The review of muslim criminal law with protection to the Human Rights

The review of muslim criminal law with protection to the Human Rights

The muslim world is characterized by a growing influence on the global level, nowadays. Its determinative aspects generates a general change in the social structure and ordinance of the countries with other state of thinking. In this context, the muslim (islamic) law plays the most important role, it why I decided to study this section of muslim world reported to occidental values of human rights.

The cultural hemisphere of the Muslim world has been on the spotlight of international interest ever since the events of 9-11. Admittedly, topics in regard of Islamic issues had also been discussed before, but it was the act of terrorism and every step that followed which have moved the topic from the debate podiums of the academic world to a more general public interest. Thus, people of the Western do try to get a better understanding of various aspects regarding especially the Arab part of the Muslim cultural hemisphere in order to ease tensions and prevent further terrorist acts from happening.

The official intentions of the ongoing debate are clear and often repeated in a political agenda that is spearheaded by the United States government: Bringing democracy to Muslim countries and creating stable and prosperous civil societies is on top of that official agenda of western policy if one believes in the political rhetoric of Occidental politicians. One may doubt whether those are always honest and straightforward. Often, it seems, their own economic and political interests rank much higher on that agenda than the interests of the Middle East. Nevertheless, one may credit them at least with their publicly declared benevolence.

One of the most controversially debated issues is the Islamic criminal law as such, which is “the epitome of Islamic thought, the most typical manifestation of the Islamic way of life, the core and kernel of Islam itself”, as Joseph Schacht, an eminent scholar of Islamic jurisprudence has once described it.1 However, there is a general debate about the Sharia, as it is commonly called, without much understanding of the basic principles of this law which often leads to misconceptions and prejudice. The pictures usually evoked - regarding the Muslim legal practise - are preoccupied with extraordinary cruelty and hardship imposed upon offenders to the law. Cutting off hands as a common practice for thieves or stoning adulteresses are popular images of a very one-sided debate.

My academic work should contribute to dispel these misconceptions and false understanding by giving an inside view into the Islamic Criminal Law that has thus far been so poorly represented, and yet which governs the lives of a substantial portion of the world’s population. It aims at making contributions and additions to the existing knowledge but should not be confined to a purely juridical sphere.

Starting with some general remarks on democracy and the separation of State and Religion in the Muslim world one will also have to discuss, at least briefly, some ideas on the interconnection between moral standards and modern legal practise in order to illustrate the philosophical and sociological background that closely relates to the purely juristic matter. This is of paramount importance because the Sharia also constitutes a system of ethics and values which helps to explore the sociological aspects of criminology and penology as they are understood within Islam.

Philosophically, punishment matters are related to the question pertaining to how far the rights are owned by state for giving sanction to the offender.

Sociologically, the question is to what extent that punishment is capable of preventing criminal acts or guaranteeing the public’s security. And to the culprit, whether the sentencing has optimal effective capacity to educate and change recidivism attitude. In short, what is the purpose of penalisation and how is it obtained at best.

Besides those very general opening questions that could be asked within the context of any system of laws the present document will go further and provide an overview of how Islam approached and still approaches those fundamental questions. The historic background, including the emergence of Islam and the development of the Islamic system of laws commonly referred to as Sharia Law will be presented as well as all major sources of jurisprudence and different Schools of Law and Thought of the Sharia. If a greater public understood how many of the conflicts of contemporary Islam have their roots in the formative years of Islam itself, it would be less susceptible to inaccurate stereotyping.

Furthermore, the present work aims at re-establishing the fact that Islamic penal laws were conceived in larger interests of society. It says much about Occidental understanding and attitudes towards the Muslim world that the Islamic Law Code that is known as Sharia is usually reduced to a penal law code that only evokes one-sided images of extremely severe means of penalisation.

Generally speaking, a separation of state and religion is one pillar of modern democratic societies and a precondition for the establishment of a modern criminal law in the Occidental World. This principle guarantees - among others - equality and justice before the law. Another important component is the separation of powers, which was first expresses by the Enlightenment philosopher Montesquieu in his “L’ésprit des lois”. Both principles - the separation of state and religion and the separation of powers - do ensure a modern criminal law practice under which all human beings are treated equally. It took the Occidental hemisphere several centuries to achieve this principle even though it is not yet fully realised but commonly accepted.

In the Arab world, a separation of state and religion – comparable to the transformation of Christian societies into secular ones in the course of the past two centuries - has never occurred. This was because the Prophet Muhammad exercised judicial, legislative and executive power himself, which gave rise to the tradition of these powers being exercised by the ruler of Islam (the caliph after the death of the Prophet).

Furthermore, the absence of a Muslim Enlightenment or a similar intellectual movement as a result of the stagnation of Islam intellectual reasoning from the 12th century onwards and the lack of openness to new geographical and scientific hemispheres led to an ever existing state religion that involves all aspects of public and private live. There, all citizens are good Muslims just as all European people used to be Christians. An individual faith such as it came into existence in the Western hemisphere since the 18th century does not exist.

But one has to go back further in history to obtain a full understanding of the different interpretation of state and religion within the Moslem community. Unlike the Christian religion that had to emancipate itself against the state, Islam emerged in accordance with the state from the beginning on. Due to a rapid military expansion, it occupied vast parts of the then known world within one generation or two. More drastically formulated one could say that “Islam started out as a faith determined to conquer and convert the world. Politics and the state were subsumed into its mission.” Only later on, the religion-political project of the Prophet and his early adherents was gradually replaced although it was a change rather in practice than in theory. This has strong repercussions on the relationship between the two and reinforced their alliance: Problems touching the basis of the state’s authority and the source of its law do not arise in Islamic political thought. Political science is closely connected with ethics. But unlike Western thinkers following Greek and Roman traditions of political science and therefore putting moral philosophy at the core of it, Moslem scholars discuss it in terms of theology.

The two centuries following the French Revolution and the total emancipation of

Occidental political science from religious matters saw little change or development in the basis of Islamic political thought. Instead of innovation one can only observe adoption and new strategies as a reaction of the stream of Western intellectual thought. Islamic scholars looked at the West like rabbits stare at the snake: They either identified it as a model that needs to be followed in a tremendous effort to catch up with the West or the regard the cultural hemisphere of Europe and America as an ”other” and enemy. Of course, there are reasons for this development or rather non-development that all derive from the basic foundation of the Islamic world. Islam is defined as a religion in the first place. The term can be translated into the English language as devotion for God. But Islam also shapes and defines the society and therefore it can become a political system. Very often it is claimed that Islam is both, “state and religion”. Islamic scholars justify this strong link by pointing out to the role of the Prophet: He was both, a founder of a new faith and a political ruler. Therefore, he embodied state and religion and caused an inseparable connection between the two. In the Western world, the universal ethic of Christianity has become a part of national and political ethic. Religion, on the contrary, becamean entire privately exercised occupation. This has never occurred in Islam, which did not emerge as an institutionalised “Church” but as a system of society.

Islam is a permanent guide to all aspects of life. As a consequence, political science is “not an independent discipline but a branch of theology.” The Moslem Umma has to be a religious and political community, individual religious practice is therefore impossible. State and Religion have to act according to the same ethnic, moral and judicial principles. In Islam, the law precedes the state, which exists for the sole purpose of enforcing the law as defined by God and revealed through his prophets and the Koran. The Koran includes three explicitly defined principles concerning state rule. The presidential idea suggests that one leader should be head of state as a successor to the Prophet. The second idea evokes the principle of consultation. All powers on the executive and legislator level have to exercise their rule on the basis of regulatory consultation. According to the third principle deriving from the Koran, Islam has to be a state religion. That is why only a Muslim can be head of state and the entire law system has to be based on the principles of Islam. It is obviously why those ideas exclude almost automatically the idea of secularism

The basis of the Islamic state was ideological and its primary purpose of government was the defence and protection of the faith, not the state. That helps to explain the fact that at the heart of Islamic political doctrine is the Islamic community, the Umma, that is tied by bounds of faith alone. Therefore, Islam distinguishes in theory, only between believers and non-believers. With the Umma all are on equal footing. It is the implicit and explicit acceptance of the Sharia with all its implications that made the Muslim part of the Umma. However, the formula “state and religion” does leave some room for interpretation and the – at least – partial exercise of democratic elements and a modern judicial practice. But the phrase “state and religion” often is redefined by Muslim regimes in a sense of “state is religion”. This leads to permanent abuses of religion in those societies. Religion is reduced to control the people and preserve political authority.

“The Islamic political order is based on the concept of Tawhid and seeks its flowering in the form of vice regency operating through the mechanism of Consultation supported by the principles of equality of human kind, rule of law, protection of human rights including those of minorities, accountability of rulers, transparency of political processes as an overriding concern for justice in all its dimensions: legal, political, social, economic, and international.

Ahmad and numerous others besides him explicitly point out to parallels that mark Occidental style democracy. However, the reality very often differs from those high ideals. The same author who praised some of the key elements of democracy also makes it clear that “it is intellectually unacceptable and culturally untenable to assume that a particular Occidental model of democracy must be accepted as an ideal form of polity for the entirety of mankind, particularly for Muslims, who have their own distinct moral and ideological identity and historic-cultural personality.”  The appeal of this view for someone who wants Islam and democratic theory to cohere is that the community has tremendous discretion in interpreting Islam and enacting laws that embody its spirit. Democratic decision-making can extend to every area of life and of law. One limitation of this theory, though, is that it is apparently the Muslim community alone that is entrusted with the task of interpreting and applying God’s word. That is all well and good for Muslims, but it excludes non-Muslims. If self-rule consists of figuring out what God wants within the framework of Islam, then non-Muslims will not be full-fledged participants. The answer that minorities in any democracy are excluded when they do not share the fundamental values of the majority may be unsatisfying to someone who thinks that equality is a touchstone of democracy. But perhaps non-Muslims could be permitted to participate in the democratic discussion of God’s will, even if they are not full members of the community.

The essences of Islam and democracy can be seen as compatible because both are flexible mobile ideas. If democracy was restricted to requiring an absolute sovereignty of the people, it would lack the ability to appeal to people and to cultures that do not place humans at the centre of the universe. But democracy has flourished even where humanism was not the dominant mode of thinking. Modern Western democracy grew up among pious Christians, many of them staunch Calvinists who emphasized man’s sinful and fallen nature, and themselves grappled with the relationship between democracy and divine sovereignty.

With respect to equal political participation, there is no principled reason in Islam to suggest that anyone, Muslim or non-Muslim, man or woman, regardless of race or any other characteristic, should not be permitted to participate equally in collective decision-making. Some Muslims might argue for special participatory status for Muslims or for men. But aside from Kuwait, where the legislature refused to enact the Prince (emir’s) decree granting women the vote, women have the vote in every Muslim country where there are elections. That includes Iran, with its Islamism constitution; Arab states like Jordan, Egypt, Algeria, Tunisia, and Morocco; and now even Bahrain, a Gulf monarchy with traditional ways not unlike Saudi Arabia. Even there, it is not generally argued against women’s participation at the recent (and at the same time the first) elections on a municipal level. It were rather technical reasons that kept women away from the ballots (not enough truly separated voting rooms) and that are due to be overcome by the next time.

In the matter of crimes and punishments in terms of Muslim law, everybody seems to know what punishment means: Legal offenders are punished by the law. Children that don’t behave are eventually punished by their parents. Confronting natural disasters can sometimes be felt as a punishment. Apparently, the term is highly ambivalent. What exactly is punishment and how can it be related to a state’s criminal law? Several political scientists as well as law scholars have repeatedly tried to find a satisfying answer to this question. But none of the given answers that are to be found in legal literature comes up with all aspects that should be included.

Legal punishment can be analytical defined as an evil which is imposed on a criminal by a legal authority on purpose. This legal authority has to be authorized by a set of laws which were broken by the offender. The term “evil” stands for everything that is not desired by people – not just physical pain or theft and other actions usually defined as being criminal but also imprisonment or the negation of basic rights. An evil that is authorized and justified by the public such as imprisonment is the ultimate response to individually committed criminal action. In other words, evil answers evil.

For a moment, it seems, some of those Western sociologists forget the heinous deeds of the criminals, their impact on the society and that is why they prescribe lighter punishments. This illustrates at least the impression one gets in Islamic countries from the Western penal code. The kind of judgement advocated in the Western hemisphere might be called positive justice and is a product of the permanent interaction between expectations and existing conditions, aimed at a gradual improvement of human kind. Contrary to it, Islamic societies presuppose that man is essentially weak and therefore incapable of rising above personal failings. Therefore, it imposes a rigid code of punishment for the microscopic minority of criminals and ensures an atmosphere of peace and security for the rest of the society. Broadly speaking, one could conclude that Westerners rather focus on the individual and do their best to ensure his rights even if he has offended the law. Muslims, on the other side, pay more attention to the general welfare and are rather ready to sacrifice an individual’s welfare on behalf of the community. In short, “Islamic penal laws were conceived in larger interests of society.” If this basic difference is kept in mind while striking a comparison between the two, the whole matter can be understood easily. Islam  sees punishment as anecessary requisite of divine justice and the Sharia “as the most prominent distillation of Islamic morals and law.” This has to do with the strong connection of religious and state affairs in the Muslim world. Any judicial proceeding operates on the ground of divine affirmation; justice is pronounced in the name of God. It is believed that all penalties following the accusation and trial of an offender to the law are measured with a divine balance of justice. Punishments are, therefore, harsh where necessary and lenient where appropriate. No matter how harsh the sentence may be, it is viewed as ultimately merciful.

The stated mercifulness in the eyes of the public can be described under various aspects. First of all, a punishment is seen as a remedy for offenders whether obedient or not. It is a mercy for the obedient since it protects him from the powers of evil, prevents disobedience, and saves him from the harm of the crime. Furthermore, an imposed penalty is also a mercy for the disobedient offender because it restrains him from the pursuit of crime and puts a stop to his criminal energy which could, otherwise, do even more harm. Following this stream of thoughts, it is not correct to identify punishment with some form of revenge against the culprit but rather as a reward for his action and a relief for both, the offender and the community. In addition to that, it also serves the betterment of the offender. Within this context, the punishment is not the aim but rather a measure taken in response to a genuine need.

Accusation, trial and punishment are key elements of justice. But when talking about justice, the religious sphere is once more inflicted: “Islam is a religion that believes it has a monopoly over truth and salvation. It is the only faith that divides the world into good and evil.” God is identified as representing and even being the highest justice possible. God is just in all He commands. The exercise of justice is therefore in His will. Adding to that, the Islamic approach to criminal proceeding is, as above stated, the stand that man is weak and incapable of rising above his personal failings. Betterment can, therefore, only derive from God. A divine authority is invoked to provide the sources and basic principles of the public order. It commands respect and has a lasting impact on the administration of justice. But justice cannot be achieved without the threat of punishment and its actual implementation. If an offender is left unpunished, it will harm the interests of society and break the divine will. Furthermore, it is an effective deterrent since it helps to prevent further acts of crime in that sense as people will know the severe consequences of any criminal action. This threat is usually sufficient to deter them from committing an act of crime and therefore it represents once more the will of God.

To conclude, one can state that the objective of the Islamic Sharia is the prevention of crime, the strife for a peaceful society and protecting the dignity of individual men. This is achieved by the means of cleansing the culprit’s life from all traces of criminal energy, by preventing him from lapsing back, and by threatening others to repeat any criminal act. Thus, punishment, however painful it may be, is in full agreement with the divine will and balanced reason. The pain it causes is seen as necessary to restore health and provide cure just as the pain

caused by a surgeon’s knife also results in a final remedy.

Crime as defined in the Shariah consists is legal prohibitions imposed by Allah, whose infringement entails punishment prescribed by him. “Crime as defined in the Shariah is identical with Crime as defined in modern law”. In Islamic criminal laws every thing prohibited by God and his prophet is a Crime. Unlike in Western law where only that which has a specified punishment is a Crime, in Islamic law every crime is punishable but not every punishment is specified. The role of the State is to ensure that, in a person’s public conduct, he does not commit a crime or any act likely to lead to one. Islamic law does not empower the State to infringe on the right of an individual citizen. It cannot break into a man’s room and punish him for adultery. It cannot plant a camera in a hotel room and punish a man based on a recording of a sexual act or drinking spree. But if a man and a woman choose to have sex where four eye witnesses actually see coitus, or if a man chooses to drink his beer in front of his house instead of inside his living room, the act immediately leaves the realm of private conscience to one of public morals and the state punishes this severely. “Crime is an act or conduct whereby a person breaks the law and infringes upon the rights of others. In the religious parlance it is called “a sin”.

The popular image of Islamic law in the Western world is usually characterized by lashes, cutting hands and capital punishment. In the eyes of many, those elements represent the cruellest hardship possible, give way to a return to the medievalism and therefore contradict the implementation of modern human rights into the Muslim world. The principles of those rights seem to be completely absent in Muslim countries from a superficial Western stand point. However, much depends on the definition of Human Rights and its implementation because there is no general theory of Human Rights.

The most significant difference between modern westernized attitudes towards human rights and their implementation and an Islamic perspective is the function of religion in general and the position of God in particular. Whereas God hardly finds his place anymore in Western lay societies, he is the seat of justice in the Muslim world. Islam sees God as the ultimate source of justice, which includes the Human Rights. The main goal of God's message to human kind is the attainment of Justice. At this point there is a strong connection between Justice and Islam. But however different the starting point may be, the general outcome is, at least in principle, the same. The advocated key principles emphasise at equality, liberty and justice and brotherhood.

Furthermore, Islam has encouraged two other ideas for the promotion of human rights and human dignity: The principles of compassion and mercy. It is on their basis that the Islamic law presents a universal approach to human rights which is much broader than the list of enumerated modern human rights’ standards. Therefore, for Muslims human rights issues are fundamental to the quality of their lives. Returning to Islam one has to state that according to the Holy Koran, the true Islamic faith cannot be achieved unless Human Rights are secured for every individual and group in a Muslim state. The Koran itself includes more than 20 basic Human Rights such as the right of life, dignity and freedom of human beings, protection against harassment or social security. In the Western world, those principles were only legally recognized in the aftermath of the French. Revolution whereas there have been part of Muslim thought for more than a millennium. This is why the Islamic law is not necessarily a positive law arising from international human rights conventions which is essentially based upon acceptance, adherence and ratification by single nations. However, this does not mean that Islamic human rights and the system of international human rights contradict each other or can be seen as inferior or superior to one another. The Islamic standard is based on moral-legal autonomy whereas the second one is grounded on conventional ratification. In practice, the human rights principles should be fulfilled by all states that have long been affected by Islamic human rights provisions.