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Islamic criminal jurisprudence
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Islamic criminal jurisprudence
Islamic criminal law (Arabic: فقه العقوبات) is criminal law in accordance with Sharia. Strictly speaking, Islamic law does not have a distinct corpus of "criminal law".
Islamic law divides crimes into three different categories depending on the offense – Hudud (crimes "against God", whose punishment is fixed in the Quran and the Hadiths), Qisas (crimes against an individual or family whose punishment is equal retaliation in the Quran and the Hadiths), and Tazir (crimes whose punishment is not specified in the Quran and the Hadiths, and is left to the discretion of the ruler or Qadi, i.e. judge). Some add the fourth category of Siyasah (crimes against government), while others consider it as part of either Hadd or Tazir crimes.
Crimes against God are prosecuted by the state as hudud crimes, and all other criminal matters, including murder and bodily injury, are treated as disputes between individuals with an Islamic judge deciding the outcome based on Sharia fiqh such as Hanafi, Maliki, Shafi'i, Hanbali and Ja'ari followed in the Islamic jurisdiction. According to the some interpretations, classification made with the phrase "against God's borders", unlike other crimes, hudud crimes are excluded from the scope of amnesty, even if the people against whom these crimes are committed give up their rights.
In practice, since early on in Islamic history, criminal cases were usually handled by ruler-administered courts or local police using procedures which were only loosely related to sharia. In the modern era, sharia-based criminal laws were widely replaced by statutes inspired by European models, although in recent decades several countries reintroduced elements of Islamic penal law into their legal codes under the growing influence of Islamist movements.
The following statement in the Quran is thought to be the general rule of testimony in Islam, except for crime and punishment - for example, debt, shopping, etc.;
O believers! When you contract a loan for a fixed period of time, commit it to writing. Let the scribe maintain justice between the parties. The scribe should not refuse to write as Allah has taught them to write. They will write what the debtor dictates, bearing Allah in mind and not defrauding the debt. If the debtor is incompetent, weak, or unable to dictate, let their guardian dictate for them with justice. Call upon two of your men to witness. If two men cannot be found, then one man and two women of your choice will witness—so if one of the women forgets the other may remind her.
In a different example, in the necklace story of Aisha, which is called Asbab al-Nuzul for surah An-Nur:11-20 in Islamic terminology, four witnesses were required for the accusation of adultery. In addition, those who made accusations that did not meet the specified conditions would be punished with 80 lashes. The jurisprudence of later periods stipulates that witnesses must be men, covering all hadd crimes and people who did not have credibility and honesty in society (slaves, non-adl; sinners, infidels) could not testify against believers. In addition, the Islamic judiciary did not require strict proofs for the issues defined as tazir. The situation where sufficient conditions are not met for the hudud, or a weak sign or evidences that provides the Judicial discretion is sufficient such penalties.
In addition to the different criteria to be sought in proving the crime, the evaluation of had crimes in the category of crimes against God's borders leads to a distinction between tazir crimes and others regarding the crime and the approach to the criminal; Which crime falls into which category may vary depending on understanding In Islamic jurisprudence, the fact that the crime is within the scope of tazir crimes does not mean that it will be light, but unlike the hudud crimes, the heavy corporal punishments prescribed for the crime can be replaced with relatively light penalties such as fines, imprisonment or exile, and can be completely forgiven by the administration or the judge.
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Islamic criminal jurisprudence
Islamic criminal law (Arabic: فقه العقوبات) is criminal law in accordance with Sharia. Strictly speaking, Islamic law does not have a distinct corpus of "criminal law".
Islamic law divides crimes into three different categories depending on the offense – Hudud (crimes "against God", whose punishment is fixed in the Quran and the Hadiths), Qisas (crimes against an individual or family whose punishment is equal retaliation in the Quran and the Hadiths), and Tazir (crimes whose punishment is not specified in the Quran and the Hadiths, and is left to the discretion of the ruler or Qadi, i.e. judge). Some add the fourth category of Siyasah (crimes against government), while others consider it as part of either Hadd or Tazir crimes.
Crimes against God are prosecuted by the state as hudud crimes, and all other criminal matters, including murder and bodily injury, are treated as disputes between individuals with an Islamic judge deciding the outcome based on Sharia fiqh such as Hanafi, Maliki, Shafi'i, Hanbali and Ja'ari followed in the Islamic jurisdiction. According to the some interpretations, classification made with the phrase "against God's borders", unlike other crimes, hudud crimes are excluded from the scope of amnesty, even if the people against whom these crimes are committed give up their rights.
In practice, since early on in Islamic history, criminal cases were usually handled by ruler-administered courts or local police using procedures which were only loosely related to sharia. In the modern era, sharia-based criminal laws were widely replaced by statutes inspired by European models, although in recent decades several countries reintroduced elements of Islamic penal law into their legal codes under the growing influence of Islamist movements.
The following statement in the Quran is thought to be the general rule of testimony in Islam, except for crime and punishment - for example, debt, shopping, etc.;
O believers! When you contract a loan for a fixed period of time, commit it to writing. Let the scribe maintain justice between the parties. The scribe should not refuse to write as Allah has taught them to write. They will write what the debtor dictates, bearing Allah in mind and not defrauding the debt. If the debtor is incompetent, weak, or unable to dictate, let their guardian dictate for them with justice. Call upon two of your men to witness. If two men cannot be found, then one man and two women of your choice will witness—so if one of the women forgets the other may remind her.
In a different example, in the necklace story of Aisha, which is called Asbab al-Nuzul for surah An-Nur:11-20 in Islamic terminology, four witnesses were required for the accusation of adultery. In addition, those who made accusations that did not meet the specified conditions would be punished with 80 lashes. The jurisprudence of later periods stipulates that witnesses must be men, covering all hadd crimes and people who did not have credibility and honesty in society (slaves, non-adl; sinners, infidels) could not testify against believers. In addition, the Islamic judiciary did not require strict proofs for the issues defined as tazir. The situation where sufficient conditions are not met for the hudud, or a weak sign or evidences that provides the Judicial discretion is sufficient such penalties.
In addition to the different criteria to be sought in proving the crime, the evaluation of had crimes in the category of crimes against God's borders leads to a distinction between tazir crimes and others regarding the crime and the approach to the criminal; Which crime falls into which category may vary depending on understanding In Islamic jurisprudence, the fact that the crime is within the scope of tazir crimes does not mean that it will be light, but unlike the hudud crimes, the heavy corporal punishments prescribed for the crime can be replaced with relatively light penalties such as fines, imprisonment or exile, and can be completely forgiven by the administration or the judge.
