Apr 10· 2020
Author’s Note: This brief synopsis of Islamic law emphasizes the classical and medieval interpretative approaches, interspersed with contemporary points of view. This article is in no way attempts to deal with Islamic law in-depth; rather it is the goal of International Bridges to Justice to provide an overview of the rights of the accused in Shari’ah and a bit of historical context for understanding the Quran’s approach to those rights.
I. Contextual Background — Pre-Islamic Arabia and Islamic Law
When reading about Shari’ah, it is important to have a basic understanding of the society and era in which it was revealed. In English, the Arabic word jahaliyya is usually translated as the “Age of Ignorance” and refers to approximately the century before Muhammad’s mission in the Arabian Peninsula. In pre-Islamic literature, and also in the Qur’an, words stemming from the Arabic root j-h-l are closer to “barbarism” and even more specifically — extreme behavior rather than “ignorance”. Indeed, tribalism, asabiyya in Arabic, dominated pre-Islamic Arabian society and with the exception of some of Yemen, there was no political organization or rule of law. According to the Qur’an — pre-Islamic Arabia was an arrogant, violent and extravagant society where clans took punishment into their own hands. As Maxime Rodinson explained in his 1971 book Muhammad “…manslaughter carried severe penalties according to the unwritten law of the desert. In practice the free Arabs were bound by no written code of law, and no state existed to enforce its statutes with the backing of a police force. The only protection for a man’s life was the certainty established by custom, that it would be dearly bought. Blood for blood and a life for a life. The vendetta, tha’r in Arabic, is one of the pillars of Bedouin society.”
The Qur’an was revolutionary in that it provided a set of rules establishing human rights, women’s rights and rights for the accused in a society that did not formally recognize or implement those standards before the revelation of the Qur’an. In other words, the arrival of Islam brought a newfound law and order to the peninsula and its warring tribes.
II. Introduction to Shari’ah and Islamic Law
A. Shari’ah vs. Islamic Law
The word Shari’ah means the path to the source and includes both the proscriptions contained in the Qur’an (Islam’s holy book revealed to the Prophet Muhammad by the angel Gabriel) and the Sunnah, which includes what the Prophet Muhammad said, did, approved and didn’t approve of. The Sunnah was documented in later centuries in what are called ahadith (saying, acts or tacit approvals/disapprovals-either valid or invalid, attributed to the Prophet Muhammad). In other words, the Sunnah is the “lived example of the Prophet Muhammad” who Muslims believe was the last Prophet in the line of Abrahamic prophets. Professor Asifa Quraishi translates to shari’ah to mean “God’s Law”. “It is ideal of how people should be in the world.”
While Shari’ah and “Islamic law” are often used interchangeably, Islamic law is actually a more expansive term that also includes the ways of interpreting the Qur’an, the Sunnah and fiqh (human knowledge- including theology and law). This is because, as Professor Quraishi explains, the Qur’an and the Sunnah do not “give you the answers to every single life question”. Thus, legal scholars within Muslim societies came up with ways to interpret those texts in order to produce specific legal conclusions. In order to come to these conclusions, Muslim jurists used various “jurisprudential tools” including, but not limited to: cannons of construction, analogical reasoning ( qiyas), public welfare ( maslaha), consensus of scholars ( ijma), etc. Thus, these conclusions, when put together, compose what people think about when they contemplate the doctrine of Islamic law “in the sense of the rules governing Muslim lives”.
Islamic law is, in fact, an overarching word that includes substantive and procedural law, specifically: the sources of law, the methods of identifying and applying these sources of law, and the processes through which legal issues are adjudicated or otherwise addressed by doctrine. It is important to note that progressive scholars of Islamic jurisprudence consider the historical context of religious injunctions, focus on invoking the “essence” rather than the letter of Qur’anic proscriptions and view pronouncements as being able to evolve with the times. Running the risk of stating the obvious, Islamic law is thus clearly affected by historical contexts and circumstances, political realities and even personal perceptions and narratives.
B. Sources of Law
The four main sources of Islamic law according to the classical legal paradigm are: 1) the Qur’an; 2) the Sunnah; 3) scholarly consensus; 4) reasoning by analogy. The Qur’an, while remaining the primary source of law, has only 350 verses that deal specifically with legal issues out of a total of 6,236 total verses. Of those 6,236 verses, only 30 deal with crimes.
Many scholars consider the Sunnah as the next most important source of law after the Qur’an, while others consider parts of the Sunnah as if it were equal to the Qur’an. This is a particularly controversial issue, as Muslims believe that the Qur’an is the actual word of God and the Sunnah, while being the words and deeds of the Prophet, are still the words and deeds of a human, or a bashar. Islam differs from Christianity in this respect, as Muslims consider Jesus and all other prophets (including Mohammad), as mere mortals that while endowed with a divine message, do not possess any kind of divine quality.
C. The Islamic Legal System
The Islamic legal system differs from other legal systems such as Civil or Common Law traditions; the former characterized by codification of law and the latter by binding judicial precedent. In Islam, there is no history of codification of laws, nor is there an understanding of binding legal precedent as in Common Law.
The process of analogical reasoning, however, is quite similar to Common Law case precedent analysis. Crucial to understanding the variations and effects of Islamic law is an appreciation of the nearly absolute authority Muslim jurists have had over the interpretation and articulation of the rules and norms of God’s law on the basis of the Qur’an and the Sunnah since the early centuries of Islam.
A Muslim jurist generally derives their authority from being recognized as having attained a “proficiency and integrity” in discerning God’s law through accepted methods of textual analysis and reasoning, rather than though official government office (i.e. U.S. judges both state and federal). Jurists views on points of Islamic law vary from region to region and time to time, much as American law varies from state to state and even, as Professor Sadiq Reza points out, from “courtroom to courtroom”. Muslim jurists’ views can appear in a fatwa (legal opinion) that the jurist issues in response to a question presented to him by a qadi (judge), a party in a particular case, or in a treatise that collects the qadi’s views on various subjects. Unlike an American judicial decision, however, a Muslim jurist’s view only becomes binding (in the Common Law sense) when the viewpoint is adopted by a qadi in an actual court case or is enforced through a rule or decision of an executive authority.
The views of a Muslim qadi are thus opinions, rather than judgments; “they are approximations or understandings of God’s law instead of definitive statements of it”. Worth noting is that due to the fact that a jurist’s opinion is actually man made, each opinion is thus regarded as: 1) a likely vs. definitive interpretation of the Shari`ah; and 2) holds no more authority over the opinion of other jurists, regardless of how much the opinions differ from one another. The approaches and rules for interpreting the Qur’an are distinct from those that apply to the Sunnah. Between the 9th — 12th centuries AD, four Sunni and three Shi’a madhabs (schools of theological/legal science) developed. After that, doctrine, legal opinions, and judicial interpretations supplemented this legal history. While not the subject of this article, the distinctions between the various schools are of the utmost importance when studying, interpreting and applying Islamic law.
III. Influence of foreign legal systems on Islamic Law and Shari’ah
By the 20th century all Muslim states had developed legal systems usually based off of the model of the colonial power that was present in that state. In fact, most Muslim countries now have minimized the application of Shari’ah law to specific legal areas such as family law. Very few of the 57 modern Muslim states apply Islamic law in whole or in part to criminal conduct. Even Muslim countries that strictly follow the Shari’ah have developed legal norms and institutions similar to those of secular countries.
IV. Islamic Criminal Justice
As Professor M. Cherif Bassiouni points out in his article,the Shari`ah, Islamic Law, and Post-Conflict Justice, the Islamic criminal justice system is a complicated subject, partially because all of the substantive crimes reside within the Qur’an and among the Sunnah in addition to the relationship between subjective determinations of social and criminal justice. Under classical Islamic law are four categories of crimes: hudud, qisas, ta`zir and siyasa. Each category has different sources of law in relation to the substantive elements of the crime as well as evidentiary requirements. Furthermore, the application of these categories of crimes has varied among different cultures throughout the fourteen centuries of Islamic history, sometimes giving a clearer picture of a particular culture at a particular point in time, rather than any standard legal legacy.
B. Characteristics of the Shari’ah Penal System
The characteristics and principles of the Shari’ah penal system derive from the Qur’an and the Sunnah. Professor M. Cherif Bassiouni has summarized these characteristics as follows:
1. That which is not forbidden is allowed.
2. Precepts, proscriptions, and even explicit prohibitions are often based on actual events and not hypothetical scenarios (this increases the possibility for reasoning by analogy).
3. The language used in the prohibitions and warnings allow for policy-geared interpretation and application, based on sound policy reasoning and social necessity.
4. The explicit language used in particular prohibitions is often qualified by other provisions allowing the legal excuse of justification as well as judicial discretion.
5. Evidentiary requirements (intended to limit judicial discretion and make it more difficult to find a suspect guilty and impose a penalty with respect to particular crimes) temper the apparent harshness of the penalties.
6. Establishment of procedural safeguards, designed to protect the person from abuse by others and abuse of power by authorities and the judge, protects the rights of the individual.
7. Proscriptions on criminal justice are not concentrated in any one part of the Qur’an or the Sunnah, but are interspersed among a variety of other subjects.
8. Matters relating to criminal justice (crimes, penalties, evidentiary requirements, procedures, etc.) are referred to contextually as part of different verses contained in the Qur’an, thereby highlighting the social and moral aspects of criminal justice.
9. Codification and legislation are permissible in all three categories of crimes, with discretion allowed in ta`zir crimes.
10. Penalties for each category of crimes differ, thus evidencing a different philosophy and policy of punishment.
11. Penalties are intended essentially as deterrents, although emphasis is also placed on rehabilitation, particularly in defining and punishing ta`zir crimes, with a strong tendency for compensatory non-penal sanctions in qisas crimes.
In order to have a correct understanding of the Islamic criminal justice system, it must be viewed in light of these characteristics. Nevertheless, these characteristics depend on the applicable source of law chosen, its rank among other sources of law and their interrelationship, according to the rules of interpretation understood as Islamic jurisprudence, or usul al-fiqh.
1. Principle of Legality in Islamic Law
The Latin phrase nulla poena sine lege (no punishment without law) defines the commonly accepted principle of the non-retroactivity of criminal law. In Islam, that which is not prohibited is permitted. Thus, there can be no crime without a specific legal provision in the Shari’ah and other laws made pursuant to it and consequently, there can be no punishment without such a pre-existing law. It follows then that, since a person cannot be held criminally liable for conduct not forbidden by law, he cannot be held criminally accountable for conduct that happened before such conduct was criminalized. In other words, establishment of the law must come before its application.
Professor Bassiouni outlines several Qur’anic verses that demonstrate the principle of legality in Islamic law finds support including:
1. Surat al-Qasas: Nor was thy Lord the one to destroy a population until He had sent to its centre a messenger, rehearsing to them Our Signs; nor are We going to destroy a population except when its members practice iniquity. (28:59) [Ali translation]
2. Surat al An`am: Say: What thing is most weighty in evidence?” Say: “Allah is witness between me and you; This Qur’an hath been revealed to be my inspiration, that I may warn you and all whom it reaches. Can ye possibly bear witness that besides Allah there is another Allah? “Say: “Nay! I cannot bear witness!” Say: “But in truth He is the one Allah, and I truly am innocent of (your blasphemy of) joining others with Him.” (6:19) [Ali translation]
3. Surat al-Ma’idah: “Know ye that Allah is strict in punishment and that Allah is Oft-forgiving, Most Merciful.” (5:98) [Ali translation]
Professor Bassiouni notes that there is specific application of this principle in the Prophet Muhammad’s Farewell sermon, where he stated: “(There) is prescription for blood crimes spilled (committed) in the days of ignorance (before Islam was revealed)…” Thus, as Professor Bassiouni points out, in the sermon the Prophet demonstrated the non-retroactivity of laws applicable to crimes and punishment before the establishment of Islamic law.
2. Presumption of Innocence
The principle of the presumption of innocence is applicable both to criminal legislation and the implementation of it. In fact, in an early hadith (recorded sayings of the Prophet by his companions), the Prophet stated: “Had men been believed only according to their allegations, some persons would have claimed the blood and properties belonging to others, but the accuser is bound to present positive proof.”
Regarding the application of the principle of the presumption of innocence to the categories of crimes in Islamic Law the following ahadith (pl. of hadith) are relevant:
The Prophet said: “avoid using circumstantial evidence in hudud”, which are the most serious of all crimes because they are explicitly mentioned in the Qur’an. Referring to this hadith, Aisha (the wife of the Prophet) reported that the Prophet also said:
“Avoid condemning the Muslim to hudud whenever you can, and when you can find a way out for the Muslim then release him for it. If the Imam errs it is better that he errs in favor of innocence [pardon] than in favor of guilt [punishment].”
It is firmly established principle in qisas crimes that circumstantial evidence favorable to the accused is to be relied upon, while if unfavorable to him it is to be disregarded. Regarding the lesser ta`zir offenses, the presumption of innocence applies as well. In his Farewell Sermon, the Prophet said: “Your lives, your property, and your honor are a sacred trust upon you until you meet your Lord on the Day of Resurrection.” Professor Bassiouni notes that this passage has been interpreted to mean that the duty to protect life, property and honor cannot be breached without positive proof of crime.” It is thus a fundamental rule in Islamic criminal law that: “The burden of proof is on the proponent, and the oath is incumbent on the one who denies.”
3. Equality before the law
In Islam, all persons are equal before the law, and the Qur’an makes this principle quite clear.
Surat al-Nisa’: “O mankind! Reverence your Guardian-Lord, who created you from a single person, created, of like nature, His mate, and from them twain scattered [like seeds] countless men and women; -reverence Allah, through whom he demand your mutual [rights], and [reverence] the wombs [that bore you]: for Allah ever watches over you.” (4:1) [Ali translation]
Another relevant verse using unequivocal language implying equality is among human beings is:
Surat al-Hujurat: “O mankind! We created you from a single [pair] of a male and a female, and made you into nations and tribes, that ye may know each other [not that ye may despise each other]. Verily the most honored of you in the sight of Allah is [he who is] the most riteious of you. And Allah has full knowledge and is well acquainted [with all things].” (49:13) [Ali translation]
In conclusion, both crimes and punishment must apply equally and it thus follows that this also applies to criminal proceedings. When penalties are individualized, especially for ta`zir offenses, the principle of equality before the law is not violated where the theories of correction and rehabilitation apply. Nevertheless, the principle of equality is meant as a guarantee that the judge will not abuse his or her discretion; rather, this is a form of limiting the disparity of sentences and abuse of power. While initially this principle may seem purely procedural, it is also substantive because it disallows legislation that would be not be equal in purpose, scope and application.
The Prophet also said: “O mankind! You worship the same God, you have the same father. The Arab is not more worth than the Persian and the red is not more deserving than the black except in Godliness.
4. Criminal Responsibility
Criminal responsibility in Islam is essentially individual. Responsibility for the conduct of others, however, and responsibility for things under one’s control have also developed throughout the centuries of Islamic jurisprudence.
Surat al-Najm: “That man can have nothing but what he strives for.” (53:39) [Ali translation]
Surat al-Fussilat: “Whoever works righteousness benefits his own soul; whoever works evil, it is against his own soul: nor is thy Lord ever unjust [in the least] to His Servants.” (41:46) [Ali translation]
Surat al-An`am: It is He Who hath made you [His] agents, in heritors of the earth: He hath raised you in ranks, some above others; that He may try you in the gifts He hath given you: for thy Lord is quick in punishment; yet He is indeed Oft-forgiving, Most Merciful. (6:165) [Ali translation]
Surat Fatir: Nor can a bearer of burdens bear another’s burdens if one heavily laden should call another to [bear] his load. Not the least portion of it can be carried (by the other). Even though he be nearly related. Thou canst but admonish such as fear their Lord unseen and establish regular Prayer. And whoever purifies himself does so for the benefit of his own soul; and the destination [of all] is to Allah.
Surat al-Nisa’: Not your desires, nor those of the People of the Book [can prevail]: whoever works evil, will be requited accordingly. Nor will he find, besides Allah, any protector or helper. (4:123) [Ali translation]
In another hadith, the Prophet said: “A soul is not held responsible for acts committed by his father or by his brother.”
5. The Prohibition of Investigative Torture in Islam
a. The pre-modern view
The first view that prevailed in the early centuries of Islam was that investigative torture was never permitted. Proponents of this view included the well-known jurists Ibn Hazim of the Zahri school of law, and al-Ghazzali, of the Shafi`i school. This view is obviously consistent with modern standards of international human rights norms. Other views came about in later centuries and are scholarly opinions on the subject differ.
b. Islamic law and international covenants on torture
All but seven of the forty-four Muslim majority countries are parties to the 1984 Convention against Torture (“1984 Torture Convention”). The convention forbids torture and requires party states to criminalize and prevent torture, to train law-enforcement personnel to comply with and enforce the prohibition, to review rules and practices of interrogation and detention in the interest of maintaining the prohibition, to provide reliable and safe means of complaint and redress for alleged victims of torture and to investigate credible allegations of torture promptly and impartially. In fact, only one majority Muslim country that is a party to the convention has formally suggested that anything about the convention might be inconsistent with Islamic law. Upon accession to the treaty in 2000, the small constitutional monarchy of Qatar declared a reservation with respect to “any interpretation of the provisions of the Convention that is incompatible with the precepts of Islamic law and the Islamic religion.”
As Professor Reza notes, the acceptance of other international covenants by Muslim countries, does nevertheless, show a modern perception that banning torture is “consistent with Islamic law, if not compelled by it.” This viewpoint becomes clear in human rights schemes that began in the Muslim world, specifically: the Universal Islamic Declaration of Human Rights (“1981 Universal Declaration”), the 1990 Cairo Declaration on Human Rights in Islam (“1990 Cairo Declaration”), and a 1994 Arab Charter on Human Rights, revised in 2004. Each if these documents bans torture and indicates that not only is the prohibition compatible with Islamic law, but it is in fact grounded in it. As for the countries that have not acceded to the 1984 Torture Convention, for example Iran, has banned torture in its constitution.
c. Basic Rights of the Accused in Islam 1. The Dignity of the Human Being
The Quran prohibits arbitrary arrest or detention, as the dignity of man must be respected and any criminal procedure that violates this principle has no legal effect. Furthermore, spying and other forms of illicit interference into the private life of an individual are also prohibited and produce no legal effect.
2. The Right to a Fair and Speedy Trial
In Islam, the accused has a right to a fair and quick trial before a competent, independent and impartial judge and the right to judicial review of that decision by a higher court or judge. The accused also has all other defense rights, as justice is the basis upon which governance in Islam is based.
Surat An-Nahl: “God commands justice, the doing of good, and liberality to kith and kin, and He forbids all shameful deeds, and injustice and rebellion: He instructions you that ye may receive admonition.” (16:90)
In fact, the Prophet himself was ordered to judge justly, for example:
Surat Ash-Shura: “But say: I believe in the Book which God has sent down; and I am commanded to judge justly between you (42:15)
Believers are also commanded to judge justly:
Surat Al-Maeda: “O ye who believe! Stand out firmly for God, as witnesses to fair dealing, and let not the hatred of others make you swerve to wrong and depart from justice. Be just [and judge justly]: that is next to piety: and fear God. For God is well acquainted with all that ye do. (5:8)
Furthermore, the Quran dictates:
Surat An-Nisa: “God doth command you to render back your Trusts to those to whom they are due; and when ye judge between man and man, that ye judge with justice: Verily how excellent is the teaching which He giveth you! For God is He Who heareth and seeth all things. (4:58)
(a) Rights to an Adequate Defense
This right includes the right to challenge evidence presented against the accused and the right to present contrary evidence, the right to be heard, and the right to full equality in treatment with the accuser or opponent before the court or the judge. The Sunnah guarantees these rights, as mentioned in the hadith. Furthermore, the accused has the right to defend herself or himself, or alternatively, can request that an expert or an attorney represent her or him.
(b) The Right to Counsel
While classical Shari’ah did not expressly include any provisions requiring a court to provide the accused with access to counsel, the essential qualities of a fair and just trial cannot be fulfilled in today’s society without such a right. Modern day Shari’ah scholars recognize the right to an attorney as a fundamental right of the accused in any criminal proceeding.
© The Right to be Silent, and the Right not to be a Witness Against Oneself
The accused has the right to not to speak at all or if he or she chooses to speak, the accused has the right to do so without being coerced or pressured. It thus follows that any confession obtained out of duress or coercion of any type, has no legal effect. In fact, obtaining a confession under duress, coercion or any other kind of illicit pressure is a crime under Shari`ah.
(d) The Right to Compensation for Illegal Criminal Processing
Under Shari`ah, judges are responsible for mistakes and wrongdoing because they have full authority over all criminal proceedings. Furthermore, if a person in charge of executing a criminal procedure (i.e. an arrest or executing a sentence), that person could be held responsible for a crime and could potentially be liable to pay compensation, if the victim accepts payment. Any violation of these basic rights could result in a qisas crime, thus requiring a qisas punishment.
Note about the author and editor
This article was written by Carli Pierson, a third year law student at Nova Southeastern University’s Shepard Broad Law Center in Fort Lauderdale, Florida. She is specializing in international law and has a background in Islamic World Studies . Hamid M. Khan edited this article and currently is a Senior Program Officer at the U.S. Institute of Peace and Professorial Lecturer of Islamic Law at George Washington University Law School. This article represents the views of the author and not those of International Bridges to Justice.
Amin Isan Aslahi, Fundamentals of Hadith Interpretation, p. 20, English translation of Mabadi Tadabbur-e Hadith, translated by Tariq Mahmood Hashmi, (available at http://www.monthly-renaissance.com/DownloadContainer.aspx?id=71) (last visited Feb. 8, 2012).
Asifa Quarishi, Who Says Shari’a Demands the Stoning of Women? A Description of Islamic Law and Constitutionalism, Islamic Law and Law of the Muslim World Paper Series at New York Law School №08:30, at 4 (June 2008) [hereinafter A Description of Islamic Law and Constitutionalism] (available at http://www.wluml.org/node/7194.
For more information on the schools of Islamic law and their variations see: Mughal, Munir Ahmad, Schools of Islamic Jurisprudence (January 31, 2012). Available at SSRN: http://ssrn.com/abstract=1996514 or http://dx.doi.org/10.2139/ssrn.1996514
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) 85 UN Treaty Ser 1465. The six non-parties are: Brunei, Comoros, Iran, Malaysia, Oman and the United Arab Emirates. See United Nations Convention against Torture, Ratifications and Reservations, (available at http://treaties.un.org/Pages/Treaties.aspx?id=4&subid=A&lang=en) (last visited Feb. 13, 2012).
Id. The Cairo Declaration on Human Rights is available online at: http://www.oic-oci.org/english/article/human.htm.
Originally published at http://defensewiki.ibj.org.