The Islamic legal system significantly differs from other legal systems, such as civil law. Muslim apologists have had over the understanding and interpretation of Islamic law based on two texts: the Quran and the Sunnah (Arafa, 2018). The Quran is the holy book of Islam, whereas the Sunnah refers to the teachings of Prophet Muhammad (s.a.w). These two texts are not the principal sources of Islamic criminal law. There are numerous other sources, such as ijmaa'a (consensus) and Qiyyas (individual reasoning) (Arafa, 2018). The primary sources of Islamic criminal law may not sufficiently resolve a legal issue. In that case, Muslim intellectuals use Fiqh , which is the application of sharia norms to reach a legal purpose (Zakariyah, 2015). In this respect, various schools of jurisprudential (" Sunni and Shia") thought (" Hanafi, Maliki, Shafi'i, and Hanbali") emerged (Arafa, 2018, 1). Based on this brief backdrop, this paper will discuss the unique features of Islamic criminal law.
Islamic theology esteems Islamic criminal law as perfect, God-given legislation. As such, since Sharia law is not of human origin, it is beyond question. Islamic theologists also regard Islamic criminal law as a universal law designed for all times and places. According to Muslim apologists, the universal application of Islamic criminal law would result in universal freedom and justice. Allah (God) communicated his commands through revelations, which were revealed to Prophet Muhammad (s.aw) through Angel Gabriel. The revelations were recorded in the Quran and other Islamic texts. Since then, theologians have interpreted the legal texts contained in the Quran and other Islamic texts.
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The Sharia covers a broad spectrum of Islamic criminal law. In particular, the Sharia covers laws regulating religious practices, marriage, family and inheritance law, and property laws, among other laws. Therefore, Islamic criminal law determines how an individual relates to God, family, and society.
A significant aspect of sharia law is dealing with family and inheritance law. The Sharia forms an important basis of family law. Thus, it is civil jurisprudence in all Islamic nations (except a few nations) and in other non-Islamic nations such as some parts of Africa and Southeast Asia. Turkey is a prime example of a Muslim country that does not use Sharia law. Instead of Islamic law, Turkey has modeled some of its laws, such as laws pertaining to marriage and the family, on the Swiss Civil Code ( Özsu, 2010) . In this respect, Turkey abolished the Sharia law as a basis of law. A form of shadow jurisprudence, however, continues to exist. For instance, although polygamy was forbidden under Turkish law, the practice continues to exist in some rural areas. In addition, the issue of such "clerical marriage" is considered legitimate, and the marriages are retroactively given state recognition.
Although the Sharia law is an ideal law, it is not completely and consistently applied. In this respect, a number of Muslim scholars and countries proclaim the "return to Sharia." Some aspects of this "return to Sharia" means modeling marriage and family on Quran precedent. Modern Islamic criminal law is a composite of Quranic amendments, some aspects of Islamic traditions, customary laws, and some elements of European legal provisions. Islam's rapid growth saw the need to expand the Quran and traditional texts left by Prophet Muhammad (s.a.w) into a workable legal corpus based on Islamic principles. Following this need, four schools of thought emerged: the Hanafi, Maliki, Shafi'i, and Hanbali . These four schools of Islamic jurisprudence agree on the basic features of Islamic criminal law.
According to Islamic criminal law, there are three classes of crimes: capital crimes, crimes of retaliation, and discretionary crimes. These three classes differ significantly regarding the rules of evidence and the penalties inflicted (Warren, 2010). The Quran and traditional text have classed capital crimes, also known as "hadd" crimes, and these crimes have a fixed penalty. Islam regards hadd-crimes as crimes committed against God and not man. Once an individual is charged with a capital crime, the charge cannot be dropped. In addition, once a charge is brought, an amicable out of court settlement is not permitted until the individual is punished. The Quran and traditional text have classed hadd-crimes, which include adultery and immorality, the slanderous accusation of adultery, serious theft, armed or highway robbery, and use of alcohol.
With regard to adultery and immorality, the holy Quran prescribes a fixed punishment for any individual who commits this heinous crime. According to Surah 24:2-3 of the Holy Quran, the punishment for this type of crime is 100 lashes for both the man and the woman (Okon, 2014). However, it is important to note that this punishment is for those who are unmarried. In Islamic law, married women who commit adultery ought to be stoned to death. The Quran warns explicitly against pity for offenders. However, four witnesses are required to provide their testimonies, or the offender is required to confess as evidence of guilt.
The holy Quran also prescribes a fixed punishment for the slanderous accusation of adultery. According to Surah 24:4, any individual who is found guilty of this heinous crime should be whipped 80 lashes (Okon, 2014). With regard to serious theft, Surah 5.33:38 fixed punishment for such a crime (Okon, 2014). The punishment depends on whether the individual is committing for the first time or second time. If the offender is committing the crime for the first time, the punishment is amputation of the right hand (Okon, 2014). If the individual is committing the crime for the second time, the punishment is amputation of the left foot (Okon, 2014).
The punishment for armed or highway robbery depends on the severity of the offense. Generally, the Quran prescribes the following punishments for this type of crime: prison sentence, amputation, execution, or crucifixion (Meraj, 2018). The last hadd-crime is the consumption of alcohol. Although the use of alcohol is considered a capital crime, the Quran does not mention any punishment. However, the Islamic tradition prescribes 40 to 80 lashes for any individual founding consuming alcohol (Okon, 2014).
Other than the capital crimes, the Quran and tradition also outline the punishments for the crimes of retaliation (qisas). These are crimes in which the offender or his family are required to make reparation. There are several crimes that fall under this category, with doubtless grievous bodily harm and manslaughter being the most important ones. For example, when an individual inflicts grievous bodily harm to another individual, the punishment is to inflict a comparable injury ("an eye for an eye," "a tooth for a tooth") (Okon, 2014, 234). In the case of a death, the punishment prescribed by the Quran is the death of an equivalent member ("a man for a man," "a slave for a slave"). Instead of the offender's death, the victim's family may accept financial compensation. However, in this case, the offender must perform a religious penance, such as a supplementary fast. The last category of crimes is discretionary crimes. Several offenses fall under this category, including embezzlement, blackmail, and forgery. Penalties for these types of crimes are imposed at the judge's discretion
To sum up, Islamic criminal law is based on the following texts: the Quran, Sunni, ijmaa'a , and Qiyyas . This law is divinely given, and, thus, it is beyond question. However, some of the corporate punishments prescribed by Islamic law, such as amputation, execution, and retribution, are drastic. This is because these forms of punishment result in torture, crippling, and inhumane forms of execution.
References
Arafa, M. A. (2018). Islamic Criminal Law: The Divine Criminal Justice System between Lacuna and Possible Routes. ScholArena, 2 (1)
Meraj, M. (2018). The concept of crime and punishment in Islam. International Journal of Humanies and Social Science Research, 4 (5): 27-34
Okon, E. E. (2014). Hudud punishments in Islamic criminal law. European Scientific Journal , 10 (14).
Özsu, U. (2010). 'Receiving the Swiss Civil Code: translating authority in early republican Turkey. International Journal of Law in Context , 6 (1), 63-89.
Warren, C. S. (2010). Islamic criminal law: Oxford bibliographies online research guide . Oxford University Press.
Zakariyah, L. (2015). Legal maxims in Islamic criminal law: Theory and applications . Leiden, Boston; Brill Nijhoff
