Borrowing From the Shariah: The Potential Uses of Procedural Islamic Law in the West (From International Criminal Justice: Issues in a Global Perspective, P 82-96, 2000, Delbert Rounds, ed. -- See NCJ-183129)

• NCJ Number: 183136
• Author(s): Louis M. Holscher; Rizwana Mahmood
• Date Published: 2000
• Length: 15 pages
• Sale Source: Allyn and Bacon, Inc
• Publication Format: Book (Hardbound)
• Publication Type: Legislation/Policy Analysis
• Language: English
• Country: United States of America

Annotation

This paper examines traditional Islamic law as applied to procedural issues in criminal cases and discusses its potential uses in the West, focusing on the United States and Canada.

Abstract

Traditional Muslim jurisprudence establishes the material sources of the shariah (basically the Quran and sunnah), the techniques of reasoning that may be used to elaborate and interpret the former (qiyas and ijtihad), and the principle of ratification by juristic consensus (ijma) (Mayer, 1990b). These sources are briefly described in this paper because they impact both the standard of proof and rules of evidence used for serious crimes under Islamic law. The Quran, like the Torah and the criminal codes in the United States and Canada, does sanction retaliation or retribution for murder, including the use of the death penalty. Islamic law also calls for stoning or flogging for adultery and maiming by cutting off the hand as punishment for theft. In practice, both in contemporary Muslim countries and historically, these traditional penalties have rarely been implemented. Islamic courts have usually interpreted the requirements for witnesses and corroborating evidence so as to spare most defendants from the maximum penalties. The aspects of Islamic criminal procedure discussed in this paper are the standard of proof and procedural safeguards surrounding the penalty of hand amputation for theft and the penalties for fornication in traditional Islamic justice, as well as the rules of evidence in criminal cases related to confessions and witnesses. For severe penalties, an extremely high standard of proof is required, plus a set of exceptionally stringent rules of evidence must be met before the punishment can be executed. If there is even the slightest doubt as to whether the suspect committed the crime, the severe penalty is not imposed. The United States and Canada should consider adopting some of the stricter procedural requirements of Muslim law regarding the standard of proof and rules of evidence. This will ensure that innocent persons are not penalized while preserving the deterrent impact of severe penalties. 49 references