1. Introduction

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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 Western 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.

In addition to the West’s approach to change and reform one can witness a similar political reform agenda that is expressed by different political groups and individuals from within Islamic societies. There, a veritable reform debate has also been launched by the events of 9/11. One may hesitate to believe in a realistic prospect of such an agenda. But whether those intentions are always honest and realistic or not, they certainly cannot be translated into action without a better understanding and a more knowledgeable research on specific Islamic issues. This is especially true for the Western hemisphere.

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One of the most controversially debated issues within this context 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.

This 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.

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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 Western 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.

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In fact, this work will make an effort to show that the Sharia goes far beyond the point of penalisation of criminal acts and covers all parts of Islamic life. It is not restricted to a purely juristic matter as one will see in the course of this present work. Provided that both, the emergence and historic development of the Sharia are at least broadly known, one will finally understand that it was reformative at the time introduced and ethical in nature which is another aspect that should be covered.

The preparing and insightful introduction to the system of criminal procedure in Islam provides a common ground for a further discussion of controversial issues such as Human Rights within Islam. Are modern human right principles and Islamic systems of law supplementary and therefore easy to reconcile? Or do both approaches to justice contradict each other fundamentally?

The big question underlying this work is whether a specific Muslim criminal law can still be applied in Muslim countries. Is there a future for the Sharia, and if yes, how will it look like? What type of criminal law is needed at present and in the future in order to provide for peaceful and stable Islamic societies that apply a law code that meets international and domestic expectations in view of basic human rights as well as general approaches towards justice and equality before the Law?.

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Upon which basic principles should criminal law be formulated and which function does the century old Sharia law code exercise within the redefinition and development of a Muslim system of laws? Those are the issues that need to be discussed with full recognition of the past and the content of Islamic Criminal Law and by respecting religious traditions and values that are significant to Muslim societies.

Through this research I would like to explain some important points of Islamic criminal law not just for the non -Muslims but also for Muslims. We ourselves want to learn how to conduct research using scientific methods and logic in order to understand Islamic criminal law. We want to show how Islamic criminal law should be understood through study and analysis. The analysis of law must be changed according to the benefits and interests of the people because God wants to see all his creation living in good way, peacefully, with justice and respect for each other. There are general discussions about the whole of Islamic criminal law without an understanding of the general principle of this law, without which it is not possible to apply Islamic criminal law.

Fußnoten und Endnoten

1  Schacht, Joseph, Origins of Muhammadan Jurisprudence, Oxford 1950, 124ff.

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