7. Sources of Islamic Criminal Law

7.1. Some basic notions concerning its origin

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In pre- Islamic criminal law code man agreed since the day of social contract to punish those adjudged guilty of committing crime, which was imperative to protect public interest, public peace and public order. Any criminal law is meant to act as deterrent in order to maintain social peace and order, promote justice and a certain degree of equality and to ensure freedom from criminal assault on their life and property. However, punishment was never uniform; it varied from time to time and from country to country. The basic line of division is drawn between a law corps that focuses on the act of crime itself and one that rather draws attention to the offender.

The tremendous altering of the Arab society brought about by the emergence of Islam also had repercussions on the legal system in general, the social standing of individuals within the Arab society in particular, and notably the criminal law code. Islamic law is by no means comparable to the modern Western system. Instead, it categorizes assaults to it by the types of punishments they engender. Specified punishment (Hadd) is affixed to most offences whereas only some at the judge’s discretion. This is - among others - a result of the newly introduced sources of justice that are used up to modern days just as a legal reference and as official law code.62

In order to understand the complexity of the Islamic criminal law one has to grasp the ideas behind the different sources of it. This is of paramount importance if one bears in mind that the Sharia is not a law book in the western sense of the word. It is rather a discussion of the duties of the Muslim. In theory, it regulates all aspects of private and public life and forms the basis of political theory. In that sense, it goes far beyond the limits of any Western penal law code.63

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It is hardly surprising to hear that the Moslem penal law has different sources which do have their origin before the actual emergence of Islam. According to Moslem convictions, Holy Scriptures prior to the Koran had already established some rules and regulations concerning a penal code. The Old Testament or Thorah and the Christian Gospel of the Lord according to the New Testament had already prescribed some. But Moslem scholars advocate the thesis that those rules and regulations were badly adopted and often falsely interpreted. As a consequence, only the revelations included in the Koran offered a precisely defined revelation of God’s will as to be implanted in a legal system.

For Moslems, the Holy Koran represents the divine word of God revealed to his Apostle. It is the main source of an Islamic criminal law as well as the Islamic law system in general. This includes spiritual but also concrete legal guidance for all sorts of behaviour within a human (Moslem) society. Therefore, for the Muslim “the foundation from which all discussion starts is the law of God, the Sharia. It is prior to the community and state.”64

In its legal context, the revelation of God by the means of the Holy Koran fixed the rules regarding punishment (Hudod) and retaliation (Kisas).

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Since the bases of Islamic government and Law have been laid down in the Sharia and therefore immutable for all times and in all circumstances, no explicit reformulation is to be expected, though new interpretations are given from time to time. For the most part, changes only take place in a very subtle way and for this reason they are difficult to detect and define.

7.2. A brief account of different sources

Regarding legal practice in Islamic societies in the course of 14 centuries can leave no doubt about the fact that the Koran is the fundamental inspiration and source of it. But in spite of its tremendous importance for an Islamic legal system, the Koran is not the only foundation. Besides the Scripture one has to look at a few other sources as well. Among the most important are the classic Theory of Tradition (Sunna) and the Consensus of Opinion of Islamic legal scholars. Some Islamic criminal thinkers added Analogy (Qiyas) as the forth source of an Islamic criminal law to the list. However, Analogy does not represent a fixed law corpus and therefore is not universally accepted as a source. The fundamental principle implied by the idea of Analogy is that everything is permissible unless it is specifically prohibited, condemned, or disproved. Resulting from that type of reasoning, jurists are only unanimous on three of these sources: the Holy Koran, Sunnah and the Consensus, while they differ on the fourth namely, Analogy.

Those four – the Koran, Tradition, Consensus of opinion, and Analogy - form the primary sources of Islamic criminal law. However, another reservation has to be made in view of the enumeration of sources. The Shiah School regards only the first two of these sources as integral part of the Islamic criminal law as one shall see in the following chapter. The vital difference between the Koran and the Sunnah on one side and the remaining two sources on the other has to be taken into consideration. The Koran and Sunnah constitute the basis of Islamic Shariah, and it is those two sources which contain the injunctions validating general principles whereas the remaining two neither constitute the basis of any new law, nor do they lend legitimacy to any new principle. In fact, these last two are instrumental in drawing corollaries from the Koran and the Sunnah consistent with their injunctions and in no way repugnant to them.

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Moslem jurists treat the sources of Islamic law as the argument by which the injunctions of Sharia are deduced and they have agreed that it becomes effective if an injunction is established by any of the four arguments. The four arguments and the procedure of reasoning based upon them have been arranged in the above order of importance. The Holy Koran was placed on top as the first source of Islamic Sharia. The others follow according to priority. If no injunction referring to a particular legal problem is found in the Holy Koran, recourse will be made to the Sunna. If the Sunna provides no guidance either, Consensus of the Islamic thinkerswill be sought. Should thisfail as well, a possible conclusion will be drawn on the basis of analogy. Tradition and Law became fixed at a time of social flux:

“The jurists had now established the terms in which transactions between persons were to be conducted and disputes settled. […] Precise norms for moral, legal and ritual conduct, ranging from contracts to the mode of prayer, with varying penalties had been revealed by God. This was apparently the strength of Islam in its competition with more ‘spiritual’ creeds.”65

Apart the four sources listed above; there are other sources of the Islamic Sharia. However, one has to admit that those secondary sources are highly controversial. Some legal scholars view them as acceptable sources of Islamic criminal law and treat the injunctions established on their basis as binding, while others do not subscribe to this view. The controversial sources referred to are lstihsan (Juristic Equity or Juristic preference), lstislah (Link), Masleh Mursilah (public good or common weal or public advantage or public interest), Urf (Custom), Rational argument or Ijtihad (individual interpretation and judgement), Istidlal (Juristic dedications) and Fatwa (religious decisions).

7.3. The Koran

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The revelations of God represented in the Koran were manifested by divine inspiration, which the Prophet sometimes uttered in the presence of his companions. His words were passed on in the oral tradition of his Arabic culture. To orthodox Muslims, all koranic injunctions are unquestionable. The reason for that dogmatic position on this issue given by Moslem scholars is that it was passed on in exactly the same form as it had been revealed. Therefore, its continuity bears testimony to its authenticity. There was a group of scribes who heard the word of God from prophet and wrote it down. A large number of his companions committed it to memory. A consensus of such a large group of people on falsehood is impossible, as often stated. From numerous companions of the prophet innumerable people heart it and learnt it by heart with such an accuracy that despite long distances and variety of nations not a single letter of the Holy Koran could be changed or replaced. This represents the orthodox point of view and does have a great influence on the way the Koran is used and interpreted as a source of justice.66

Some forty years after Muhammad’s death the divine revelations were transcribed and established in a written version that has been preserved up to this day without change. The 114 Suwar (Plural of Surah) chapters were revealed to Muhammad in Mecca and Medina. They vary in length. The Koran is not arranged in the chronological order of its revelation but according to the length of each Surah. The longest is first and the shortest last. No one throughout the history of Islam has challenged the accuracy of the Koran.

The Koran is to be considered as the principle source and inspiration of any Islamic law and its importance can by no means be overestimated. “There are some general rules and principles therein on which detailed commandments suitable for the various conditions and times in which Muslims live are based.”67 It provides all basic rules and regulations concerning a Moslem life. Furthermore, it contains the rules by which the Muslim world is governed (or should govern itself) and forms the basis for all relations between Man and God; between individuals, whether Muslim or non-Muslim, as well as between man and things which are part of creation. It also includes the rules by which a Muslim society is organized and governed, and it provides the means to resolve conflicts among individuals and between the individual and the state. As a result, one has to look at an extremely complex system.

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Adding to that complexity, one has to bear in mind the historic context which led to the creation of such system of rules and regulations. Besides his role as a religious prophet, Mohammed also became the law-giver of a new society, hence supporting the thesis of an amalgam of religion and state. However, the Prophet had not intended to create a new system of laws but “to teach men what to do and what to avoid in order to pass the reckoning on the day of judgement and to enter paradise”. In short, “he was not responsible for the final formation of Islamic law.68

Starting from this thesis, it can be stated that in the aftermath of God’s revelation to his Prophet and the emergence of Islam enough room was left for interpretation. Although no dispute among Muslims arises regarding the fact that the Koran is the primary fundament of the Islamic Law and that its specific provisions are to be scrupulously observed, its detailed application leaves room for controversy. Further supporting the signification of the Holy Scripture, one might add that Hadith and Sunna are only complementary sources to the Koran and consist of the sayings of the Prophet and the accounts of his deeds.

The Sunna helps to explain the Koran but it may not be interpreted or applied in any way, which is inconsistent with the Holy Book. In short, the Koran it is the only original or primary sources of Islamic criminal law. The holy book of Muslims includes direct revelations from God through his Prophet. All the principles, ordinances, teachings and the practices of Islam are drawn from the Koran. Al Koran was revealed to the prophet during 23 years 13 years in Mekka and 10 years in Medina.

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In terms of legal regulations and the penalisation as a result from breaking those rules, one has to admit that the Koran was not all that revolutionary. In many cases, rules established by the Koran are only those that had already been in place before the arrival of Islam. In other words, some Arab tribe traditions have made their way into Islamic legal practice and the Koran often only modifies older legal practice or adds to rules that had already existed before. However, a complete and detailed reconstruction of ancient Arab tribe traditions is impossible. That explains why it is hard distinguish between new elements of a specific Islamic legal practice and Arab tribe traditions.

To add further issues to the list of problems regarding the origin and interpretation of the law system implanted by Islam, one has to take into consideration that many rules and regulations were formulated in a very brief way. To contemporaries of Mohammed, those formulations might have been sufficient. But due to the evolution of legal circumstances and the alterations the Muslim community has gone through in the course of 14 centuries since the arrival of the Prophet, many of those leave its ready with a sentiment of ambiguity. The fact that Islamic legal scholars tend to come up with different interpretations that all seem to be possible according to the ultimate text established by the Koran further illustrates the problem.

However, there are a few regulations within the system of laws prescribed by the Koran that do not leave room for ambiguity, speculation and individual interpretation. The Arab word under which those could be summarized is Hadd (Plural Hudud) which can be translated as limit or taboo. Those regulations concern fasting, marriage and inheriting. In the aftermath of the life of the prophet, other categories were added that specifically concern criminal laws. Among the most important ones, one can find sexual offence and libel within that context but also theft and robbery. Those injunctions are unequivocal and leave no room for interpretation.

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The text does not leave any room for interpretation, regarding neither the offence itself nor the punishment resulting from it. Concerning sexual offence one can find the penalty of 100 lashes for both the adulterer and the adulteress. Furthermore, the text adds that no one shall have mercy upon them.69 Those that are accused of libel, have to expect 80 lashes if they cannot provide four persons that have witnessed the act of adultery: “And those who accuse honourable women but bring not four witnesses, scourge them with eighty strips and never afterwards accept their testimony”70

The prescribed punishment for thieves is well known within the Western world and often provides a starting point for arguing against the cruelties of Islamic legal practice. The Koran says that thieves should be cut off their hand as a reward for what they have gained and as warning example before God: “As for the thief both male and female, cut off their hands. It is the reward of their proper deeds, a punishment received from Allah.”71

The execution of those penalties is strictly connected to certain conditions that are only partially included in the Koran. Lashes are only to be applied for those sexual offenders that are not married. Those who are married are to be stoned to death. The justification for such a penalty comes from a verse that used to be part of the Koran but has been “lost” later on. The application of lashes leaves room for consideration and moderation, as well. Those that repent after having committed such an offence might be forgiven.72 As a general rule, Islam is a forgiving religion up to a certain point: “Allah is Mighty, Wise. But who is repentant after his wrongdoing and amends, Allah will relent towards him. Allah is Forgiving, Merciful.”73 Rules and regulations that are part of the Islamic law corpus and that seem to be extremely harsh, severe and cruel from a Western perspective are not as strictly applied as it seems:

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"Avoid condemning the Muslim to Hudud (fix punishment) whenever you can, and when you can find a way out for the Muslim then release him for it. If the Imam (Ruler) errs it is better that he errs in favour of innocence (pardon) than in Favour of guilt (punishment). The Prophet’s saying. (Hadith).”74

However, if the meaning of an injunction is amenable to construction, it might be ambiguous. An example of such injunctions is provided by the following verse: “Women who are divorced shall wait keeping themselves apart three monthly courses.”75 Here the word course implies menstrual periods as well. A period of cleanliness is referred to and offers thus an ambiguity that might lead to controversy. The verse is open to more than one construction, for it may imply either menstruation or cleanliness.

Another example for an important but nevertheless ambiguous judicial issue that is repeatedly mentioned in the Koran is the question of slavery. For centuries, slavery had been an important part of the Islamic system of laws. There are more than ten hints in the Koran that justify the practice of slavery and even the fact that an owner can take advantage of his female slaves in a sexual way.76 Nevertheless, even the most zealous Muslims do not think about reintroducing slavery in Moslem societies. The Koran does not just sanction slavery but also describes the freeing of slaves as a merciful act willed by God. Muslim scholars interpret it as a gradual divine will to abandon slavery.

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There are no two opinions among the Muslims about the fact that the Holy Koran constitutes Divine Revelations and imposes obedience to Allah on every Muslims. Thus, if one carefully studies the injunctions contained in the following verses of the Holy Koran, one will realize the fact that two different punishments have been laid down as a consequence for violations of injunction. One represents worldly punishment exercised by legal (state) authorities, the other one pertains to life after death. The Koran, for instance, declares homicide unlawful and states it in clear terms: “And slay not the life which Allah has forbidden with right.”77 Two punishments have been prescribed for homicide: One in a temporal context and the other one spiritually:

"0' ye who believe! Retaliation is prescribed for you in the matter of the murdered, the freeman for the free man, and slave for the slave, and the female for the female. And for him who is forgiven his (injured) brother, prosecution according to usage and payment unto him in kindness. This is alleviation and a mercy from your Lord. He who transgressed after this will have a painful doom. Who slays a believer of set purpose, will be rewarded Hell forever. Allah is worth against him and cursed him and prepared for him an unlawful doom."78

Penal consequences prescribed for robbery and bloodshed are slaying, amputation of limbs and other corporal punishment. Those are all worldly means of punishment while painful doom is the punishment reserved for the hereafter. Allah says:

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"The only reward for those who make war upon Allah and His Messenger and strive after corruption in the land will be that they will be killed or crucified or have their hands and feet on alternate sides cut off, or will be expelled out of the land. Such will be their degradation in the world and in the Hereafter there will be an awful doom.”79

Adultery also entails both temporal and heavenly punishment:

“And those who cry not unto any other God along with Allah, nor take the life which Allah has forbidden to save (in course) of justice, Nor commit adultery and who does this shall pay the penalty; the doom will be doubled for him on the Day of Resurrection, and he will abide therein disdained for ever; save him who repents and believes in righteous work; as for such Allah will change their evil deeds to good deeds. Allah is ever forgiving, Merciful.”80

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The emphasis of the Islamic criminal law on both this world and the Hereafter is not without reason. In fact, the very basis of this law calls for such emphasis. As a man has a dual nature, soul and body, so jurisdiction has two aspects. According to the Sharia this world is only an ephemeral place of trial, whereas the Hereafter is the eternal abode; man is responsible for his deeds in this world and deserves reward for them in the life hereafter; and if he does good deeds, he will be rewarded accordingly and the other way around. Thus, according to the Islamic conception of law temporal punishment does not exclude super mundane chastisement. Hence the only way to get the latter punishment remitted is to repent and get back to the life of submission and obedience to Allah.81

7.4. Sunna

According to Muslim theology the second of the two revealed fundamental sources of Islam in general and of the Islamic system of laws after the Koran is the Sunna. Any saying or action of the Prophet or anything approved by him as related in traditions imputed Him constitutes the Sunna. The importance is revealed is apparent from the following verses of the Holy Book: “O you who believe obey Allah and obey the Apostly”82 and “He who obeys the Apostly have indeed obeyed Allay”83. In the centuries following the death of the Prophet, sayings of him and little stories connected to his life were assembled and used as a means of authority. Altogether, they represent the Sunna and are contained within the vast body of Hadith literature. Needless to say that the undoubted authority of the Prophet84 was used for different purposes connected to the enforcement of power and authority.

Early generations of Islamic scholarly thought were already aware of the fact that several of those records had been falsified or altered in order to support certain political, legal or theological positions. That is why scholars started to collect them systematically and to prove their authenticity as real sayings of the Prophet. The most important of the tools used to verify the records is known as isnad which could be translated as “chain of reporters”. Such reports played a crucial role in the development of Sharia and Sunna. 85

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A chain of reporters implies a list of all persons that had contributed in passing down the Prophet’s sayings or actions until one reaches the level of contemporaries of Muhammad. Only a complete chain of reporters guarantees the source’s authenticity. Furthermore, the reporters have to be trustworthy and they had to be linked to each other as teacher and student. A text may seem to be logical and reasonable but it needs an authentic isnad with reliable reporters to be acceptable.

During the lifetime of the prophet and after his death, his companions (Sahabah) used to refer to him directly, when quoting his sayings. The successors (Tabi'un) followed suit; some of them used to quote the Prophet through the Companions while others would omit the intermediate authority - such a hadith was later known as mursal. There are two grand Hadith collections assembled in the 9th century that are both referred to as “the true one” or “the authentic one” (as-Sahîh). One of them is regarded by Sunni followers as the most important one and incorporates about 7300 hadiths chosen from over 90000. Besides the two major collections one can find two minor ones. Altogether, those six form a canonical body of rules and regulations that are constantly referred to. In terms of volume, those six collections represent about 7000 printed pages in a modern edition.

Although the six collections are ranked behind the Holy Koran, their importance for the life and practice of ordinary Moslems goes far beyond it. This is especially true if one considers the legal aspects implied by Sunna. Most of the particularly defined rules of all day life are not included in the Koran but in the Sunna. This concerns all rituals in view of the religious practice but also the dispensation of justice. “The Sunna is thus an integral part of Islamic Law and is consequently as binding on the Muslims as the injunctions contained in the Holy Book.”86

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In general, Sunna can be classified in three different categories: The Prophet’s sayings, his practice, and his approbation. His sayings consist of all the observations made by him on any occasion and the conclusions he drew from them. An example would be the legal regulations concerning murder which are as follows: The killing of a Muslim is unlawful unless three conditions are present: renunciation of faith after professing it, adultery after marriage, and unwarranted murder. Furthermore, the Prophet declared that if a person was slain, his or her heirs are allowed the choice between retaliation (Kisas) or compensation (diyat).

The Prophet’s practice consists of his actions. That might include, for instance, the sentencing of an offender by him. Examples taken from the text corpus are the Prophet’s pleading guilty of adultery, sentencing of a thief to the amputation of the right hand and passing judgement on evidence of witness and deposition on oath by the plaintiff.

The Prophet’s approbation is comprised in the words and deeds of the Prophet's companions. Those are reported to have been endorsed by the Prophet by silence, by refraining from disapproval or by direct approbation. They have become as good as the words and deeds of the Prophet. To give but one example, the Prophet wanted to send one of his companions to Yemen and he asked him how he would decide a case. The asked person replied that he would decide it in accordance with the Koran and the Sunna. However, if the both texts don’t provide any guidance, then he would decide it at his own discretion. The Prophet agreed to this and opened a field that enabled his followers to make decisions according to their own judgement and in view of the specific situation. This shows how flexible an Islamic legal code can actually be87.

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The specific legal aspects of Sunna can be summarized as follows: First of all, the six approved text collections support or stress a koranic injunction. In this case the injunction refers both to the Koran and the Sunna. Examples are the prohibition of killing without justification, giving false witness and stealing. All the assertive and prohibitive injunctions are found in the Koran as well as in the Sunna. Furthermore, the Sunna implies an elucidation and interpretation of broad Koranic injunctions or supports absolute Koranic injunctions. It specifies Koranic injunctions. It is an interpretation, qualification and specification at the same time that was designed to elucidate and explain such injunctions as Allah has bestowed upon the Holy Prophet. According to Moslem legal opinion, the Prophet had gained the right from God to specify and interpret the Holy Scripture by the means of his sayings, action and approbation. Therefore, those had become a system of laws designated to be referred in any legal decision-making and showing “that everything a Muslim was required to believe or to do was founded on traditions purporting to prove that Muhammad, by example or precept, had ruled so.”88

Most of all, the Sunna qualifies the Koranic injunctions and delimits their scope. “Koranic laws are limited, and are delineated in the Sunna for the detailed organisation”.89 For instance, the Koran allows trade and disallows usury. The Sunnah goes a step further and specifies the forms of trade under this injunction. The Koran forbids eating of dead animal and the drinking of blood. But the Sunna qualifies the application ofthis injunction and identifies the kind ofdead animal and blood exempted from this taboo. The Koran also names the children entitled to inheritance. But the Sunna annuls, for instance, the possible claims of a thief or somebody convicted with murder. Koran also enjoins the amputation of a thief’s hand. But the Sunna qualifies this injunction by laying down that the value of astolen item must be equal to certain, elevated value and that it should have been kept in a safe place. Only in this case, such a gruesome punishment as the cutting off of one’s hand is justified.

Besides qualifying and defining the legal measures provided by Koranic injunctions, the Sunna also provides for an injunction that can not be found in the Holy Koran. Hence, any provision of the Sharia that has not emanated from the Koran must originate from the Sunna.90

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Taking the paramount importance of the Sunna especially for legal decisions into consideration, one realizes that the question of authenticity constantly raises questions if not doubts. Is it unquestionable or doubtful? Modern hadith research has been very sceptical about this issue and doubted the divine providence of it.91 However, more recent research has tried to trace back scriptures from the time of the collection in the 9th century to the beginnings of Islamic rise.

Nevertheless, for most Islamic scholars it is beyond doubt that the Sunnatshave come down from the Holy Prophet since the ceaselessly repeated narration of the same thing by several witnesses and reporters testifies – according to them - its truth. Known tradition is unquestionable in so far as it has come down from one or a few companions of the prophet but its emanation from the Prophet himself is uncertain if the number of those narrating such a tradition from the Prophet falls short of the required number while the number of those reporting it from the Prophet's companions is large enough to include it in the ambit of continuity.

However, all traditions of the Prophet including his sayings, actions and statement which aim at law-making and which have come down to us through authentic sources are undisputedly final and characterized by the highest degree of probability. They constitute the unquestionable and imperative legal source for Muslims, whether their emanation from the Prophet is unmistakable or open to question. The successive traditions are binding because they are unmistakably traceable to the prophet. Another argument usually evoked is that all Sunnats that are commonly referred toand the Sunnatsreported by minimum number of narrators are also binding because they have been narrated by persons possessing the qualities of fairness and authenticity to the highest degree. Furthermore, the provisions of Sunna are imperative and binding because they have been declared to be so in the Holy Koran:

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“O! Ye who believe! Obey Allah and obey the Messenger and those of you who are in authority, and if ye have a dispute concerning any matter refer it to Allah and the Messenger. And if tidings, whether of safety or fear, come unto them, they noise it abroad, whereas if they had referred it to the Messenger and such of them as are in authority those among them who are able to think out the matter would have known it. Who obeys to the Messenger obeys to Allah.”92

There is another verse to the same effect:

“Obey Allah and the Messenger." And also: “And whatsoever the Messenger gives you, take it. Whatsoever he forbidden, abstain from it.”93

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Once again, according to the Koran injunctions, Sunnais considered to be binding law. During the Prophet's life time and thereafter all his companions agreed on its being obligatory put into effect. All his edicts passed out during his life time were translated by them into practice. They issued what the prophet allowed as lawful and what disallowed as unlawful. And after his demise whenever they faced any problem for which no provision existed in the Holy Koran, they tried to find out the relevant tradition to solve it. The first successor to the Prophet (Caliph), Abu Baker, used to enquire if anyone remembered a tradition relating to a problem, which he himself had forgotten. So did the second successor Omar Bin al Kattab and various other companions of the prophet as well as their successors.

However, the question remains which sayings and actions of Prophet constitute the Law and in which way they do so. Everything concerning his individual characteristics, his personal life and most of the hints he gave that are related to all day issues do not constitute Law in a strict sense. On the contrary, all those saying and action of the prophet designed to elucidate divine in junctions to teach and to guide constitute law in them. The examples of such saying and action are as follows: The Prophet said one should offer prayer exactly the same way one can see him do. He also prescribed to learn all religious rites from him. And he also treated the cutting off a thief’s right hand from ankle on as an elucidation of a divine injunction94.

7.5. Consensus

Consensus means agreement of all the jurists of Islam on any provision of the Sharia at any time after the demise of the Prophet. Al-Shafii, one of the founders of the fourth Islamic Sunna School, was also instrumental in a second re-definition of Islamic law procedure. At this point we return to the list of sources. After Koran and Sunna, he defined Consensus (ijma, literarily translated as ‘agreeing upon’) as the third source.

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But the question whether Consensus represents a valuable source of justice remains even more controversial. First of all, one has to ask for the group of persons that has to agree on a law, or in other words, those that have to define a consensus. Some recognised an ijma of the people of Medina as authoritative, whereas others declared that only an ijmaof all the Muslims - or, at least, all the learned ones amongst them- was of legal value. The basis of acceptance of the universal principle of Consensus forms a well-known hadith that says: “My community will not agree on an error”.95 It means that what Muslims agree to be good is also good in the sight of God.96

If all the Jurists of Islam agreed on a provision relating to a particular matter at one and the same or at different times, the obtained consensus would be binding for all adherents to the Muslim faith. It would be treated as the final and positive proof of the provision. Whoever denies its authority is to be considered an un-Believer. But if only a majority of the jurists and not all of them agree on the validity of a legal statement, such a consensus would be binding on the general run of the people, while the scholars may hold different views. This approach demands a final declaration of a head of the state or the man in authority that would make it binding for everybody. In this case it would be incumbent upon everyone to abide thereby.

Consensus usually derives from the Koran and the Sunna. Consensus of jurists on a particular provision is viewed as an unquestionable proof of the harmony with the basic constituents and the spirit of Islamic Law. The Koran and the Sunna have been accorded to the principle of Consensus the status of a binding and obligatory law. The verse referred to in the Koran is:

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“O! Ye who believe! Obey Allah and obey the Messenger and those of you who are in authority.”97

The phrase, “those in authority” is unanimously taken. It means people in power as well as scholars. All of them are an authority within their own sphere. If the scholars have agreed on a provision, the Koran enjoins that they ought to be obeyed. According to the Sunna the opinion of the community is free of error and Allah looks upon the conclusion unanimously arrived at as good. Hence, the prophet's saying: “The people of my Umma (my nations) will never agree on error.” According to Muslim convictions,Allah does not lead his Umma to a consensus on misguidance.

During the Prophet's life the Muslim community respected the Prophet's authority as their spiritual guide, community leader as well as a trusted and respected individual. He intervened in cases of controversy and his counsel was very much solicited; therefore, many of the Muslims took it for granted that the Prophet was always there in case an issue needing clarification. However, this did not negate the benefits of using Ijtihad or independent judgement as the starting point for Consensus. There are examples of the Prophet encouraging the believers to apply the principles of Ijtihad to their everyday lives. For example, it is reported that when the Prophet appointed Moath bin Jabal as governor of Yemen, he asked him what he would do in case an issue arises to which he is uncertain. Moath said he would first refer to the Koran and then to the teachings of Muhammad. The Prophet then asked him what he would do if there were no clear answer from these sources. Moath answered, to the satisfaction of the Prophet, that he would do the best he could and use his judgement.98

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In another example to show that independent judgement was encouraged, the Prophet had ordered Muslims in a mission to not pray Asr (midday prayer) except in Qurayza their destination. When the sun was about to set, some said that the Prophet meant for them to hurry up so they arrive in Quryyza before the sunset, but if they are running late, they should pray on the road. Others took the Prophet's words literally and refused to pray until they reached Qurayza which is a place near to the prophet city after the sun set. Later, when they met with the prophet they asked him which interpretation was correct, and he agreed with both.

After the death of the Prophet, it was seen that from the readiness of the Caliphs Abu Baker and Omar to take advice, that it is evident that the right of interpreting the koranic regulations was not the privilege of any special official body but could be exercised by anyone who is pious and has a social conscience. To prevent individuals from practicing ijtihad haphazardly, al-Shafi'i developed a methodology for using ijtihad in his book, Usul al-fiqh. Since then, the role of ijtihad has not been in the hands of the laymen but left to a selected few who assume a special role in Islamic law. Today in many Muslim countries, Islamic decisions ranging from personal to political ones are made in the form of fatwas or religious decisions which is a result of this approach.

7.6. Analogy

The fourth important source of Islamic criminal law is Qiyas whichmeans analogy. One could also translate it as ‘measuring’ or ‘comparing’ and it is a method whereby the rule contained in a clear text of the Koran or the Sunna of the Prophet, or even the rule which has been sanctioned by Consensus is extended to cases that are not explicitly covered by the Holy Book or Sunna on the grounds of material similarity in the nature of the two cases. The justification for the use of Analogy in deciding a case is based on the following verse: “Whoever intercedes in a good cause has a share of it and whoever intercedes in an evil cause has a portion of it. And Allah is ever keeper over all things.”99 Thus, Analogy is referred to in respect of problems about which there is no specific provision in the Koran or the Sunna of the Prophet. In such cases, scholars have derived a specific law by the means of analogical deduction on the basis of the provisions of the Koran and the Sunna. It is intended to “a very limited application of common sense.”100 Scholars simply compare it to a similar situation which is described in one of the two. Scholars have developed detailed principles of analogical deductions in the books of Islamic jurisprudence.101

▼ 78 

One can define Analogy as a branch of Ijtihad “and indeed is considered to be fallible and does, therefore, not rank so high as authority as those on a text of the Holy Book, or Sunna, or Consensus.”102 The Prophet has permitted Ijtihad which literally means 'to exert'. Technically it means to exert with a view to form an independent judgement on a legal issue. ljtihad is the Islamic method of facing new situations and problems in the light of the general principles of the Koran and the traditions of the Prophet or the Sunnah. Therefore, Analogy can be defined as the one root in which Islamic Law accepts “that reason could play a role”.103

Apart from Qiyas,there exist other methods of Ijtihad such as Istihsan and Masalaha . The first implies a juristic preference if different interpretations are given. It is a source of Law, freer and wider in scope than the others. The second one represents moral considerations. Both are assumed to have guided the Prophet’s own thinking and therefore they do play a role in law-making and judging. Furthermore, they contributed to add elasticity and adaptability to the Islamic system of Laws.

In addition, the practices of the Khulafa-e-Rashidun(first four rulers of Islam), the decisions of the judges and the customs of the people are also considered as sources of Islamic law in matters which are not spelled out in the Koran and the Sunna.

7.7. Problems implied

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If tradition and law became fixed with the establishing of the sources of Law as listed above and the classification and inner hierarchy it implies as shown, Islam had a powerful tool in its hand. Antony Black has stated that this was “apparently the strength of Islam in its competition with more ‘spiritual’ creeds.”104

But however elaborate the establishment of those laws and restrictions might have been at the time, it also implies far-reaching consequences that rather downplay than uphold the legal competitiveness of Islam in our days. The reason for that is rather simple: If the sources of justice have been fixed ones, it is virtually impossible to alter them or to adapt them in accordance to the challenges that are demanded by different environments and circumstances. It seems hardly possible to change a consensus once agreed upon them ever after. Once a consensus has been passed or an approach to a legal issue has been agreed upon, it remains in a fixed, hardly alterable position.

It could not be undone, for the Prophet has declared that his community will never agree on an error. The only cause for a noticeable change would be the discovery of a new Report deriving from the Prophet and its inclusion in the hadith text collection or a re-interpretation of a text passage of the Koran. But the scope for re-interpretation is limited and a rediscovery also seems to be rather unlikely. An approach to do so would reopen questions believed to have been settled already. This would rather stir up new confrontations than meet the agreement of everybody involved into such a process. Taking that into consideration, the Sharia exclusively based on the sources as listed and defined above remains a rather stiff corpus of laws that can only moderately be altered and adjusted to the challenges of an ever faster changing society: “Both logic and reason tell us that no individual nor any penal system in any age can envisage all the crimes and penalties that could ever take place, in view of changes in situations and circumstances, nor can any individual or penal system anticipate what might happen in the future.”105

Fußnoten und Endnoten

62  Forte, David, Studies in Islamic law, Oxford1999, 79ff.

63  Compare to: Becker, C.H,, Islamstudien, Vol. 1, Leipzig 1924, 43ff.

64  Lambton, State and government in medieval Islam, Oxford 1981, Introduction.

65  Black, Antony, The History of Islamic Political Thought From the Prophet to the Present, Edinburgh 2001, 36ff.

66  Schacht, Joseph, A Revelation of Islamic Tradition, in: Journal of the Royal Asiatic Society of Great Britain and Ireland, 1949, 143 ff.

67  Ibrahim, Hasan Saeed, Basic Principles of Criminal Procedure under Islamic Sharia, in Muhammad Abdel Haleem and others (ed.): Criminal Justice in Islam, London 2003, 21ff.

68  Lambton, State and government in medieval Islam, Oxford 1981, 2ff.

69  Koran, 24,2.

70  Koran, 24,4.

71  Koran, 5,38.

72  Koran, 5,39.

73  Koran, 5,38.

74  Hadith, Sahih of Bukhari , All the prophet saying in this book, vol.8, book 82, 812ff

75  Koran,.65,4.

76  Koran,. 4,25.

77  Koran,.17,32.

78  Koran,4,92.

79  Koran,5,33.

80  Koran,25,68,69,71

81  Lambton, State and government in medieval Islam, Oxford 1981 3ff.

82  Koran, 4,59.

83  Koran, 4,80.

84  Compare to: Koran, 59,7 „And whatsoever the Messenger gives you, accept; and whatsoever he forbids you, avoid“.

85  Black, Antony, The History of Islamic Political Thought from the Prophet to the Present, Edinburgh 2001, 32ff.

86  Hanif, N., Islamic Concept of Crime and Justice, New Delhi 1999, 13ff.

87  Oudeh, Shaheed, Criminal law, Vol 1, Delhi 1996, 207 ff.

88  Guillaume, Alfred, Islam, London 1956, 92ff.

89  Ibrahim, Saeed Hasan, Basic principles of criminal procedure, London 2003, London 2003, 21ff.

90  Peters, F.E., The Quest for the Historical Muhammad, International Journal of Middle Eastern Studies 23, 1991, 291 ff.

91  See: Goldziher, Ignaz, Introduction to Islamic Theology and Law, Princeton 1981

92  Koran 4,59.

93  Koran 59,7.

94  Oudeh, Shaheed, Islamic criminal law, New Delhi 1996, 221ff.

95  Hadith.

96  Hanif, N., Islamic concept of crime and justice, New Delhi 1999, 14ff.

97  Koran 4,59.

98  Hasan Uddin, Hashmi, Ijtihad of the Prophet's Companions, Light, 1992, 4ff.

99  Koran 4,85.

100  Black, Antony, The History of Islamic Political Thought From the Prophet to the Present, Edinburgh 2001, 35ff.

101  Schacht, Joseph, Origins of Muhammadan Jurisprudence, Oxford 1950, 292ff

102  Hanif, Islamic concept of crime and justice, New Delhi 1999, 16ff.

103  Black, Antony, The History of Islamic Political Thought from the Prophet to the Present, Edinburgh 2001, 34 ff.

104  Black, Antony, The History of Islamic Political Thought from the Prophet to the Present, Edinburgh 2001, 36ff.

105  Ibraham, Saeed Hasan, Basic principles of criminal procedure, London 2003, 22ff.

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