Hirabah: ‘waging war against God’ or brigandage or banditry or robbery. 24 3 Al-Izz Ibn Abd al-Salam, Al-Qawa’id fi ikhtisar al-maqasid, e.d. Iyad Khalid al-Taba’, Beirut, Dar al-Fikr, pp. He disgraces him in his own house.’ (Reported by Al-Tabarani on the authority of The Arabic term hirabah is derived from harb which.
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Sharia law and the death penalty: Would abolition of the death penalty be unfaithful to the message of Islam? This publication was written by Michael Mumisa (University of Cambridge), drawing on an original draft by Dr. Mohammad Habbash (Director of the Centre for Islamic Studies in Damascus) and with additional input from Taghreed Jaber and Jacqueline Macalesher of Penal Reform International. This publication has been produced as part of Penal Reform International™s project ‚Progressive abolition of the death penalty and implementation of humane alternative sanctions™. This publication has been produced with the ˜nancial assistance of the European Union and the UK Government. The contents of this document are the sole responsibility of Penal Reform International and can under no circumstances be regarded as re˚ecting the position of the European Union or the UK Government. This publication may be freely reviewed, abstracted, reproduced and translated, in part or in whole, but not for sale or for use in conjunction with commercial purposes. Any changes to the text of this publication must be approved by Penal Reform International. Due credit must be given to Penal Reform International and to this publication. Enquiries should be addressed to firstname.lastname@example.org . Penal Reform International Head Of˜ce 60-62 Commercial Street London E1 6LT United KingdomTelephone: +44 (0) 20 7247 6515 Email: email@example.com Twitter: @PenalReformIntPenal Reform International Middle East and North Africa Of˜ce 8 Ibrahim Khorma Street, Seven Circle Abdoun Post Of˜ce Box 852 122 11185 AmmanJordan Telephone: +962 (0) 6 582 6017 Email: firstname.lastname@example.org www.penalreform.org First published in July 2015ISBN: 978-1-909521-42-1© Penal Reform International 2015 Penal Reform International (PRI) is an independent non-governmental organisation that develops and promotes fair, effective and proportionate responses to criminal justice problems worldwide. We promote alternatives to prison which support the rehabilitation of offenders, and promote the right of detainees to fair and humane treatment. We campaign for the prevention of torture and the abolition of the death penalty, and we work to ensure just and appropriate responses to children and women who come into contact with the law. We currently have programmes in the Middle East and North Africa, Central and Eastern Europe, Central Asia and the South Caucasus, and work with partners in East Africa and South Asia.To receive our monthly e-newsletter, please sign up at www.penalreform.org/keep-informed .
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CONTENTSContentsGlossary 4Foreword 5Introduction 61. Basic Islamic principles 7Introduction to Sharia law 7Primary sources of Sharia law: The Quran and sunnah (hadith) 8Secondary sources of Sharia law 8The schools of Sharia law 9Islam and the fundamental right to life 102. Crime and justice: application of the death penalty under Sharia law 11Categories of penalties in Sharia law 11Qisas crimes: Murder 11Arguments against the death penalty for the offence of murder in Islam: victim forgiveness and restitution 13‚Most serious crimes™ threshold 15Hudud crimes Œ ‚claims against God™ 15Zina: adultery 17Riddah: apostasy 22Hirabah: ‚waging war against God™ or brigandage or banditry or robbery 24Ta‚zir crimes 25Other death penalty applicable offences 26Drug offences 26Homosexuality 27Sorcery and witchcraft 28Rights of the child of parents sentenced to death or executed 293. Can Sharia law evolve? 30Conclusion 33Penal Reform International | Sharia law and the death penalty: Would abolition of the death penalty be unfaithful to the message of Islam? | 3
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GLOSSARY Glossary Allah GodAl-nasab An individual™s lineage and offspring Bulugh Age of criminal responsibility Diyya ‚Blood money™ or ˜nancial compensationFard al-ayn Compulsory duty (of a Muslim)Fatwa Juristic ruling concerning Sharia law issued by an Islamic scholar Fiqh Interpretation of Islamic jurisprudence Fuqaha Islamic jurists (singular faqih)Hadd Claim against God (singular) or ˜xed punishmentHadith Sayings of the Prophet Muhammad Hana˜ Sunni school of jurisprudenceHanbali Sunni school of jurisprudenceHirabah Waging war against God and society Hudud Claims against God (plural) or ˜xed punishmentI™dam Taking life away (the word i™dam was never mentioned as such in the Quran, but only in newer legal terminology)Ijad Giving lifeIjma™ Collective reasoning Ijtihad Scholarly discretion Imam Religious preacher Ja™fari Shi‚a school of jurisprudenceJuz‚iyyat ‚Particular™ laws, usually contrasted with ‚universals™ (Kulliyyat)Khalifa Ruler (plural Khulaf˛a) Kulliyyat The ˜ve fundamental or universal principles (‚indispensables™) in IslamMadhhabs Schools of Islamic lawMafasid Harm (for the individual and society)Maliki Sunni school of jurisprudenceMasalih Bene˜t (for the individual and society)Moharebeh Iranian de˜nition of hirabah (waging war against God and society)Muhsan Free adult Muslim who has previously enjoyed sexual relations in matrimony regardless of whether the marriage still existsQadhf Slander/defamationQisas Punitive retribution Qiyas Individual reasoning and analogies Quran Spoken and unalterable word of God Rajm StoningRiddah ApostasySalat PrayerSariqa TheftSha˜‚i Sunni school of jurisprudenceShahada Muslim declaration that there is no god except Allah and that Muhammad is the messenger of AllahSharia Sharia lawShi‚a Follower of Shi‚ism, a branch, doctrine, stream of Islam Shubha Case of doubtShura Process of deliberate consultation Shurb al-Khamr Drinking alcoholSunnah Examples set by the Prophet MuhammadSunni Follower of Sunnism, a branch, doctrine, stream of Islam Surah Chapter of the QuranTa‚zir Claims of state/societyUmmah Nation, people (often referring to worldwide community of Muslims)™Uqubat Punishment‚Urf (Social) customsZakat Charitable donationsZina Adultery4 | Penal Reform International | Sharia law and the death penalty: Would abolition of the death penalty be unfaithful to the message of Islam?
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FOREWORDForewordThe death penalty is one of the core issues that Penal Reform International (PRI) has worked on for over two decades, in all parts of the world. During this time, PRI has witnessed the death penalty™s abolition in a majority of the world™s nations, but it continues to be used in most Muslim countries. One of the main reasons for this is the justi˜cation that it is permitted by the Quran, the Islamic holy book. As such, most nations that consider Islam to be the state religion permit the use of the death penalty. Our work has led us to ˜nd that this punishment is rooted in these countries™ legal and political systems, with the in˚uence of religious traditions indirectly affecting the use of the death penalty. Although capital punishment is still widely supported in Islamic states and nations, there are growing groups of Muslims who support the abolition of the death penalty. This is for many reasons, including different interpretations of Quranic verses that deal with capital punishment, but also concerns that governments may use religion as a cover for other reasons to retain the death penalty: it can eliminate actual and potential enemies to government and disseminates fear in society while also encouraging a super˜cial sense of security. We believe that by publishing this research paper we can contribute to a courageous debate on the issue, based on the real spirit of the Islamic penal code: that is to save lives, promote justice, and prevent corruption and tyranny. ..Take not life, which God has made sacred, except by way of justice and law. Thus does He command you, so that you may learn wisdom. Quran (Surah Al-™An™am) 6:151PRI highly values the work of Michael Mumisa, who has produced the ˜nal draft of this report. We also offer our sincere appreciation to Dr. Mohammad Habbash, who ˜rst drafted this publication and whose enlightened vision has helped shape this research. We also thank the many other Islamic scholars who reviewed the study. PRI puts before readers this contribution to the international debate on the issue of the death penalty and Islamic law. We attempt to highlight the different Islamic jurisprudences, stressing that the views expressed in this research do not represent PRI™s opinion or position. We hope that this paper will improve understanding of the different arguments and interpretations surrounding Sharia law and the death penalty, to allow everyone to participate in a reasoned and informed debate. Taghreed Jaber Regional Director of Middle East and North Africa Of˜ce Penal Reform International Penal Reform International | Sharia law and the death penalty: Would abolition of the death penalty be unfaithful to the message of Islam? | 5
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INTRODUCTIONIntroductionIn many Islamic countries which continue to carry out executions, the death penalty has become a taboo subject. Governments frequently use Sharia to justify why they retain and apply capital punishment, and this can seem to close discussion on the subject. However, Sharia law is not as immutable on the death penalty as many scholars or states say. Among the misconceptions about Sharia law is the belief that there is a clear and unambiguous statement of what the punishments are for particular offences. In fact, there are several different sources referring to punishments, and different schools of Sharia law give different weight to them. There is a belief that Islamic judges are required to impose a ˜xed and predetermined punishment for certain offences without discretion or without permitting mitigating evidence to be admitted into court. This is not true. Additionally, there is also the belief that Sharia law is widely used in national legislation and practice in Islamic countries, in the Middle East and North Africa (MENA) region and elsewhere. In fact, most countries in the MENA region maintain a dual system of secular courts and religious courts, in which the religious courts implement various aspects of Sharia law. This publication aims to correct misapprehensions and to give readers an understanding of Islamic law and jurisprudence relating to the death penalty. It describes the sources of Sharia law and the relative importance of each source. It lays out the different offences that may attract the death penalty and the different views about each, showing that Sharia law does not explicitly compel Muslim states to apply the death penalty. It examines the offences and evidentiary requirements that are required for a death sentence under Sharia, ˜nding that they are so restrictive that they make it almost impossible to impose such a punishment in practice. Contrary to traditionalist interpretations of the Sharia that make the death penalty permissible for four proscribed offences (premeditated murder, adultery, apostasy and ‚waging war against God™), Islam takes a much more ˚exible and lenient approach. It does not require the death penalty, but instead provides opportunities for it to be avoided. This publication examines each offence in turn, reviewing the context in which it was established and the debates between schools of Islamic thought and jurisprudence. It also examines Sharia law in relation to other offences that may carry the death penalty in majority Islamic states, pointing out that many offences that carry the death penalty (such as drug offences and sorcery/witchcraft) cannot do so on the basis of Sharia. Finally, the paper looks at how the death penalty relates to other obligations in Islam, in particular the importance of family and how this relates to children of those sentenced to death. NoteWhile this publication aims to re˚ect on the position of the death penalty as a punishment under Sharia law, it can in no circumstances be regarded as re˚ecting the position of Penal Reform International (PRI). PRI is of the opinion that the death penalty should be prohibited absolutely. PRI opposes the death penalty because it is a violation of two fundamental human rights, as laid down in the Universal Declaration of Human Rights: The right to life (Article 3) The right not to be tortured or subject to any cruel, inhuman or degrading punishment (Article 5)The death penalty represents an unacceptable denial of human dignity and integrity. It is irrevocable, and given that criminal justice systems are open to error or discrimination, the death penalty will inevitably be in˚icted on the innocent.Many Islamic scholars have argued that international human rights do not apply to Islamic states as they are based on Western principles and ideologies. However, many basic human rights principles can ˜nd some similarity in Sharia law principles.A cross-cultural approach which strengthens rather than undermines the universality of human rights should be the positive way forward. Indeed, as we will demonstrate, Sharia itself is based on the idea that some human values are common and universally shared by all people regardless of their cultures or religious traditions. 6 | Penal Reform International | Sharia law and the death penalty: Would abolition of the death penalty be unfaithful to the message of Islam?
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BASIC ISLAMIC PRINCIPLESPrimary sources of Sharia law: The Quran and sunnah (hadith)The QuranAll the schools of Islamic theology and law unanimously agree that the Quran is the primary source for all matters relating to theology and law. This is based on the belief among Muslims that the Quran is the exact word of God (kalam Allah) revealed to the Prophet Muhammad in pure Arabic through the Archangel Gabriel, and has remained unchanged and protected from human interpolation up to this day. This, however, does not mean that all matters relating to law are explicitly mentioned in or directly derived from the Quran. In fact only a small fraction of Sharia laws can be said to have been directly derived from the Quran. The rest are based on interpretations of the sunnah or hadith (see below) and other secondary sources of Sharia law. The Quran is arranged in 114 Surah or chapters of unequal length and numbered consecutively. In this publication, references to the Quran will be displayed chapter then verse (Quran XX:XX).The sunnah (hadith)The sunnah are examples set by the Prophet Muhammad. They are regarded by the majority of Muslims within both the Sunni and Shi‚a traditions as the second primary source of Sharia law. The Arabic term sunnah literally means ‚a habitual practice™, ‚an established course of conduct™, or ‚normative tradition™. In its Islamic juristic usage, the term sunnah came to refer to the normative practices established by the Prophet Muhammad as a model to be followed by all Muslims: His verbal statements, actions, and tacit approval of other people™s statements and actions, all of which were later established to be legal precedents. Since the Prophet was believed to be the prime interpreter of the message of the Quran, His statements and deeds came to constitute a source of both Sharia law and the interpretation of the Quran (tafsir). Hence the sunnah is considered to be primary Sharia law alongside the Quran.Another term linked to the sunnah is hadith. The term hadith in Arabic literally means ‚speech™, or ‚oral tradition™. Since the dominant method of transmitting reports containing the sunnah of the Prophet was oral, the term hadith was used to refer to that process of transmission. Eventually the two terms sunnah and hadith were used interchangeably. While there is only one version of the Quran, there are different versions and collections of hadiths. The authenticity and history of the writing down and compilation of hadiths have been areas of ˜erce debates among Muslims as well as among Western scholars of hadith. Due to the speci˜c scope of this publication, we will not attempt to revisit the debates here. This has been suf˜ciently done by others. 5 We will only refer to those aspects of the debates which have direct bearing on the present topic. However it is important to note the existence of spurious and dubious versions of hadiths. In this publication, we will be careful to accept and use only what is considered to be most authentic: those that could be traced with great certainty to the Prophet. Secondary sources of Sharia law Muslims, regardless of their theological af˜liations, have always believed that the Quran was not revealed all at once as a complete text but that the verses of the Quran were revealed in the context of particular affairs or occasions over twenty-three years during the lifetime of Prophet Muhammad. This, it is believed, was because the Quran came to answer and solve the concrete problems of a constantly changing society. The death of the Prophet marked an end to this process of gradual divine revelation ( wahy). However, society did not cease to evolve and new problems and questions continued to emerge while the Prophet was no longer physically present to provide answers. The limited nature, both in number and subject matter, of the verses of the Quran, particularly those dealing with law and society, was immediately recognised by the early community of Muslims. Subsidiary sources of Sharia law as well as new methods of deriving laws from the Quran and sunnah started developing. The following are some of the many sources which were introduced and continue to be used today by Muslims to derive laws in a constantly changing society. Ijma™ (general consensus)In cases where no direct textual evidence exists in either the Quran or sunnah to address a new legal problem, new laws are developed on the basis of ijma™ (general consensus). There are two ways this can happen: 1. Individual jurists develop a new law using an innovative and novel way of interpreting the existing primary sources of Sharia law (Quran and sunnah). Their new ˜ndings are then subjected to a referendum in order to establish ijma™ (consensus). 2. Social consensus (‚urf) on an issue already exists and this is then formally adopted as part of the new law after a referendum. The condition in both cases is that the new law should not undermine the ˜ve indispensables of Islam.5 For a very accessible and detailed overview of the debates see Herbert Berg, The Development of Exegesis in Early Islam: The Authenticity of Muslim Literature from the Formative Period , Routledge/Curzon, 2000. 8 | Penal Reform International | Sharia law and the death penalty: Would abolition of the death penalty be unfaithful to the message of Islam?
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BASIC ISLAMIC PRINCIPLESAccording to the Quran (42:38), true Muslims are those who decide all their affairs by a process of mutual consultation. Islamic jurists and scholars are in agreement that an ijma™ is not valid if it has not been established after a process of deliberative consultation ( shura). The Prophet Muhammad said: My nation (ummah) will never agree upon an error!6 Although there are debates among scholars that the term ‚ummah™ in the above hadith is an exclusive term, and means scholars and other elite members of society, there is ample evidence to demonstrate that the Prophet meant to be inclusive, and that ummah means all members of society regardless of class, gender or race. 7 There is also a general assumption among many Islamic jurists that, once established, an ijma™ becomes universal and can never be abrogated by the same or subsequent generations. Historically, this has seen the concept of ijma™ being used as a political tool to mobilise power and control. However, since ijma™ is every Muslim society™s attempt to address novel challenges relating to public interest, which differ and change according to time and geography, an ijma™ may be overturned whenever circumstances change in society. 8 Qiyas (analogical reasoning) The term qiyas refers to the applicability of a law that is explicitly mentioned in the Quran or sunnah to a speci˜c case not mentioned in the Quran or sunnah. This is done through a process of analogical reasoning which is based on identifying the existence of a common link (legal cause) between the original law (i.e. the one explicitly mentioned in the Quran or sunnah) and the new law for which there is no direct reference in the Quran or sunnah. For example, the Quran explicitly mentions and prohibits the consumption of khamr (wine/alcohol) but does not mention new forms of intoxicating drugs such as cannabis or cocaine. A majority of Islamic jurists agree that behind every law mentioned in the Quran is a ‚reason™ or ‚cause™ known in Islamic legal terminology as an ‚illat al-hukm (‚the cause of or reason for the rule™). The job of a jurist is to investigate and identify that ‚cause™ in order to determine whether or not it is applicable to new legal cases for which no direct text or reference can be found in the Quran and sunnah. It was therefore agreed by Islamic jurists that the reason or cause behind the prohibition of khamr (wine/alcohol) in the Quran is its intoxicating quality. This means therefore that all the laws associated with khamr (wine/alcohol) in the Quran extend to all new substances which share the same intoxicating attribute. Masalih al-Mursala (public good or public interest) Masalih al-mursala is a juristic device that has been employed in developing Sharia laws in cases for which there exists no direct text in the Quran or sunnah. Sharia laws developed on the basis of masalih al-mursala take into consideration what is in the best interest of society. In Islamic legal theory, such masalih al-mursala (public interests) have the legal power to override ‚particular™ (juz™iyya) laws derived directly from the Quran and hadith, since such verses or hadiths re˚ect the masalih (public interests) of seventh century Muslim society, rather than in the interests of modern society. Since masalih (public interests) change with time and geography, Sharia laws once developed to address the public interest of a speci˜c society in the past must be changed and reformed to re˚ect the needs of a modern society. The concept of masalih al-mursala as a source of law is one of the most important legal options Muslims have adopted in order to accommodate social change and to justify legal reform. The schools of Sharia lawMost of what is now known as Sharia law, referred to generally as ˜qh, can be de˜ned as a jurist™s understanding or interpretation of the primary sources of law in Islam (the Quran and sunnah) in order to derive laws. This encompasses secondary laws derived through ijma™, qiyas and masalih al-mursala. Since ‚interpreters are human beings™, as Ali Ibn Abi Talib famously said, there are inevitably going to be differences of opinions among Islamic jurists. Such differences are a result of: a. methodologies adopted by individual jurists in interpreting and deriving Sharia laws from their primary sources; b. which sources jurists privilege over other sources; c. the time and geographical location of the jurists, and the speci˜c needs and interests of their audiences or communities.Thus, Sharia law has been a site of tension between the various schools of legal theory. 6 Different versions of this tradition exist in a number of hadith collections and classical legal texts. See Sunan Abu Dawud (Hadith No: 4253); Jalal al-Din al-Suyuti™s al-Jami™ al-Saghir ( Hadith No: 1818).7 The Prophet Muhammad famously declared, in what is now called The Medina Charter, that: ‚The Jews of Banu Aws [a Jewish tribe in Medina] constitutes an ummah alongside the believers [Muslims] – Their relationship shall be one based on mutual advice and consultation, and mutual assistance and charity rather than harm and aggression.™ (See the Sirah of Ibn Hisham, Vol. 1, pp. 178-179; Ibn Kathir™s al-Bidaya wa-l-Nihaya, Vol. 3, pp. 224-226; M. H. Haykal, The Life of Muhammad, American Education Trust, 1976, pp. 181-182.) The inclusion of a non-Muslim community in the Prophet™s de˜nition of ummah justi˜es the inclusion of non-Muslims living in Islamic countries in the processes of ijma™. There is ample evidence from Islamic sources to demonstrate that non-Muslims would often participate in the various shura (deliberative consultation) processes during the time of the Prophet when it was pertaining to issues affecting the whole society. 8 The eminent jurist Al-Bazdawi (d. 1089 CE) mentioned other circumstances under which an ijma™ can be abolished by subsequent generations. See Usul al-Bazdawi, 1966, p. 247.Penal Reform International | Sharia law and the death penalty: Would abolition of the death penalty be unfaithful to the message of Islam? | 9
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BASIC ISLAMIC PRINCIPLESThere are a number of schools of legal theory that will be referenced in this work. However, the ˜ve prominent schools are: 1. Hana˜92. Maliki103. Sha˜‚i114. Hanbali125. Ja™fari13One of the great doctrinal debates among all schools of jurisprudence today is whether the Quran and the sunnah are to be interpreted literally, or on the basis of the intent and purpose of the text, or both.14 This debate impacts on the application of the death penalty. As will be seen in Chapter 2, the offences which are death penalty applicable in Sharia law are not always clearly stated in the Quran. In some circumstances ˜qh (interpretation of the primary sources of law in Islam) has been used to interpret what punishments should be applied in Islam for certain offences, raising some serious questions of doubt over their legitimacy under Sharia law, which will be further analysed below. Islam and the fundamental right to lifeAs mentioned above, one of the ˜ve indispensables in Islam is the protection of life. This is recognised in the Quran, hadith literature, and other key Islamic texts. According to Islam, man is the central creature and the ultimate purpose of creation; effectively man is God™s vicegerent on earth. Your Lord said to the angels, ‚I am appointing a vicegerent on earth™. (Quran 2:30)This responsibility and function as God™s ‚vicegerent™, so Muslims believe, makes human beings a degree higher than angels in the eyes of God.Your Lord said to the angels: ‚I am about to create a human being out of clay; when I have fashioned him and breathed of My spirit into him, kneel down before him in prostration™. (Quran 38:71-72)Although the Quran accords human beings with the title of ‚God™s vicegerents™ on earth, it denies them the licence to take any human life. Islamic teachings describe the act of giving life (ijad) and taking it away (i™dam) as exclusively God™s prerogative. Thus, the terms ijad and i™dam denote actions by God that human beings are not allowed to emulate. Because of that, We decreed upon the Children of Israel that whoever kills a soul unless for a soul or for corruption [done] in the land Œ it is as if he had slain mankind entirely. And whoever saves one Œ it is as if he had saved mankind entirely. (Quran 5:32)The geographical and cultural landscape of seventh century Arabia in which the Quran and the religion of Islam emerged was a very violent and hostile one marked by endless tribal blood feuds. Indeed one of the ‚noble™ traits greatly valued in pre-Islamic society was that of hamasa (steadfastness in seeking revenge). Thus, within such a violent and lawless context, the Quran permitted the taking of a life only ‚by way of justice and law™ as a measure for preventing cycles of violence. With the emergence of the new religion of Islam, life could only be taken if it had been explicitly sanctioned and speci˜ed under Sharia and not merely as part of blood feuds. Take not life, which God has made sacred, except by way of justice and law. Thus does He command you, so that you may learn wisdom. (Quran 6:151)In most Muslim countries, therefore, the death penalty can be applied by courts as punishment for the ‚most serious crimes™ as set out in Sharia law. 9 India, Pakistan, Turkey and Central Asia are dominated by Muslims who subscribe to the Hana˜ school of Sharia law. 10 Today the Maliki school of law can be found mostly among Muslims living in West Africa and North Africa. 11 Today followers of the Sha˜‚i school can be found in Malaysia, Indonesia, Brunei, Egypt, Yemen, Syria, Palestine and East Africa, to mention just a few countries. 12 Today the Hanbali school has the fewest followers among the world™s Muslim population. The majority of Muslims who subscribe to the Hanbali school are found in Saudi Arabia and other Gulf countries. However, the numbers have been growing as a result of the sala˜ movement that has been spreading in Western countries, particularly among young Muslims and converts who are searching for a puritan Islam that is based only on the primary sources. 13 Today the Ja‚fari school is dominant among Shi‚a Muslims in Iraq, Iran, Lebanon, Pakistan, India and East Africa. 14 M. Cherif Bassiouni, ‚Death as a penalty in the Sharia™ in Peter Hodgkinson and William A. Schabas (eds.) Capital Punishment: Strategies for Abolition, Cambridge University Press, 2004, pp. 169-185, p. 170. 10 | Penal Reform International | Sharia law and the death penalty: Would abolition of the death penalty be unfaithful to the message of Islam?
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CRIME AND JUSTICE: APPLICATION OF THE DEATH PENALTY UNDER SHARIA LAW 2. Crime and justice: application of the death penalty under Sharia lawCategories of penalties in Sharia lawThere are three categories of penalties in Sharia law: 1. Qisas crimes: ‚retaliation or retribution™ 2. Hudud crimes: ‚claims against God™ (mandatory)3. Ta‚zir crimes: ‚claims of the state/society™ (discretionary) Hudud crimes are considered the most serious under Sharia law, and ta‚zir crimes the least serious. The sources of Sharia law for each category of crime vary. Frequently, multiple sources of law have to be combined to complete the de˜nition of a given crime, identify its elements and establish its evidentiary requirements. The Sunni and Shi‚a jurisprudential schools differ as to some of the elements of the crimes contained in these three categories and their evidentiary requirements, making their study more challenging. Qisas, hudud and ta‚zir all include references to the death penalty as a punishment (‚uqubat) for four particular offences (murder, adultery, apostasy and ‚waging war against God™), which will be explored in more detail in this chapter. Qisas crimes: Murder Qisas (retaliation or retribution) laws follow the principle of ‚an eye for an eye™ or lex talionis and they cover murder or serious cases of intentional bodily harm. They are administered under strict conditions to ˜t with the sanctity of human life in Islam, and involve the following offences against the person: Intentional or premeditated murder (˜rst-degree) Quasi-intentional murder (second-degree) Unintentional murder (manslaughter) Intentional injury (battery) Semi-intentional/unintentional injuryThe forms of punishment mentioned in the Quran for qisas offences aim to seek justice and redress by their equivalence. Thus in the case of premeditated murder, the punishment as described in the Quran is death. Believers, just retribution is prescribed for you in cases of killing: a free man for a free man, a slave for a slave, and a female for a female. If something [of his guilt] is remitted to a person by his brother, this shall be pursued with fairness, and restitution to his fellow-man shall be made in a goodly manner. This is an alleviation from your Lord, and an act of His grace. He who transgresses thereafter shall face grievous suffering. There is life for you, men of understanding, in this law of just retribution, so that you may remain God-fearing. (Quran 2:178-9) (emphasis added)In this publication we shall focus on qisas laws in relation to murder, as this is the only qisas offence that gives rise to the presumption of a death penalty. Qisas laws were introduced in a fragmented seventh century tribal Arabian society where state authorities did not yet exist to administer justice. Qisas laws were introduced as an attempt to impose limitations over tribal culture that promoted revenge and retribution. Under pre-Islamic tribal laws the guardians ( awliya™) of a victim could demand justice not only from the perpetrator of the offence but also from other members of his family or tribe. In murder cases, for example, the family of the victim or his guardians could retaliate by killing the perpetrator and his family. This often resulted in years and generations of violent con˚icts and revenge attacks between families and tribes.Penal Reform International | Sharia law and the death penalty: Would abolition of the death penalty be unfaithful to the message of Islam? | 11
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