Comparative Criminal Law and Enforcement: Islam

Islamic law is traditionally equated with the shari'a, the compendium of rules and applications devised over the centuries by the jurists of the Islamic empire. The main form and content of the shari'a arose during the first three and a half centuries after the death of Muhammad in A.D. 632, through the development of "schools of law," which were groupings of legal specialists. There are today four major surviving schools of law in orthodox, or Sunni, Islam. They are the Maliki, the Hanafi, the Shafi, and Hanbali. But Islamic law is far broader than the shari'a, particularly in regard to the law on crimes.

The portion of the shari'a dealing with criminal matters is one of its least developed parts. Early on, the Islamic state removed criminal (and other) jurisdiction from the qadi, the religious judge, and vested it in state-appointed judges serving under the direction of the political authorities. A number of political devices of the empire outflanked the requirements of the shari'a and continued in some form or other in later centuries. To begin with, the police or shurta began to investigate, apprehend, try, and punish offenders independently of the shari'a courts.

One of the most important jurisdictions belonged to the muhtasib, or inspector of the market, who not only established regulations for the conduct of merchants and traders, but enforced them as well. With so much of the commercial activity of the Islamic empire centered on trading, the jurisdictional power of the muhtasib was enormous. In fact, it fell to him to enforce Islamic morals as well.

In addition to his powers of appointing qadis and constricting their jurisdiction at will, the Islamic sovereign has always possessed an independent right of legislation. Called the siyasa shar'iyya, it signifies the ability of the caliph to pass "administrative regulations" to help effectuate the shari'a. Strictly speaking, "sovereign" and "legislation" are misnomers when applied to the Islamic state. Only God is sovereign, and only He "legislates," that is, only He can literally "make law." Nonetheless, through the mechanism of siyasa, the Islamic state (including conservative modern states like Saudi Arabia) has been able to contend with problems in ways that are outside of, and in some ways even contradictory to, the approach of the shari'a.

Without the constant contact with real cases, the jurists' thinking on criminal matters became dormant. In contrast to the portions of the shari'a dealing with civil law, such as contracts and property, the criminal law sections seem intellectually undeveloped. After about A.D. 1000, the development of the shari'a as a whole slowed almost to a halt. The jurists themselves disparaged jurisprudential thinking and innovation. Both practically and intellectually, then, the criminal parts of shari'a had little chance of further growth.

Today, when some radical Islamic regimes seek to "restore" the ancient shari'a, they often turn to the formulas of the criminal law as a first step. In doing so, they impose a criminal structure that was often ignored by the Islamic empire itself. Its relation to applied criminal law was frequently tangential.

Much research still needs to be done on the actual application of criminal laws in different eras and different parts of the Islamic empire. However, because the jurists of Islam redacted the rules of the shari'a over the centuries, we have a source of the Islamic law of crimes that represents the juridical tradition, if not the entire political and legal practice. What follows then, is a summary of the Islamic law of crimes as found in the books of the shari'a.

The shari'a categorizes its offenses by the types of punishments they engender:

• • offenses to which are affixed a specified punishment (hadd);
• • those for which the punishment is at the judge's discretion (ta'zir);
• • those offenses in which a form of retaliatory action or blood money is inflicted against the perpetrator or his kinsmen by the victim's kinsmen (jinayat);
• • offenses against the public policy of the state, involving administrative penalties (siyasa); and
• • offenses that are corrected by acts of personal penance (kaffara).

The shari'a, however, deals primarily with hadd, ta'zir, and jinayat offenses. Those offenses are to be adjudicated before the qadi unless the state has removed jurisdiction to one of its own courts. At the very least, secular tribunals handle administrative offenses under the state's siyasa jurisdiction. Acts of personal penance, or kaffara, are usually undertaken voluntarily by the individual outside of any tribunal or court.