Research will be defining the concept of Sharia law

Criminal law is a crucial area in all legal systems that is applied in punishing wrongs with the element of deterrence by the State. However, Islamic law differs significantly from what is known as common law. Islamic law is known as Sharia law, which means the path of God’s law. This gives the direct interpretation that Sharia law relies on laws and rules created and set by God. It must be noted that Sharia law is not only used in criminal issues, but it also regulates public and private behaviour.

This research will be defining the concept of Sharia law, and the types of crimes that comes under Sharia law and the punishments given for each for them. The analysis will be determining and exploring the differences of Sharia law and English law. The discussion will be based on the possible idea of implementing areas of Sharia law to the English legal system, and the problems that this will cause in the English legal system in reflection to the Human Rights Act 1998.

Sources of Sharia law:

The rules and regulations of Sharia law stems from one source, which is the Qur’an. [1] The Qur’an is the Muslim’s holy book, which contains the words of Allah (God) that were sent to his Prophet Muhammed to deliver to the Muslim Ummah (Muslim community). The second source is known as Sunna. [2] This sums up the teachings of the Prophet Muhammed, which are not available in the Qur’an.

These two sources are the main two sources that are available in the rulings of Sharia law, however other provisions can be taken into account in a ruling or judgment, and one of them is Ijma [3] . This is where the Muslim scholars reach a decision on a case. The concepts and ideas reached are not prescribed in the Qur’an or Sunna and therefore the Muslim scholars discuss the issue and reach a decision by agreeing to it together. This is a vital area, especially that the Qur’an and Sunna do not give solutions for problems that arise in the current century where the technological problems causes dilemmas and confusions, it will then be easier to impose the Ijma concept. The other source that can be relied on is Qiyas [4] , which is also not found in the Qur’an or Sunna. In the modern society it might be difficult to rely on the Qur’an or Sunna only, and therefore the Sharia judge can use a broad legal construct to resolve a specific issue, as for example a computer crime does not have an exact punishment neither in the Qur’an or Sunna, so the judge can rely on new approaches and decide the punishment for the crime.

Crimes and Punishment in Sharia law:

Crimes in Sharia law can be broken into three categories: Hadd, Ta’zir and Qisas. Hadd crimes are the most serious crimes because they are regarded as offences against Allah and Ta’zir crimes are the least serious because they are regarded as offences against the society. The Hadd crimes have a fixed punishment set in the Qur’an by Allah, and The Higher Court cannot decide a punishment as the punishment is already established in the Qur’an, and there is no plea-bargaining or reduction in the punishment of the offender of a Hadd crime. The crimes that come under this category are: murder, apostasy from Islam, theft, adultery, defamation (false accusation of adultery or fornication), robbery and alcohol drinking. [5] The first four crimes have a specific punishment set out in the Qur’an, but the last three crimes are only mentioned but with no specific punishment associated with them.

All Hadd crimes are punished publicly. For adultery the prescribed punishment is 100 lashes (Surah Al Nur, 24:2) [6] . For false accusation of adultery the punishment will be 80 lashes and the loss of right of being an upright witness (Surah Al Nur, 14:4) [7] Alcohol consumption will be punished of a minimum of 80 lashes, however it may vary but the least punishment is 40 lashes (Bukhari, Punishments, no. 6779). [8] For the crime of theft, the punishment is the chopping off of the hand from the wrist, and if repeated then also the left foot (Surah Al-Maidah, 5: 38). [9] Apostasy is punished by capital punishment (Bukhari, Sahih al-Bukhari, 9:83:17).

Ta’zir crimes are less serious than Hadd crimes. Their punishments are not found in the Qur’an and therefore the judge is, to some extent, free to punish the offender with a relevant punishment to the committed crime. [10] Ta’zir crimes are punishable if they harm the society, as Sharia law emphasizes on the social and public interest. The reason of the punishment of such crime is that a greater evil is prevented in the future if the offender is punished.

In a historical context, Ta’zir crimes were never written or codified. Subsequently, the judge is not bound by precedents, rules or prior decisions as what is known in the common law system. In Ta’zir crimes, the only guiding principle for judges is that they must fear Allah and comply to his will in maintaining peace and order in the Islamic community. The punishments for Ta’zir crimes are, counselling, fines, public and private censure, family and clan pressure and support, seizure of property, confinement in the home or place of detention, and flogging. The idea in the punishments is that it will deter the offenders from committing crimes and that will help in the rehabilitation of the offender.

The last category of crime in Sharia law is Qisas. This is an ancient form of remedying the damages caused to a victim. This can be defined in the light of the statement of “an eye for an eye". Here the victim can seek his/her rights to reclaim compensation for the damages caused. The idea is that, for example, if someone is killed then the family has the right to seek Qisas punishment from the murderer. The punishments varies, however, the most known punishment is Diya, which is a sum of money paid from the offender to the victim’s siblings. The siblings may also seek to have a public execution or they may also seek to pardon the offender. Crimes that are punishable under the Qisas category are: wilful murder, murder by mistake, causing injury wilfully, and causing injury by mistake.

It must be noted that all the above crimes are regarded as making war against Allah and his Apostle. However, there are certain groups that are held not legally responsible for their crimes, these are: children up to the age of puberty, insane people, people who commit a crime while sleeping.

How does Sharia law differ from English law?

There are relevant convention rights established in the Human Rights Act 1998. These are everyone’s right to life (Article 2), which many may argue that Sharia law is breaking by imposing the punishment of beheading or stoning to death, however, the evidence needed in Sharia law is very strong, and in the case of fornication and a person is beheaded and stoned to death four evidences are required to witness the incident. They must all have seen the act at the same time, and must report it immediately. If this is not the case the people reporting the incident will get 40-80 lashes. Another convention right is that no one must be subject to torture or inhuman or degrading punishment (Article 3). In Sharia law all punishments are done publicly, and therefore may be in contradiction to the HRA 1998. Also the HRA sets out that everyone charged with a criminal offence shall be presumed innocent until proven guilty according to law (Article 6(2)), which is the other way around in Sharia law. Another relevant convention right is that everyone has the rights to freedom of thought, conscience and religion (Article 9 (1) (2)), which in Sharia law the issue of Apostasy does not comply with. Other relevant convention rights are that everyone has the right to liberty and security of person (Article 5).

The English legal system is based on Convention Rights. Many of the ECHR rights as specified in the Human Rights Act 1998, Sch 1 will be of importance in determining the appropriate scope and application of offences.

Article 7 (1) and (2) of the ECHR states the definition of a crime in the English legal system. This definition was further confirmed in the case of Kokkinakis v Greece [11]

Sharia law differs significantly from English law in the fact that the applied law is prescribed by Allah, and is not subject to amendment either by the Higher Court or Parliament. As explained above, Sharia law is revealed by Allah to his Prophet through the Qur’an and Sunna and is interpreted by the Islamic scholars and applied in Sharia courts. On the other hand English law is given by the Queen in Parliament and the European authorities as given by the House of Lords and the Court of Appeal. The sources of each of the two legal systems play a huge role in the understanding and interpretation of the law. This is because Sharia law is not amendable and no one has the authority to change any provisions given in the main sources, whilst English law is allowed to be changed to comply with the needs of the English community. It is also “human-made" and does not come from God. However, this does not limit the efficiency of Sharia law as the Islamic scholars are authorized to interpret new forms of law, but have to rely on the to main sources of Sharia law - the Qur’an and Sunna. In England and Wales, Sharia courts have been functioning for many years without legal authorization until 2007, where the Muslim Arbitration Tribunal was licensed in the Government. [12] 

In Sharia law the legislation must comply with the Sharia and also with the general principles and spirit of Islam. The legislators powers are: passing laws to ensure the enforcement of the provisions of the Sharia, passing law to organise, safeguard and fulfil the requirements of society in enforcing the general principles of the Sharia. The rights and obligations of a ruler is set out in the Sharia. The main responsibility is to guard the faith of Allah and the religion of Allah - Islam. The ruler is responsible for all internal and external affairs of the Ummah to safeguard his interests within the limits prescribed by Allah and his Prophet. English law is more liberal and democratic with a sovereign Parliament that passes laws that they find suitable for the community and the needs of it. The sovereignty of Parliament may be surrendered in whole or in part to external authority, such as the legislative organs and Court of Justice of the European Union, but may also regained by and Act of Parliament. Parliament cannot bind itself. The electorate hold Parliament to account with the help of the media and other bodies.

Sharia law is divine in origin, complete, comprehensive and perfect in all respects from the time when Allah revealed it to Muhammed, thus it remains flawless as it is not subject to change. In the English legal system the law was amended since an Act of Parliament in 1543, where the monarch has been head of the Church of England. However, Canon law binds only clergy and churchwardens. In 1689, the Bill of Rights confirmed that Protestants were allowed to defend themselves in 1998, the Human Rights Act confirmed that all citizens have a right to the freedoms in the Act without discrimination on grounds such as sex and religion in its Schedule 1, Article 14. Law of human origin passed by democratic vote in Parliament following public debate, media comment, expert reports and consideration in committee. Laws are often criticized and improved upon or changed. provisions may be revisited as often as the Government of the day sees fit.

The definition of a crime in Sharia law is that it is a legal prohibition imposed by Allah, whose infringement entails punishment prescribed by him. These legal prohibitions can be either commission of a forbidden act or omission of an act enjoined, hence the commission of any act declared unlawful and for which punishment has been laid down in the Sharia as a crime. Similarly, omission of any act enjoined by the Sharia constitutes a crime. According to the Sharia all crimes are Jinayat, that is felonies or “crimes triable on indictment", whether they are mere sins against the religion of Islam, or crimes that other legal systems would punish. The legal prohibitions in the English legal system are that there must be a serious act or omission that are classified as criminal offences. Many prohibitions exist which are matters of civil law. Many other acts and omissions are disapproved of, but are not subject to legal judgement or to sanction by the courts. Acts and omissions disapproved of only by religions or philosophies (sins) are not justifiable in the criminal court. Crimes are divided into those that are less serious (triable summarily) and those that are more serious (triable on indictment).

Sharia courts require Muslims to obey its authority in preference to national authorities. Every law that is incompatible with the Sharia or the spirit of Islam is unlawful for Muslims to do, apply, or enforce, whether the ruling authority permits even orders such an act. In fact it would be incumbent on every Muslim to abstain from such mandates and to prevent their execution. English law endeavours to hold the Government and public bodies into account by maintaining peace and order, and it also tries to settle disputes peacefully.

The relationship between religion and the State in Sharia law is that there is no distinction between them, and between sacred and secular, and therefore Sharia law regulates every aspect of life. On the other hand in English law the Church was established with its own separate Canon law that applies to clergy and churchwardens and does not contradict the law of England and Wales, neither in its provisions or in the principle upon which it is based, largely secular administration of the State.

The status of Human Rights as set forth in the European Convention on Human Rights is that it is not recognized as part of the Sharia law and contradicted by many of its rules. An alternative Islamic set of human rights has been outlined for the benefit of Western onlookers in the Cairo Declaration on Human Rights 1990 and Durban II, amongst others - with the idea that no right shall be granted “in contradiction to Sharia law". The right of man (haqq adami) to compensation is recognized though he can forgive the defendant if he wishes. In English law, The human rights act is implemented at all stages of the legislative and judicial process - at least in principle.

In English law life imprisonment is the most serious punishment that is given and only for the most serious crimes such as murder and rape. No corporal punishment is permissible. Article 3 of the Europen Convention on Human Rights states that “no one shall be subject to torture or to inhuman or degrading treatment or punishment". This is respected and enforced. Adultery and the consumption of alcohol may be regarded as sins, but they are not crimes. At most they may be grounds for divorce. Apostasy may be regarded as a sin by the religion against which a person has turned, but it is not a crime. Crimes differ from civil wrongs, or torts. Torts are not punishable at the initiative of the court, but compensation or a court order may be obtained by the victim if the victim decides to make a claim. Torts are not punishable by imprisonment except in the rarest circumstances.

Treason, including Apostasy, under Sharia law is betrayal of Muhammed, or the Ummah, it is regarded as waging war on Allah and his apostle. The punishment is crucifixion, the chopping off of opposite limbs and beheading. Invasion of Islamic land also falls under this category. In English law, betraying the security of one’s nation results in a maximum sentence of life imprisonment. Changing one’s religion is a personal choice and matter of freedom of religion.

The presumption of innocence in Sharia law is that the defendant is guilty until proven innocent, and in English law the defendant is innocent until proven guilty. The standard of proof in the Sharia court is variable and inconsistent as compared to that in English courts. Not considered by the jury in any case. In criminal cases in English law evidence must be strong enough to convince the majority of a jury of the defendant’s guilt of the offence charged beyond reasonable doubt. In civil cases the evidence must convince a judge or jury that the claim is more likely than not to be true. In rape cases only Muslim male witnesses evidence is admissible. In all other cases, a Muslim woman’s evidence is worth half that of a Muslim man’s. In English law all witnesses testimonies of equal weight unless they are found to be of bad character.

Do Sharia law infringe the rights of human? And how effective is the application of Sharia law in preventing crime?

Unfortunately the common law system have had an impact on the minds of even Muslim lawyers and scholars that, they also criticise Sharia as a “barbaric and harsh" legal system. On the other hand the non-Muslims have not had the opportunity to understand Sharia law. This resulted in a judgemental vie of Sharia law that almost all public have, when you ask them about Sharia law [13] . however, the mostly criticized area of Sharia law is the harshness of the punishments of Hadd crimes. This comes firstly from the conception of human dignity which results in the sympathy for offenders and criminals. Nevertheless, this makes the public forget the impact on the society and the English legal system instead prescribes a lighter punishment with all politeness. Contrary to it, Sharia law imposes a rigid code of punishment for the minority of criminals and therefore ensures an atmosphere of peace and security for the society.

The emphasis of Sharia law is to prevent crimes by prescribing harsh punishments while the contemporary code deals with a criminal individually. The treatment given does not consider the impact of the crime and its aftermath but only suggests a punishment to be given to the criminal.

The punishment of imprisonment is disapproved of in Sharia law, as it isolates the offender from society and does not arouse in him a feeling of shame or repentance. Contrary to this to, the modern prisons have served criminals. Punishments like amputation of hand, whipping, stoning to death and beheading have the result of preventing the offender from committing the same crime in future and to giving a warning to others. The treatment to ex-convicts plays a great role in rehabilitating the offender. In the English legal system an ex-convict have not given him the right towards a dignified life. One’s conviction in life should not become a stigma to his name, as the offender should be allowed to live a normal life after meting out the punishment, and he should be allowed to be live a normal life. Constitutions of the modern democracies contain laws which makes an ex-convict not eligible from taking up seats in legislature, holding key positions in administration, and public offences.

Sharia law prohibits these actions. Once the official punishment ends, the convict is a dignified citizen of the State and having equal right as all other citizens. The ex-convict need not to carry anything from his previous conviction, and no limits are carried on his economic or social progress on the basis of the conviction. A return to the normal life is encouraged by the society and state under Sharia. This is how Islam elaborates the society. If the State assures the offenders of a respectful place in society, then there is no reason for the offender not to rehabilitate and start a new life.

The prophet said that a time would come when one will be able to travel the distance between Yemen and Hadrmaut, without fear to his life and property. This was true when Islam controlled the area, and its impact is still seen in countries where Sharia law is in force. In the UK for example, it is dangerous even to move out of one’s residence after it is dark.

The Crime rates in England and Wales from 1999 to 2009 can be seen from the following figures (Appendix 1) [14] . This shows that the crime rate is very high because the offender have a great flexibility in his crime as some get a community sentence, fines, and capital punishment. Another figure shows that the United Kingdom have a criminal rate of whilst Saudi Arabia, as it implies Sharia law as it is from the Qur’an and Sunna. The statistics shows that there is a huge difference in the crime rates in each system. This can be because the public in the countries applying Sharia law fear the punishment, but this also shows the efficiency of the system used. In England and Wales the offender may rely on defences available to him/her, as the law is more flexible and therefore the offender will not fear the consequences of the committed crime.