The criminal law is a body of law dealing with the wrong doings which can be dealt with without deterrence by the nation. The word Islam means to surrender or submission to Allah’s will. The modern and western world does not always see the Islamic Law and Jurisprudence (also referred as Shar’iah) to be justified as indicated by the western press. Being the responsibility of the mass media to bring to the world’s attention human rights crises and terrorism, most people believes that the press which tends to stereotype the entire Muslim community is becoming a major problem. Some of the contemporary scholars in the world today fail to recognize Islamic Law as an equal to any of the common laws practiced in the western world.
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This has led to the development of such beliefs that the Islamic judges follow the ancient and obsolete rules where the punishments of different kinds of offences are basically the same. This has led to development of a survey to attempt and alter some of these inaccurate perceptions and treatments in both contemporary scholars and through the media. Therefore Muslims surrender to Allah’s will and believes that God called Mohammad the Prophet to form the most important book in the Islam community called the Qur’an by translating verses from Angel Gabriel. But the western world does not understand why the Islamic Law and therefore its governance is controlled, ruled and regulated by the Islamic religion.
The Islamic criminal law and jurisprudence
It’s believed that the Islamic law has a lot of concepts, ideas and information that may be used to solve the contemporary crimes as in the common court. And thus the early judges of the Islamic community otherwise known as Qazi believed that “All judges are accountable to God in their decisions and practices” (Lippman, p.66-68). The Shari’ah law which governs the Islamic society rules controls and regulates both the public and private behavior by giving regulations on hygiene, diet, sex and the elements of bringing up the child. Mostly the Islamic/Shar’iah is guided by three major principles which becomes sources of the information to the Islamic jurisdiction.
These includes the Qur’an, this is regarded as the primary element and a final arbitrator and has no appeal on its jurisdiction. The other element used as the source of information for the Islamic jurisdiction is the Sunna, which is the book that contains Hadith; the teachings of Prophet Mohammed with extensive discussion behavior and the human relationship unlike the Qur’an.
Ijma is also a source the information is obtained from, and this is based on the agreement made by the Islamic scholars also referred as the Ulama’s to enable them solve social problems and crimes in the modern society which can not be addressed by either the Qur’an or the Sunna. The last source of the information for the Islamic jurisprudence, is the Qiyas and this is just how the judge can use his/her own logic to solve the new arising cases and are not addressed by the first three guiding principles.
The crimes in the Shar’iah law are categorized into three major areas. First is Hadd (pleural of Hudud) and is the most serious crime, as suggested by the meaning of the word itself which is the “limit” set by God. These crimes have mandatory prescribed penalties from the Qur’an, and usually there is no allowance for either minimum or maximum penalties in carrying out their jurisdiction. Hadd crimes are considered as the crimes against God’s law and therefore no judge who can reduce or change the punishments as they are very serious crime. They include murder, apostasy from Islam, adultery, theft and defamation (three crimes considered as war for Allah and his messengers), robbery and any form of intoxication.
The first four Hadd crimes have specific punishment in the Qur’an, but the last three have no specified punishments (Schmalleger pp. 603). Unlike in the western media perspective that the Hadd crimes are punished without enough proof or with flimsy evidence, the Islamic judges acts with a lot of wisdom and unless there is sufficient evidences from the witnesses and the person confesses guilt for the specific crime, the crime is usually treated as a Tazir crime (Schmalleger,1999).
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The least serious crimes are referred as Tazir crimes and here the offender is allowed much flexibility in the punishment administered for the cases. According to the Islamic concepts of jurisdiction the accused knows the type of offence committed and thus respective punishment which vary according to different circumstances. Here the judges are given total freedom to choose any form of punishment that can help and rehabilitate the individual offender, but they have to abide to the Shar’iah guiding principle of answering to Allah and the entire Muslim community. For example in the western media, its mentioned that if you steal then your hand should be cut off, but this is not necessarily as the person has to plead guilty and there has to be enough witnesses in to testify the crime(Schmalleger,1999).
The other type of crime in the Islamic community is Qesas, which is the seen as revenge/ retribution crimes and this is because if you commit this offence then the victim is allowed for retaliation. These are paid by use of the Diya, for the compensation of the victim and traditionally Qesas crime included the following; murder either premeditated or not, other premeditated crimes to human life, murder by error and offences by error to humanity.
These Qesas crime are taken to the assumption of retribution. And since in the Islamic community Qesas crimes have to be compensated for, each government sets the cost of damage prior to offence and then the judge is left to decide on proper Diya for that specific offense. On the other hand, in the area of punishment the victim or his/her family may be left to ask for the compensation since they have rights of compensation from the offender. In the modern world of the Islamic community, the government as an independent party is allowed to administer the punishment, to avoid torture and extended pain ideals which are contrary to Islamic teachings and Shar’iah Law (Wiechman, Kendall and Azarian, 2000).
Therefore the Islamic law and jurisprudence is an integrated homogenous whole contrasting to the perspective described above by the so called modern society. One is required to understand its basic concepts, objectives and frameworks, so that to allow him/her to conclude that it is capable to create the most human and just society, a peaceful environment for the stay of mankind. Disagreement always arises when the contemporary scholars and critics try to apprehend the immense divine wisdom and justice that their simple manly standards of understanding criteria do not compare.
But seemingly the modern Muslim societies are not to a good show of criminal justice, as they are usually seen to be having some evils and ills infested with the acts of comparatively stable family life, lack of delinquency, decreased numbers of crime rates, high rate of freedom from the acts of drug abuse and most forms of alcoholism, spirits of sisterhood and brotherhood, generosity and mutual aid and help (Ziadeh, 1982).
But some western media have used the stereotypic characterization of the entire Muslim community by associating it with the “radical Muslims” to increase hate and prejudice. This action of projecting the few of the radical group has led to a great disservice to the Muslim world, especially associating them to the terrorist groups. This has included even the academic writings that have done inaccurate research to conclude that the Islamic law requires fixed punishment for all crimes, the four hadd (serious offences) crimes with fixed mandatory punishment in the Qur’an.
The teachings of the Prophet Mohammad as found in the Qur’an has a translation of Allah or God’s will, Muslims are therefore held accountable and fully bound to the Shar’iah Law, but non-Muslims and Christians are not thus necessarily bound by the same standard ( what is referred as apostasy from Allah). But all the Muslims, Christians and non-Muslims are hence required to live by laws enacted by the various forms of government, as seen in the common law crimes, which are seen in the modern “Mazalim Courts” that listen to civil offences, family cases and other common cases in the modern society. Therefore the Islamic laws and jurisprudence do not separate the courts for the religious crimes and contemporary non-religious crimes in the courts.
Denis J. Wiechman, Jerry D. Kendall and Mohammad K. Azarian (2000) “Islamic law myths and realities” New York, McGraw-Hill.
Farhat J. Ziadeh (1982) “Islamic criminal justice system”. The Oxford Encyclopedia of the Islamic World.
Frank Schmalleger (1999), Crime and Criminality, London, Cambridge University Press.
Matthew Lippman, Sean McConville, and Mordechai Yerushalmi. (1988).
Islamic Criminal Law and Procedure: An Introduction. New York: Praeger.