Islamic criminal jurisprudence

This is a sub-article of fiqh and criminal law.
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Islamic criminal law (Arabic: فقه العقوبات) is criminal law in accordance with Sharia. Strictly speaking, Islamic law does not have a distinct corpus of "criminal law". It divides crimes into three different categories depending on the offense – Hudud (crimes "against God",[1] whose punishment is fixed in the Quran and the Hadiths), Qisas (crimes against an individual or family whose punishment is equal retaliation in the Quran and the Hadiths), and Tazir (crimes whose punishment is not specified in the Quran and the Hadiths, and is left to the discretion of the ruler or Qadi, i.e. judge).[2][3][4] Some add the fourth category of Siyasah (crimes against government),[5] while others consider it as part of either Hadd or Tazir crimes.[6][7]

Traditional sharia courts, unlike modern Western courts, do not use jury or prosecutors on the behalf of society. Crimes against God are prosecuted by the state as hudud crimes, and all other criminal matters, including murder and bodily injury, are treated as disputes between individuals with an Islamic judge deciding the outcome based on sharia fiqh such as Hanafi, Maliki, Shafi'i, Hanbali and Jafari followed in the Islamic jurisdiction.[8]

In practice, since early on in Islamic history, criminal cases were usually handled by ruler-administered courts or local police using procedures which were only loosely related to sharia.[9][10] In the modern era, sharia-based criminal laws were widely replaced by statutes inspired by European models, although in recent decades several countries reintroduced elements of Islamic penal law into their legal codes under the growing influence of Islamist movements.[11][12]

  1. ^ Dammer, Harry; Albanese, Jay (2011). Comparative Criminal Justice Systems (5th ed.). Cengage Learning. p. 60. ISBN 9781285067865. Retrieved 19 May 2015.
  2. ^ Criminal Law, Oxford Islamic Studies, Oxford University Press (2013)
  3. ^ Mohamed S. El-Awa (1993). Punishment in Islamic Law. American Trust Publications. pp. 1–68. ISBN 978-0892591428.
  4. ^ Silvia Tellenbach (2015). Markus D. Dubber and Tatjana Hornle (ed.). The Oxford Handbook of Criminal Law. Oxford University Press. pp. 251–253. ISBN 978-0199673599.
  5. ^ Tabassum, Sadia (20 April 2011). "Combatants, not bandits: the status of rebels in Islamic law". International Review of the Red Cross. 93 (881): 121–139. doi:10.1017/S1816383111000117. S2CID 56196822.
  6. ^ Omar A. Farrukh (1969). Ibn Taimiyya on Public and Private Law in Islam or Public Policy in Islamic Jurisprudence. OCLC 55624054.
  7. ^ M. Cherif Bassiouni (1997), "Crimes and the Criminal Process", Arab Law Quarterly, Vol. 12, No. 3 (1997), pp. 269-286
  8. ^ Knut S Vikor. Between God and the Sultan: A History of Islamic Law. Oxford University Press: 2005. pp. 281-285
  9. ^ Calder, Norman (2009). "Law, Legal Thought and Jurisprudence". In John L. Esposito (ed.). The Oxford Encyclopedia of the Islamic World. Oxford: Oxford University Press. Archived from the original on November 21, 2008.
  10. ^ Ziadeh, Farhat J. (2009c). "Criminal Law". In John L. Esposito (ed.). The Oxford Encyclopedia of the Islamic World. Oxford: Oxford University Press. Archived from the original on November 1, 2008.
  11. ^ Cite error: The named reference peters-OEIW was invoked but never defined (see the help page).
  12. ^ Cite error: The named reference vikor-OEIP was invoked but never defined (see the help page).