By Intisar Rabb
Discussions of and attention to Islamic criminal law in recent times have revolved almost exclusively around press coverage relating to excessively harsh interpretations of Islamic criminal law or sharīʿa, often with little to no religious or historical precedent. To set the record straight: Islamic criminal law refers to and should be understood as an area of law that expresses certain moral norms and values while simultaneously requiring far more procedural protections – through notions of Islamic reasonable doubt – that mitigate application of the harshest punishments on the books. These twin features of crimes on the books but mitigation of enforcement in practice, both demonstrable requirements of Islamic legal texts and historical practice, diverge markedly from recent headlines and indeed with some practices in the Islamic world. This short essay aims to help clarify the history and norms that inform Islamic criminal law as understood among historians, jurists, and other scholars knowledgeable about sharīʿa, and to help contextualize modern permutations and perversions of it by many politicians or non-experts who impose it.
Islamic criminal law has its origins in a combination of foundational Islamic texts and interpretive-judicial practices. Early Muslim jurists took some verses of the Qur’ān and prophetic sayings (aḥādīth, which reflect prophetic practice, Sunna) to explicitly detail about five to seven crimes and punishments – therefore called Islam’s “fixed criminal punishments (ḥudūd laws).” These same jurists saw all crimes that went unspecified in those foundational sources to be “discretionary crimes and penalties (taʿzīr laws),” which fell within the purview of executive authorities to determine and enforce.
To be legitimate and fair, a complex set of procedures and policy norms regulated both text-based fixed criminal laws and punishments (ḥudūd laws), and extra-textual discretionary criminal laws and punishments (taʿzīr laws). Islamic criminal law procedures imposed heightened requirements of proof for conviction and they required mitigation of punishment in the face of any doubt, which conveyed a vastly more expanded meaning than Anglo-American or European principles of reasonable doubt. Islamic notions of doubt covered everything from uncertainty about the facts, the law, mistake, duress, legality, or even the morality or propriety of punishment. Islamic policy norms required adjudicators to determine whether and how principles of fairness, morality, preservation of life and other “core objectives of Islamic law” were served by any punishment applied.
Procedural and policy norms also came from the foundational texts and early judicial practices that operated in a common law-like way to guide and inform the enforcement of criminal law. They most often took the form of legal canons, principles of interpretation that judges and jurists used to apply complex laws to novel cases in view of the procedural protections that went along with the legal doctrines in criminal law. The central most legal canon that governs Islamic criminal law is the doubt canon (called qā’idat al-shubha or qā’idat al-dar’). Considered a prophetic directive, it requires judges and jurists to “avoid criminal punishments in cases of doubt.” Because definitions of doubt in Islamic criminal law was so expansive, as noted above, this canon meant that it was very rare that Islamic law authorized the implementation of harsh punishments; without applying the norms of doubt, such enforcement of harsh criminal law punishments on the books was illegitimate.
The problem is that Islamic procedural and policy norms on criminal law, though well known and readily identifiable in core Islamic sources to experts in Islamic law, were not often neatly listed in the Qur’ān, works of aḥādīth, or even works of substantive law (fiqh). Rather, they were used by the Prophet and Islam’s earliest authorities, and subsequently by judges and jurists since Islam’s advent, and only later collected in several legal canons collections that sought to preserve the procedures that historically always went along with the law. To know of and apply them require expertise in classical Islamic law. Many political leaders that take over territory and seek to apply “Islamic law” or “sharīʿa” lack that expertise. Given the structure and history of Islamic law, they have access to all of the text, but none of the procedure. This feature of modern movements creates a situation where authorities who wield political and judicial power, with appeals to sharīʿa, often conceive of and implement Islamic criminal law in ways at odds with the history and traditions of sharīʿa that they ostensibly seek to uphold.
In sum, Islamic criminal law is a particular area of law that must be understood within the larger framework of Islamic history and jurisprudence, which counsels first and foremost that Islam, let alone matters relating to criminal law, is not to be implemented by force and without fairness. Second, Islamic criminal law is comprised of and operates with both text-based substantive laws and a rich set of procedural rules ranging from policies and purposes that privilege objectives such as the preservation of life, to legal canons of interpretation, such as the doubt canon recommending leniency more often than not and imposing procedural safeguards to avoid miscarriages of justice. Third and finally, Islamic criminal law, unlike secular criminal laws, is situated within a larger system of faith that emphasizes divinely adjudicated justice in the afterlife, which in turn renders a state-sanctioned system of punishment only one form of crime prevention and regulation, and one that – guided by the doubt canon – suggests less rather than more room for harsh this-worldly punishments if they are to be legitimate in Islamic law.
Resources Roundup on Islamic Criminal Law: Expert Analysis
A list of select resources by lawyers and historians on the history, jurisprudence, and modern operation of Islamic criminal law over varied times and places.
- For further background on Islamic criminal law, with an emphasis on its historical roots, consult our Editor-in-Chief, Professor Intisar Rabb‘s Doubt in Islamic Law: A History of Legal Maxims, Interpretation, and Islamic Criminal Law (Cambridge: Cambridge University Press, 2014).
- Intisar Rabb, “Enforcement and Punishment in Medieval Islamic Law,” in Cultural History of Crime and Punishment in the Medieval Age, eds. Sarah McDougall and Karl Shoemaker (Bloomsbury, 2022) (forthcoming).
- Kali Robinson, “Understanding Sharia: The Intersection of Islam and the Law,” Council on Foreign Relations, December 17, 2021, https://www.cfr.org/backgrounder/understanding-sharia-intersection-islam-and-law.
- Khaled Abou El Fadl, Rebellion and Violence in Islamic Law (Cambridge University Press, 2001).
- Mohammad Salim Al-Awa, Punishment in Islamic Law: A Comparative Study (Indianapolis: American Trust Publications, 1982).
- Sherman A. Jackson, “Domestic Terrorism in the Islamic Legal Tradition,” The Muslim World 91, no. 3-4 (Fall 2001): 293-310.
- Mohammad Hashim Kamali, Crime and Punishment in Islamic Law: A Fresh Interpretation (Oxford: Oxford University Press, 2019).
- Philip Ostien, ed., Sharia Implementation in Northern Nigeria, 1999-2006: A Sourcebook (Ibadan, Nigeria: Spectrum Books, 2007). Philip Ostien is also the curator of the SHARIAsource Nigeria Collection below.
- Rudolph Peters, Crime and Punishment in Islamic Law: Theory and Practice from the Sixteenth to the Twenty-First Century (Cambridge: Cambridge University Press, 2006).
- Silvia Tellenbach, “Islamic Criminal Law,” in The Oxford Handbook of Criminal Law, eds. Markus Dirk Dubber and Tatjana Hörnle (Oxford: Oxford University Press, 2015), 248–68.
Country Source Roundup: Documents / Reviews of Modern Islamic Criminal Law Regimes
A representative, non-exhaustive roundup of primary sources and expert-analysis resources on countries that apply varied interpretations of Islamic criminal law today.
- Afghanistan: Some Muslim-majority countries have fashioned their penal system according to certain interpretations of Islamic law.The SHARIAsource Portal offers a selection of primary resources relating to Afghanistan in a special collection titled “Country Profile: Afghanistan.” The United States’s 2021 withdrawal and takeover of the country by Taliban forces, and recent developments that signal application of a harsh system of criminal punishment justified as the Taliban’s interpretation of sharīʿa , has reignited debates about Islamic criminal law, its interpretation and implementation. To aid with understanding the legal system in Afghanistan, we at the Islamic Law Blog published a collection of academic resources as well as news coverage relating to Islamic law and its implementation in today’s Afghanistan. All of these materials can be found under our “Resource Roundup: Afghanistan, the Taliban, and Islamic Law.”
- Brunei: The SHARIAsource Portal offers a selection of primary resources relating to Brunei in a special collection titled “Country Profile: Brunei.” The Islamic sultanate recently adopted an Islamic penal code, featured in our “News Roundup: Brunei.” On the Brunei Islamic Criminal Law Code, the Journal of Islamic Law at Harvard Law School (vol. 1, no. 1 (2020)) published collections from a symposium, titled “The Symposium on Brunei’s New Islamic Criminal Law Code,” with various scholars assessing the Code from historical, legal, and moral angles.
- Indonesia: The SHARIAsource Portal offers a selection of primary sources relating to the United Arab Emirates titled “Country Profile: Indonesia.” Further, Waskito Jati, Student Editor 2017-2018 and contributor to our Blog, has written commentaries on Indonesia’s Aceh province. Jati’s commentaries here touch on a multitude of subject, including sex crimes in Aceh, corporal punishment involving non-Muslims, and so-called “moral crimes.”
- Iran: The SHARIAsource Portal offers a selection of primary resources relating to Iran in a special collection titled “Country Profile: Iran.” Further, Marzieh Tofighi Darian, Student Editor 2019-2022, has written various commentaries on Iran’s Islamic Penal Code of 2013 (Parts I, II, and III), as well as more focused essays on children and juvenile offenders here, judicial review vis-a-vis Iran’s Criminal Procedure Code here, right to counsel in criminal investigations here, and the criminal prosecution of state officials here.
- Nigeria: The SHARIAsource Portal offers a selection of primary sources relating to Nigeria titled “The Nigeria Papers: Sharīʿa Implementation in Northern Nigeria,” which, among others, brings together sources on Nigerian penal law, including cases on the crime of adultery (zinā).
- United Arab Emirates: The SHARIAsource Portal offers a selection of primary sources relating to the United Arab Emirates titled “Country Profile: United Arab Emirates.” The Portal also provides primary sources relating to the recent amendments to the country’s criminal code via Federal Decree Law no. 31 of 2021.
- In addition to the above jurisdictions, the SHARIAsource Portal offers country profiles on many countries that apply a form of Islamic criminal law, including Iraq, Kuwait, Maldives, Oman, Pakistan, Qatar, Saudi Arabia, Somalia, Syria, and Yemen.
Islamic Criminal Law in the News
This link of “Islamic Criminal Law In the News Roundup” compiles news blurbs we have gathered over the years, and we update it regularly. Click here to subscribe to our news roundups to receive our roundups in your inbox weekly.