Islamic criminal jurisprudence
Encyclopedia
- This is a sub-article of fiqhFiqhFiqh is Islamic jurisprudence. Fiqh is an expansion of the code of conduct expounded in the Quran, often supplemented by tradition and implemented by the rulings and interpretations of Islamic jurists....
and criminal lawCriminal lawCriminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
.
Islamic criminal law (فقه العقوبات) is criminal law
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
in accordance with Islamic law
Sharia
Sharia law, is the moral code and religious law of Islam. Sharia is derived from two primary sources of Islamic law: the precepts set forth in the Quran, and the example set by the Islamic prophet Muhammad in the Sunnah. Fiqh jurisprudence interprets and extends the application of sharia to...
. Strictly speaking, Islamic law does not have a distinct corpus of "criminal law," as sharia courts do not have prosecutors, and all matters, even criminal ones, are in principle handled as disputes between individuals. Instead of a separate corpus of criminal law, Islamic law maintains a special category of "offenses against god," or "hudud," whose punishments are fixed.
There are four classes of crime
Crime
Crime is the breach of rules or laws for which some governing authority can ultimately prescribe a conviction...
s in Islam, divided according to their mention in the Quran.
Hudud
Hudud, meaning "limits", is the most serious category and includes crimes specified in the Quran.These are:
- Drinking alcohol (sharb al-khamr, شرب الخمر)
- TheftTheftIn common usage, theft is the illegal taking of another person's property without that person's permission or consent. The word is also used as an informal shorthand term for some crimes against property, such as burglary, embezzlement, larceny, looting, robbery, shoplifting and fraud...
(as-sariqah, السرقة) - Highway robbery (qat`a at-tariyq, قطع الطريق)
- Illegal sexual intercourseZina (Arabic)Zinā or Zināʾ is generally defined by Islamic Law as unlawful sexual intercourse, i.e. intercourse between a man and a woman who are not married to one another or in a state of lawful concubinage based on ownership...
(az-zinā', الزناء) - False accusation of illegal sexual intercourseZina (Arabic)Zinā or Zināʾ is generally defined by Islamic Law as unlawful sexual intercourse, i.e. intercourse between a man and a woman who are not married to one another or in a state of lawful concubinage based on ownership...
(qadhf, القذف) [1] - ApostasyApostasy in IslamApostasy in Islam is commonly defined in Islam as the rejection in word or deed of one's former religion by a person who was previously a follower of Islam...
(irtidād or ridda, ارتداد) - includes blasphemyIslam and blasphemyBlasphemy in Islam is any irreverent behavior toward holy personages, religious artifacts, customs, and beliefs that Muslims revere. The Quran and the hadith do not speak about blasphemy. Jurists created the offence, and they made it part of Sharia. Where Sharia pertains, the penalties for...
.
The Shafi'i
Shafi'i
The Shafi'i madhhab is one of the schools of fiqh, or religious law, within the Sunni branch of Islam. The Shafi'i school of fiqh is named after Imām ash-Shafi'i.-Principles:...
school of Islamic jurisprudence does not include highway robbery. The Hanafi
Hanafi
The Hanafi school is one of the four Madhhab in jurisprudence within Sunni Islam. The Hanafi madhhab is named after the Persian scholar Abu Hanifa an-Nu‘man ibn Thābit , a Tabi‘i whose legal views were preserved primarily by his two most important disciples, Abu Yusuf and Muhammad al-Shaybani...
school does not include rebellion and heresy.
Except for drinking alcohol, punishments for all hudud crimes are specified in the Quran or Hadith: stoning
Rajm
Rajm is an Arabic word that means "stoning". It is commonly used to refer to the Hudud punishment wherein an organized group throws stones at a convicted individual until that person dies. Traditionally it is called for in cases of adultery where the criteria for conviction are met...
-Hadith, amputation
Amputation
Amputation is the removal of a body extremity by trauma, prolonged constriction, or surgery. As a surgical measure, it is used to control pain or a disease process in the affected limb, such as malignancy or gangrene. In some cases, it is carried out on individuals as a preventative surgery for...
and flogging.
Amputation
The punishment for stealing is the amputation of the hand and after repeated offense, the foot (Quran 5:38). This controversial practice is still in practice today in countries like IranIran
Iran , officially the Islamic Republic of Iran , is a country in Southern and Western Asia. The name "Iran" has been in use natively since the Sassanian era and came into use internationally in 1935, before which the country was known to the Western world as Persia...
, Saudi Arabia
Saudi Arabia
The Kingdom of Saudi Arabia , commonly known in British English as Saudi Arabia and in Arabic as as-Sa‘ūdiyyah , is the largest state in Western Asia by land area, constituting the bulk of the Arabian Peninsula, and the second-largest in the Arab World...
, and Northern Nigeria
Nigeria
Nigeria , officially the Federal Republic of Nigeria, is a federal constitutional republic comprising 36 states and its Federal Capital Territory, Abuja. The country is located in West Africa and shares land borders with the Republic of Benin in the west, Chad and Cameroon in the east, and Niger in...
. In Iran, amputation as punishment has been described as "uncommon", but "not unheard of, and has already been carried out at least once" during 2010.
Qisas
Qisas is the Islamic principle of an eye for an eyeAn eye for an eye
The meaning of the principle, an eye for an eye, is that a person who has injured another person receives the same injury in compensation. The exact Latin to English translation of this phrase is actually "The law of retaliation." At the root of this principle is that one of the purposes of the...
. This category includes the crimes of murder
Murder
Murder is the unlawful killing, with malice aforethought, of another human being, and generally this state of mind distinguishes murder from other forms of unlawful homicide...
and battery
Battery (crime)
Battery is a criminal offense involving unlawful physical contact, distinct from assault which is the fear of such contact.In the United States, criminal battery, or simply battery, is the use of force against another, resulting in harmful or offensive contact...
.
Punishment is either exact retribution
Retributive justice
Retributive justice is a theory of justice that considers that punishment, if proportionate, is a morally acceptable response to crime, with an eye to the satisfaction and psychological benefits it can bestow to the aggrieved party, its intimates and society....
or compensation
Damages
In law, damages is an award, typically of money, to be paid to a person as compensation for loss or injury; grammatically, it is a singular noun, not plural.- Compensatory damages :...
(Diyya
Diyya
Diyya is compensation paid to the heirs of a victim. In Arabic, the word means both blood money and ransom.-Islamic and Arab tradition:The Qur'an specifies the principle of Qisas Diyya (plural: Diyyat; ) is compensation paid to the heirs of a victim. In Arabic, the word means both blood money and...
).
The issue of qisas gained considerable attention in the Western media in 2009 when Ameneh Bahrami
Ameneh Bahrami
Ameneh Bahrami is an Iranian woman blinded in an acid attack. She became the focus of international controversy after demanding that her attacker, Majid Movahedi, be punished by being similarly blinded...
, an Iranian woman blinded in an acid attack, demanded that her attacker be blinded as well.
Tazir
Tazir includes any crime that does not fit into Hudud or Qisas and which therefore has no punishment specified in the Quran. These types of crimes range from homosexualityHomosexuality and Islam
LGBT topics and Islam are influenced by both the cultural-legal history of the nations with a large Muslim population, along with how specific passages in the Qur'an and statements attributed to the prophet Muhammad are interpreted. The mainstream interpretation of Qur'anic verses and hadith...
to perjury
Perjury
Perjury, also known as forswearing, is the willful act of swearing a false oath or affirmation to tell the truth, whether spoken or in writing, concerning matters material to a judicial proceeding. That is, the witness falsely promises to tell the truth about matters which affect the outcome of the...
to treason
Treason
In law, treason is the crime that covers some of the more extreme acts against one's sovereign or nation. Historically, treason also covered the murder of specific social superiors, such as the murder of a husband by his wife. Treason against the king was known as high treason and treason against a...
.
Diyya
DiyyaDiyya
Diyya is compensation paid to the heirs of a victim. In Arabic, the word means both blood money and ransom.-Islamic and Arab tradition:The Qur'an specifies the principle of Qisas Diyya (plural: Diyyat; ) is compensation paid to the heirs of a victim. In Arabic, the word means both blood money and...
is compensation paid to the heirs of a victim. In Arabic the word means both blood money
Blood money (term)
Blood money is money or some sort of compensation paid by an offender or his family group to the family or kin group of the victim.-Particular examples and uses:...
and ransom
Ransom
Ransom is the practice of holding a prisoner or item to extort money or property to secure their release, or it can refer to the sum of money involved.In an early German law, a similar concept was called bad influence...
.
The Quran specifies the principle of Qisas
Qisas
Qisas is an Islamic term meaning "retaliation," and follows the principle of an eye for an eye, or lex talionis, first set forth by Hammurabi, and subsequently included in the Old Testament and later legal codes...
(ie, retaliation), but prescribes that one should seek compensation (Diyya
Diyya
Diyya is compensation paid to the heirs of a victim. In Arabic, the word means both blood money and ransom.-Islamic and Arab tradition:The Qur'an specifies the principle of Qisas Diyya (plural: Diyyat; ) is compensation paid to the heirs of a victim. In Arabic, the word means both blood money and...
) and not demand retribution.
We have prescribed for thee therein ‘a life for a life, and an eye for an eye, and a nose for a nose, and an ear for an ear, and a tooth for a tooth, and for wounds retaliation;’ but whoso remits it, it is an expiation for him, but he whoso will not judge by what God has revealed, these be the unjust.