exercising the right to remain silent was not admissible as evidence against the accused. Finally, under Islamic law the accused had the right to withdraw a confession before the execution of a sentence. As a result, the confession could not be used as part of the evidence to convict the individual.

Evidence

Because the presumption of innocence for the accused was fundamental in Islamic law, an accuser must prove his or her claim that a crime had occurred. The rules that had emerged over time had a basis in the Quranic verse: “As for those who accuse chaste women of fornication, and then fail to provide four witnesses, strike them eighty times, and reject their testimony ever afterwards: they are the lawbreakers, except for those who repent later and make amends—God is most forgiving and merciful” (24:4–5). For a period of time, three madhahib (Hanafi, Shafii, and Hanbali) maintained that evidence was limited to oral testimony, in part because of the aforementioned Quranic verse. In time the acceptance of other types of evidence was accepted. There was one exception; hudud crimes required the testimony of witnesses.

Because of the harsh penalties associated with hudud crimes, the admissibility of evidence had to conform to some specific rules: (1) two eyewitnesses were required for most crimes and four witnesses in cases involving unlawful sexual intercourse, (2) hearsay accounts were unacceptable, (3) the testimony had to be unambiguous, (4) the witnesses had to possess moral integrity, (5) the testimony had to be provided expeditiously from the time of the alleged offense, and (6) the witnesses had to maintain their adherence to their testimony and not deviate from it. With specific reference to the crime of adultery, special conditions for the testimony were established. The four prosecution witnesses had to be male. The testimony of women for the defense was accepted, but it was often required that two females had to testify for every male witness. There was also disagreement among the legal schools over the admissibility of testimony from the husband.

Islamic law established various standards that a person had to meet in order to be a witness. First, it has already been mentioned that the witness had to be an eyewitness and not someone providing hearsay testimony. This rule met the authenticity standard. Second, the witness had to meet a moral integrity standard by being of good character. It should be noted that there was not a consensus on how to determine the probity of a witness. The Maliki and Shafii madhahib maintained that a person’s good character was based on their trustworthiness and their avoidance of sin. The character of a person was presumed to be good unless proof was offered to the contrary. Third, individuals must be rational, that is, they must have been in possession of their mental faculties when they observed the event and when they testified. Fourth, the person had to be an adult. The testimony of a minor was inadmissible, unless in a case of homicide where a minor’s testimony was used to refute the testimony of another minor, and both witnesses had been deemed rational. Fifth, the witness must have the ability to retain and recollect past events. Those who possess a bad memory were deemed not competent to testify. Sixth, the person must be able to speak. Different madhahib had varying opinions on the testimony of people who could not speak or hear. The Malik and Hanbali madhahib accepted the written testimony of a person who could not speak, whereas the Hanafi madhhab rejected the testimony. Seventh, an individual had to have seen the event about which he or she was testifying. As such, most jurists claimed that the testimony of a blind person was inadmissible. Finally, the acceptance of the Islamic faith was a prerequisite to permitting a person to testify in an Islamic law court. This was based on the Quranic verse: “Call two just witnesses from your people and establish witness for the sake of God” (65:2). However, if a Muslim witness did not exist or was not available, a non-Muslim could testify. This deviation from the previous standard was also supported by another verse: “You who believe, when death approaches any of you, let two just men from among you act as witnesses to the making of a bequest, or two men from another people if you are journeying in the land when death approaches” (5:106). With respect to hudud and quesas crimes, most jurists maintained that the witnesses must be male.

Confession was another type of evidence in Islamic law. The admissibility of a confession was based on three standards. First, the confession was being offered freely, that is, the accused was not being tortured or coerced in any way. Second, the person understood the legal consequences of admitting guilt. Third, the person must describe or explain his or her specific actions that had been deemed criminal. It should be noted that the Hanafi madhhab maintained that a valid confession must occur in court, whereas the Maliki, Shafii, and Hanbali madhahib concluded that a confession was valid outside of court, as long as there were witnesses to the testimony. The judge determined the admissibility of the confession.

Although eyewitness testimony was the primary form of evidence, secondary forms of proof were considered. Several Quranic verses had been interpreted to support the use of secondary proofs. They included: “Our messengers came to them with clear signs,” (5:32); “Say, I stand on clear proof from my Lord,” (6:57); “The disbelievers say, ‘Why does he not bring us a sign from his Lord?’ Have they not been given clear proof confirming what was in the earlier scriptures?” (20:133); and “those who were given the Scripture became divided only after they were sent [such] clear evidence” (98:4). Thus, any kind of evidence was acceptable as long as it enabled the process to reach the truth of the matter at hand. Nevertheless, and not surprising, Islamic law favored criminal evidence that was based on eyewitness testimony.

One scholar of Islamic law concluded that “the Shari’a rules of evidence reflect the idealism of the Muslim jurists. The strict burden of proof imposed upon the plaintiff or prosecutor requires him to establish his claim to a high degree of certainty, on the principle that it is better for several actual offenders to escape liability than for one innocent person to suffer liability.” He went on to point out that “the rule of oral testimony places an unrealistic burden on the prosecution,” in light of the fact that most crimes were usually not committed in the presence of two adult males that were noted for their integrity (Coulson, 1969).

Rights of the Accused at Trial

The Quran emphasized the importance of justice and equality among people. “So [Prophet] judge between them according to what God has sent down. Do not follow their whims, and take good care that they do not tempt you away from any of what God has sent down to you”(5:49). Also “God commands you [people] to return things entrusted to you to their rightful owners, and, if you judge between people, to do so with justice: God’s instructions to you are excellent, for He hears and sees everything” (4:58).

It was the practice of the Prophet Muhammad and the caliphs that succeeded him who established rights for the accused. To illustrate, the admonition of Caliph Omar to a newly appointed judge was:

The right to adjudication is an absolute duty in accordance with the Sunna. Investigate any case you suspect (to bring about right), for right without execution is futile. Equalize between the parties before you in your expressions and in your judgment. Your judgment should not be on the basis for the noble to hope for your favor, and for the poor to despair from your justice. . . . If you render a judgment and after a period of time you find it to be unjust, do not hesitate to revise it, unless it is so old that no one can change it. The revision of judgments is better than preserving injustice (Sanad, 1991).

In the early development of Islamic law, the jurists maintained that trials should not be conducted in private. In addition, the decision of the court should also occur in a public setting. Because Islamic law employed an accusatorial procedural method, the accused was guaranteed certain protections from abuse, especially by the authority of the state. For example, the accused had the right of assistance of counsel in his or her defense to prove either that he or she was not legally guilty or was factually innocent.

The right to assistance of counsel traced its origin to the theory of protected interests, which was mentioned earlier in the section on the principles of Islamic criminal justice. This theory essentially stated that people are guaranteed protection from the unwarranted infringement of the state with regard to: religion, life, the mind, posterity, and property. The right to assistance of counsel was specifically designed to protect or assure the accused of his or her right to live with dignity. The right to assistance commenced at the investigative stage of the process and in particular at the interrogation phase. In those cases in which the accuser was a private citizen, both the accuser and the accused had the right to appoint another person to represent their interests before a judge.