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Towards a Contemporary View of Islamic Criminal Procedures: A Focus on the Testimony of Witnesses

Towards a Contemporary View of Islamic Criminal Procedures: A Focus on the Testimony of Witnesses <jats:sec><jats:title>Abstract</jats:title><jats:p>This paper challenges the traditional conception of Islamic criminal law and provides alternatives to the rules of criminal procedures that are both compatible with modern life and the sprit of Shari'ah. The first part of the article provides a brief explanation of the four main sources of Islamic law. The second part focuses on the different classifications of crimes in Islamic law and explains Shari'ah's classical rules of evidence. It gives answers to some complicated legal questions by examining the law's underlying rationales. For example, the author challenges the conservative view that calls for the imposition of the death penalty onto apostates and clarifies that such punishment has no foundation in Shari'ah. He also explains why, from an evidentiary standpoint, the crime of rape should be qualified as haraba as opposed to zina, which both entails a harsher penalty for the perpetrator and more lenient evidentiary requirements from prosecutors. Finally, the author contests the traditional stream of Islamic thinking by arguing that in criminal matters, the testimony of female witnesses should be equal to that of males and that in hudūd crimes, scientific evidence should be given the same status as the testimony of eye witnesses.</jats:p> </jats:sec> http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Arab Law Quarterly Brill

Towards a Contemporary View of Islamic Criminal Procedures: A Focus on the Testimony of Witnesses

Badawy, Tarek
Arab Law Quarterly , Volume 23 (3): 269 – Jan 1, 2009
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Publisher
Brill
Copyright
© 2009 Koninklijke Brill NV, Leiden, The Netherlands
ISSN
0268-0556
eISSN
1573-0255
DOI
10.1163/157302509X454717
Publisher site
See Article on Publisher Site

Abstract

<jats:sec><jats:title>Abstract</jats:title><jats:p>This paper challenges the traditional conception of Islamic criminal law and provides alternatives to the rules of criminal procedures that are both compatible with modern life and the sprit of Shari'ah. The first part of the article provides a brief explanation of the four main sources of Islamic law. The second part focuses on the different classifications of crimes in Islamic law and explains Shari'ah's classical rules of evidence. It gives answers to some complicated legal questions by examining the law's underlying rationales. For example, the author challenges the conservative view that calls for the imposition of the death penalty onto apostates and clarifies that such punishment has no foundation in Shari'ah. He also explains why, from an evidentiary standpoint, the crime of rape should be qualified as haraba as opposed to zina, which both entails a harsher penalty for the perpetrator and more lenient evidentiary requirements from prosecutors. Finally, the author contests the traditional stream of Islamic thinking by arguing that in criminal matters, the testimony of female witnesses should be equal to that of males and that in hudūd crimes, scientific evidence should be given the same status as the testimony of eye witnesses.</jats:p> </jats:sec>

Journal

Arab Law Quarterly – Brill

Published: Jan 1, 2009

Keywords: HARABA; ISLAMIC CRIMINAL LAW; TA'ZĪR; ZINA; RULES OF EVIDENCE; QISĀS; HUDŪD

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