AN OUTLINE OF CRIME AND PUNISHMENT IN ISLAMIC LAW

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP09T00207R001000100018-5
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• Original Classification: K
• Document Page Count: 12
• Document Creation Date: December 22, 2016
• Document Release Date: September 23, 2011
• Sequence Number: 18
• Content Type: MISC

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ROUTING AND TRANSMITTAL SLIP
TO: (Name, Office symbol, room
building, Agency/Post
1 . Pamela_ Caps , INR/IL/P 6 //
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3.
4.
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Action File
DATE: July 22, 1990
number, tials IDate
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11 Nnte and Return
A roval JJ_ For Clearance I Per Conversation
IAs Requested For Correction II Prepare Reply
Circulate _1)i_For Your Information 11 See Me
,Comment 11 Investigate II Signature
]Coordination I Justify
REMARKS
ref: State 229536
Riyadh 5607
_1i
Although neither Saudi nor Islamic criminal law has been
codified, or even summarized in a single authoritative
volume, the attached summary prepared by the Embassy
might be helpful to you.
DO NOT use this form as a record of approvals, concurrences,
disposals, clearances, and similar actions
From: (Na
Tom Gold
Gasim Ab
org. Symbol, Agency/Post)
er
arim, ECON, AmEmbassy Riyadh
STAT
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AN OUTLINE OF CRIME AND PUNISHMENT
IN ISLAMIC LAW
FOREWORD
The main object of this study is to give concise and up-to-date
information of crime and punishment in the Arab world in general
and in Saudi Arabia in particular with the purpose of shedding
light on some aspects of Islamic law (sharia). There are some
points to be cleared up before a survey of this subject can be
intelligibly attempted:
1- It is unfortunate that any outline of Islamic law (sharia)
is bound to make liberal use of generalization. Generalizations
are, as a rule, very dangerous and very objectionable. They may
be gunpowder in the hands of unwary. They are safe only when
they are recognized and approached with caution.
2- Islamic law is so vast and difficult subject, for almost
every word that one may right about it can be disputed or give
offense. In times like the present - when fundamentalism is on
the rise in the Arab world and when secular forces and Islamic
modernism are on the defensive - one who desires to be
impartially just in the expression of his views, moves as among
sword-points presented on every side.
3- In light of this fact, this outline - which is guided by the
memorable phrase of Emerson " If you cannot be free, be as free
as you can " - should be taken as a sketchy survey trying to
convey the general magnitude of an interesting and controversial
subject.
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INTRODUCTION
In Islam, the concept of the Law follows naturally enough from
the Quran, where God appears as commanding and forbidding,
rewarding and punishing. In addition, there is the Hadith, and
the belief, present from the earlier times, that rules of right
behavior may be found in the example of the Prophet and the
practice of the early community at Madina. It may be added that
the early Arab-Muslim Empire found itself in need of a legal
system for the exigencies of political power and did not have
any coherent earlier legal system of its own at its disposal, as
the early Christians did in the legal system of the Roman
Empire. Islam is.submission to the will of God; it follows
therefore that the will of God, already partly made explicit in
the Quran is knowable and that its study is a matter of primary
concern for Muslims.
Early Islam made no distinction between law and religion. It is
signifant that the word for the legal system of Islam -the
shria- was relatively late in making an appearance and the
somewhat earlier word figh as "understanding" was used at first
equally for the study of law and theology, though it has come to
have almost exclusive legal connotation.
In later times, the sharia is seen by Muslims primarily as an
all-embracing legal system which should ideally govern the
phases of Islamic life --though for reasons of public welfare
the legists grant the Muslim rulers the right of suspending the
application of certain portions of the public law and
substituting secular law; this has specially been true for the
laws of punishment. Still, the Sharia is not thereby abolished
or revoked --one does not revoke Divine law-- it is merely not
enforced, because for temporal reasons it may not be feasible at
that time and place to do so
It must be realized in this connection that Every sunni
(orthodox) Muslim must follow one school (madhahab) of four
accepted schools --Hanafi, Malki, Shafi or Hanbali. Its
percepts dictate how he Qerforms religious duties and how he
interprets the Law. Though he may properly feel that his own
school is in some sense "better" -and there have been occasions
of religious and political tensions between one school and
another -the official position is that all four are right and
acceptable.
While there is no priesthood or clergy in Islam, properly
speaking, there is a class which has played clerical role in
Islamic society and which has acquired social and religious
prestige identical in kind to that exercised by the priests of
other religions. This is the 'ulama (the "learned" ) and the
fuqaha ("lawyers") , the scholars and custodians of the Law. It
is they who have traditionally decided what is an " official
position
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CRIME AND PUNISHMENT
IN ISLAMIC SHARIA
In Islam the realms of God and Caesar are one, instead of having
separate jurisdictions, as allowed by Christ. Here, by
providing a complete system of social legislation based on
divine sanctions, Islam comes much nearer to Judaism than to
Christianity. Consequently, Islam is a divine law based on four
sources: Quran which is the word of God . Supplementary to it
is Hadith, which are traditions of the Prophet,-- the records of
his actions and sayings -- from which Muslims must derive help
and inspiration in arriving at legal decisions. If there is
nothing either in the Quran or in the Hadith to answer any
particular legal question, Muslims have to follow the dictates
of secular reason in accordance with certain definite
principles.. Thus, Islamic law is derived from four sources:
1- Quran .
2- The Sunnah, which is the traditions of
Prophet Mohammad.
3- Ijma, which is the consensus of opinion among
the learned Muslim Jurists.
4- Qiyas, which is analogy and reasoning.
Definition of crimes and their categories in Islamic Criminal Law
The word in Arabic used for crime is 'jareema' which means
"trespass, overleap" the bounds of and also means to break or
violate. In the Quran it is used in the meaning of sin (zanb).
Because overleaping and trespassing the bounds made by God is a
crime and committing crime is a sin; and therefore those who
commit crimes are sinful.
Muslim legists and jurists have defined it as act of going
against or beyond the provisions of law, whether commands or
prohibitions which is, in other words, crossing the bounds made
by God. As such,. certain actions which have been forbidden and
sanctioned by punishment in Islamic Law are considered crimes
and hence are considered crimes against religion.
In Islamic Law, crimes are divided into two major groups:
1- Crimes for which 'Hadd' punishments are given such as
unlawful intercourse (zena); its counterpart, false accusation
of unlawful intercourse (Kadhf) ; drinking wine (shurb
al-khamr); theft (sarika) and highway robbery (al-haraba).
2- Crimes such as homicide, bodily harm and damage to
property. Crimes of this kind are called 'jinayat' (literally,
offenses). The punishments for such crimes are such as 'Qisas'
(retaliation); 'Kaffara' (expiation); 'Dial (blood money); and
'Taazeer' (disciplinary actions).
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The major difference between these two groups of crimes is that
the punishments (Hadd punishment) ordained against the first
group are considered the "rights of God" for which there is no
pardon and no concession, while the punishments prescribed
against the second group are the right of man and therefore they
can be reduced or totally ruled out and pardoned if the victim,
or in case of the murder, his next of kin agrees to do so.
Muslim jurists have differed on the question whether punishments
Qisas, Dia and Taazeer are also considered under Hadd
punishment. The majority of jurists have expressed their
opinion that Qisas (retaliation) although ordained by God does
not come under Hadd, because it is the right of humans and is
not the right of God; while Taazeer is neither sanctioned by God
nor is it the right of God.. Crimes under Hadd punishments must
fulfill two conditions: first is their invasion of the right of
God and, secondly, that the punishments would have been
sanctioned by the Quran and the Sunnah. The crimes for which
the punishment of Qisas app Lies, fulfills one condition while
Taazeer fulfills none.
Crimes for which Hadd punishments Are given
In the Quran the word 'Had' is always used in the plural
'Hudud'. It means the limits laid down by God; i.e. the
provisions of the law whether commands or prohibitions. In
Muslim criminal law Hadd means an unalterable punishment
prescribed by Divine law which is considered the right of God.
The crimes for which Hadd punishments apply are considered as
crimes against religion because the person who commits such
crimes violates the rules of God and transgresses the bounds
made by Him. The Had is a right or claim of Allah (haqq allah)
and, therefore, no pardon or amicable settlement is possible.
These crimes against religion are :
1- 'zena', fornication , i.e. between persons who who are
not in a state of legal matrimony. The Had for this crime is
stoning to death for the married, 100 lashes for unmarried
and 50 for slaves. The Hadd punishment for the unmarried
who commits the crime of unlawful intercourse is mentioned
in the Quran while the punishment for the married, guilty of
this crime is sanctioned by Sunnah. Hadd will not be
applicable to the insane and to the minors. A full
investigation is also condition. If the required number (4
witnesses) is incomplete the Hadd will not be implemented.
However, in the absence of four witness, confession of the
accused is be deemed conclusive evidence
2- Kadhf is , slander in a special sense. If anyone accuses
a respectable person of incontinence , without being able to
bring four persons to support him, he is liable by law a
definite punishment (Hadd) of 80 lashes for Kadhf.
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3- al-sariqa , theft. The Quran says: " As to the thief,
male or female, cut off his or her hands: a punishment by
way of example, from God, for their crime: And God is
Exalted in Power. The Cannon Law jurists are not unanimous
as to the value of the property stolen, which could involve
the penalty of the cutting off the hand. The majority hold
that petty thefts are exempt from this punishment. The
general opinion is that only one hand should be cut off for
the first theft, on the principle that " if thy hand or thy
foot offend thee cut them off and cast them from thee".
apparently in the age of Jesus thieves were crucified . It
should be mentioned in this connection that the second
Caliph Omar, suspended this punishment during the years of
famine.
4- al-haraba, highway robbery. Many crimes, including
treason against the state, may come under al-haraba.
Punishment of this crime is : execution, crucifixion, or the
cutting off of hands and feet from opposite sides or exile
from the land.
al-Murtad, one who turns back especially from Islam", an
apostate. Apostasy is called 'ridda, it may be committed
verbally by denying a principle of belief or by an action
for example treating a copy of Quran with disrespect. In
the Quran the apostate is threatened with punishment in the
next world only; "the wrath of God will fall upon him. The
death penalty of al-Murtad came in a tradition " Slay him,
he who changes his religion."
3- Shurb al-Khamr, drinking wine. Hadith has many utterances
against this theme: " wine is the key of all evil " , "
Cursed is he who drinks, buys, sells wine or causes others
to drink it.". As to punishment of him who drinks wine ,
Hadith tells us that Prophet Mohammad and his successor Abu
Bakr were wont to inflict 40 blows by means of palmbranches
or sandals. Under Omar's Caliphate it was 80 for the first
time, 80 in the second time and death penalty for the third.
Acceptance of Evidence-
Islamic law requires the following conditions to be fulfilled
for the acceptance of the evidence in order to avoid any sort of
injustice by punishing an innocent as a result of false
accusations: (a) that the number of the witnesses must not be
less than four; (b) that all witnesses must be men particularly
in the crime of 'zena' . In other cases where women's evidence
is acceptable two women would be counted equal to one man (c)
that the witnesses must have seen the incident of crimes by
himself or otherwise the evidence would not be accepted (d) that
the witness must be Muslim. Witnesses must be just and pious
and they themselves must not be corrupt. The witnesses must not
have any sort of enmity or malice against the accused.
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In the cases of confession, Islam lays down certain conditions;
the person (man or woman) confessing must be adult; (must not
confess as a result of any force; (c) the confession must be
uttered four times; (d) that the confession must be in court
before a jury. It is also a condition that the punishment be
given openly and publicly. The moot question is : Can any
proof positive be established of the crime of Zena? The answer,
in all fairness, is emphatic 'NO'. Adultery is nerve-racking
vice, not like hypocrisy or gluttony, it cannot be practised in
public. It is next to impossible to prove such a crime. The
eye-witness of four just believers is required if a married
person is to be killed for adultery. As for confession, no one
will confess such a crime to be stoned for it. For a hand to be
cut off, two believers must testify and the crime must fall
outside the 11 separate restrictions (one of which if the object
worth less than 17 grams or if the theft took place within the
family etc.) al-Haraba can be exploited politically since its
definition covers a wide area of crimes.
PRINCIPLES AND PRACTICE
Apart from Saudi Arabia, no other Muslim country has seen such
punishments in their recent history (except the Sudan in the
last days of Numeiri. It is a matter of common knowledge that
Numeiri used 'sharia' as political expediency). Further more,
all the legal codes in other Arab countries are based on either
English or Napoleonic law. In Saudi Arabia, the legal system is
largely based on Islamic Law based on the Hanbali School as
interpreted by Ibn Taymiya, a theologian and jurist of Damascus
in the Mamluk Sultanate. (Ibn Taymia's importance lies in the
fact that he considered himself a mujtahed , a doctor of the
school with a right to form independent judgements and this at a
time when most of the 'ulama' held that the "doors of
interpretation 'ijtehad' were closed . Hence Ibn Taymiya's
importance for the Muslim Modernists. Almost disregarded in his
own days as a crank, he has become the inspiration of the
revivalists. His doctrines were behind the rise of the Wahhabi
movement of the mid-eighteenth century in Arabia and they have
also guided the Muslim modernists, fundamentalists and Muslim
brotherhood. The school is characterized by a fundamentalist
rejection of any statement which cannot be firmly based on the
Quran and Hadith. It has tended to preserve its suspicion of
the use of reason in religious matters, and is usually
considered the strictest and most uncompromising of the legal
schools. The Hanbali jurists, almost alone still recommend the
full punishments of the law . In his interpretation of the
necessity of the legal punishment (Hudud) Ibn Taymiya says: It
is not permissible when guilt is established by proof or by
witness to suspend the legal punishment, either by remitting it
or by substituting a fine or any other thing: the hand (of a
thief) must be cut off, for the application of the punishments
is one of the acts of cult (ibadat), like the Holy war in the
Way of God, and it must be kept in mind that the application of
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legal sanctions is one of the acts of God's mercy, so that the
ruler must be strict by applying it and let no compassion deter
or delay him in the observance of God's religion. Let his goal
to have mercy on God's creature by deterring men from things
rejected by God.
However, The Hanbali school is very strict only in religious
matters; in secular affairs it is quite flexible. Its starting
point is "Everything is permissible unless prohibited by a text
of the Quran or Hadith ". It is this rule besides Ijtehad that
helped the Saudi government to introduce modern technology in
the country and several secular codes so as to adapt to modern
world.
Modernist jurists and reformers have raised some points of great
importance. For instance, they question how far commandments in
the sacred texts are positive or permissive; do they mean You
shall (not) or You may [not]? Are they matters of conscience
which will be tried in heaven or are they subject to the action
of an earthly court? How far is a divine ordinance binding when
the conditions under which it was promulgated have passed away?
These questions may have far-reaching effects in the long run.
Religious reformation is not an easy process. It takes a long
time . It took Europe, for instance , 600 years to secularize.
NATURE OF CRIMES IN THE KINGDOM
The following is a list of the crimes committed in the Kingdom
during 1407 A. H. sourced to Ministry of the Interior:
Murder 56
Manslaughter 8
Attack leading to death 18
Kidnapping' 64
Immoral crimes 2576
Theft 7553
Drinking wine
making & selling 5085
Incendiary 29
Faking
144
Forging
22
Fraud &
swindling
210-
Holding
unlicensed
arms
In comparison with the crimes committed in other countries, the
crime rate in Saudi Arabia is the lowest. In response to
Western jurists who condemn punishment in Islamic Law as being
severe and merciless, Saudi jurists maintain that " most of the
crimes of larceny in the West are armed crimes and such crimes
are committed after the stealee is being killed. The question
is: Why do we have pity on the hand of the stealer and no pity
on the neck of the stealee?. It is the severity of this
punishment which spares the hand of the stealer from cutting
(for fear of punishment) and spares the life of the stealee and
maintains at the same time security for all."
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As the years went by, the Muslim rulers found that sharia was
inadequate or unsuitable to conditions of their new dominions.
The view began to prevail that sharia expressed an ideal which
the imperfections of the society made it impossible to realize
in all its purity. Later, under the Ottoman Empire and the
Arab states of today, with the exception of Saudi Arabia, a
system of secular law was to replace sharia in all criminal and
civil jurisdiction save matters of marriage, divorce and
inheritance.
Currently, questions do persist about the sharia as Westerners
compare it to their own values of liberty, equality, democracy
and the rule of law. To Westerners, the term sharia connotes
polygamy, beheading, cutting off the hands of thieves and so on
and so forth. When Westerners see a woman appearing in public
in a long black robe and a veil pulled over her head they assume
that women in Islamic sharia is a second class citizen . When
they see the streets patrolled several times, every day, by
bearded-men, belonging to Committee for the Propagation of
Virtue and Suppression of Vice, tapping on shop-fronts with
canes to close them down completely for Muslim ritual prayers,
they assume that Islam is based on 7 century practices with
little relevance to modern world. Quite the contrary, The
history of Islam has shown that it has extraordinary powers of
adaptation: it has succeeded in absorbing apparently
incompatible philosophies, and mutual contrdictory religious
conceptions, and it has silently abandoned others which it has
tried and found wanting. Islam, like any other faith, is used by
many people to justify almost any action they care to take. In
Islam too, as in other religions, the ideal and practice clash.
Westerners see the practice and condemn the ideal. Many Muslims
deplore the practice and cling to their own concepts of the
ideal.
A heated and important debate among Muslim fundamentalists,
ulama, and Muslim modernists is going on in a number of Arab
countries and in Egypt in particular as to whether the rules of
sharia be adopted without any reservations to replace the
standing positive laws or otherwise. Armed as they are with
shibboleths and anathemas which can rouse the ignorant masses
and terrorize men of vision, the old forces of reaction managed
to gain the upper hand in the ongoing debate. They even managed
to enforce some concessions from the secular rulers who are
appeasing them for political reasons. Many see the Arabs'
future as one of struggle between religious and secular forces.
Muslim funamentalists and other extremists start by regarding
Allah as having the only ligitimate authority on earth and that
decisions and forms of government must be based as closely as
possible on the Quran itself, and on on the sayings and the
deeds of Prophet Mohmmad. Secular forces contend that the Quran
and sharia are quoted and requoted to support opposite points of
views. They even contend that Hadith (what the Prophet said and
did, in fact by what he is reported to have said and done and
the two are not always the same) is quoted and requoted to
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support opposite points of views. The debate is not cooling but
heating up. Although the outcome of this debate is not the
subjet of our discussion, one tends to believe that the so
called application of Islamic Sharia or Islamization of the
present Muslim Arab socieites will not work . Numeiri's
experiment in the Sudan was a glaring example of the failure of
this theory. The poroblem of Arab countries (with the exception
of the oil-rich gulf countries) is economic and not religious
one. Econmomic well-being and social justice is what people
look for. Religious rhetoric alone does not solve the problems
of poverty and hunger, sickness and illiteracy. Scientifc
approach alone can do the job and will not stop people from
going to mosque, say their prayers five times a day and be the
best people evolved for mankind, enjoinir what is right and
forbidding what is wrong and believing i4 Allah."
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As for adultry , Saudi jurists contend that such stringent proof
is required that the death penalty is very rare. Death penalty
for apostasy has not been implemented neither in Saudi Arabia
nor in any other Muslim Arab country in recent history. It was
implemented once in January 1985 when Numeiri of the Sudan
hanged Mahmoud Mohammad Taha for the alleged crime of 'heresy',
whereas the actual fact was that Taha, who was 76 years old, had
distributed a pamphlet that opposed the way in which Islamic Law
was being instituted in the Sudan.
The Low crime rate alone does not prove that the application of
Sharia is the main cause for deterring individuals from
committing crimes. In fact, The Saudi social structure which
has resulted from the financial bonanza and rapid modernization
during the decade from 1975-80 has more or less helped remove
the problem of poverty, which is the mother of crime. All
crimes committed by Saudi nationals are motivated by either
vendetta, rape or sexual perversion . Most of the criminals
perpetrate their crimes under the influence of drink (crimes in
Saudi Arabia are not viewed as the outcome of anthropological
and social conditions. Likewise, individuals who break the law
are not seen as a product of social evolution and as such are
regarded as solely responsible for their disposition to
transgress).
Crimes are non-existent among members of middle and higher
classes (the term 'classes' used here does not convey an
accurate picture of the Saudi egalitarian society. Why? the
bedouins or semi-bedouins who may be termed lower classes
consider themselves nobler than settled people whom bedouins
disdain as weak and sedentary.
Rate of crime among the expatriates is also low, even among the
lowest strata (the Yemeni, Pakistani, Egyptian and Asian
laborers including the growing number of household servants -
the maids and chauffeurs who generally live in the home of their
employers). Crimes committed by those expatriates are: bribery,
drug trafficking, forgery, murder and rape. Two heinous crimes
of murder were committed in homes by household servants during
the past five years: One by a philippino servant who murdered
his Lebanese employer (he was beheaded and wes made to confess
his crime on television) and Another Philippino maidservant
also killed her employer's daughter and she was also executed in
public in 1988. In addition, expatriates are strictly
controlled and their public behaviors are closely monitored.
Expatriates do not pose any threat or raise any sensitive issue
of common concern to the Saudi authorities since political
expression is out of the question. Only few examples did occur
in 1976 when Asian laborers attempted to strike and in 1979 in
Makkah incident and the two incidents were handled swiftly and
efficiently by the authorities.
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However, the true test is just beginning. With the diminishing
of revenues, the onslaught of modernization and the appearance
of politically motivated large numbers of western educated Saudi
nationals, all that will have a considerable socio-political
impact on the Saudi culture in the not so distant future and
will require tools and new laws to adapt and cope with the
changing environment. The prospects for the future seems very
bright.
This paper is based on direct observation of the events in the
Arab countries for over four decades in addition to the
available literature on this subject such as:
- Radwan, Fathi, Philosophy of Islamic Jurisprudence. (Arabic).
- On Islamic Sharia and Human rights on Islam. by a number of
Saudi jurists (Arabic).
- Edward Atiyah, the Arabs. (English).
- Alfred Guillaume, Islam
- The Muslim World League Journal, Vol.. 11.
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