Criminal Law From an Islamic Perspective: Part Two

In the first part, we have discussed the hudud crime and several example of it together with the punishments of the criminals as prescribed in Islam. Among the hudud punishments mentioned was that for murtad (apostacy).

After the demise of the prophet Muhammad Sallahllahu ‘alaihi wasallam, Abu Bakar Radhiallahu ‘anhu during his reign as Khalifah had battled the apostates of that time. The rest of the Sahabah (Champanions) did not object, in combating the apostates until the situation became calm and peace was achieved. The Islamic jurists agreed that the death punishment in the case of apostacy is considered logical and befitting the crime.

The death sentence should not be so freely imposed on apostates. Murtad cases should be judged thoroughly by the Islamic authority so that the apostate may helped to return to Islam through repentance. Allowing someone to go astray and remain misguided in darkness and devastation is a very wrong. Therefore, the Islamic authority should return the apostates to truth and guidance which they had encountered earlier.

If the authority fails to return him to the truth of Islam, this will mean that the apostate is actualy the carrier of a disease which will not only harm himself but also the nation and the state. In order to safeguard the transquility of the society, the death sentence is a just and fair punishment to be imposed on an apostate who is unwilling to come back to the true path. This is to prevent the disease from infecting others.

QISAS

Literally, qisas means "equal" or "balanced".

In the book Tafsir al-Qurthubi, qisas is also explained as "to follow the track of mark", and it comes therefore to mean that the treatment of the offender should be the same as his offence.

Qisas, according to Islamic legal terminology, is "specified punishment imposed by Shari’ (Allah) as an obligation to be implemented in order to carry out the right of mankind."

From the several terms of definition given, it can be concluded that the life of a murderer should be taken just as he had taken the life of his fellow man or someone who injures others should in turn be injured.

THE DIFFERENCE BETWEEN HUDUD AND QISAS

Hudud and qisas have almost the same meaning whereby both are the punishment prescribed by Allah subhanahu Wataala and as an obligation to be implemented by Muslim relers.

However, the right contained in hudud are different from the rights found in qisas. In implementing the hudud punishment, the right of Allah is stressed whereas in administrating qisas, it is the rights of man that is more emphasised.

For example, the punishments for offences like theft, robbery, fornication, intoxication and apostacy are imposed by Allah, and are to be fully implemented without giving any right to anyone to make any alteration, reduction or addition, and definitely not to withhold the punishment of hudud as it is the right of Allah Subhanahu Wata’ala.

Unlike qisas, which, even though it is determined by Allah Subhanahu Wata’ala and its implementation is an obligation, it remains the right of human beings whereby the final decision on its executive rests with the one seeker the punishment of qisas punishment is unvalidated. It is also permissible for both parties, the offender and the one demanding qisas punishment, to replace the qisas punishment with compensation, since qisas is the right of human beings.

OFFENSES AND THEIR PUNISHMENT

Among offences which are punishable by qisas are:

1. Murder:

   Committing murder is a big sin in Islam, an evil and cursed deed for which the death sentence is a just punishment. As promised by Allah Subhanahu Wata’ala a severe punishment awaits the murdered in the hereafter. In the al-Quran Allah say:

   "And whoever kills a believer intentionally, his recompenses is hell to abide therein, and the wrath and the curse of Allah are upon him, and a great punishment in prepared for him."

   (Sura an-Nisa: 93)

   The punishment for those who commit murder is death. This is

   Clearly shown by Allah in His word which says:

   "O you who believe! Al-Qisas (The law of equality in punishment) is prescribed for you in case of murder."

   The qisas offence explained in the above verse is very clear, where the death punishment is imposed on the murderer. It cannot be altered or cancelled after the offender has been found guilty based on suffucient evidence, unless, the family of the slained has asked for compensation (diat) in lieu of qisas punishment.

2. TO CAUSE INTENTIONAL, PHYSICAL INJURY:

To injure someone or to do so intensionally is not yaken lightly in Islam because such an act may cause permanent disbility to the victim.

The al-Quran clearly specifies the punishment for those who intentionally injure others as found in the words of Allah:

"And we ordained therein for them. Life for life, eye for eye, nose for nose, ear for ear, tooth for tooth, and wounds, equal for equal."

(Surah al-Ma’idah:45)

The punishment mentioned in the above verse was determined by Allah. An eye for an eye. Similarly with other parts of the body. Even wounds and injuries are to be mathed.

Al-Imam Bukhari and Muslim narrated that during the time of Rasulullah Sallallahu alaihi wasallam there was an incident in which an al-Nadzar girl had beaten and broken the tooth of another girl. When the case was reported to Rasulullah Sallallahu alaihi wassalam, he sentenced qisas punishment on the offender.

While during the rule of Sayidina Umar Al-Khathtab, there was an incident where a Ghassan King who had recently converted into Islam, had his robe accidently stepped on by a Muslim slave during tawaf at Baitullah. The king, who was well-known by the name Jabalah al-Aiham, suddenly punched the slave in the face. When a complaint was made to Umar Al-Khathtab, and he offender was found to be guilty, Saiyidina Umar exercised the qisas punishment upon Jabalah Al-Aiham, even though he was a king who was new to Islam.

Qisas is the law of Allah for the interest of man. However, Islam has provided a way out so that qisas need to be performed. Qisas can be replaced by compensation which is called diat for as long as both parties agree, especially the party seeking retribution, with the approval of the court.

This flexibility is given so that can be peace and to avoid enmity among man. Diat ia a way out which can benefit both parties, the murdered and the murderer. Diat does not aim at easing the punishment of Qisas but it presents a choice involved, who, for certain reasons are reluctant to carry out qisas. Diat thus becomes the alternative.

In the next, issue, we will continue with the discussion on diat so as to provide a more its administration as an alternative to qisas.

Adapted From al-Hadaf

Criminal Law From an Islamic Perspective: Part One

Crime according to Islamic law is "every deed or action which is forbidden (haram) by Shara’, be it in the case of property or life."

Crime is a moral problem considered serious in Islam, and is closely linked to the peace and harmony of human life. If crime is widely committed, benevolence in society is destroyed, but Islam itself is a religion that promises peace and harmony to the society. Therefore, in facing crime, Islam has a special view that stresses the importance of terminating the criminal actions or minimising them from becoming worse each time.

Ibn Rushd in his book Bidayah al-Mujtahid wa Nihayah al-Muqtasid had divided criminal actions into four categories:

1. Crime against physical life such as injuring people or murdering them.
2. Crime against property such as robbing, vandalizing and etc.
3. Crime against descendents such as adultery.
4. Crime against human virtues and chastity such as:

1. False accusation of unchastity(qazaf)
2. Drinking intoxicants that lead to the pollution of the mind and the destruction of that which is supposed to be properly guided.
3. Apostacy (Murtad) – Switching religion from Islam to another religion.

Punishment for criminal offences

Islamic has devised three systems of punishments for all criminal offences to be implemented by an Islamic ruler where each system is specifically for certain misdeeds. These systems of punishments are known as Hudud, Qisas and Ta’zir.

Hudud

Hudud is an Islamic legal terminology which means:

"Specified punishments imposed by Shara’ (Islamic Law) as an obligation to be implemented in order to carry out the right of Allah Subhanahu Wata’ala."

Among offences which are categorised as offences punishable by hudud are stealing, robbing, fornication, false accusation of unchasity without valid evidence, drinking alcohol and murtad (Apostacy from the religion of Islam).

If one of the offences was found to have been committed, and the court finds the offender guilty, the punishment to be meted out is determined by Shara’. Man has no right to add, alter or reduce the punishment after it had been decided as hudud is the right of Allah Subhanahu Wata’ala. Man is only commanded to fully execute and implement it.

Offences and Their Punishments

Among offences which are punishable by hudud are:

1. Robbery: It is an evil deed cursed by Allah and His Prophet, damned and hated by society. Robber destroys humanity and tranquility. Due to the great damage caused by robbery, Allah Subhanahu Wata’ala has fixed its punishment through His words:

"Cut off (from the wrist joint) the (right) hand of the thief, male or female, as a recompense for that which they committed, a punishment by way of example from Allah. And Allah is All-Powerful, All-Wise."

(Al-Ma’idah:38)

In this verse, Allah stresses that with His glory, the punishment of cutting hand is legalised. The punishment is not intended to accuse or incriminate, it is just punishment and full of the wisdom of Allah.

2. Zina (fornication): It is one of the great offences in Islam and an immoral deed which can lead the doer to the most evil path.

Fornication can lead to moral decay, be the ruination of future descendants, devastation of family life and it will burden the government with the problems of unwanted children, inadequate care and education of neglected children and etc. In connection to that, Allah Subhanahu Wata’ala has fixed a suitable punishment for Zina offence whereby He say:

"The woman and the man guilty of illegal sexual intercourse, flog each of them with a hundred stripes. Let no pity withhold you in their case, in a punishment prescribed by Allah, if you believe in Allah and the Last Day. And let a party of the believers witness their punishment."

(An-Nur:2)

In this verse, the punishment determined is for unmarried persons commit it, however, the punishment is to stone them to death, following what had been done by the Prophet Muhammad Sallallahu ‘alaihi wasallam.

This punishment is emphasised by al – Imam Shafi’e who stresses that married persons who commit adultery should be punished by stoning them to death.

3. False accusation of unchasity of chaste person (qazaf): Islam forbids false accusations without strong and valid evidence in order to protect human dignity from being tarnished by invalid and wild allegations.

   Looking at the evil consequences caused by such an accusation. Allah Subhanahu Wata’ala has prescribed a severe punishment to those who hurl such accusation. Allah says in al-Quran:

   "And those who accuse chaste women, and produce not four witnesses, flog them with eighty stripes, and reject their testimony forever."

   (An-Nur:4)

   Someone who accuses others of committing fornication should prove it by producing at least four valid witnesses in order to make the punishment applicable to the persons accused. If the accusation cannot be proved, the accuser has committed the qazaf crime and should be punished with eighty strokes, as mentioned in the above verse.

4. Drinking intoxicant or alcohol:

   Every intoxicant is haram whether it is taken in a small or large amount, and whether it intoxicates the drinker or not.

   Rasulullah Sallallahu ‘alaihi wasallam said in a hadith:

   "Every intoxicant drunk in large amount can intoxicate, so even in small amount is haram."

   (Hadith narrated by Tirmidzi)

   Intoxicants or alcohol has its side effects on the drinker, either physical or mental, which can interfere with one’s morality, mind and faith. With both physical and mental impairment caused by the intoxicant, it is proper that the offender be punished if he is found guilty. A hadith reports and it means:

   "From Abu Sa’id al- Khudri who has said: "Verily Rasulullah Sallallahu ‘alaihi wasallam has punished with stripes the alcohol drinker with 40 stripes."

5. Murtad (Apostacy): Murtad means turning back to become a disbeliever of Allah and His Prophet after converting to the religion of Islam. Murtad can occur by a clear confession of a person or by certain actions that can be judged as murtad.

People who are Muslims by birth or after embracing other religions previously are those who have received guidance from Allah. Therefore, for the safety of the human race in this world and in the hereafter, the problem of switching religions from Islam to another should be dealt with and controlled by Islam.

The apostate receives punishment not only in this world, but also in the hereafter, as Allah says:

"And whosoever of you turns back from his religion (Islam) and dies as a believer, then his deeds will be lost in this life and in the Hereafter, and they will be the dwellers of the Fire. They will abide therein forever."

(Al-Baqarah:217)

Rasulullah Sallallahu ‘alaihi wasallam has also said:

"Whosoever (Muslim) turns back from his religion (Islam) murder him."

(Hadith narrated by an-Nasa’I)

Adapted From al-Hadaf

Human Rights from an Islamic Worldview: An outline of Hudud, Ta'zir & Qisas

By: Mohammed Salam Madkoar

In order to properly understand the Muslim world's concept of Human Rights under the law, it is helpful to have a basic grasp of the concepts of Islamic law. First World Student of Human Rights will find the following article by Mohammed Salam Madkoar a most useful aid in attempting to understand the struggle for human rights in the Islamic world.

The general public and many academics have several preconceived notions about Islamic Law. One such notion is that Islamic judges are bound by ancient and outdated rules of fixed punishments for all crimes. This paper explores that idea and looks at other myths in an attempt to present Islamic Law from a non-biased view of Sharia Law.

Some contemporary scholars fail to recognize Islamic Law as an equal to English Common Law, European Civil Law and Socialist Law. A few academics have even attempted to place Islamic Law into the Civil Law tradition. Other writers have simply added a footnote to their works on comparative justice on the religious law categories of Islamic Law, Hindu Law, which is still used in some parts of India, and the Law of Moses from the Old Testament which still guides the current thought of the Israeli Knesset (Parliament) today. This survey will attempt to alter some of these inaccurate perceptions and treatments in both the contemporary literature and academic writings. Mohammed Salam Madkoar explains the theoretical assumptions of Islamic Law:

In order to protect the five important indispensables in Islam:

1. religion

2. life

3. intellect

4. offspring

5. property

Islamic Law has provided a worldly punishment in addition to that in the hereafter. Islam has, in fact, adopted two courses for the preservation of these five indispensables:

the first is through cultivating religious consciousness in the human soul and the awakening of human awareness through moral education;

the second is by inflicting deterrent punishment, which is the basis of the Islamic criminal system.

Therefore "Hudud," Retaliation (qisas) and Discretionary (Tazir) punishments have been prescribed according to the type of the crime committed.

Islamic Law and Jurisprudence is not always understood by the western press. Although it is the responsibility of the mass media to bring to the world's attention violations of human rights and acts of terror, many believe that media stereotyping of all Muslims is a major problem. The recent bombing at the World Trade Center in New York City is a prime example. The media often used the term "Islamic Fundamentalists" when referring to the accused in the case. It also referred to the Egyptian connections in that case as "Islamic Fundamentalists."

The media has used the label of "Islamic Fundamentalist" to imply all kinds of possible negative connotations: terrorists, kidnappers, and hostage takers. Since the media does not use the term "Fundamentalist Christian" each time a Christian does something wrong, the use of such labels is wrong for any group, Christians, Muslims, or Orthodox Jews.

A Muslim who is trying to live his religion is indeed a true believer in God. This person tries to live all of the tenets of his religion in a fundamental way. Thus, a true Muslim is a fundamentalist in the practice of that religion, but a true Muslim is not radical, because the Quran teaches tolerance and moderation in all things. When the popular media generalizes from the fundamentalist believer to the "radical fundamentalist" label they do a disservice to all Muslims and others.

No Separation of Church and State

To understand Islamic Law one must first understand the assumptions of Islam and the basic tenets of the religion. The meaning of the word Islam is "submission or surrender to Allah's (God's) will." Therefore, Muslims must first and foremost obey and submit to Allah's will. Mohammed the Prophet was called by God to translate verses from the Angel Gabriel to form the most important book in Islam, the Quran, Muslims believe.

There are over 1.2 billion Muslims today worldwide, over 20% of the world's population. "By the year 2000, one out of every four persons on the planet will be a Muslim," Rittat Hassan estimated in 1990. There are 35 nations with population over 50% Muslim, and there are another 21 nations that have significant Muslim populations. There are 19 nations which have declared Islam in their respective constitutions. The Muslim religion is a global one and is rapidly expanding. The sheer number of Muslims living today makes the idea of putting Islamic Law into a footnote in contemporary writings inappropriate.

The most difficult part of Islamic Law for most westerners to grasp is that there is no separation of church and state. The religion of Islam and the government are one. Islamic Law is controlled, ruled, and regulated by the Islamic religion. The theocracy controls all public and private matters. Government, law, and religion are one. There are varying degrees of this concept in many nations, but all law, government and civil authority rests upon it and it is a part of Islamic religion. There are civil laws in Muslim nations for Muslim and non-Muslim people. Sharia is only applicable to Muslims. Most Americans and others schooled in Common Law have great difficulty with that concept. The U.S. Constitution (Bill of Rights) prohibits the government from "establishing a religion." The U.S. Supreme Court has concluded in numerous cases that the U.S. Government can't favor one religion over another.

That concept is implicit for most U.S. legal scholars and many U.S. academicians believe that any mixture of "church and state" is inherently evil and filled with many problems. They reject all notions of a mixture of religion and government.

To start with such preconceived notions limits the knowledge base and information available to try and solve many social and criminal problems. To use an analogy from Christianity may be helpful.

To ignore what all Christian religions except your own say about God would limit your knowledge base and you would not be informed or have the ability to appreciate your own religion. The same is true for Islamic Law and Islamic religion. You must open your mind to further expand your knowledge base. Islamic Law has many ideas, concepts, and information that can solve contemporary crime problems in many areas of the world. To do this you must first put on hold the preconceived notion of "separation of church and state."

Judge (Qadi)

Another myth concerning Islamic Law is that there are no judges. Historically the Islamic Judge (Qadi) was a legal secretary appointed by the provincial governors. Each Islamic nation may differ slightly in how the judges are selected. Some nations will use a formal process of legal education and internship in a lower court. For example, in Saudi Arabia there are two levels of courts. The formal Sharia Courts which were established in 1928 hear traditional cases. The Saudi government established a ministry of justice in 1970, and they added administrative tribunals for traffic laws, business, and commerce. "All judges are accountable to God in their decisions and practices" (Lippman, p.66-68).

One common myth associated with Islamic Law is that judges must always impose a fixed and predetermined punishment for each crime. Western writers often point to the inflexible nature of Islamic Law. Judges under Islamic Law are bound to administer several punishments for a few very serious crimes found in the Quran, but they possess much greater freedom in punishment for less serious (non-Had) crimes. Common law is filled with precedents, rules, and limitations which inhibit creative justice. Judges under Islamic Law are free to create new options and ideas to solve new problems associated with crime.

Elements of Sharia Law

Islamic law is known as Sharia Law, and Sharia means the path to follow God's Law. Sharia Law is holistic or eclectic in its approach to guide the individual in most daily matters. Sharia Law controls, rules, and regulates all public and private behavior. It has regulations for personal hygiene, diet, sexual conduct, and elements of child rearing. It also prescribes specific rules for prayers, fasting, giving to the poor, and many other religious matters. Civil Law and Common Law primarily focus on public behavior, but both do regulate some private matters.

Sharia Law can also be used in larger situations than guiding an individual's behavior. It can be used as guide for how an individual acts in society and how one group interacts with another. The Sharia Law can be used to settle border disputes between nations or within nations. It can also be used to settle international disputes, conflicts, and wars. This Law does not exclude any knowledge from other sources and is viewed by the Muslim world as a vehicle to solve all problems civil, criminal, and international.

Sharia Law has several sources from which to draw its guiding principles. It does not rely upon one source for its broad knowledge base.

The first and primary element of Sharia Law is the Quran. It is the final arbitrator and there is no other appeal.

The second element of Sharia Law is known as the Sunna, the teachings of the Prophet Mohammed not explicitly found in the Quran. The Sunna are a composite of the teachings of the prophet and his works. The Sunna contain stories and anecdotes, called Hadith, to illustrate a concept. The Quran may not have all the information about behavior and human interaction in detail; the Sunna gives more detailed information than the Quran.

The third element of Sharia Law is known as the Ijma. The Muslim religion uses the term Ulama as a label for its religious scholars. These Ulamas are consulted on many matters both personal and political. When the Ulamas reach a consensus on an issue, it is interpreted as a ijma. The concepts and ideas found in the ijma are not found explicitly in the Quran or the teachings of the Prophet (Sunna). Islamic judges are able to examine the ijma for many possible solutions which can be applied in a modern technical society. They are free to create new and innovative methods to solve crime and social problems based upon the concepts found in the ijma. These judges have great discretion in applying the concepts to a specific problem.

The Qiyas are a fourth element of Sharia Law. The Qiyas are not explicitly found in the Quran, Sunna, or given in the Ijma. The Qiyas are new cases or case law which may have already been decided by a higher judge. The Sharia judge can use the legal precedent to decide new case law and its application to a specific problem. The judge can use a broad legal construct to resolve a very specific issue. For example, a computer crime or theft of computer time is not found in the Quran or Sunna. The act of theft as a generic term is prohibited so the judge must rely on logic and reason to create new case law or Qiyas.

The fifth element of Sharia Law is very broad and "all encompassing." This secondary body of knowledge may be ideas contained in the other written works. The New Testament is an example of this area of information, and legal discourses based upon Civil Law or Common Law may be another example. All information can be examined for logic and reason to see if it applies to the current case. It also may be a local custom or norm that judge may find helpful in applying to the issue before him. The judge may also weigh the impact of his decision upon how it will effect a person's standing in the community.

Crimes in Islam

Crimes under Islamic Law can be broken down into three major categories. Each will be discussed in detail with some common law analogies. The three major crime categories in Islamic Law are:

Had Crimes (most serious).

Tazir Crimes (least serious).

Qisas Crimes (revenge crimes restitution)

Had crimes are the most serious under Islamic Law, and Tazir crimes are the least serious. Some Western writers use the felony analogy for Had crimes and misdemeanor label for Tazir crimes. The analogy is partially accurate, but not entirely true. Common Law has no comparable form of Qisas crimes.

Fairchild, in her excellent book on comparative justice, makes the following observation of Islamic Law and punishment (Fairchild, p.41).

"Punishments are prescribed in the Quran and are often harsh with the emphasis on corporal and capital punishment. Theft is punished by imprisonment or amputation of hands or feet, depending on the number of times it is committed..."

Had Crimes

Had crimes are those which are punishable by a pre-established punishment found in the Quran. These most serious of all crimes are found by an exact reference in the Quran to a specific act and a specific punishment for that act. There is no plea-bargaining or reducing the punishment for a Had crime. Had crimes have no minimum or maximum punishments attached to them. The punishment system is comparable to the determinate sentence imposed by some judges in the United States. If you commit a crime, you know what your punishment will be. There is no flexibility in the U.S. determinate model or in the punishment for Had crimes of Islamic Law.

No judge can change or reduce the punishment for these serous crimes. The Had crimes are:

Murder;

Apostasy from Islam - making war upon Allah and his messengers;

Theft;

Adultery;

Defamation - false accusation of adultery or fornication;

Robbery;

Alcohol-drinking.

The first four Had crimes have a specific punishment in the Quran. The last three crimes are mentioned but no specific punishment is found.

Some more liberal Islamic judges do not consider apostasy from Islam or wine drinking as Had crimes. The more liberal Islamic nations treat these crimes as Tazir or a lesser crime.

Had crimes have fixed punishments because they are set by God and are found in the Quran. Had crimes are crimes against God's law and Tazir crimes are crimes against society. There are some safeguards for Had crimes that many in the media fail to mention. Some in the media only mention that if you steal, your hand is cut off.

The Islamic judge must look at a higher level of proof and reasons why the person committed the crime. A judge can only impose the Had punishment when a person confesses to the crime or there are enough witnesses to the crime. The usual number of witnesses is two, but in the case of adultery, four witnesses are required. The media often leaves the public with the impression that all are punished with flimsy evidence or limited proof. Islamic law has a very high level of proof for the most serious crimes and punishments. When there is doubt about the guilt of a Had crime, the judge must treat the crime as a lesser Tazir crime. If there is no confession to a crime or not enough witnesses to the crime, Islamic law requires the Had crime to be punished as a Tazir crime.

Tazir Crimes

Modern Islamic Society has changed greatly from the time of the Prophet. Contemporary Sharia Law is now in written form and is statutory in nature. Islamic concepts of justice argue that a person should know what the crime is and its possible punishment.

For example, Egypt has a parliamentary process which has a formal penal code written and based upon the principles of Islamic Law, but Saudi Arabia allows the judge to set the Tazir crimes and punishments. Modern Islamic Law recognizes many differences between these two nations. It also allows for much greater flexibility in how it punishes an offender. The major myth of many people is that judges in Islamic nations have fixed punishments for all crimes. In reality, the judges have much greater flexibility than judges under common law.

Tazir crimes are less serious than the Had crimes found in the Quran. Some common law writers use the analogy of misdemeanors, which is the lesser of the two categories (felony and misdemeanor) of common law crimes. Tazir crimes can and do have comparable "minor felony equivalents." These "minor felonies" are not found in the Quran so the Islamic judges are free to punish the offender in almost any fashion. Mohammed Salam Madkoar, who was the head of Islamic Law at the University of Cairo, makes the following observation (Ministry of the Interior, 1976,p.104):

Tazir punishments vary according to the circumstances. They change from time to time and from place to place. They vary according to the gravity of the crime and the extent of the criminal disposition of the criminal himself.

Tazir crimes are acts which are punished because the offender disobeys God's law and word. Tazir crimes can be punished if they harm the societal interest. Sharia Law places an emphasis on the societal or public interest. The assumption of the punishment is that a greater "evil " will be prevented in the future if you punish this offender now.

Historically Tazir crimes were not written down or codified. This gave each ruler great flexibility in what punishments the judge was able to dispense. The judge under Islamic Law is not bound by precedents, rules, or prior decisions as in common law. Judges are totally free to choose from any number of punishments that they think will help an individual offender. The only guiding principle for judges under Sharia Law is that they must answer to Allah and to the greater community of Muslims.

Some of the more common punishment for Tazir crimes are:
1. counseling
2. fines
3. public or private censure
4. family and clan pressure and support
5. seizure of property
6. confinement in the home or place of detention
7. and flogging

In some Islamic nations, Tazir crimes are set by legislative parliament. Each nation is free to establish its own criminal code and there is a great disparity in punishment of some of these crimes. Some of the more common Tazir crimes are: bribery, selling tainted or defective products, treason, usury, and selling obscene pictures. The consumption of alcohol in Egypt is punished much differently than in Iran or Saudi Arabia because they have far different civil laws. Islamic law has much greater flexibility than the Western media portrays. Each judge is free to punish based upon local norms, customs, and informal rules. Each judge is free to fixthe punishment that will deter others from crime and will help to rehabilitate an offender.

Qisas Crimes and Diya

Islamic Law has an additional category of crimes that common law nations do not have. A qisas crime is one of retaliation. If you commit a qisas crime, the victim has a right to seek retribution and retaliation. The exact punishment for each qisas crime is set forth in the Quran. If you are killed, then your family has a right to seek qisas punishment from the murderer. Punishment can come in several forms and also may include "Diya."

Diya is paid to the victim's family as part of punishment. Diya is an ancient form of restitution for the victim or his family. The family also may seek to have a public execution of the offender or the family may seek to pardon the offender.

Traditional qisas crimes include:

Murder (premeditated and non-premeditated).

Premeditated offenses against human life, short of murder.

Murder by error.

Offenses by error against humanity, short of murder.

Some reporters in the mass media have criticized the thought of "blood money" as barbaric. They labeled the practice as undemocratic and inhumane. qisas crimes are based upon the criminological assumption of retribution. The concept of retribution was found in the first statutory "Code of Hammurabi" and in the Law of Moses in the form of "an eye for an eye."

Muslims add to that saying "but it is better to forgive."

Contemporary common law today still is filled with the assumptions of retribution. The United States federal code contains "mandatory minimum" sentences for drug dealing, and many states have fixed punishment for drugs and violence and using weapons. The United States justice system has adopted a retribution model which sets fixed punishments for each crime. The idea of retribution is fixed in the U.S. system of justice. qisas crime is simple retribution: if one commits a crime, he knows what the punishment will be.

Diya has its roots in Islamic Law and dates to the time of the Prophet Mohammed when there were many local families, tribes, and clans. They were nomadic and traveled extensively. The Prophet was able to convince several tribes to take a monetary payment for damage to the clan or tribe. This practice grew and now is an acceptable solution to some qisas crimes.

Today, the Diya is paid by the offender to the victim if he is alive. If the victim is dead, the money is paid to the victim's family or to the victim's tribe or clan. The assumption is that victims will be compensated for their loss. Under common law, the victim or family must sue the offender in a civil tort action for damages. qisas law combines the process of criminal and civil hearings into one, just as the "civil law" is applied in many nations of the world. qisas crimes are compensated as restitution under common law and civil law.

The qisas crimes require compensation for each crime committed. Each nation sets the damage before the offense and the judge then fixes the proper Diya. If an offender is too poor to pay the diya, the family of the offender is called upon first to make good the diya for their kin. If the family is unable to pay, the community, clan, or tribe may be required to pay. This concept is not found in common law or the civil law of most nations. It acts as a great incentive for family and community to teach responsible behavior. What happens to the debt if the offender dies and has not paid it? Historically, it was passed on to the offender's heirs; today, most nations terminate the debt if the offender left no inheritance.

One question that is often raised is "What happens if a victim takes the diya without government approval ?" The victim or family has committed a Tazir crime by accepting money which was not mandated by a judge: taking diya must be carried out through proper governmental and judicial authority.

Another concept of qisas crimes is the area of punishment. Each victim has the right to ask for retaliation and, historically, the person's family would carry out that punishment. Modern Islamic law now requires the government to carry out the qisas punishment. Historically, some grieving family member may have tortured the offender in the process of punishment. Now the government is the independent party that administers the punishment, because torture and extended pain is contrary to Islamic teachings and Sharia Law.

Conclusions

Contemporary treatment of Islamic Law and "Radical Muslims" is filled with stereotypical characterizations. Some in the Western media have used the "New York City bombings" as a way to increase hate and prejudice. They have taken the views of a few radicals and projected them onto all Muslims.

This action has done a great disservice to the Muslim world. Some academic writings also have been distorted and not always completely accurate and some researchers have concluded that Islamic Law requires a fixed punishment for all crimes. These writers also have concluded that Islamic judges lack discretion in their sentences of defendants in the Sharia Court System. There are four Had crimes that do have fixed punishments set forth in the Quran, but not all the Had crimes are bound by mandatory punishment.

Islamic Law is very different from English Common Law or the European Civil Law traditions. Muslims are bound to the teachings of the Prophet Mohammed whose translation of Allah or God's will is found in the Quran. Muslims are held accountable to the Sharia Law, but non-Muslims are not bound by the same standard (apostasy from Allah). Muslims and non-Muslims are both required to live by laws enacted by the various forms of government such as tax laws, traffic laws, white collar crimes of business, and theft. These and many other crimes similar to Common Law crimes are tried in modern "Mazalim Courts." The Mazalim Courts can also hear civil law, family law, and all other cases. Islamic Law does have separate courts for Muslims for "religious crimes" and contemporary non-religious courts for other criminal and civil matters.

Mohammed Salam Madkoar.