6. A short history of the Islamic Criminal Law

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The strong link between the three big monotheistic world religions also has repercussions on the Islamic legal tradition and the emergence of a specific Islamic criminal law. Besides Arab tribal traditions which provided an important source of Islamic law, one can also witness the intrusion of Judeo-Christian convictions into the Sharia. Muslim Scholars have repeatedly stated that the Bible as well as the Thorah provided early sources that were taken as a legal reference. However, those references are seen as inconsistent and badly adopted by human kind. Therefore God sent another Prophet to redefine and further express regulations and rules concerning a proper behaviour of human beings. This new revelation also includes a system of punishment in case of law breaking. Thus, God wanted to supersede earlier religious practices and also included legal values by implementing Islam as a new faith.52

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The Muslim Law as it exists today is the result of continuous process of development of Islam that lasted more than a thousand years. Since Islam is both, state and religion, it is also the basic source of jurisprudence. This source can be subdivided into different branches: According to the classical theory Islamic Law consists of the expressed injunctions of the Koran; of the legislation introduced by the ‘practice’ (Sunna) of the prophet; and of the opinion of lawyers. In certain cases the opinion of jurists may coincide on a point, and this is known as ijma which can be translated as consensus. In other cases it may not - this is called giyas or analogical deduction.

This shows that the Islamic law is not a systematic code, but a living and growing organism which over the time has developed an extremely complex systematic. Nevertheless, there is amongst its different schools a large measure of agreement, because the starting point and the basic principles are identical. Each recognized the orthodoxy of the other. The differences that exist are due to historical, political, economic and cultural reasons but also to the absence of any clear guidance from the Koran and the Sunna. Therefore, for proper appreciation of the Muslim Law, its historical development must be taken into consideration.

As stated above, one must be aware of the two earlier sources of Islam and Islamic legal practice: Arab tribal traditions and habits on the one side and the Judeo-Christian convictions on the other one. In addition to those cultural roots of the early Arabs one also has to take into consideration the numerous groups of converts to Islam that partly retained their customary laws and usages in various spheres of life, though they often contradicted basic principles of Sharia law. Examples are the Berber people of North Africa or some tribes in Kenya and Nigeria that retained their family laws.53

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Returning to the key areas of Islamic thought, one has to state that the early generations of followers of the Prophet did not recognize an explicit and codified Islamic Law. Until the 8th century, judges were state clerks who passed their judgement on the basis of the two sources mentioned above, a limited Koran exegeses and common sense. The caliphs often issued administrative orders and regulations for many activities and situations and administrative and social problems. Although those regulations generally supplemented Islamic legal principles, on occasions they contradicted it. This is why most theologians did not appreciate the existence of such an outspoken terrestrial office that was paid by the ruler of state.54

As a result, an explicit Islamic Law began to emerge among pious theological scholars and religious authorities. This took place outside the field of common legal practice and was, therefore, rather focused on religious issues than on actual legal challenges. Around 750, with the transfer of power to the caliphs of Baghdad as a result of the Abbaside Revolution, the situation began to change. A reapprochement between the two parties, legal scholars and religious representatives, took place because the rulers themselves increasingly took advantage of the religiously founded legal competence of theological scholars. In exchange, the Islam scholars gave up their suspicion of worldly leaders.

Resulting from this change, the origins of what became later known as Legal Schools started to emerge in the second half of the 8th century in what is now the territory of Iraq. The reason for that development is quite evident: “The ever increasing demand for courts of law by Muslims compelled jurists to compile manuals for judges, so as to enable them to administer justice on the foundations of revealed law.”55 The early leaders of those legal schools of thought became councillors of the Baghdad Caliphs at the same time. This shows the strong link between worldly and religious affairs which illustrated the definition of Islam as “Religion and State” also in the field of legal practice.

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At the same time or only little after the rise of a Baghdad legal school of thought, other, provincial schools emerged, too. Each of them had a different focus as to be seen in the following chapters concerning those schools. The School of Kufa, for instance, draw much attention to reasoning whereas the School of Medina rather focused on tradition. Far away from the political centre in Baghdad, those local schools could base their legal practice and jurisdiction on habits and sayings of the Prophet which were later summarized and authenticated by the means of a vast Hadith literature corpus which is a collection of the Prophet’s acting and saying.

The two different approaches to legal practice, by the means of reason or by the means of tradition, have repercussions up to today. The first one is most influential in what are today Turkey and the Eastern Mediterranean area whereas the second one is rather applied in countries in North Africa.

The founder of a veritable Islamic legal theory is Muhammad ibn Idris asch-Schafii who had lived around 800. His work focused on merging tradition and reasoning in order to create a true Islamic jurisprudence. It was him who, for the first time, listed the different sources of Islamic Law and arranged them according to priority. His approach as well as the impetus of other Schools of Law, which all accept each other at least within the Sunni community have shaped and codified Islamic Law for centuries. By naming the sources, putting them in a certain hierarchy, fine tuning legal practice and searching for solutions in case of disagreement between different schools and scholars, the Islamic legal authorities have succeeded in creating a very complex but nevertheless working and binding system of Laws that has successful shaped the Muslim world in accordance with its political rulers.

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All that began to change with the beginning of a growing influence of European powers and thought. The colonisation of vast parts of the Eastern hemisphere by the Central European powers had a tremendous impact on the evolution of a modern criminal law code that is rooted in the Sharia. English, French, Dutch and other colonial powers set their foot on traditional Muslim ground from the 18th century onwards up to the first half of 20th century. By then, most of the Asian and African countries including Middle-Eastern were colonies of the West.

In order to exercise a more effective administration of criminal justice they implemented reforms within the existing Muslim criminal law. They wanted to abandon the somewhat primitive and archaic character of the traditional law code. As a consequence, “Western ideas and legal principles made a serious inroad into the domain of the Sharia.”56 The British, for instance, made radical changes on the Constitution of Criminal judicature as well as the criminal law itself on the Indian subcontinent in 1790. E.g. the then governor in India Corn Wallis abolished the rule under which a murderer was not liable to capital punishment, if he committed the murder by strangling or drowning.

Generally speaking, the existence of legal and cod factory tendency in the Arab world since the nineteenth century has been in support of western and in particular European models rather than Islamic ones. On example is Egypt, a leading Islamic country in the Arab world, where the law of evidence was radically changed. Here, too, the Islamic rules about the duration of gestation were discarded. Proof of legitimacy was made to depend on proof of access witch was made possible even if the child was born six months after marriage. The power of Kadis was reduced and the procedure for the observance of Sharia courts was laid down. Similar reforms concerning laws relating to the blood ties and crime were implemented in other Muslim countries such as Algeria, Tunisia, Morocco, Syria, Jordan, Sudan and many African countries.

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The Turkish case is different since there, reform came from inside. From 1877 on, the Turks had framed an Ottoman civil code and also made reforms in their law of crime simultaneously with the civil law. These measures were based on “a genuine belief that the only way to save the empire was to introduce European-style reforms.”57 Those reforms were justified on the grounds that they represented a fuller implementation of Islamic norms. As a matter of fact, advocated issues such as ‘equality for all’ and ‘protection of the weak’ could come from Western Enlightenment thought as well as from within Islam. A new civil code was based on the Sharia but to a large extent modified by the Sultan’s officials and adapted to modern legal convictions. The Sharia was, therefore, reduced to a sort of a family law for Muslims: “There has been a systematic and progressive erosion of the scope and operation of the Sharia Law in almost all Muslim countries until at last its jurisdiction is confined to the domain of personal relations including marriage, divorce and inheritance.”58

The quick adoption of those new models of constitutional and administrative laws, penal, commercial and civil codes has led to little resistance or unrest. Anderson calls this hardly surprising because due to issues of political power and authority the public law of Islam has been less faithfully followed in the history of Islam than the laws regarding family relations which he calls the “very heart of Sharia”.59

Nevertheless, some changes in terms of returning to older models of law have been taking place over the past decades. Some Arab countries recognized that a return was a proper policy option that would better serve their needs and meet the approval of their population. This movement is coined by the term ‘Revivalism’ which means a return “to a supposedly original core Islamic praxis”.60 Egypt has gone through such an experience as Adel Omar Sharif has impressively illustrated.61

Fußnoten und Endnoten

52  Compare to: Busse, Heribert, Die theologischen Beziehungen des Islams zu Judentum und Christentum, Darmstadt 1988, 169ff

53  Schacht, Joseph, An introduction to Islamic Law, Oxford 1964, 109ff.

54  Levy, Reuben, The social structure of Islam, Cambridge 1971, 268ff.

55  Surty, Muhammad Ibraham, The Ethical Code and Organised Procedure of Early Islamic Law Courts, in: Muhammad Abdel Haleem and others (ed.): Criminal Justice in Islam, London 2003, 150ff

56  Serajuddin, Alamgir Muhammad, Sharia Law and Society, Oxford 1999, 3ff.

57  Züricher, Erik J., Turkey. A modern history, London 1998, 59ff.

58  Serajuddin, Alamgir Muhammad, Sharia Law and Society, Oxford 1999, 3ff.

59  Anderson, J.N.D. Islamic Law in Modern World, New York 1959, 15ff.

60  Black, Antony, The History of Islamic Political Thought From the Prophet to the Present, Edinburgh 2001, 279ff.

61  Sherif, Adel Omar, An overview of the Egyptian judicial system and its history, in: The Yearbook of Islamic Middle Eastern Law. Vol. 5, The Hague 2000, 10ff.

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