The Theory of Crime and Criminal Responsibility in Islamic Law: Sharia

By Dr. Nagaty Sanad

Note: This a sample chapter form the above mentioned book. For more information, click on the image.

CHAPTER 1:

GENERAL OVERVIEW OF ISLAMIC LAW

A. The Necessity for Islam

From ancient times, mankind has tried to reason beyond his ability and has been prey to wars and jealousies as a result. Religions, each in the wake of the one before, have attempted to face these ethical dilemmas. Each has had a limited number of followers and has been confined to a certain time period. Muhammad's mission was a necessity, particularly to the Arab countries.' to bring their world out of the darkness, error, and falsehoods into which it had fallen.

To understand the mission of Muhammad it is necessary to understand the broad background of the area where Islam was first revealed to Muhammad- Mecca in 622 A.D. At this time, Mecca was govemed by a strong tribe called Koraish. The Koraish people worshipped idols in the form of statues, which each person would touch before going on a journey and also on arrival back home to receive blessings' from them There was no single idol, each home having its own choice.

The society was ruled by the law of the jungle; that is. the strongest survived. There was no equality between master and slave, no equality between leaders and followers (korishee and nonkorishee), no equality between men and women (many families killed newborn females). This period is referred to in the Holy Qur'an as "ignorant times" (jahilliyah).

Muhammad received the Islamic religion from the Lord and tried to share it with the people of Mecca, asking them to believe in only one God; to stop worshipping idols; and to stop all discrimination based on origin, race, color, and sex. The people refused. They did not believe that he was God's messenger so they persecuted him and his followers. Eventually, Muhammad and his followers, with the Lord's blessings, left Mecca and went to Medina, ⁴ where the Prophet established the first Islamic government.

B. The Five Pillars of the Islamic Religion

Islam is based on five fundamental pillars (tenets) that all Muslims should believe.

1 . al-Shahada: The first pillar is the shahada, which means belief in one God, his angels, his apostles, and the hereafter. Muslims understand shahada as follows: I profess that there is no God but Allah and Muhammad is the Prophet of Allah.

2. al-Salat (Prayer): The ritual of prayers has been from its very beginning one of the means of unifying all the different tribal and social sections of the community. There are five set daily times for prayer: dawn (fajr), noon (zuhr), afternoon (asr), sunset (niaghrib), and night (isha).

3. al-Si-vam (Fasting): Almighty God said, "You who believe, fasting is prescribed for you that you may learn self-restraint." Obligatory fasting, which means refraining from food, drink, smoking, and sexual activity from dawn to sunset, is expected during the month of Ramadan. Those who are sick or on a journey are required to fast an equal number of days later on.

4. al-Hajj (Pilgrimage): Pilgrimage to Ka'ba (in Mecca) is an obligation once in a lifetime for all Muslims who are able, both physically and financially, to do so.

5. al-Zakat (The Poor Due): Zakat is imposed on all Muslims in thirtytwo verses of the Qur'an. In most of these verses, zakat is coupled with prayer, which illustrates the importance the Qur'an places on it.5 Zakat means charity, taking from the rich and giving to the poor. It is an aspect of the social solidarity which must exist among Muslims throughout the whole world.

Zakat in Islam is divided into two main categories:

a. Zakat at-Fitr (the breaking of fast at the end of Ramadan6). According to our present estimate, the amount of zakat al-fitr is about ten Egyptian piastres per person. This should be paid before going to the feast prayer at the end of Ramadan.

b. Zakat of wealth. This zakat of wealth is imposed upon free, adult, sane Muslims who have a set amount of wealth for one year. Zak-at of wealth is levied on livestock (such as camels, cows, and goats), gold and silver, fruits, and productions. The percentage of zakat differs in accordance with the kind of wealth subject to it. Private abodes, personal clothing, furniture, weapons, animals used for transport, jewels and books not traded in, and equipment used in earning one's living are not subject to zakat of wealth.

C. The Relationship between Islam and Previous Religions

Change is the essence of mankind. New human needs and requirements will always develop as long as man exists on the earth. In order to meet the needs of the changing times, to satisfy the demands of the developing society, to enable mankind to lead a good life, God sent his messengers successively: Moses, Jesus, and Muhammad.

Islam is thus not a new and separate religion, but the culmination of God's spiritual and temporal commands made known to mankind through Moses and Jesus. Hence, Islam continues as the successor and final expression of the Judeo-Christian revelations. Islam therefore considers the spiritual provisions expressed by the Torah and the Bible. It also considers and protects the believers of these two divine revelations (the people of the book), as long as they live in an Islamic country, under a protective covenant known as Zimmi. According to Zimmi, Christian and Jewish people who live in a Muslim country have the right to practice their religious rituals and are equal to Muslim people in tenns of personal rights.

Moreover, the Islamic country, under this protective covenant, is obliged to defend and protect the Zimmis and their property against any external or internal attack. In return for this practice, the Zimmi are asked to pay jizva, which is a tax levied on able Zimmi men amounting to 10 percent of the income earned by them while in an Islamic country. If a Zimmi joins with the Muslims in protecting the country, then he is exempt from jizya

D. The Application of Islamic Law in Terms of Places and Persons

A question arises as to whether the application of Islamic law is based on territorial or personal criteria. If it is based on territorial criteria, all people within the boundaries of a Muslim country8 are governed by Islamic law, regardless of whether they are Muslim or non-Muslim. If the basis for application of Islamic law is personal, the law applies to Muslim people exclusively, wherever they are.

Muslim scholars are arguing over this issue. Most of them support a mixture of the two criteria. Thus, if a non-Muslim is in an Islamic country and breaks the rules of the country by, for instance, eating pork or drinking wine, that person will be punished according to Islamic precepts. At the same time, if a Muslim visits a non-Muslim country and eats pork or drinks wine, he is still governed by the Islamic law which prohibits such actions. The majority of Muslim scholars support this viewpoint by referring to the prophetic saying, "They [the Zimmi] have the same rights andobligations."

On the other hand, one of the most famous Muslim scholars, Abu Hanifa, says that Islamic law should be applied within the boundaries of Islamic countries to Muslim people exclusively. It does not apply to the non-Muslim in Islamic countries or to the Muslim in a non-Muslim country. This viewpoint is based upon religious freedom guaranteed by Islamic law to the non-Muslim.9

E. Islam-Theory and Practice

The practice and the theory of Islam were identical during the time of Muhammad and the four caliphs (iniam) succeeding him (Abu Bakr, Omar, Othman, and Ali). This was the time of "true Islam." It was during this time that Islam spread throughout the Arab countries and also into France, Spain, and other areas throughout the world.

At the present time, the practice of Islamic law is not identical to the theory described in the Holy Qur'an, the Surma traditions of the Prophet Muhammad, and the other traditional sources of Islamic law. Because the states that consider Islam as an official religion"' follow some practices that are not identical to the purest form of shari'a (Islamic law), the present practice of Islam has a cloudv relationship with the ideal theory of true Islam.

Very early in the history of Islam, particularly during the rule of Imam Ali, Muslims divided into two factions over the status of the ruler: the Sunni and the Shiites. Sunnis, who represent 85 to 90 percent of Muslims, believe that the Muslim ruler should be elected by the Muslim people. It is not necessary for the ruler to be a descendant of the Prophet Muhammad, nor is it believed that this ruler has theocratic status. On the other hand, Shiites, who represent from 10 to 15 percent of the Muslim people, believe that the Muslim ruler should be appointed by the Prophet Muhammad and should be a descendant of his family. The people have no say in either the ruler's appointment or the ruler's discharge; it is absolutely a prophetic matter. (Iran is a current example of Shiites.)

In the area of interpreting and applying Islamic rules and provisions to current events, four main schools of thought emerged from the Sunnis: Shafi'i, Hanafi, Maliki, and Hanbali. Each of these schools tried to simplify and explain the general rules included in the Qur'an and the Sunna of the Prophet Muhammad in order to make shari'a capable of meeting the new requirements, needs, and demands of the changing times. Within these four schools, some discord occurred regarding the interpretation of some topics, but this discord did not affect the substance of Islamic rules. Various Islamic countries have adopted different schools of thought, which explains why there are some differences in the application of Islam in these countries.

The subjugation of Muslim and Islamic states to the colonialism of Western Christian countries since the Middle Ages resulted in an actual stagnancy, or rigidity, of Islamic law and the declination of its impact on the law applied by Islamic states. Most of the Islamic states, under colonialism, have enacted their positive laws, particularly penal codes, in accordance with Western models. That may be the prime reason there are gaps between shari'a in theory and its practice in Islamic states at the present time.

1. The Situation in other parts of the world at this time was as follows: (a) Persia ha dualistic religious whose followers, although divided into different sects, were unammou in saving that there are two gods, one of good and the other of evil. (b) In Rome an Greece, as well as the Near Eastern countries (Syria and Egypt), Christianity was th main religion, and eventually it split due to the complicated factions within it. For furthe details. see Muhammad Youssef Moussa, Islam and the Hunianit.v's Need of It (Cairo Supreme Council for Islamic Affairs), 27-29.

2. Mecca is one of the largest and most farnous cities in Hijaz, vresentIv known a Saudi Arabia.

3. Moussa, 25.

4. At that time, Medina was called Yasrib, a town in the Hijaz to the north of Mecca. See Fernas Abd al-Basset, Lectures on the Islamic Political System (Cairo, 1987), 6-27.

5. See Abd at-Razak Nofal, AI-Zakat (Cairo: Supreme Council for Islamic Affairs, 1984),7.

6. In this regard the Prophet Muhammad said: "Fasting lies suspended between the earth and heaven. It is only raised to heaven by the fulfillment of zak-at al-fitr." See Abu Bakr Gaber, al- Gxaierie Menhage (Cairo), 250-55.

7. From the Qur'an we can find some chapters (surat) which refer to Islam as the final and universal revelation: "I am the messenger of God to all of you" (Surat a] A'raf V: 157). -0 Mankind! Lo! We have created you male and female and have made you nations and tribes that may know one another. Lo! The noblest of you in the sight of Allah is the best in conduct."

8. An Islamic Country, in the view of the majority of Muslim scholars. is a country where the majority of the population is Muslim and the existing government represents the majority. See M. Cherif Bassiouni, The Islamic Criminal Justice System (Ocean Publications, Inc., 1982), 3.

9. For further details, see M. Abu Zahra, Crime and Punishment in Islamic Jurisprudence: The Crime (Cairo, 1950), 329-44.

10. Twenty-three countries have declared in their constitution that Islam is the official religion of their country: Algeria, Bahrain, Egypt, Iran, Iraq, Jordan, Kuwait, Libya, Malaysia, Maldives, Mauritania, Morocco, Oman, Pakistan, Qatar, Saudi Arabia, Singapore, Somalia. Sudan, Syria. Tunisia. United Arab Emirates, and Yemen Arab Republic

© 1994-1999 Office of International Criminal Justice - The University of Illinois at Chicago

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