Legal Maxims in Islamic Criminal Law pdf

Legal Maxims in Islamic Criminal Law: Theory and Applications

LEGAL MAXIMS IN ISLAMIC CRIMINAL LAW – Book Sample

An Overview of Islamic Law Concept of Islamic Law

The concept of Islamic Law has not been precisely defined, as some authors use the term to reference the Sharīʿa while others use it to refer to fiqh (jurisprudence).1

Scholars have explored various approaches in classical and modern lit-erature to explain the concept of Sharīʿa and its principles. A number of approaches meant to juxtapose the Sharīʿa and its values with other concepts tend to suggest a clash between civilizations while advocating the superiority of one legal system over another, thus resonating with a sense of egoism and incompatibility.2

Other approaches portray the Sharīʿa as a restricted corpus of rules—of do’s and don’ts—that result in severe punishments and barbaric discipline when violated. However, such descriptions subjugate the Sharīʿa to “obscurantist confinement, medieval stubbornness, and fanaticism”.3 While there is no doubt that it indeed embodies rules and regulations, such aspects, however, only form the strictly legalistic notion of the Sharīʿa but do not exhaust its holistic and comprehensive nature, as will be discussed below.

Although the most common English translation for Sharīʿa is ‘Islamic  Law’, many Muslim scholars demur, as this suggests a narrow legalistic  interpretation.4 The term Sharīʿa originates from the triliteral Arabic root (shīn-rāʾ-ʿayn) of the verb sharaʿa (to legislate).

However, as a noun, Sharīʿa literally means “a path to be followed”,5 or “the way which leads to a source”.6 The tradi-tionalist approach to the Sharīʿa defines it as “the command of God revealed to Prophet Muḥammad”7 (Peace be upon Him: PBUB).8

From the latter definition, different interpretations have emerged. For clas-sical scholars, as well as several contemporary authors, the Sharīʿa embodies revelation, an association that regards the Sharīʿa as the source of Islamic Law.9 Mawdūdī suggests that the Sharīʿa comprises the substance of God’s commandments gradually revealed to His prophets at different points in time, applicably amended to each particular era, and thereafter completed upon the advent of Prophet Muḥammad.10 Mawdūdī considers the Sharīʿa to be the “detailed codes of conduct” or “canons of law” that include “modes of worship, standards of morals and life and laws”.11

Ramadan’s contemporary  definition12 is somewhat generic, with a demarcation between acts of worship (ʿibāda) and social affairs (muʿāmalāt); while rules regarding the former are permanently coded and fixed, those regarding the latter are open to interpretation. According to Ramadan, if a proper procedure is followed for interpreting the sources, in order to legislate on social affairs, then a derived rule can be regarded as part of the Sharīʿa, although its implementation may differ as a result of individual reflection on the law based on the circumstances and con-text in which the rule of law is debated and implemented. Hence, one might encounter at diverse locations “different legislations” adopted for an issue that both can be considered “Islamic”.13

Technically the problem of rendering interpretations of the Sharīʿa lies in the fact that some Muslim scholars tend to mix that which is immutable and that which is changeable and can be adapted. In his locution, al-Shaltūt is quoted in al-Ashqar to have asserted that the Sharīʿa is deemed immutable:

[t]here is no other code which deserves to be called law except the Sharīʿa because it originates from the Lord of Mankind who alone reserves the right to legislate for man [. . .] All man-made laws are false because they are enacted by those who have no right to make them.14

However, such a statement invokes a misconception with regard to what is divine and immutable and what is changeable and adaptable in the Sharīʿa. The interpretations given by Ramadan15 and Baderin16 suggest the presence of two elements of law in the Sharīʿa: i.e., the source of law (revelation) and the law itself.17 The former aspect is what many traditional Muslims refer to as immutable and unchangeable, while the latter aspect refers to (i) the funda-mental essence of the law directly and explicitly expressed in the sources and (ii) derivative rules that emerge from human understanding and interpreta-tion of the source of law and, in some cases, application of these derivative rules, i.e., fiqh or jurisprudence.18

Indeed, adherence to the strict traditionalist interpretation of the Sharīʿa as ‘Islamic Law’ will erect a barrier to accessing the Sharīʿa’s overall objectives (maqāṣid ash-sharīʿa). While it is unanimously agreed upon that the Sharīʿa is immutable, one’s understanding might differ depending on the concept and content to which a rule is applied.

One way to make Islamic Law more univer-sal and dynamic would be to consider both components when applying any rule (ḥukm) of Islamic Law. Thus, in this book, the term ‘Islamic Law’ will be used often to refer to fiqh or the jurisprudential aspect of the Sharīʿa unless stated otherwise. One must remember that the origin of fiqh derives partly from the sources of the Sharīʿa and partly from human interpretation based on independent reasoning or personal exertion (ijtihād). The ultimate aim of this book is to discuss and demonstrate how Muslim jurists appear to interpret the Sharīʿa and how it ought to be interpreted and implemented, especially in our contemporary era.

Scope of Islamic Law

Broadly speaking, Islamic Law is wide in scope, rigid in principle and dynamic in application. The scope of Islamic Law is largely divided into two parts: 

(1)           rules that guide religious rites (ukhrāwiyya, otherwise called ʿibādāt) and

(2)          laws that guide mankind in his ordinary day-to-day activities (dunyāwiyya). While ukhrāwiyya refers to rules pertaining to religious observances, such as beliefs, prayers, almsgiving, fasting and pilgrimage, dunyāwiyya refers to laws governing the affairs of this world that can be sub-divided into criminal law, family law, transaction law, as well as political and international laws.19

The fundamental value of all aspects of the law is to fulfill the purpose of our earthly existence, which is to serve God, and to realize the benefits of this life and the life hereafter.20 Thus, all aspects of the law intertwine to accomplish this purpose. Attempting to attain our spiritual goals will ultimately help us realize other Sharīʿa principles.

 The relationship between the Sharīʿa, religion (dīn), and Islam resonates first and foremost in a Muslim’s acts of devotion (worship and spirituality, when correctly performed) from which social, political and economical values can be derived and fully realized.21 Through inter-textualization of the sources of the Sharīʿa, it becomes possible to appreciate the interconnection between all its dimensions and their associated values.

The importance of the aspect of ‘political will’ in Islamic Law rests on the fact that, historically, Muslim rulers have enjoyed the privilege of being God’s  vicegerents on earth, acting in accordance to their understanding of Divine Law (Sharīʿa) and dispensing justice as they deemed fit. In so doing, they some-times infringed upon certain aspects of human rights. In a number of Muslim countries, the violation of human rights makes clearly evident a discrepancy between the existence of principles embedded in the Sharīʿa and their lack of implementation through the just rule of law. Baderin observes that a “static and immoderate application of some of the traditional interpretations of the Sharīʿah can however constrain the scope of Islamic Law for present times”.22

 This stagnation and imbalance in application of Islamic Law could lead to concealment of the legacy left by the earliest great Islamic jurists. He further observes that most of the articles in the International Covenant on Civil and Political Rights (ICCPR) are compatible with the Sharīʿa:23 whenever discrep-ancies occur, mutual understanding can be sought through appreciation of the Sharīʿa’s objectives. Similarly, Doi elucidates Sharīʿa’s stand on the protection of the rights of non-Muslims in an Islamic state, such as the right to own property, to enjoy privacy and security, to have religious freedom to practice their beliefs as they see fit.24 As proof that such rights were objectively honored during the early years of the Islamic civilization, it is worth noting that non-Muslims at that times preferred to be judged under Islamic Law rather than by their own religious codes, as evidenced by the assertion: “we prefer your government and its keen sense of justice to the cruelty and injustice of our co-religionists”.25

In the Sharīʿa, the fundamental principle of justice, the most basic guide-line inspiring universal human rights, is free “from time-space elements”.26 It is neither confined to a particular gender, to a certain group of people, race or tribe, to affiliates of a political party or religious sect. Sharīʿa’s notion of justice means justice for all mankind, as stated unequivocally in the Qurʾān.27 However, not all aspects of the Sharīʿa are so easily applicable in contemporary

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