Structural Characteristics of Islamic Penal Law

Abstract

This book, submitted initially as a master's thesis to the Institute of Middle Eastern Studies and then published as a working paper, consists of four chapters and a conclusion. The first three chapters are devoted to discretionary (ta'zir) and prescribed (hadd) punishments, as well as those for injury and murder. The last chapter discusses themes in the philosophy of punishment, their relevance to Islamic and western law and, to a lesser degree, provides comparisons with Japanese law. The two main objectives, as stated on the first page, are "to scrutinize the nature of the Islamic penal system and . . . investigate the possibility of applying it to the Islamic countries." The author advances the theme that, in general, penalties in Islamic law are predicated on defending and safeguarding the interests of the Muslim community (i.e., the ummah Islamiyah, as the author frequently calls it). As the family is its stable foundation, threats to its integrity (i.e., illicit sexual relations [zinaJ and slanderous accusations [qadhf)) are punished severely to protect the community's morality (pp. 34, 38). He says further that Islamic penal law has a dual structute. The first level consists of pt.escribed punishments (hadd), retaliation (qisas), and blood money (diyah), while the second one is that of discretionary punishments (ta'zir). The main purposes of the former are deterrence and personal retribution, whereas those for the latter are more versatile, as they cover all tmnsgressions and can be applied as additions or altematives to first-level punishments ...