R. Peters

Crime and punishment in Islamic law: theory and practice from the sixteenth to the twenty-first century

In recent years some of the more fundamentalist regimes in the developing world (such as those of Iran, Pakistan, Sudan and the northern states of Nigeria) have reintroduced Islamic law in place of western criminal codes. Rudolph Peters presents a detailed account of the classical doctrine and traces the enforcement of criminal law from the Ottoman period to the present day. Accounts of actual cases, ranging from theft and banditry to murder, fornication and apostasy, shed light on the complexities of the law, and the sensitivity and intelligence of the qadis who implemented it.

The Islamization of Criminal Law: A Comparative Analysis

With the exception of a few states on the Arabian Peninsula, the legal systems prevailing in the Islamic world are almost entirely based on Western law. Western codes were adopted during the second half of the nineteenth and the twentieth centuries. Only the law concerning personal status, succession and religious foundations (awqdf) is rooted in Islamic law, the Shar~ia. This situation is a thorn in the flesh of Islamic opposition movements, whose political influence has recently been waxing. They regard the Western character of the law applied in their countries as an undesirable remnant of Western colonialism and strive for the establishment of an Islamic state, i.e., a state that enforces only Islamic law. When these movements come to power and are in a position to realize their political aims, they promulgate Islamic legislation. Such legislation predominantly concerns criminal law and the ban on interest. This article analyses these criminal laws that have been promulgated during the last two decades, by comparing them with the provisions of the classical doctrine and by examining the extent to which these laws are or were actually applied. I have limited myself to those countries where Islamic criminal law has been introduced by legislation and shall not discuss countries such as Saudi Arabia, where Islamic law is the law of the land and Islamic punishments have always been enforced.

Islamic and secular criminal law in 19th century Egypt

Until the introduction of French law in 1883, Egyptian criminal law during the nineteenth century had been governed by both statute law and Islamic law. The criminal codes were enforced by administrative and judicial bodies called majālis or councils; Islamic law was applied by the qadi. In this article, I define the qadis competence in criminal matters and analyze his role and function as revealed in the texts of the criminal codes and nineteenth-century court records preserved in Egyptian archives. I conclude that the judicial councils dealt with criminal offenses from the point of view of public order and security and that the main task of the qadi was the adjudication of private claims connected with crime. Such claims were either punitive (e.g., retribution for manslaughter, punishment for violation of a persons honor), or financial (bloodmoney, revindication of stolen property).

From Jurists’ Law to Statute Law or What Happens When the Shari'a is Codified

Since the middle of the nineteenth century, the position of the shari’a in most Middle Eastern legal systems has changed drastically. In this essay, I want to explore this change and examine how the relationship between the state and the shari’a developed, focusing on the Ottoman Empire (including Egypt) and its successor states. Central to my analysis will be the question of who controls the production of shari’a norms, or, in other words, who has the authority to formulate the rules of the shari’a. In the first part, I will discuss the position of the shari’a in the premodern period focusing on its religious character and its relationship with the state. Then I will move to the second half of the nineteenth century and go into the notion of codification and the changing role of the state. In the third part, I will analyse the present-day role of the shari’a. I will argue that the subject matter of the shari’a, codified or uncodified, has been politicized and has become very much a prominent issue in the public debate.

For his Correction and as a Deterrent Example to Others: Mehmed Ali's First Criminal Legislation (1829-1830)

Until now, the first criminal legislation promulgated by Me‰med fiAlhas been available only in an unreliable Arabic summary. In this essay, I edit and translate the original Ottoman Turkish text, as found in the Egyptian National Archive. The edition and translation are preceded by an analysis of the code in which I argue (1) that this code is best regarded as an expression of Me‰med fiAl´s attempt to centralize and rationalize the governmental apparatus and the administration of justice, in order to tighten his control over Egypt; and (2) that the document can be read as an articulation of the perceived social distance between the Turkish- speaking ruling class and other groups in Egyptian society.