CRIMINAL LAW

Batoota — Tue, 06 Nov 2012 06:53:19 +0000

CRIMINAL LAW. The body of law dealing with wrongs that are punishable by the state with the object of deterrence is known as criminal law. Islamic criminal law recognizes three categories of these wrongs. The first is the hudud (plural of #add or “limit” set by God), the contravention of which leads to a prescribed and mandatory penalty. The second, ta`zir, comprises those crimes not included among the hudud because their punishment is discretionary. The term ta’zir means chastisement and intends the correction or rehabilitation of the culprit; hence, punishment is left to the judge and might vary depending upon who inflicts it and upon whom it is inflicted. The third category, qisas (retribution), is concerned with crimes against the person such as homicide, infliction of wounds, and battery. Punishment by retribution is set by law, but the victim or his next of kin may waive such retribution by accepting blood money or financial compensation (diyah) or by foregoing the right altogether. Because of this waiver, it has been suggested that this crime is in the nature of a private injury, more akin to a tort than to a crime involving a public interest or concern.
Jurists have accorded hudud much attention because they are grounded in the Qur’an and the hadith, as is qisas. Ta`zar, however, because of its discretionary nature, has escaped precise definitions and detailed treatments of the elements of the crimes that it encompasses. It might be said, though, that all acts that violate private or community interests of a public nature are subject to ta’zir; it was left to public authorities to establish rules, within the spirit of the shad `ah, to punish such acts.
Ta’zir comprised essentially two categories of crimes. The first consisted of either those crimes that did not “measure up” to the strict requirements of hudud crimes (although they were of the same nature) or those individual crimes that were not of the sort grouped under hudud. Examples of the former are thefts among relatives or thefts of things below a minimum value for a hadd punishment: attempted robbery, attempted fornication, and lesbian contacts. Examples of the latter type are breach of trust by a testamentary guardian, false testimony, and usury. The second category included those acts that generally caused damage to the public order or public interest or threatened to cause such damage. In the nature of things, the second category, if not kept in check, could result in precautionary measures that might compromise individual rights; therefore, a balance had to be maintained between public order and individual rights. Punishment for ta’zir could range from the exceptional death penalty for espionage and heresy, to flagellation, imprisonment, local banishment, and fines for a variety of crimes. Jurists were careful, though, to limit the flagellation punishment to a level below that of hudud punishments.
Qisds (talion) encompassed five crimes: murder or intentional killing, quasi-intentional killing or voluntary manslaughter (when a person intends only to beat another but in doing so kills him), involuntary killing, intentional physical injury, and unintentional physical injury. Talion was allowed only in instances of intentional killing and intentional physical injury; even here retribution could be waived by the victim or his family, and monetary compensation (diyah) could be exacted instead. In the rest of the gilds crimes only monetary compensation was exacted. The diyah for killing was set by most jurists at one hundred camels or one thousand gold dinars; the diyah for physical injuries varied according to the nature of the injury. The law of qisas was an exception to the principle of individual responsibility for crimes emphasized by Islamic law, because it made the perpetrator’s clan (`aqilah) responsible with him for payment of the diyah; correspondingly, the clan of the victim divided up the diyah payable for his death in keeping with the legal maxim that liability is proportional to the benefit. In later years when Arabs settled in military camps outsideArabia(amsdr), the `aqilah became the military unit (diwdn) to which the killer or the victim belonged.
In theory all these offenses were to be tried by the qadi, the representative of the shad `ah. Law books throughout the centuries repeated this theoretical jurisdiction of the qadi, including the administration of criminal law. But in fact the qadi must have lost criminal jurisdiction very early in the Islamic centuries. The reasons are several: first, the shad `ah dealt with only a limited number of crimes and their penalties, leaving a host of others ill-defined and lumped under ta’zir; second, the law of evidence in the shari`ah, with its dependence only on trustworthy witnesses (`udul) and admissions, and its rejection of circumstantial evidence, was too restrictive to allow for an efficient criminal system; finally, rulers of Islamic empires and states could not leave matters of crime affecting state security in the hands of religious authorities loyal to a body of laws over which they had no control. All these factors gave rise to criminal jurisdictions independent of that of the qadi, although the latter continued to be involved in matters concerned with homicide and diyah, which assumed the character of a tort or a civil claim. As a result the shurtah, (police) assumed the duty of investigating, prosecuting, and sentencing of most crimes with no distinction between one function and the other. The muhtasib (inspector of the marketplace) punished those trade infractions and offenses against morals that were apparent and did not require testimony before a qadi’s court. In addition, beginning in the early years of the ‘Abbasid regime in the latter part of the eighth century, a new jurisdiction, called mazalim (Court of grievances) headed by the ruler, vizier, or governor, undertook to repress wrongdoers whom other courts could not control and generally to restrain oppression by officials. All these jurisdictions were not limited by the shari’ah, as the qadi was. In the main they applied customary law (`urf) or what political expediency (siyasah) required; often punishments were arbitrary and severe.
The Ottoman sultans who inherited this system attempted to restrain the arbitrary nature of punishments meted out by these extra-shari`ah jurisdictions by issuing regulations (qanun) for secular criminal provisions and procedures. Yet a qanunname, or basic law, issued in 1525 forEgypt, a few years after its conquest, seems to indicate that the purpose was to give leeway to nonshari’ah judges to inflict heavy punishments for disputes and feuds that qadis could not suppress.
Ottoman Legal Codes. The oldest Ottoman code of criminal and fiscal law is the one attributed to Mehmed II following his conquest ofConstantinoplein 1453, although some parts of it might have been the product of a later time under Bayezid II (r. 1481-1512), who is credited with a qanun of his own. Of the many qanuns compiled in the reign of Sultan suleyman the Lawgiver (qanuni), one was a criminal code compiled possibly between 1539 and 1541. It contained all the sections of the earlier criminal codes and a number of other provisions, and it was arranged according to offenses, not according to penalties of fines and strokes. Among the new provisions were those dealing with sodomy, pressing and selling of wine, false testimony, forging of documents, taking of interest, and neglect of prayer or fasting during Ramadan (Heyd, 1973, p. 30). The code was sent for enforcement to the qadi courts of the various districts where all official documents were deposited. The last Ottoman criminal code before the modern era was compiled in the seventeenth century, but it seems to have been privately collected from the previous codes; therefore, it lacked official character.
Although in theory a qanun was valid for only the lifetime of the sultan who issued it, most qanuns were reconfirmed under succeeding sultans; qanuns issued by previous Muslim rulers whose territories were added to theOttoman Empirein the sixteenth century were reconfirmed for the provinces until the imperial qanun was finally applied. These qanuns, which contained penal provisions based on `urf (customary penalties), are exemplified by the penal code of the Dhu al-Qadr Turkomans issued by Suleyman (r. 1520-1566).
Following the previous practice of limiting the jurisdiction of the qadi in criminal matters, the seventeenthcentury code stipulates that the qadis “are to carry out the laws of the shari `ah . . . but are ordered to refer matters relating to the order of the realm, the protection and defense of the subjects, and the capital or severe corporal punishment to the representatives of the Sultan, who are the governors in charge of military and serious penal affairs” (Heyd, 1973, p. 209). The issuing of extra-shari`ah qanuns, in the Islamic world was not the exclusive domain of the Ottoman sultans. In addition to the case of Dhu al-Qadr, the Mamluk dynasty had imposed fines in certain districts inAnatoliafor wounds and head injuries, which the Ottomans later confirmed. In the extreme west of the Muslim world, inMorocco, a code paid lip service to the shari`ah. In 1512, a certain Yahya ibn Ta’fufah, the captain of the Moors in Safi under Don Manoel of Portugal, set a code for the tribe of Ibn al-Harith that imposed fines for adultery and theft if the shari`ah penalties were not imposed. And in the extreme east, the last great Mughal emperor Aurangzib `Alamgir (r. 1658-1707) issued in 1672 a firman (edict) instructing the qadis to impose hadd punishments and the secular authorities to carry out siyasah punishments.
In theOttoman Empire, the Tanzimat legal reform, following the Hatt-1 Serif (3 November 1839) and the creation of the Council of Judicial Ordinances, began with the promulgation in May 1840 of a penal code (ceza kanunnamesi). It reiterated the equality of all Ottoman subjects pronounced by the Hatt-i Serif and made a conscious effort to put an end to the arbitrary nature of the authority of government agents and corruption. A new code, called kanun-u cedid and promulgated in 1851, did not improve matters significantly, and foreigners, in particular, were dissatisfied with the criminal system. During the discussions over the Treaty of Paris following the Crimean War, Grand Vizier `Ali Pasha asked for the discontinuation of the capitulations, which gave foreign powers extraterritorial rights in the empire, but he was told no consideration would be given to that until Turkish penal and commercial laws were reformed. Therefore, on 9 August 185 8 a new criminal code, based on the 1810 French Code, was adopted, marking the empire’s first clear rupture with traditional law. It paid lip service to the shari`ah by stating that it was not in opposition to it, and that it merely specified the degrees of ta’zir enunciated by it. It also continued the right given victims or their representatives to sue in shari`ah courts for retribution or for diyah. The code was to be administered by a hierarchy of secular (nizdmiyah) courts using laws of procedure adopted from French models. With minor modifications it remained the criminal code of the empire until the beginning of the republic, and the other successor states of theMiddle Eastused it until much later, under the title Qanun al jaza al-`Uthmai.
Modem Legal Codes. In the Turkish republic, Mustafa Kemal Ataturk and his legal advisers, in their attempt to rejuvenate the legal system, looked toEuropefor legal models. In civil matters they adopted the Swiss Civil Code, and in criminal matters they followed the Italian Criminal Code of 1889, which in turn had been based on a German model. This new criminal code, introduced in 1926, made clear the new republic’s intention to separate religion from politics; Article 163 stipulated that political associations on the basis of religion or religious sentiments could not be formed. (But the years after World War II saw a religious revival whose effect on the orientation ofTurkeyis still uncertain.) The German code was used for matters of criminal procedure. A conference on the reception of foreign law inTurkey, particularly the Civil Code, concluded that “the foreign legal system . . . may not command universal obedience, but is not unworkable.”
A parallel development in legal reform took place inEgypt. Following the Ottoman charter (firmdn) of 1841, which accorded Muhammad `All and his descendents hereditary rights to the governorship of Egypt and gave Egypt virtual autonomy in matters of legislation, rapid steps were taken toward legal reform, particularly after the creation of the Mixed Courts in 1876 to protect “foreign” interests. Long before that, Muhammad `Ali, upon assuming power in 1805, hastened to discard the Ottoman system of administration and to institute in its place his own arrangements. Laws and regulations multiplied and had to be unified in a new code entitled al-Muntakhabat (Selections), which was published in 1829-1830. In the same period, a law entitled Qanun alfallah (or al filahah; the Peasants’ Law) was issued to protect the interests of peasants and the state; punishments were specified for such matters as usurpation of land, changing boundaries, thefts of produce, as well as for persons not heeding conscription calls, wrongdoers who breached canals, and notables in the countryside who seduced virgins. The Ottoman Penal Code of 1851 was also applied, after the accession of Said Pasha in 1854, in a version adapted to Egyptian circumstances, but, crimes and punishments still were not well defined, people were not equal before the law, and criminal responsibility was not limited to the individual perpetrator.
Genuine criminal reform started with the Mixed Courts, but since those courts had limited criminal jurisdiction, substantial reform acquired a momentum only with the establishment of the National Courts and the adoption of the National Penal Code and the Code of Criminal Inquiry in 1883. These codes were adapted from the French codes either directly or by way of the Mixed codes. In 1904 the Criminal Code was amended extensively with elements taken from the Sudanese, Indian, Belgian, and Italian codes. Finally, following the abolition of the foreign capitulations in 1937 and the extension of Egyptian criminal jurisdiction to all residents ofEgypt, a new criminal code was promulgated and it remains in force.
TheSudanhad been under native sultanates, not Ottoman power, from the sixteenth century until the Anglo-Egyptian condominium. Under British guidance, a penal code, based on the Indian Penal Code of 186o, was introduced for the first time in 1899. In 1925 this code was thoroughly revised into a new code, but the bases of the earlier one remained intact. It differs from the codes of the major Arab countries in that it is based on Anglo-Saxon law, especially in its definitions and examples.
Except forSaudi ArabiaandNorth Yemen, which continued to use traditional Islamic law in penal matters, the following Arab and Islamic countries acquired modern penal codes as set forth in the list below. Each country is followed by the date of its latest code, then by the code from which it was adapted, and finally by the previous legislation in that country.
Algeria: 18 June 1966; French Code; French CodeIran: 1939; French Code; Code of 1912 and traditional Islamic law
Iraq: 15 September 1969; Proposed Egyptian Code of 1966 and previous legislation; 1918 Baghdad Code and Ottoman Penal Code
Jordan: Law No. 16, 196o; Lebanese Code; Code of 1951 and Ottoman Penal Code
Kuwait: Law No. 16, 196o as amended by No. 31, 1970; Bahrain Code based on Indian Penal Code of 1860
Lebanon: 1943 enforced 1944; French, Swiss and Italian Codes; Ottoman Penal Code
Libya: 28 November 1953; Italian and Egyptian Codes; Italian Code
Morocco: 26 November 1962; French Code; French and Traditional Islamic
Pakistan: Indian Penal code of 1860; English Law; Traditional Islamic and Tribal Law Palestine: 1936 Ordinance; Cyprus Code, 1928; Ottoman Penal Code
Syria: 1949 as amended in 1953; Lebanese Code; Ottoman Penal Code
Certain principles well-known in the West characterize the penal codes in these countries. One such principle is the legality principle: there can be no crime or punishment except by law (nullum crimen nulls poena sine lege). Another is the nonretroactivity of laws. A third is the principle of territoriality of jurisdiction, with some variations, applied in situations in which only some elements of the crime took place on the territory of the state. A fourth is the principle that certain crimes committed abroad by citizens or noncitizens and affecting vital interests of the state can be tried by the state. A fifth is the principle that the state can try a citizen for a felony or misdemeanor committed abroad if the act is also a crime in the country where it was committed.
The last two decades have witnessed a strong movement to reapply the Islamic law of hadd and gilds as a result of an Islamic resurgence.Libyaamended its penal code in 1973 so as to introduce the penalties of lapidation for fornication and cutting of the hand for theft; if the stringent proofs required by Islamic law were not met, the provisions of the Penal Code would apply. Similar steps were taken inPakistanand theSudan(1983). InIran, following the revolution of 1978-1979, the Islamic law of hadd was reintroduced by the Qisas Law of 1982; severe punishments are being applied.
[See also Capitulations; Hudud; Law, articles on Legal Thought and Jurisprudence and Modern Legal Reform; Tanzimat. ]
BIBLIOGRAPHY
Amin, S. H. Middle East Legal Systems.Glasgow, 1985. Survey of legal systems in theMiddle East, excluding North African countries. Although a useful book, it should be used with care.
Anderson, J.N.D. “Homicide in Islamic Law.” Bulletin of theSchoolofOrientaland African Studies 13.4 (1951): 811-828.
Baroody, George M. Crime and Punishment under Hanbali Law.Beirut, 1961. Translation with a commentary from Mandr al-sabil of Ibrahim ibn Muhammad ibn Salim ibn Duyan.
Bassiouni, M. Cherif, ed. The Islamic Criminal System.London, 1982. Collection of chapters of varying quality on Islamic criminal law. The best available source on the subject, although a few chapters are apologetic in tone.
Cornelius, A. R. Law and judiciary inPakistan. Edited by S. M. Haider.Lahore, 1981.
Forte, David F. “Lost, Strayed, or Stolen: Chattle Recovery in Islamic Law.” In Islamic Law and jurisprudence: Studies in Honor of Farhat j. Ziadeh, edited by Nicholas Heer, pp. 97-115.Seattle, 1990.
Heyd, Uriel. Studies in Old Ottoman Criminal Law.Oxford, 1973. Excellent source for Ottoman criminal law and administration of criminal justice.
Hill, Enid. Mahkama! Studies in the Egyptian Legal System.London, 1979. On-the-scene observations ofEgypt’s legal system. Liebesny, Herbert J. The Law of the Near and Middle East.Albany,N.Y., 1975. Very useful collection of readings, cases, and materials.
Lipstein, Kurt. “Conclusions” to “The Reception of Foreign Law inTurkey.” International Social Science Bulletin (UNESCO) 9 (1957): 73.
Mahmasani, Subhi. Al-awda` al-tashri’iyah ft al-duwal al-`Arabiyah.Beirut, 1957. The first serious survey of legal systems in Arab countries.
Maydani, Riyad. ” `Uqubat: Penal Law.” In Law in theMiddle East, edited by Majid Khadduri and Herbert J. Liebesny, pp. 223-235.Washington,D.C., 1955.
Musiafa, Mahmud M. Usul qanun al-`uqubat ft al-duwal al-`Arabiyah.Cairo, 1970. Comparative approach to criminal law in Arab countries.
Starr, June. Law as Metaphor: From Islamic Courts to the Palace of justice.Albany,N.Y., 1992. Survey of legal developments inTurkeyfrom Ottoman to modern times, and a legal-anthropological study of an area in westernAnatolia.
Tyan, Emile. Histoire de l’organisation judiciare en pays d’Islam. 2 vols.Paris, 1938-1943
Ziadeh, Farhat J. ” `Urf and Law in Islam.” In The World of Islam: Studies in Honour of Philip K. Hitti, edited by James Kritzeck and R. Bayly Winder, pp. 6o-67.London, 1959.
Ziadeh, Farhat J. Lawyers, the Rule of Law, and Liberalism in ModernEgypt.Stanford,Calif., 1968.
FARHAT J. ZIADEH

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