In order to properly understand the Muslim
world's concept of Human Rights under the law, it is helpful to have a
basic grasp of the concepts of Islamic law.
The general public and many academics have
several preconceived notions about Islamic Law. One such notion is that
Islamic judges are bound by ancient and outdated rules of fixed
punishments for all crimes. This paper explores that idea and looks at
other myths in an attempt to present Islamic Law from a non-biased view of
Some contemporary scholars fail to
recognize Islamic Law as an equal to English Common Law, European Civil
Law and Socialist Law. A few academics have even attempted to place
Islamic Law into the Civil Law tradition. Other writers have simply added
a footnote to their works on comparative justice on the religious law
categories of Islamic Law, Hindu Law, which is still used in some parts of
India, and the Law of Moses from the Old Testament which still guides the
current thought of the Israeli Knesset (Parliament) today. This survey
will attempt to alter some of these inaccurate perceptions and treatments
in both the contemporary literature and academic writings. Mohammed Salam
Madkoar explains the theoretical assumptions of Islamic Law:
In order to protect the five important indispensables in Islam:
Islamic Law has provided a worldly punishment in addition to that in the hereafter. Islam has, in fact, adopted two courses for the preservation of these five indispensables:
The first is through cultivating religious consciousness in the human soul and the awakening of human awareness through moral education;
The second is by inflicting deterrent
punishment, which is the basis of the Islamic criminal system.
Therefore "Hudud", Retaliation (Qesas)
and Discretionary (Tazir) punishments have been prescribed according to
the type of the crime committed.
Islamic Law and Jurisprudence is not always
understood by the western press. Although it is the responsibility of the
mass media to bring to the world's attention to violations of human rights
and acts of terror, many believe that media stereotyping of all Muslims is
a major problem. The recent bombing at the World Trade Center in New York
City is a prime example. The media often used the term "Islamic
Fundamentalists" when referring to the accused in the case. It also
referred to the Egyptian connections in that case as "Islamic
The media has used the label of
"Islamic Fundamentalist" to imply all kinds of possible negative
connotations: terrorists, kidnappers, and hostage takers. Since the media
does not use the term "Fundamentalist Christian" each time a
Christian does something wrong, the use of such labels is wrong for any
group, Christians, Muslims, or Orthodox Jews.
A Muslim who is trying to live his religion
is indeed a true believer in God. This person tries to live all of the
tenets of his religion in a fundamental way. Thus, a true Muslim is a
fundamentalist in the practice of that religion, but a true Muslim is not
radical, because the Quran teaches tolerance and moderation in all things.
When the popular media generalizes from the fundamentalist believer to the
"radical fundamentalist" label they do a disservice to all
Muslims and others.
No Separation of Church and State
To understand Islamic Law one must first
understand the assumptions of Islam and the basic tenets of the religion.
The meaning of the word Islam is "submission or surrender to Allah's
(God's) will." Therefore, Muslims must first and foremost obey and
submit to Allah's will. Mohammed the Prophet was called by God to
translate verses from the Angel Gabriel to form the most important book in
Islam, the Quran, Muslims believe.
There are over 1.2 billion Muslims today
worldwide, over 20% of the world's population. "By the year 2000, one
out of every four persons on the planet will be a Muslim," Riffat
Hassan estimated in 1990. There are 35 nations with population over 50%
Muslim, and there are another 21 nations that have significant Muslim
populations. There are 19 nations that have declared Islam in their
respective constitutions. The Muslim religion is a global one and is
rapidly expanding. The sheer number of Muslims living today makes the idea
of putting Islamic Law into a footnote in contemporary writings
The most difficult part of Islamic Law for
most westerners to grasp is that there is no separation of church and
state. The religion of Islam and the government are one. Islamic Law is
controlled, ruled, and regulated by the Islamic religion. The theocracy
controls all public and private matters. Government, law, and religion are
one. There are varying degrees of this concept in many nations, but all
law, government and civil authority rests upon it and it is a part of
Islamic religion. There are civil laws in Muslim nations for Muslim and
non-Muslim people. Sharia is only applicable to Muslims. Most Americans
and others schooled in Common Law have great difficulty with that concept.
The U.S. Constitution (Bill of Rights) prohibits the government from
"establishing a religion." The U.S. Supreme Court has concluded
in numerous cases that the U.S. Government can't favor one religion over
That concept is implicit for most U.S.
legal scholars and many U.S. academicians believe that any mixture of
"church and state" is inherently evil and filled with many
problems. They reject all notions of a mixture of religion and government.
To start with such preconceived notions
limits the knowledge base and information available to try and solve many
social and criminal problems. To use an analogy from Christianity may be
To ignore what all Christian religions
except your own say about God would limit your knowledge base and you
would not be informed or have the ability to appreciate your own religion.
The same is true for Islamic Law and Islamic religion. You must open your
mind to further expand your knowledge base. Islamic Law has many ideas,
concepts, and information that can solve contemporary crime problems in
many areas of the world. To do this you must first put on hold the
preconceived notion of "separation of church and state."
Another myth concerning Islamic Law is that
there are no judges. Historically the Islamic Judge (Qadi) was a legal
secretary appointed by the provincial governors. Each Islamic nation may
differ slightly in how the judges are selected. Some nations will use a
formal process of legal education and internship in a lower court. For
example, in Saudi Arabia there are two levels of courts. The formal Sharia
Courts, which were established in 1928, hear traditional cases. The Saudi
government established a ministry of justice in 1970, and they added
administrative tribunals for traffic laws, business, and commerce.
"All judges are accountable to God in their decisions and
practices" (Lippman, p.66-68).
One common myth associated with Islamic Law
is that judges must always impose a fixed and predetermined punishment for
each crime. Western writers often point to the inflexible nature of
Islamic Law. Judges under Islamic Law are bound to administer several
punishments for a few very serious crimes found in the Quran, but they
possess much greater freedom in punishment for less serious (non-Had)
crimes. Common law is filled with precedents, rules, and limitations that
inhibit creative justice. Judges under Islamic Law are free to create new
options and ideas to solve new problems associated with crime.
Elements of Sharia Law
Islamic law is known as Sharia Law, and
Sharia means the path to follow God's Law. Sharia Law is holistic or
eclectic in its approach to guide the individual in most daily matters.
Sharia Law controls, rules, and regulates all public and private behavior.
It has regulations for personal hygiene, diet, sexual conduct, and
elements of child rearing. It also prescribes specific rules for prayers,
fasting, giving to the poor, and many other religious matters. Civil Law
and Common Law primarily focus on public behavior, but both do regulate
some private matters.
Sharia Law can also be used in larger
situations than guiding an individual's behavior. It can be used as guide
for how an individual acts in society and how one group interacts with
another. The Sharia Law can be used to settle border disputes between
nations or within nations. It can also be used to settle international
disputes, conflicts, and wars. This Law does not exclude any knowledge
from other sources and is viewed by the Muslim world as a vehicle to solve
all problems civil, criminal, and international.
Sharia Law has several sources from which
to draw its guiding principles. It does not rely upon one source for its
broad knowledge base.
The first and primary element of
Sharia Law is the Quran. It is the final arbitrator and there is no
The second element of Sharia Law is
known as the Sunna, the teachings of the Prophet Mohammed not
explicitly found in the Quran. The Sunna are a composite of the teachings
of the prophet and his works. The Sunna contain stories and anecdotes,
called Hadith, to illustrate a concept. The Quran may not have all the
information about behavior and human interaction in detail; the Sunna
gives more detailed information than the Quran.
The third element of Sharia Law is
known as the Ijma. The Muslim religion uses the term Ulama as a
label for its religious scholars. These Ulamas are consulted on many
matters both personal and political. When the Ulamas reach a consensus on
an issue, it is interpreted as a ijma. The concepts and ideas found in the
ijma are not found explicitly in the Quran or the teachings of the Prophet
(Sunna). Islamic judges are able to examine the ijma for many possible
solutions that can be applied in a modern technical society. They are free
to create new and innovative methods to solve crime and social problems
based upon the concepts found in the ijma. These judges have great
discretion in applying the concepts to a specific problem.
The Qiyas are a fourth
element of Sharia Law. The Qiyas are not explicitly found in the Quran,
Sunna, or given in the Ijma. The Qiyas are new cases or case law that may
have already been decided by a higher judge. The Sharia judge can use the
legal precedent to decide new case law and its application to a specific
problem. The judge can use a broad legal construct to resolve a very
specific issue. For example, a computer crime or theft of computer time is
not found in the Quran or Sunna. The act of theft as a generic term is
prohibited so the judge must rely on logic and reason to create new case
law or Qiyas.
The fifth element of Sharia Law is
very broad and "all encompassing." This secondary body of
knowledge may be ideas contained in the other written works. The
New Testament is an example of this area of information, and legal
discourses based upon Civil Law or Common Law may be another example. All
information can be examined for logic and reason to see if it applies to
the current case. It also may be a local custom or norm that judge
may find helpful in applying to the issue before him. The judge may also
weigh the impact of his decision upon how it will affect a person's
standing in the community.
Crimes in Islam
Crimes under Islamic Law can be broken down
into three major categories. Each will be discussed in detail with some
common law analogies. The three major crime categories in Islamic Law are:
Hadd Crimes (most serious).
Tazir Crimes (least serious).
Qesas Crimes (revenge crimes restitution).
Hadd crimes are the most serious under
Islamic Law, and Tazir crimes are the least serious. Some Western writers
use the felony analogy for Hadd crimes and misdemeanor label for Tazir
crimes. The analogy is partially accurate, but not entirely true. Common
Law has no comparable form of Qesas crimes.
Fairchild, in her excellent book on
comparative justice, makes the following observation of Islamic Law and
punishment (Fairchild, p.41).
"Punishments are prescribed in the
Quran and are often harsh with the emphasis on corporal and capital
punishment. Theft is punished by imprisonment or amputation of hands or
feet, depending on the number of times it is committed..."
Hadd crimes are those that are punishable
by a pre-established punishment found in the Quran. These most serious of
all crimes are found by an exact reference in the Quran to a specific act
and a specific punishment for that act. There is no plea-bargaining or
reducing the punishment for a Hadd crime. Had crimes have no minimum or
maximum punishments attached to them. The punishment system is comparable
to the determinate sentence imposed by some judges in the United States.
If you commit a crime, you know what your punishment will be. There is no
flexibility in the U.S. determinate model or in the punishment for Hadd
crimes of Islamic Law.
No judge can change or reduce the
punishment for these serous crimes. The Hadd crimes are:
Apostasy from Islam - making war upon Allah and his messengers;
Defamation - false accusation of adultery or fornication;
The first four Hadd crimes have a specific
punishment in the Quran. The last three crimes are mentioned but no
specific punishment is found.
Some more liberal Islamic judges do not
consider apostasy from Islam or wine drinking as Hadd crimes. The more
liberal Islamic nations treat these crimes as Tazir or a lesser crime.
Hadd crimes have fixed punishments because
they are set by God and are found in the Quran. Hadd crimes are crimes
against God's law and Tazir crimes are crimes against society. There are
some safeguards for Hadd crimes that many in the media fail to mention.
Some in the media only mention that if you steal, your hand is cut off.
The Islamic judge must look at a higher
level of proof and reasons why the person committed the crime. A judge can
only impose the Hadd punishment when a person confesses to the crime or
there are enough witnesses to the crime. The usual number of witnesses is
two, but in the case of adultery, four witnesses are required. The media
often leaves the public with the impression that all are punished with
flimsy evidence or limited proof. Islamic law has a very high level of
proof for the most serious crimes and punishments. When there is doubt
about the guilt of a Hadd crime, the judge must treat the crime as a
lesser Tazir crime. If there is no confession to a crime or not enough
witnesses to the crime, Islamic law requires the Hadd crime to be punished
as a Tazir crime.
Modern Islamic Society has changed greatly
from the time of the Prophet. Contemporary Sharia Law is now in written
form and is statutory in nature. Islamic concepts of justice argue that a
person should know what the crime is and its possible punishment.
For example, Egypt has a parliamentary
process which has a formal penal code written and based upon the
principles of Islamic Law, but Saudi Arabia allows the judge to set the
Tazir crimes and punishments. Modern Islamic Law recognizes many
differences between these two nations. It also allows for much greater
flexibility in how it punishes an offender. The major myth of many people
is that judges in Islamic nations have fixed punishments for all crimes.
In reality, the judges have much greater flexibility than judges under
Tazir crimes are less serious than the Hadd
crimes found in the Quran. Some common law writers use the analogy of
misdemeanors, which is the lesser of the two categories (felony and
misdemeanor) of common law crimes. Tazir crimes can and do have comparable
"minor felony equivalents." These "minor felonies" are
not found in the Quran so the Islamic judges are free to punish the
offender in almost any fashion. Mohammed Salam Madkoar, who was the head
of Islamic Law at the University of Cairo, makes the following observation
(Ministry of the Interior, 1976,p.104):
Tazir punishments vary according to the
circumstances. They change from time to time and from place to place. They
vary according to the gravity of the crime and the extent of the criminal
disposition of the criminal himself.
Hadd crimes are acts that are punished
because the offender disobeys God's law and word. Tazir crimes can be
punished if they harm the societal interest. Sharia Law places an emphasis
on the societal or public interest. The assumption of the punishment is
that a greater "evil " will be prevented in the future if you
punish this offender now.
Historically Tazir crimes were not written
down or codified. This gave each ruler great flexibility in what
punishments the judge was able to dispense. The judge under Islamic Law is
not bound by precedents, rules, or prior decisions as in common law.
Judges are totally free to choose from any number of punishments that they
think will help an individual offender. The only guiding principle for
judges under Sharia Law is that they must answer to Allah and to the
greater community of Muslims.
Some of the more common punishment for
Tazir crimes are:
3. Public or private censure
4. Family and clan pressure and support
5. Seizure of property
6. Confinement in the home or place of detention
In some Islamic nations, Tazir crimes are
set by legislative parliament. Each nation is free to establish its own
criminal code and there is a great disparity in punishment of some of
these crimes. Some of the more common Tazir crimes are: bribery, selling
tainted or defective products, treason, usury, and selling obscene
pictures. The consumption of alcohol in Egypt is punished much differently
than in Iran or Saudi Arabia because they have far different civil laws.
Islamic law has much greater flexibility than the Western media portrays.
Each judge is free to punish based upon local norms, customs, and informal
rules. Each judge is free to fixthe punishment that will deter others from
crime and will help to rehabilitate an offender.
Qesas Crimes and Diya
Islamic Law has an additional category of
crimes that common law nations do not have. A Qesas crime is one of
retaliation. If you commit a Qesas crime, the victim has a right to seek
retribution and retaliation. The exact punishment for each Qesas crime is
set forth in the Quran. If you are killed, then your family has a right to
seek Qesas punishment from the murderer. Punishment can come in several
forms and also may include "Diya."
Diya is paid to the victim's family as part
of punishment. Diya is an ancient form of restitution for the victim or
his family. The family also may seek to have a public execution of the
offender or the family may seek to pardon the offender.
Traditional Qesas crimes include:
Murder (premeditated and non-premeditated).
Premeditated offenses against human life, short of murder.
Murder by error.
Offenses by error against humanity, short of murder.
Some reporters in the mass media have
criticized the thought of "blood money" as barbaric. They
labeled the practice as undemocratic and inhumane. Qesas crimes are based
upon the criminological assumption of retribution. The concept of
retribution was found in the first statutory "Code of Hammurabi"
and in the Law of Moses in the form of "an eye for an eye."
Muslims add to that saying "but it is
better to forgive."
Contemporary common law today still is
filled with the assumptions of retribution. The United States federal code
contains "mandatory minimum" sentences for drug dealing, and
many states have fixed punishment for drugs and violence and using
weapons. The United States justice system has adopted a retribution model
that sets fixed punishments for each crime. The idea of retribution is
fixed in the U.S. system of justice. Qesas crime is simple retribution: if
one commits a crime, he knows what the punishment will be.
Diya has its roots in Islamic Law and dates
to the time of the Prophet Mohammed when there were many local families,
tribes, and clans. They were nomadic and traveled extensively. The Prophet
was able to convince several tribes to take a monetary payment for damage
to the clan or tribe. This practice grew and now is an acceptable solution
to some Qesas crimes.
Today, the Diya is paid by the offender to
the victim if he is alive. If the victim is dead, the money is paid to the
victim's family or to the victim's tribe or clan. The assumption is that
victims will be compensated for their loss. Under common law, the victim
or family must sue the offender in a civil tort action for damages. Qesas
law combines the process of criminal and civil hearings into one, just as
the "civil law" is applied in many nations of the world. Qesas
crimes are compensated as restitution under common law and civil law.
The Qesas crimes require compensation for
each crime committed. Each nation sets the damage before the offense and
the judge then fixes the proper Diya. If an offender is too poor to pay
the diya, the family of the offender is called upon first to make good the
diya for their kin. If the family is unable to pay, the community, clan,
or tribe may be required to pay. This concept is not found in common law
or the civil law of most nations. It acts as a great incentive for family
and community to teach responsible behavior. What happens to the debt if
the offender dies and has not paid it? Historically, it was passed on to
the offender's heirs; today, most nations terminate the debt if the
offender left no inheritance.
One question that is often raised is
"What happens if a victim takes the diya without government
approval?" The victim or family has committed a Tazir crime by
accepting money that was not mandated by a judge: taking diya must be
carried out through proper governmental and judicial authority.
Another concept of Qesas crimes is the area
of punishment. Each victim has the right to ask for retaliation and,
historically, the person's family would carry out that punishment. Modern
Islamic law now requires the government to carry out the Qesas punishment.
Historically, some grieving family member may have tortured the offender
in the process of punishment. Now the government is the independent party
that administers the punishment, because torture and extended pain is
contrary to Islamic teachings and Sharia Law.
Contemporary treatment of Islamic Law and
"Radical Muslims" is filled with stereotypical
characterizations. Some in the Western media have used the "New York
City bombings" as a way to increase hate and prejudice. They have
taken the views of a few radicals and projected them onto all Muslims.
This action has done a great disservice to
the Muslim world. Some academic writings also have been distorted and not
always completely accurate and some researchers have concluded that
Islamic Law requires a fixed punishment for all crimes. These writers also
have concluded that Islamic judges lack discretion in their sentences of
defendants in the Sharia Court System. There are four Had crimes that do
have fixed punishments set forth in the Quran, but not all the Had crimes
are bound by mandatory punishment.
Islamic Law is very different from English
Common Law or the European Civil Law traditions. Muslims are bound to the
teachings of the Prophet Mohammed whose translation of Allah or God's will
is found in the Quran. Muslims are held accountable to the Sharia Law, but
non-Muslims are not bound by the same standard (apostasy from Allah).
Muslims and non-Muslims are both required to live by laws enacted by the
various forms of government such as tax laws, traffic laws, white collar
crimes of business, and theft. These and many other crimes similar to
Common Law crimes are tried in modern "Mazalim Courts." The
Mazalim Courts can also hear civil law, family law, and all other cases.
Islamic Law does have separate courts for Muslims for "religious
crimes" and contemporary non-religious courts for other criminal and
Mohammed Salam Madkoar.