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Islamic Law:  Myths and Realities

By: Dennis J. Wiechman, Jerry D. Kendall, and
Mohammad K. Azarian

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bound by ancient and outdated rules of fixed punishments for all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
(religion, life, intellect,  offspring and 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 "Hudoud," Retaliation (Qisas )and Discretionary (Ta'zir)
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 greater detail with some common
law analogies. The three major crime categories in Islamic Law are:

     1. Had Crimes (most serious).
     2. Ta'zir Crimes (least serious).
     3. Qisas Crimes (revenge crimes restitution).

Had crimes are the most serious under Islamic Law, and Ta'zir crimes
are the least serious. Some Western writers use the felony analogy for
Had crimes and misdemeanor label for Ta'zir 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:

     1. Murder; 
     2. Apostasy from Islam 
     (making war upon Allah and his messengers); 
     3. Theft; 
     4. Adultery; 
     5. Defamation 

     (false accusation of adultery or fornication); 
     6. Robbery; 
     7. 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
(Schmalleger, p.603).  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 Ta'zir 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 Ta'zir
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
Ta'zir 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 Ta'zir crime. 

Ta'zir 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 Ta'zir 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. 

Ta'zir 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. Ta'zir 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): 

Ta'zir 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. 

Ta'zir crimes are acts which are punished because the offender
disobeys God's law and word. Ta'zir 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 Ta'zir 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
Ta'zir crimes are counseling, fines, public or private censure, family
and clan pressure and support, seizure of property, confinement in the
home or place of detention, and flogging. 

In some Islamic nations, Ta'zir 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 Ta'zir 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 fix the 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: 

     1. Murder (premeditated and non-premeditated). 
     2. Premeditated offenses against human life, short of murder. 
     3. Murder by error. 
     4. 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 Ta'zir 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. 

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