Crime and Punishment in Islamic Law: Theory and Practice from the Sixteenth to the Twenty-first Century.

• Author: Alam, Lubna A.
• Position: Book review

CRIME AND PUNISHMENT IN ISLAMIC LAW: THEORY AND PRACTICE FROM THE SIXTEENTH TO THE TWENTY-FIRST CENTURY. By Rudolph Peters. Cambridge and New York: Cambridge University Press. 2005. Pp. xi, 219. $70.

INTRODUCTION

The implementation and enforcement of Islamic law, especially Islamic criminal law, by modern-day Muslim nation-states is fraught with controversy and challenges. In Pakistan, the documented problems and failures of the country's attempt to codify Islamic law on extramarital sexual relations (1) have led to efforts to remove rape cases from Islamic law courts to civil law courts. (2) In striking contrast to Pakistan's experience, the Republic of the Maldives recently commissioned a draft of a penal law and sentencing guidelines based on Islamic law that abides by international norms. (3) The incorporation of Islamic law into the legal systems of various countries around the world makes understanding Islamic criminal law especially important.

In Crime and Punishment in Islamic Law: Theory and Practice from the Sixteenth to the Twenty-first Century, Rudolph Peters (4) presents a thorough survey of Islamic law from the Ottoman period to today. He situates the reader by first discussing classical Islamic-law doctrines regarding crime, evidence, punishment, and the principles underlying criminal law. After providing a doctrinal foundation, he examines how the doctrine was and is actually used in practice. Since the enforcement and practice of criminal law has varied greatly in the Muslim world from region to region and from time to time, Peters focuses his study on examining the practice in one specific state--the Ottoman Empire (p. 3). He then discusses the wave of modernization of criminal law that began in the mid-nineteenth century, usually with the onset of colonialism. Peters concludes by examining Islamic criminal law today, and especially its resurgence in various countries around the world (p. 2).

In his examination of classical doctrine and its implementation in the Ottoman Empire, Peters shows the complexity of the Islamic legal system and its doctrine. He points out that the physical punishments often associated with Islamic law in the popular imagination (amputation, stoning, etc.) were rarely applied (pp. 92-93, 100). One aspect of the Islamic system that Peters does not discuss in depth, however, is the overall relationship between the law and the state in the classical system; during the Ottoman era this relationship underwent significant changes causing reverberations still being felt in the present day. This Notice examines the changing relationship between Islamic law and the state, and its political implications for today. Part I analyzes Peters' arguments about criminal law in the Ottoman Empire. Part II examines the classical relationship in which the formulation of the law remained outside the province of the state, and contrasts the classical period with the changes that took place under the Ottoman Empire. Finally, Part III considers possible modern-day implications of both the classical and Ottoman systems.

1. PETERS' ANALYSIS OF ISLAMIC CRIMINAL LAW

   Peters demonstrates how the legal discourse of Islamic legal scholars related to and was applied by courts (p. 2). Unlike many works, which focus solely on theory and doctrine, he examines how Islamic criminal law "was actually used in criminal law enforcement," (p. 3) and provides a study of both the theory and practice of Islamic criminal law in one book. He chooses to focus on the Ottoman Empire to examine criminal law in practice because of the extensive documentation of the legal system and the large amount of pre-existing research on those records and documents (p. 3). As Peters notes, Islamic law under the Ottoman Empire underwent significant changes that led to "the transformation of ... legal discourse into a body of unambiguous and consistent legal rules and the creation of enacted laws (qanun), supplementing the Shari'a," (p. 70). Under the Ottoman Empire, the state dictated scholarly views for the courts to follow, and "judgments passed according to ... other views would be null and void and would not be enforceable" (p. 71).

   While Peters admits that the Ottoman system is not representative of Islamic law generally and that the Ottoman Empire ushered in changes to the Islamic legal system, he neither demonstrates nor explains the significance of these changes and how they worked. While classical Islamic doctrine was varied and diverse, the Ottoman state laid down which legal opinion the courts had to follow. For instance, jurists did not all agree on whether a statute of limitations on prosecutions existed or not, and only one school of law, Hanafi, mentioned a statute of limitations at all (p. 11). For the Hanafis, while most hadd crimes (5) could not be punished more than a month after their occurrence, the crime of qadhf, unfounded allegation of unlawful sexual intercourse, was not subject to any statute of limitations as it was seen to "violate[] both claims of God and claims of men and that the latter are not subject to extinction by the passage of time" (p. 11). The Ottoman Empire, on the other hand, enacted a fifteen-year statute of limitations on all crimes, including qadhf. This seemingly minor difference between classical Islamic doctrine and actual Ottoman practice exposes the wide shift that occurred in Islamic law during the Ottoman period. The Ottomans' changes to the practice of Islamic law put them outside the classical era of Islamic law, and "in the minds of most Muslims the Ottomans are simply not sufficiently representative of the classical tradition, the real fountainhead of inspiration from which modern Islam draws its force." (6) An understanding of the changes that took place between the classical period of Islamic law and the Ottoman era is essential to comprehending the debates surrounding Islamic criminal law today. (7)

2. STATE AND LAW DURING THE CLASSICAL PERIOD AND THE OTTOMAN EMPIRE

   This Part examines Islamic law during the classical period and how the Ottoman era differed from it. Section A considers the classical...