This is part 1 in a series of 4 posts.
:: Part 1 :: After the Failure
You are the kind of legal scholar who has no patience for trying tactics that lead into predictable problems. You take for granted that criminal acts (as reflection of a criminal capacity) are simply part of human nature, inexplicable in reference to either poverty or lack of education. You have also despaired of both retributivist and deterrence-based theories of punishment. One way to proceed forward is to ask: What if we were to focus on undoing the harm criminal acts generate?
The idea is to focus on the victim, not the offender. On this foundation, the thought of inflicting, for example, financial restitution (diya) in lieu of capital punishment in murder cases, of which Islamic criminal law (following pre-Islamic Arabian laws) makes use, might seem attractive. The fabric of this (diya) institution is laden with two important wrinkles: 1) the earning potential and financial responsibility of the victim traditionally factors into how the diya is calculated (hence a manâ€™s diya is twice that of a woman); 2) as a large sum, the diya is expected to be paid by the offenderâ€™s male agnates, the same group that stands to inherit a large portion of his/her inheritance in some cases, which leads to a reasonable assumption: that the real punishment for an offender in these cases was the chastisement she or he would likely receive from their relatives.
Islamic legal studies, of course, is not accustomed to proceeding in directions like these. That is, asking whether a student, or scholar, of Islamic law may be able to imagine a restatement of the old criminal law that stretches some of its old principles. If this restatement goes in a direction that places more constraints on the stateâ€™s ability to inflict strong punishments on its citizens, this conclusion may also be made with a reference to old legal reasoning. On the old principles, if one believes in the abodes-theory á¸¤anafÄ« jurists invented in the 2nd/8th century, one needs a supportive state and society to advance such a restatement (which is, fair to say, absent today).
The goal is not to demonstrate any capacity for or facility with juristic legerdemain. This exercise, and I am clearly the one doing it with all my limits accompanying me, is done with a good deal of trepidation, which is why it will remain inconclusive at its endpoint.Â A coherent and comprehensive approach to criminal justice, what it means and how it could be approached, is not on offer.
Some support for the thoughts I am developing came from the late Oxford philosopher John Gardner (1965-2019), an occasionally harsh critic of enlightenment reasoning in the areas of public law. Though mostly a critic of the idea of rights, natural or human, his critique exposes intrinsic flaws in modern reasoning about social and natural knowledge. Working within the confines of premodern common law and modern English laws (including English laws in so-called colonies, such as India) as well as European laws, Gardner is, ultimately, as skeptical as I am about such conclusions as, that modern criminal laws have a right to pretend to be humane, scientific, logical, or consistent.Â Â
Gardner does not advocate an overhauling of the idea of physical or corporeal punishment. He does, however, require of a decent criminal justice system that a) laws be as clear as humanly possible in delineating the difference between criminal and non-criminal acts; b) that humans be given all possible opportunities to produce meaningful defenses (not excuses) for their actions, including those deemed criminal, all while c) realizing that having a good character doesnâ€™t hurt in bypassing lawâ€™s severe judgments of culpability (when murk dominates the legal and judicial scene); and finally d) that each case be taken seriously as a distinct event without a priori, generalized judgment. I have to acknowledge that Gardnerâ€™s posture did give me confidence as I developed my (incomplete) thoughts here.
After this excursus, I started to ask different questions. Why does modern law have a voice such as Gardnerâ€™s? Modern criminology had boasted about the modern worldâ€™s scientific approach to crime (in evidence, for example, objective forensic analysis replaces subjective testimony) as well as its humane treatment of criminals (corporeal punishments are out; fines and prison time are in). With the abundance of criminal activity and prison studies showing the fallacious nature of the discourse of the humanity of the modern criminal justice system, skepticism about this advancement needed to be expressed.
I did once learn as a law student that modern Egyptian criminologists had assumed that a significant shift in criminal jurisprudence occurred in modern times. The undertone of studies that speak of the arrival of a modern, scientific approach to crime, on top of an aim to provide civilized punishments, is that moderns look only in a driverâ€™s side mirror onto distant historical practices such as premodern corporeal punishment (in both Europe and the Muslim world) and the laws of torture (which allowed European nations between the 13th and early 19th century the use of torture to get better evidence for a crime from its presumptive source by torturing this person until they provided the evidence). Never again will these practices be allowed, so thought the modern doctor-criminologist.
The area of criminal law, I later came to think, seemed to not show sufficient change over time. For one thing, those who wanted to break away from religious talk on fair punishment for crime seemed helplessly pessimistic in their approach to it. In his Discourse on Inequality (1755), Rousseau argued that not unlike other animals, humans are characterized by self-love (â€œamour de sois-mÃªmeâ€), and that once socialized, humans suffer the much more destructive tendency of the love to evaluate and be evaluated, â€œamour propre,â€ which is foundational to acts such as theft and murder, which, in turn, humans should learn, are counter-productive, since they lead to humansâ€™ (as they compete for othersâ€™ praise) being devalued, rather than highly esteemed or valued. About seven centuries prior to Rousseau one may have heard that education was supposed to do half the work of criminal law. This was the argument of MÄwardÄ« in his al-Aá¸¥kÄm al-Sulá¹Äniyya (published after its authorâ€™s death in 1058), who said that moral education teaches good humans not to become criminals. But MÄwardÄ« also (implicitly) argued that society needed to be ready with a set of remedies for criminal acts for educationâ€™s failure among some of its population.
Both over-criminalization and excessive punishment are epidemical in places such as California, where I live. Courtesy of the â€œLegislative Analyst Officeâ€ (LAO) in Sacramento, California, we learn that, in 2011, 1.1 million crimes that took place in California were reported in the federal Uniform Crime Statistics System. This was down from a high of over 2 million felonies reported annually in the early 1990s. California has experienced declines in both property and violent crime rates since the early 1990s. Between 1991 and 2011, the stateâ€™s overall crime rate declined by 56 percent. This trend is similar to patterns of decline in crime in the rest of the U.S. There is no consensus among researchers regarding the cause of these declines (still going with LAO assertions). The violent crime rate in California has decreased by 63 percent since peaking in 1992. The property crime rate has decreased by 63 percent since peaking in 1980. Property crime accounts for 86 percent of reported crimes in California in 2011, and violent crime accounts for 14 percent. The rate is about 3,000 crimes per 100,000 people in 2011.
The excesses of the U.S. justice system are, Michael Tonry once suggested, a product of first, uber-powerful prosecutors, who on top of their near-control of the procedures in a criminal case can suggest sentencing to judges rather than simply argue their case, and second, deep suspicion of racial minorities (hence disproportionate numbers of blacks and Hispanics are prosecuted by the criminal justice system). One could also make the case, he indicated, that excessive criminalizing of the use of drugs such as cannabis contributes to this problem, as this burden falls disproportionately on blacks and Hispanics.
Be that as it may, the question remains whether a restatement of the doctrines of Islamic criminal law is possible. Can Islamic law make a contribution to this debate? The subsequent instalments in this series will make three preliminary points toward answering this question.
 AbÅ«Â á¸¤anÄ«faâ€™s sense of the distinction of the abodes was that one (DÄr al-IslÄm) was a space in which Muslims felt safe, while in the other they felt insecure while others felt secure. Hence, he required contiguity with Muslim lands and the political bond (amÄn) between ruler and ruled based on Islamâ€™s laws.Â His student M. H. ShaybÄnÄ« only required the dominance of Islamâ€™s laws and ways of life; hence, contiguity with Muslim lands and the political bond were gratuitous.Â On this basis teacher and student disagreed as to the conditions needed to turn an unbelief abode into an Islam abode, with AbÅ«Â á¸¤anÄ«fa stipulating that laws be dominantly Islamic and borders be contiguous with borders of other Muslim territories, while ShaybÄnÄ« leaving it limited to the dominance of Islamâ€™s laws. See al-KasÄnÄ« (d. 587/1191), BadÄÊ¾iÊ¿ al-á¹¢anÄÊ¾iÊ¿ fÄ« TartÄ«b al-SharÄÊ¾i Ê¿, vol. 9, ed. A. Ê¿Abd al-MawjÅ«d et al. (Beirut: DÄr al-Kutub al- Ê¿Ilmiyya), 518-20.Â Now, if we operate on the idea that modern societies are more unlike Islam-abodes and more like unbelief abodes, then á¸¥udÅ«d and retributive punishments are inapplicable.Â One reads in KÄsÄnÄ« that if two Muslims enter an unbelief abode (Dar al-á¸¤arb) as traders with permission, and if one kills the other intentionally, retribution (qiá¹£aá¹£) should not apply to the killer:
ÙˆØ¹Ù„Ù‰Â Ù‡Ø°Ø§Â Ù…Ø³Ù„Ù…Ø§Ù†Â Ø¯Ø®Ù„Ø§ Ø¯Ø§Ø±Â Ø§Ù„ØØ±Ø¨ Ø¨Ø£Ù…Ø§Ù†ØŒ Ø¨Ø£Ù† ÙƒØ§Ù†Ø§ ØªØ§Ø¬Ø±ÙŠÙ† Ù…Ø«Ù„Ø§Ù‹ØŒ ÙÙ‚ØªÙ„ Ø£ØØ¯Ù‡Ù…Ø§ ØµØ§ØØ¨Ù‡ Ø¹Ù…Ø¯Ø§Ù‹ Ù„Ø§ Ù‚ØµØ§Øµ Ø¹Ù„Ù‰ Ø§Ù„Ù‚Ø§ØªÙ„.
 John Gardner, Offences and Defences: Selected Essays in the Philosophy of Criminal Law (Oxford: Oxford University Press, 2007).
 A two-volume collection of articles, studies, and documents memorializing 50-years of modern adjudication in Egypt (1883-1933) included multiple statements by lawyers, judges, and state officials (such as the head of the National Prison System) developing the idea that â€œfiningâ€ and â€œconfiningâ€ are the modern, civilized way of punishing criminals (to contrast with summary physical and corporeal punishment). Another idea, based on modern Italian jurisprudence, that a judge in a criminal case may be analogized to a medical doctor to assigned proper sentencing as a way to hear the criminal, was spelled out in these articles.Â See, for example, Muhammad Pasha Tawfiq Abdullah, al-KitÄb al-DhahabÄ« li-l-Maá¸¥Äkim al-Ahliyya, vol. 1 (Cairo: State Press, 1937), 3321.
 John H. Longbein, Torture and the Law of Proof (Chicago: Chicago University Press, 2006). This reissue of the book followed the heated discussions of the Bush Administrationâ€™s practice of torture after 9/11.Â The initial publication date of this study is 1976.
 Felonies described as â€œviolentâ€ or â€œserious,â€ or both include murder, robbery, rape, burglary of a residence, and assault with intent to commit robbery.
 â€œCrime in California,â€ Legislative Analystâ€™s Office online, January 17, 2013,Â https://lao.ca.gov/reports/2013/crim/criminal-justice-primer/criminal-justice-primer-011713.aspx.
 The LOA report also tackles the problem of judicial discretion as an element that aimed to solve but ended up exacerbating the problem: Prior to 1977, convicted felons received indeterminate sentences in which the term of imprisonment included a minimum with no prescribed maximum. For example, an individual might receive a â€œfive-years-to-lifeâ€ sentence. After serving five years in prison, the individual would remain incarcerated until the state parole board determined that the individual was ready to return to the community and was a low risk to commit crimes in the future.
 Many á¸¤anafÄ« jurists hesitated about prohibiting cannabis (qanab, or the Indian qanab) and the MÄlikÄ« jurist QarÄfÄ« also distinguished hashish from wine as producing different effects and hence unworthy of a similar ruling.
 Some American theorists, even those sympathetic to this harsh assessment of the U.S. criminal justice system as an aberration in the modern world, have no sympathy for invoking the â€œsubjective experience of punishmentâ€ as an argument against the severity of punishment in the modern state.Â Richard Lippke, â€œPenal Severity and the Modern State,â€ in Of One-Eyed and Toothless Miscreants: Making the Punishment Fit the Crime, ed. Michael Tonry (Oxford: Oxcord University Press, 2020), 127-48, esp. 136-41.