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Criminal Law

By:
Farhat J. Ziadeh
Source:
The Oxford Encyclopedia of the Islamic World What is This? Provides comprehensive scholarly coverage of the full geographical and historical extent of Islam

Criminal Law

The body of law dealing with wrongs that are punishable by the state with the object of deterrence is known as criminal law. Islamic criminal law recognizes three categories of these wrongs. The first is the ḥudūd (plural of ḥadd, a “limit” set by God), the contravention of which leads to a prescribed and mandatory penalty. The second, taʿzīr (chastisement), comprises those crimes not included among the ḥudūd because their punishment is discretionary. Taʿzīr implies the correction or rehabilitation of the culprit; hence, punishment is left to the judge and might vary depending upon who inflicts it and upon whom it is inflicted. The third category, qiṣāṣ (retribution), is concerned with crimes against the person such as homicide, infliction of wounds, and battery. Punishment by retribution is set by law, but the victim or his next of kin may waive such retribution by accepting blood money or financial compensation (diyah) or by forgoing the right altogether. Because of this waiver, it has been suggested that this crime is in the nature of a private injury, more akin to a tort than to a crime involving a public interest or concern.

Jurists have accorded ḥudūd much attention because they are grounded in the Qurʿān and the ḥadīth, as is qiṣāṣ. Taʿzīr, however, because of its discretionary nature, has escaped precise definitions and detailed treatments of the elements of the crimes that it encompasses. It might be said, though, that all acts that violate private or community interests of a public nature are subject to taʿzīr; it was left to public authorities to establish rules, within the spirit of the sharīʿah, to punish such acts.

Taʿzīr comprised essentially two categories of crimes. The first consisted of those crimes that did not meet the strict requirements of ḥudūd crimes (although they were of the same nature) or those individual crimes that were included in ḥudūd. Examples of the former are thefts among relatives or thefts of things below a minimum value for a ḥadd punishment: attempted robbery, attempted fornication, and lesbian contacts. Examples of the latter type are breach of trust by a testamentary guardian, false testimony, and usury. The second category included those acts that generally caused damage to the public order or public interest or threatened to cause such damage. In the nature of things, the second category, if not kept in check, could result in precautionary measures that might compromise individual rights; therefore, a balance had to be maintained between public order and individual rights. Punishment for taʿzīr could range from the (exceptional) death penalty for espionage and heresy, to whipping, imprisonment, local banishment, and fines for a variety of crimes. Jurists were careful, though, to limit whipping to a level below that ordered for ḥudūd punishments.

Qiṣāṣ (talion) encompassed five crimes: murder or intentional killing, quasi-intentional killing or voluntary manslaughter (as when a person intends only to beat another but in doing so kills him), involuntary killing, intentional physical injury, and unintentional physical injury. Talion (retaliation) was allowed only in instances of intentional killing and intentional physical injury; even here retribution could be waived by the victim or his family, and monetary compensation (diyah) could be exacted instead. For other qiṣāṣ crimes only monetary compensation was exacted. The diyah for killing was set by most jurists at one hundred camels or one thousand gold dinars; the diyah for physical injuries varied according to the nature of the injury. The law of qiṣāṣ was an exception to the principle of individual responsibility for crimes emphasized by Islamic law, because it made the perpetrator 's clan (ʿāqilah) responsible with him for payment of the diyah; correspondingly, the clan of the victim divided up the diyah payable for his death in keeping with the legal maxim that liability is proportional to the benefit. In later years when Arabs settled in military camps outside Arabia (amṣār), the ʿāqilah became the military unit (dīwān) to which the killer or the victim belonged.

In theory all these offenses were to be tried by the qāḍī, the sharīʿah judge. Law books throughout the centuries repeated this theoretical jurisdiction of the qāḍī, including the administration of criminal law. But in fact the qāḍī must have lost criminal jurisdiction very early in the Islamic centuries. The reasons are several: first, the sharīʿah dealt with only a limited number of crimes and their penalties, leaving a host of others ill-defined and lumped under taʿzīr; second, the law of evidence in the sharīʿah, with its dependence only on trustworthy witnesses (ʿudūl) and admissions, and its rejection of circumstantial evidence, was too restrictive to allow for an efficient criminal system; finally, rulers of Islamic empires and states could not leave matters of crime affecting state security in the hands of religious authorities who were loyal to a body of laws over which the state had no control. All these factors gave rise to criminal jurisdictions independent of that of the qāḍī, although the latter continued to be involved in matters involving homicide and diyah, which assumed the character of a tort or a civil claim. As a result the shurṭah (police) assumed the duty of investigating, prosecuting, and sentencing for most crimes with no distinction between one function and the other. The muḥtasib (inspector of the marketplace) punished those trade infractions and offenses against morals that were apparent and did not require testimony before a qāḍī 's court. In addition, beginning in the early years of the ʿAbbāsid regime in the latter part of the eighth century, a new jurisdiction, called maẓālim (court of grievances) headed by the ruler, vizier, or governor, undertook to repress wrongdoers whom other courts could not control and generally to restrain oppression by officials. None of these jurisdictions was limited by the sharīʿah, as the qāḍī was. They applied mainly to customary law (ʿurf) or what political expediency (siyāsah) required; punishments were often arbitrary and severe.

The Ottoman sultans who inherited this system attempted to limit the arbitrary punishments meted out by these extra-sharīʿah jurisdictions by issuing regulations (qānūn, modern Turkish kanun) for secular criminal provisions and procedures. Yet a qānūnnāme (modern Turkish kanunname), or basic law, issued in 1525 for Egypt, a few years after its conquest, seems to indicate that the purpose was to give leeway to non-sharīʿah judges to inflict heavy punishments for disputes and feuds that qāḍīs could not suppress.

Ottoman Legal Codes.

The oldest Ottoman code of criminal and fiscal law is the one attributed to Mehmed II following his conquest of Constantinople in 1453, although some parts of it might have been the product of a later time under Bayezid II (r. 1481–1512), who is credited with a qānūn of his own. Of the many qānūns compiled in the reign of Sultan Süleyman the Lawgiver (Qānūnī, Turkish Kanuni), one was a criminal code compiled possibly between 1539 and 1541. It contained all the sections of the earlier criminal codes and a number of other provisions, and it was arranged according to offenses, not according to penalties of fines and strokes. Among the new provisions were those dealing with sodomy, pressing grapes and selling of wine, false testimony, forging of documents, taking of interest, and neglect of prayer or fasting during Ramaḍān (Heyd, 1973, p. 30). The code was sent for enforcement to the qāḍī courts of the various districts where all official documents were deposited. The last premodern Ottoman criminal code was compiled in the seventeenth century, but it seems to have been collected privately from the previous codes and so lacked official character.

Although in theory a qānūn was valid only for the lifetime of the sultan who issued it, most qānūns were reconfirmed under succeeding sultans; qānūns issued by previous Muslim rulers whose territories were added to the Ottoman Empire in the sixteenth century were reconfirmed for the provinces until the imperial qānūn was finally applied. These qānūns, which contained penal provisions based on ʿurf (customary) penalties, are exemplified by the penal code of the Dhū al-Qadr (Dulkadir) Turkomans issued by Süleyman (r. 1520–1566).

Following the previous practice of limiting the jurisdiction of the qāḍī in criminal matters, the seventeenth-century code stipulates that the qāḍīs “are to carry out the laws of the sharīʿah … but are ordered to refer matters relating to the order of the realm, the protection and defense of the subjects, and the capital or severe corporal punishment to the representatives of the Sultan, who are the governors in charge of military and serious penal affairs” (Heyd, p. 209). The issuing of extra-sharīʿah qānūns in the Islamic world was not the exclusive domain of the Ottoman sultans. In addition to the case of Dhū al-Qadr, the Mamlūk dynasty had imposed fines in certain districts in Anatolia for wounds and head injuries, which the Ottomans later confirmed. In the extreme west of the Muslim world, in Morocco, a code paid lip service to the sharīʿah. In 1512, a certain Yaḥyā ibn Taʿfūfah, the captain of the Moors in Safi under Manoel I of Portugal, issued a code for the tribe of Ibn al-ḥārith that imposed fines for adultery and theft if the sharīʿah penalties were not imposed. And in the extreme east, the last great Mughal emperor Awrangzīb ʿĀlamgīr (r. 1658–1707) issued in 1672 a firman (edict) instructing the qāḍīs to impose ḥadd punishments and the secular authorities to carry out siyāsah punishments.

In the Ottoman Empire, the Tanzimat legal reform, following the Hatt-ı Şerif (November 3, 1839) and the creation of the Council of Judicial Ordinances, began with the promulgation in May 1840 of a penal code (ceza kanunnamesi). It reiterated the equality of all Ottoman subjects as pronounced by the Hatt-ı Şerif and made a conscious effort to put an end to the arbitrary nature of the authority of government agents and corruption. A new code, called kanun-u cedid and promulgated in 1851, did not improve matters significantly, and foreigners, in particular, were dissatisfied with the criminal system. During the discussions over the Treaty of Paris following the Crimean War, Grand Vizier ʿAli Pasha asked for the discontinuation of the capitulations that gave foreign powers extraterritorial rights in the empire, but he was told that that would not be considered until Turkish penal and commercial laws were reformed. Therefore, on August 9, 1858, a new criminal code, based on the French Code of 1810, was adopted, marking the empire 's first clear rupture with traditional law. It paid lip service to the sharīʿah by stating that it was not in opposition to it, and that it merely specified the degrees of taʿzīr enunciated by it. It also continued the right accorded victims or their representatives to sue in sharīʿah courts for retribution or for diyah. The code was to be administered by a hierarchy of secular (niẓāmī) courts using laws of procedure adopted from French models. With minor modifications it remained the criminal code of the empire until the beginning of the republic, and the other successor states of the Middle East used it until much later, under the title Qānūn al-jazāʿ al-ʿUthmānī (Ottoman penal code).

Modern Legal Codes.

In the Turkish republic, Mustafa Kemal Atatürk and his legal advisers, in their attempt to rejuvenate the legal system, looked to Europe for legal models. In civil matters they adopted the Swiss Civil Code, and in criminal matters they followed the Italian Criminal Code of 1889, which in turn had been based on a German model. This new criminal code, introduced in 1926, made clear the new republic 's intention to separate religion from politics; Article 163 stipulated that political associations on the basis of religion or religious sentiments were prohibited. (But the years after World War II saw a religious revival whose effect on the orientation of Turkey is still uncertain.) The German code was used for matters of criminal procedure. A conference on the reception of foreign law in Turkey, particularly the Civil Code, concluded that “the foreign legal system … may not command universal obedience but is not unworkable.”

A parallel development in legal reform took place in Egypt. Following the Ottoman firman of 1841, which accorded Muḥammad ʿAlī and his descendents hereditary rights to the governorship of Egypt and gave Egypt virtual autonomy in matters of legislation, rapid steps were taken toward legal reform, particularly after the creation of the Mixed Courts in 1876 to protect “foreign” interests. Long before that, Muḥammad ʿAlī, upon assuming power in 1805, hastened to discard the Ottoman system of administration and to institute in its place his own arrangements. Laws and regulations multiplied and had to be unified in a new code entitled al-Muntakhabāt (selections), which was published in 1829–1830. In the same period, a law entitled Qānūn al-fallāḥ (the peasants ’ law, or Qānūn al-filāḥah, the farming law) was issued to protect the interests of peasants and the state; punishments were specified for such matters as usurpation of land, changing boundaries, thefts of produce, as well as for persons not heeding conscription calls, wrongdoers who breached canals, and notables in the countryside who seduced virgins. The Ottoman Penal Code of 1851 was also applied, after the accession of Saʿīd Pasha in 1854, in a version adapted to Egyptian circumstances, but, crimes and punishments still were not well defined, people were not equal before the law, and criminal responsibility was not limited to the individual perpetrator.

Genuine criminal reform started with the Mixed Courts, but since those courts had limited criminal jurisdiction, substantial reform acquired a momentum only with the establishment of the National Courts and the adoption of the National Penal Code and the Code of Criminal Inquiry in 1883. These codes were adapted from the French codes either directly or by way of the Mixed codes. In 1904 the Criminal Code was amended extensively with elements taken from the Sudanese, Indian, Belgian, and Italian codes. Finally, following the abolition of the foreign capitulations in 1937 and the extension of Egyptian criminal jurisdiction to all residents of Egypt, a new criminal code was promulgated and remains in force.

The Sudan was under native sultanates, not Otto-man power, from the sixteenth century until the Anglo-Egyptian condominium. Under British guidance, a penal code, based on the Indian Penal Code of 1860, was introduced for the first time in 1899. In 1925 this was thoroughly revised into a new code, but the bases of the earlier one remained intact. It differs from the codes of the major Arab countries in that it is based on Anglo-Saxon law, especially in its definitions and examples.

Saudi Arabia and North Yemen continued to use traditional Islamic law in penal matters, but the following Arab and Islamic countries acquired modern penal codes. Each country in the list is followed by the date of its latest code, then by the code from which it was adapted, and finally by the system of law previously in effect in that country.

  • Algeria: June 18, 1966; French Code; French Code.
  • Iran: 1939; French Code; Code of 1912 and traditional Islamic law.
  • Iraq: September 15, 1969; Proposed Egyptian Code of 1966 and previous legislation; 1918 Baghdad Code and Ottoman Penal Code.
  • Jordan: Law No. 16, 1960; Lebanese Code; Code of 1951 and Ottoman Penal Code.
  • Kuwait: Law No. 16, 1960 as amended by No. 31, 1970; Bahrain Code based on Indian Penal Code of 1860.
  • Lebanon: 1943 enforced 1944; French, Swiss and Italian Codes; Ottoman Penal Code.
  • Libya: November 28, 1953; Italian and Egyptian Codes; Italian Code.
  • Morocco: November 26, 1962; French Code; French and traditional Islamicn law.
  • Pakistan: Indian Penal Code of 1860; English Law; traditional Islamic and tribal law.
  • Palestine: 1936 Ordinance; Cyprus Code, 1928; Ottoman Penal Code.
  • Syria: 1949 as amended in 1953; Lebanese Code; Ottoman Penal Code.

Certain principles well known in the West characterize the penal codes in these countries. One such principle is the legality principle: there can be no crime or punishment except by law (nullum crimen nulla poena sine lege). Another is the nonretroactivity of laws. A third is the principle of territoriality of jurisdiction, with some variations, applied in situations in which only some elements of the crime took place on the territory of the state. A fourth is the principle that certain crimes committed abroad by citizens or noncitizens and affecting vital interests of the state can be tried by the state. A fifth is the principle that the state can try a citizen for a felony or misdemeanor committed abroad if the act is also a crime in the country where it was committed.

The Islamic resurgence of the last two decades has given rise to a strong movement to reapply the Islamic law of ḥadd and qiṣāṣ. Libya amended its penal code in 1973 so as to introduce the penalties of stoning to death for fornication and cutting off of the hand for theft; if the stringent proofs required by Islamic law were not met, the provisions of the Penal Code would apply. Similar steps were taken in Pakistan and the Sudan (1983). In Iran, following the revolution of 1978–1979, the Islamic law of ḥadd was reintroduced by the Qiṣāṣ Law of 1982, and severe punishments are being applied.

See also CAPITULATIONS; ḥUDūD; LAW, subentries on LEGAL THOUGHT AND JURISPRUDENCE; and MODERN LEGAL REFORM; and TANZIMAT.

Bibliography

  • Abdel Haleem, Muhammed, Adel Omar Sharef, and Kate Daniels, eds.Criminal Justice in Islam: Judicial Procedure in the Shariʿah. London, 2003.
  • Amin, S. H.Middle East Legal Systems. Glasgow, 1985. Survey of legal systems in the Middle East, excluding North African countries. Although a useful book, it should be used with care.
  • Anderson, James N. D.“Homicide in Islamic Law.”Bulletin of the School of Oriental and African Studies13, no. 4 (1951): 811–828.
  • Baroody, George M.Crime and Punishment under Hanbali Law. Beirut, 1961. Translation, with commentary, of Manār al-sabīl by Ibrāhīm ibn Muḥammad ibn Salīm ibn Dūyān.
  • Bassiouni, M. Cherif, ed.The Islamic Criminal Justice System. London, 1982. Collection of chapters of varying quality on Islamic criminal law. The best available source on the subject, although a few chapters are apologetic in tone.
  • Cornelius, A. R.Law and Judiciary in Pakistan. Edited by S. M. Haider. Lahore, 1981.
  • Forte, David F.“Lost, Strayed, or Stolen: Chattel Recovery in Islamic Law.” In Islamic Law and Jurisprudence, edited by Nicholas Heer, pp. 97–115. Seattle, 1990.
  • Heyd, Uriel. Studies in Old Ottoman Criminal Law. Oxford, 1973. Excellent source for Ottoman criminal law and administration of criminal justice.
  • Hill, Enid. Mahkama! Studies in the Egyptian Legal System. London, 1979. On-the-scene observations of Egypt's legal system.
  • Kusha, Hamid R.The Sacred Law of Islam: A Case Study of Women's Treatment in the Islamic Republic of Iran 's Criminal Justice System. Aldershot, U.K., 2003.
  • Liebesny, Herbert J.The Law of the Near and Middle East. Albany, N.Y., 1975. Very useful collection of readings, cases, and materials.
  • Lipstein, Kurt. “Conclusions.” In The Reception of Foreign Law in Turkey. International Social Science Bulletin (UNESCO) 9 (1957): 73.
  • Maḥmaṣānī, Ṣubḥī. Al-awḍāʿ al-tashrīʿīyah fī al-duwal al- ʿArabīyah (The writing of legislation in the Arab states). Beirut, 1957. The first serious survey of legal systems in Arab countries.
  • Maydani, Riyad. “ʿUqūbāt: Penal Law.” In Law in the Middle East, edited by Majid Khadduri and Herbert J. Liebesny, pp. 223–235. Washington, D.C., 1955.
  • Muṣṭafā, Maḥmūd M.Uṣūl qānūn al-ʿuqūbāt fī al-duwal al-ʿArabīyah (Foundations of penal law in the Arab states). Cairo, 1970. Comparative approach to criminal law in Arab countries.
  • Peters, Rudolph. Crime and Punishment in Islamic Law: Theory and Practice from the Sixteenth to the Twenty-first Century. New York, 2006.
  • Starr, June. Law as Metaphor: From Islamic Courts to the Palace of Justice. Albany, N.Y., 1992. Survey of legal developments in Turkey from Ottoman to modern times, and a legal-anthropological study of an area in western Anatolia.
  • Syed Tahir, Mahmood. Criminal Law in Islam. Pentagon Press, 2007.
  • Tyan, Émile. Histoire de l’organisation judiciare en pays d’Islam. 2 vols. Paris, 1938–1943. A second edition was published in Leiden in 1960.
  • Ziadeh, Farhat J.Lawyers, the Rule of Law, and Liberalism in Modern Egypt. Stanford, Calif., 1968.
  • Ziadeh, Farhat J.“ʿUrf and Law in Islam.” In The World of Islam: Studies in Honour of Philip K. Hitti, edited by James Kritzeck and R. Bayly Winder, pp. 60–67. London, 1959.
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