Muslim Criminal Law

Islamic criminal law is based on Sharia. Little used during the colonization , in which EU law has often been imposed, it makes a comeback in some states, predominantly Muslim in favor of Islam (eg in Sudan , which has restored the amputation for theft ). Although Islamic law does not restrict the criminal law , it is often best known because of the severity of some punishments.

Offence categories

Sharia law recognizes several categories of offenses and penalties associated with:

• crimes that fall under the "law of God," and are divided into two categories ^The retribution (qisas) and compensation (diya)

  The qisas (in) can be applied to homicide and intentional injury

  . This contiguous to the diya pregnancy , el'hamel . Indeed, according to the customs of the Bedouins of Egypt , besides the diya, the tribe member had committed the damage should also ensure the birth of a male child in the opposing group to offset the loss of an individual . The killer would then lend his wife, sister or daughter to the nearest relative of the victim, so she can give birth to a son and restore the balance of tribal power . This provision disappeared charters latest Anti-Atlas (from the ^sixteenth century at least) was substituted the banishment of the murderer, a measure that remained in force until the imposition of French laws to the tribes of the Anti-Atlas in 1934 .

  Some contemporary authors (Kazemi-Rashed Ali ^{The hudud}

  The hudud (literally "limits") include the offenses and penalties set by the Qur'an that can not be questioned by judges and these crimes are considered to be committed against God himself ^,

  :
  • sex outside marriage, called zina
  • the false attribution of this offense, called
  • * consumption of wine, called
  • the flight, called
  • banditry, called
  • the apostasy called
  • the rebellion, called

  Ta zir

  Penalties and offenses under the category of your zir (: correction) are discretionary sentences (determined by the government and ordered by the judge) which, by definition, depend on the circumstances, they are not fixed in time nor in space. They vary according to the evaluation by the judge of the seriousness of the crime and the criminal provisions of . The penalties range from a sermon or verbal reprimand to the death penalty for infringement or divine individual questioning of the social peace or safety of individuals .

  Qissa

  The category of Qissa () is independent of the previous two and would be according to Jacques El Hakim a survival of private revenge turned into retaliation. This category is used in cases of murder or bodily harm. In these cases, the victim or his heirs may choose to exercise the law of retaliation or to receive compensation (diya called for the murder and arch for bodily injury) . The exercise of retaliation or collection of compensation does not preclude a correction (ta zir) would be provided by the authorities in case of willful infringement.

  Penalties

  The Koran defines the hadd punishment for each, and the Sunnah has enacted rules for other offenses the punishment was not prescribed by the Koran. The Koranic punishments are usually executed in public by concealing the immodest parts of the body . These penalties are described in the following sections, based mainly on the work of Jacques El-Hakim, an associate professor in the Faculty of Law at Damascus .

  The whip

  Flogging is scheduled for extramarital sex, the false imputation of alcohol and other offenses in the category of corrections.

  The lawyers provide different penalties according madhhabs. According to a hadeeth narrated by Abu Burda Al-Ansari , Muhammad prohibited to exceed 10 lashes, when the penalty is not defined in the Quran or the Sunnah. The Koran prescribes 100 lashes for sex outside marriage. Maliki, however, the permit to exceed 100 strokes, while other schools raise this number as a limit not to exceed . It is eighty lashes for false imputation and forty to eighty lashes for drinking . The number of moves and varies between 10 and 100.

  The amputation and crucifixion

  Banditry or armed robbery is punishable by amputation of the simultaneous right hand and left foot. If the flight is accompanied by murder, he is punished by beheading. If murder is combined with theft, the perpetrator is crucified before being executed. Amputation is also provided in case of exercise of retaliation in case of damage to the physical integrity of others. The crucifixion punishes cases of banditry along with murder and theft. The torture victim may receive food and drinks and should be removed after the third day . It may also be imposed following a breach of the category Ta zir, without being followed by an execution. ^{The death penalty}

  The death penalty is provided in case of apostasy (corresponding to an abandonment of Islam by a Muslim, including the associationism ), rebellion, insurrection, murder or adultery .

  Penalties correction

  The sentences are correct at the discretion of the judge. He can choose the most appropriate from those listed above and others in different circumstances, the seriousness of the offense and the personality of the author . The court may choose imprisonment, fines or legal penalties. The legal penalties are caution (), reprimand (), threat (of a sentence) () or exposure of the author . These penalties are not defined in the Qur'an and Sunnah, judges are entitled to find sentences softened.

  Penalties specific

  Adultery

  Adultery in Islam for a woman is having sex with someone other than his spouse.

  For the man is having sex with someone other than his (her) spouse (s) or slave (s). The punishment is stoning to death in public, if four witnesses can testify that there was indeed sexual penetration or if there is confession when he is a married person . In the latter situation, the penalty is not applied to the second person so that one denies the act .

  In the Hadith , Muhammad had to stone the offender with respect, it must never undermine or insult his dignity while being stoned . According to the Shafii rite, if the convicted have testified himself of his act attempts to escape during the stoning he should let it escape, under Hadith Maiz .

  Fornication

  The fornication in Islam refers to the fact that there is sexual intercourse between two unmarried people of opposite sex, the punishment is flogging in public, if four witnesses can testify that there was much sexual penetration or if admission . In the latter situation, the penalty is not applied to the second person so that one denies the act.

  Homosexual relations

  Main article: Homosexuality in Islam.

  Men who have sex (sodomy) are punished or even executed. Women are not executed (because there is no sex per se, but touching) but should be punished

  ^, , stoning ^, , the projection into space from the highest place in the city. This last sentence appears in the books of jurisprudence, but there is no known case of application of this last sentence .

  Apostasy

  The Apostate , who renounces his Islamic faith is punishable by death according to all schools of jurisprudence. However, according to the rite Hanafi woman who apostasy is not executed but imprisoned until she resumes for religion Islam or die ^, .

  Blasphemy

  He that blasphemy is punishable. There is no canon about this, unless it is a charge that could lead to a death sentence in this case the culprit is punished by one hundred lashes ^, .

  Flight

  The robbery should be punished by amputation of the hand, but not robbery or shoplifting. . Also, if you steal a close relative, the penalty is not enforced

  • Sentence according to the rites Maliki and Shafii: the first flight, we cut the right hand, left foot in the second, third and finally the left hand right foot . If, despite this, the criminal is still able to fly and it flies, it must be executed, according to a hadith used in these rites, who prefer this hadith weak legal advice (Ray ') staff, compliance with the rules of their respective schools .
  • Sentence according to the rites Hanafi and Hanbali: the right hand is cut for the first flight, where a second flight left foot is broken. If there are new flight, the hadith that command to cut the other members being low by Tahawi (c.845-853-935) and the rules of the hadith, the offender is imprisoned ^, .

  Alcohol

  • It is forbidden for a Muslim to drink, transport, sell, produce or serve the alcohol. According to the rites, the sentence is an extension of the prohibition of drinking wine (literally present in the Koran) to that of any intoxicating liquor, through the hadith , is the position of the rite Shafii , or a simple logical consequence of the Qur'an and is also the position Hanafi .
  • He who drinks, transports, sells, produces or serves alcohol is punishable by 80 lashes . Flogging for that crime is not based on a verse or a hadith. It is the application of the successors of Muhammad. In principle the number of lashes can not exceed 10 unless it is based on an application of Mohammed, which can go up to a maximum of one hundred lashes. But this case is viewed differently by the vast majority of scientists in the practice of direct successors of Muhammad .

  References

  1. ^{a , b , c , d , e , f , g , h , i , j and k} A Review of the book by Maurice Bormann Ali Kazemi-Rashed, " Islam and moral damages "(Geneva, Droz , 1990) in International Journal of Comparative Law , 1991, No. 3, pp. 733-735.
  2. ^{a , b , c , d and e} Meuni, Jacques, Mrs. " The price of blood among the Berbers of the Anti-Atlas , "Reports of meetings of the Academy of Inscriptions and Belles-lettres, 1960 No. 1, pp. 323-326.
  3. (en) Denis J. Wiechman, Jerry D. Kendall, and Mohammad K. Azarian, Islamic Law Myths and Realities, Office of International Criminal Justice, University of Illinois. read online at the site muslim-canada.org
  4. ^{a , b , c , d , e , f , g , h and i} Jacques El-Hakim, "Human rights in Islamic Criminal Law" in Human rights: inventory and general theory, Human Rights Studies in the Arab world , St. Joseph University, Beirut, November 2003.
  5. Observation Madkoar Salam Mohammed, dean of Islamic law at Cairo University, p.104 quoted in The Effect of Islamic Legislation on Crime Prevention in Saudi Arabia. Proceedings of the Symposium Held in Riyadh. (9-13 October 1976) Riyadh, Saudi Arabia, organized by the United Nations Social Defense Research Institute, published by the Ministry of Interior of Saudi Arabia, 1980.
  6. "Nobody can be punished with more than ten lashes, except for hudud!". The figure among hadith Buhari, Muslim, Abu Davud, Tirmidhi, and Ibnu Maja Nasai in Chapter hudd each of these works.
  7. (ar) Jmi'ul Ahkm'il Qur'an, Qurtubi, (Q. XXIV Light: 4-5)
  8. Abdel-Kader Od, The Islamic Criminal Law compared to positive ^law, 3rd ed., Cairo, 1964, t.2, No. 585
  9. (en) Sahih al-Bukhari Jmi'us Hadith No. 57
  10. Abdel Kader Od, Islamic criminal law compared to positive ^law, 3rd edition, Cairo , 1964, t.2, No. 642 to 644. see also in the Koran , Sura Chambers, verse 9 and sentencing of Muhammad.
  11. (ar) / (en) Kitab al Hudud, No. 4198 in Sahih Muslim
  12. (ar) / (en) Kitab al Hudud, No. 4202 in Sahih Muslim , one of six major hadith collections.
  13. (ar) / (en) Kitab al Hudud, No. 4209 in Sahih Muslim
  14. (ar) / (en) Kitab al Hudud, No. 4206 in Sahih Muslim
  15. The establishment cases of adultery with four witnesses had actually seen all the sexual penetration is so difficult, there is no case made by this route. All cases reported in the hadith are personal confessions for the sake of purification. Stoning has been applied only once on the 600 years of Ottoman rule in 1680. This happened under Mehmed IV. The ruling has been applied by the qadi Rumeli Kazaskeri Beyazizade Ahmet Efendi. The woman was a Muslim married to a certain Aksarayl Abdullah elebi, the man was a Jew. As it had never been applied, the people of the palace tried to fight back. Source: Murat Bardakci Hrriyet 30/08/2002. The case of Iran, which has its own legal rules, is being challenged by Imami scholars. source Ayatullah Mahmud Hashim Chahrud ordered not to enforce the stoning.
  16. (ar) / (tr) Byk Safii fiqh. Dr. Mustafa al-Hin, Dr. Mustafa al-Buga, Ali es SERBEC. Translator: Ali Arslan. Huzur Yayinevi. Hudud, punishment for extramarital affair, how to apply the penalty?
  17. (ar) Jmi'ul Ahkm'il Qur'an, Qurtubi, (Q. XXIV Light: 2)
  18. (ar) / (en) Kitab al Hudud, No. 4209 of Sahih Muslim '
  19. (ar) / (tr) Byk Safii fiqh. Dr. Mustafa al-Hin, Dr. Mustafa al-Buga, Ali es SERBEC. Translator: Ali Arslan. Huzur Yayinevi. p.162
  20. (ar) / (tr) eyh Abdurrahman El Cezir, Dort Mezhebin Fkh Kitab; Kitb'ul Fiqh ala al Mazhhib'ul Arba'e, Translator: Hasan Ege Yayinlari Bahar. Volume VII, p. 124
  21. Omar Ibn Kathir, Stories of the Prophets, peace be with them, Darussalam, 2003 ( ISBN 9960892700 ) Notes

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      Bibliography

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