Criminal Justice in the Islamic Context
Hand amputation punishment is currently the major topic of debate in the context of the international law and how it is affected by the Islamic criminal justice system. In fact, it has been recognized that the Islamic law is based on the philosophical principle of morale and ethics, which are in turn attached to the religious beliefs. The main purpose of the paper is to explore the origins of the Islamic criminal justice system, the underpinnings for such a severe punishment, and the comparative evaluation of the Islamic law in relation to the traditional Christian views on justice.
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An extensive overview of the literature has revealed the controversial views on the evident connection of the Islamic law with religion. Specifically, the punishment and court system have been heavily criticized for the violation of human rights and the overt discrimination in regard to women. Nonetheless, the Islamic society has adjusted to these norms and cannot separate the politics and culture from religion.
The fact that Eastern and Western cultures differ is undeniable. The philosophic, cultural, moral, and religious dimensions play the resolute role in identifying the differences. Similar aspects are also included in considering the concept of criminal justice. In fact, some of the laws and regulations in the Islamic world rely predominantly on the religious, moral, and philosophical principles, which are aimed at sustaining a highly spiritual and peaceful society. However, some of the punishments and penalties seem to be obsolete, and they are not congruent with the modern outlook on the human rights. Today, the Western and Eastern worlds are involved in constant cooperation and interaction due to the globalization; therefore, the problem of severe punishment practiced in Islam has come to forth. It is of particular concern to the penalties of the hand amputation for theft, which is recognized as extremely cruel in the context of the international outlooks on ethics and morale, as well as protection of the human rights. At the same time, these norms allow the Islamic countries to control the crime rates and make the citizens obey the law. In order to understand the major underpinnings of these regulations, it is highly important to review the literature and explore the origins of the law and the peculiarities of the criminal justice system in the Islamic countries. Furthermore, it is also essential to compare those norms with the Western conventions to define whether it is possible to reconcile the principles, introduce certain changes to those regulations, or to justify the existing laws in the Eastern world.
In the Islamic justice, the hand amputation is an accepted punishment for theft. These principles are based on the ideological conception, which is unconventional in the Western tradition. Such a penalty for the offense should be examined, to define the core and origin of the ideology. According to Souryal and Potts (1994), such crime as theft should be punished in a more severe way to make sure that the crime rate could be minimized. However, the punishment for the murder and rape is less severe because this type of crime is rare in the Muslim countries. Furthermore, the Islamic tradition asserts that the thieves could be both the murderers and rapists of the whole community because they breach its utmost value – spiritual communitarian ideology that is premised on the Quran’s teachings.
The concepts and assumptions presented above raise the questions on the human rights and concept of mercy. As such, Osanloo (2006) has explored the death sentence introduced by the Iranian government officials, being the representation of the human rights in the Islamic context. The agency undermined the nature and source of human rights in the context of mercy. For some individuals, the spread of human rights introduces the new concepts of modernity whereas the death sentence is often interpreted as the demonstration of the power prevalence. Therefore, the current outlook on the concept of mercy as the human rights’ prerogative should be excluded because it is not involved in the contemporary norms of a sovereign power. To prove the idea, Kuran and Lustig (2012) have conducted their research on the extent, to which the Islamic Justice can be adjusted to the modern system of justice. It has been concluded that the Islamic courts fail to treat the Jews and Christians fairly. The scholars have also expressed their concerns against the biases created by the non-Muslim societies, as well as the inadequate position of the Islamic law. Therefore, rational positioning of the Islamic law could not be economically and cultural beneficial for the country that plans to integrate into the globalized community.
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While analyzing the Islamic concept of justice, the attention should be paid to the philosophical dimension. Specifically, philosophical justice is identified by the philosophers in accordance with reason, which is the major underpinning for resolving any conflicts. They also reconcile the reason with the revelation because humans achieve harmony in such a way. The philosophical ideology is also closely associated with the attempt of the Islamic philosophers to introduce the rational justice as the balance between the natural and divine justice (Khadduri, 2001). In order to reach the harmony, it is highly important to distinguish between the practical and genuine truths. According to Khadduri (2001), the genuine truth is the only one, and it cannot have other variants. The ultimate truth should be revealed in practice, which is the major purpose of the philosopher. When the reason and revelation are balanced, they could create a meaningful sense for communicating justice. In response to the cultural and philosophical dimensions of the Islamic criminal justice, social justice can also be introduced in the context of divine and natural synergy, which shapes the main elements of the social justice (Hanif, 1999). Therefore, in the Muslim world, justice is considered an idealist and abstract term that is represented through perfection and excellence. It is also viewed as a positive term that should be analyzed in the social context. A brief analysis of these peculiarities of justice in the Islamic world can make it easier for the Western community to understand those differences and justify some of the punishments and judicial decisions. The emphasis placed on religion, natural law, and philosophy prevents the Islamic world from understanding the Western traditions that are based on an individual-centered approach.
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Differences between the Western and Eastern Outlooks on the Criminal Justice
The Islamization of the criminal law requires a closer examination to define how the contemporary outlook on the justice could be congruent with the Islamic concept of justice. In this respect, Sidahmed (2001) focuses on the concept of the penalty for adultery, which is unconventional for the modern society with the western orientation. Specifically, the study investigates the cases of adultery in Sudan, where the Islamic criminal justice was introduced in 1983. The scholar seeks to investigate the problem and define whether the penalty that is currently imposed on the Muslim countries can be considered a discriminatory policy against females. In general, Sidahmed (2001) argues that women who were accused of adultery suffered from the unequal attitude that included the discriminatory treatment because of their gender affiliation. The presumption of adultery due to pregnancy makes an accused female defendant, which is an unfavorable position in regard to a man who was accused of the same crime (Peters, 1994). Although the case is not associated with the hand amputation, it still proves the discriminatory policies against women and severe punishment in the light of the international standards of judging individuals and human rights protection. Therefore, even the rape as a crime could not be considered a violation of law in case the crime is committed against women in the context of the female adultery.
In the studies by Fields and Moore (1996), the attention has been paid to comparative analysis of the conventional and non-conventional criminal justice systems to define whether they can co-exist. It also introduces the evaluation of how the non-traditional system can correlate with the current laws and regulations by the United Nations Organization. The scholars have assumed that all countries should take measures for preventing inappropriate and unequal treatment of individual in regards to their religion, gender, and race because of the globalization process that brings in the issue of cultural diversity, gender discrimination, and racial discrimination to the fore.
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Despite the adverse effects of the Islamic justice on the perceptions in the globalized communities, the Islamic traditions have still managed to introduce positive changes to the judicial process. Specifically, Hasan (2007) argues that the globalization process have given rise to the flow of goods, investment, and technological innovation. Therefore, the globalization could be regarded as the process that promotes homogenization and connects the production and distribution across economies. The globalization process has also spread its influence on the judicial and political spheres, creating the new ideologies that have expanded the understanding of the nature of injustice. As such, the introduction of social justice should become a priority for all the citizens in the world regardless of their race, culture, and social status. The major difference between the Western-oriented and Eastern-oriented schools of the criminal justice consisted predominantly in the extent, to which both parties emphasized the role of human rights and equality. From the traditional viewpoint, the Islamic law could be regarded as a tool for dehumanizing the accused and violating their human rights because the amputation punishment contradicts the common moral and ethical practices. From an Islamic perspective, however, this penalty is among the means for sustaining moral and religious practices, reaching harmony between the reason and revelation for the crime. Therefore, the adherence to the religion makes the Muslim world different from the traditional Western school.
Penalty of the Hand Amputation for Thefts in the Islamic World: Different View
Bielefeldt (1995) reveals the plurality of the Islamic positions in the field of the human rights. Similarly to other cultures and religions, Islam is considered a complex reality with different interpretations in the inherent normative demands. Such diverse interpretations also occur in the sphere of the human rights. Although the Islamic world is distinguished from other traditional perspectives on the criminal justice, there are still different attitudes and perception of justice. Before deliberating on this issue, Bielefeldt (1995) discusses the legal and political standards that currently exist in relation to the human rights that require legal and political implementation via regional, national, and international institutions, involving the efficient controlling mechanisms. The author plans to emphasize the legal dimension of the human rights to ensure that the scope is limited. In contrast to Islam and other religions, which focus on the adherence to the traditions, the human rights fail to encompass the traditional lifestyle, and they provide a foundation for evaluating the religions and cultures in general. In the context of the Islamic justice, the attention should be given to the obligatory changes, which should be introduced to the Muslim legislation.
In the studies by Esmaeli and Gans (2000), the attention has been paid to the way the Islamic law acts across the borders. The scholars have considered the case of murder of the Australian nurse Yvonne Gilford who resided in the room of the King Fahd Medical Complex in Saudi Arabia. The two British nurses were accused of the nurse’s murder, which caused disturbances at the international level. These incidents caused the new challenges and created conflicting situations, in which the foreigners should be subjected to the laws of other countries. However, the engagement of the international law and the British law, the nurses were released. The outcomes of the trial, however, have caused an unusual legal issue; the resolution depended largely on the decision of the third country. Therefore, the difference in legal regulations was also supported with the cultural and national peculiarities, creating a serious conflicting situation.
Pieffer (2005) has also conducted an in-depth study on the influence of religious and philosophical principles on the Islamic justice. Specifically, it has been recognized that the Islamic countries have been criticized for the inappropriate treatment of the human rights, specifically in circumstance that involved the death penalty or another severe punishment. In the majority of cases, the international community accuses the Islamic system of the severe penalties and breaches of the human rights. Both Nigeria and Saudi Arabic have encountered this type of accusations. However, neither of the countries responded to this criticism accordingly because the priority had still been given to the Islamic law guided by Sharia. The Traditional Islamic Law has a number of protections and limitations, which reduce the frequency of the death sentences. Furthermore, despite the fact that Saudi Arabia is considered an Islamic state, it embraces the different provisions and regulations in terms of the penal code, including capital crimes, as well as other punishment imposed on a Had, a God-induced punishment. Therefore, despite the fact that the Islamic justice admits the use of the death sentence, this allowance is limited by the provision that restricts the use of the death penalty as a punishment. While countries resort to the Islamic criminal law, the constraining provisions, however, are ignored. At the same time, the harsh punishment can become an inherent component of the criminal code.
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When it comes to the Islamic law, one cannot imagine the politics without religion. The transition to democracy in the twenty-first century has lead to the unpredictable consequences. The Muslim people have always strived to organize their lives in accordance to the religious perceptions and beliefs. Therefore, the supporters of traditional views on religion were excluded from the severe penalties for the adultery and theft. In this respect, Harnischfeger (2008) has conducted an independent research, to define certain underpinnings for the presence of severe punishment. It has been concluded that the Muslim call for justice is closely associated with the secular tradition. The presence of secular courts can introduce the Sharia law as the premise of the trials. The criticism of Sharia is explained by the fact that its legislation violates the foundational human rights, irrespective of the religious perspectives. In particular, the Islamic law fails to treat men and women equally although some Islamic countries have undergone their transition to the Western-oriented regulations, which forbid the racial and gender discrimination. Furthermore, such punishments as amputation are considered a torture or an inhuman treatment, which is prohibited by the constitution. The human rights organizations along with the supports of the orthodox churches do not recognize Sharia principles. At the same time, the Christians residing in Nigeria believe that the human dignity is often disrespected. In most countries, the governments have supported the ethnic militias that persecuted the criminals. Anyone accused of a violent crime should be subject to a trial, but harsh punishment is not justified (Harnischfeger, 2008). From the viewpoint of the Islamic justice, it should still be admitted that Sharia law supports a completely opposite evaluation of the outcomes of their religious dedication. The purpose of the Sharia supporters is to relieve the corrupt society from the immortal practices and sustain a peaceful existence.
Some scholars consider the Islamic criminal justice system the central topic of debate because of the norms accepted in this culture fail to correspond with the internationally accepted legal standards. Specifically, Vogel (2002) assumes that the classical Islamic law is the dominating standards for the majority of countries, which constitute the threat to the safety and security of other states.
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Such a position has been established after the 9/11 events. With regard to the amputation punishment, the scholar has also recognized the fact that some of the penalties are too cruel and dehumanize the court decisions. More importantly, the Muslim people residing in these countries more influenced by these legal regulations and they often evaluate the trial in relation to their cultural and religious perception, but not from the perspective of the human rights issue. In addition, Anyanwu (2005) agrees with the assumption and raise the question of the appropriateness of the classic Islamic law with the current human rights concerns. According to the scholar, the contemporary societies believe that the criminal justice system should serve as a tool for producing the social solidarity and enhancing societal bond through the adherence to social norms. At the same time, the system should also serve as a tool for exercising political and legal environment in the country. Considering the case of postcolonial society of Nigeria, Anyanwu (2005) assumes that the criminal justice system has largely been influenced by the Western ideology. During the period of the European colonization in the region, the systems of criminal justice underwent significant changes. In the case with Nigeria, the British imperial power played the most tangible role in shaping the legal framework of the former colony. It was also the period when the Western and Eastern traditions of justice collapsed, creating the conflicting and challenging situation that undermined the previous systems of the Islamic law in Nigeria and other Muslim countries. According to the researchers, the Islamic criminal justice was premised on the close interaction of politics, religion, and society, throwing the light on the contemporary views on justice and leading to the new controversies relating to the objectivity of the Sharia law.
In general, the amputation punishment in isolation from the Western-oriented justice system seems to be approved for several reasons. As Anyanwu (2005) asserts, the decision to integrate this type of punishment is determined by the intent to sustain a peaceful and safe society that is guided by the religious and spiritual values. The existence of this penalty is closely associated with religion, particularly with the rules established by the Quran. Therefore, the Islamic society cannot be evaluated separately from religion, which shapes the political, cultural, and social spheres of life. The presence of the cruel punishment can discourage individuals from committing crimes. Finally, the Muslim people who adhere to the Islamic law have accommodated to this philosophical ideology. At the same time, the globalization process and the emergence of the international law make this issue more controversial in the rise of the human rights debate.
In conclusion, the in-depth examination of the literature on the Islamic law, particularly on the relevance of the amputation punishment, has raised many questions and concerns. Specifically, the review has been focused on the origins and underpinnings of the Islamic law that explain the presence of the cruel penalty. Second, it also reviews the comparative studies that analyze and critically evaluate the differences and similarities of the court systems in the Islamic and non-Islamic wars. Third, the review of literature focuses on the analysis of the appropriateness and justification of the amputation punishment in the light of the globalization and the development of the international law standards. The overview of literature has touched on such questions as the criticism of Sharia law, the analysis of the role of religion in shaping the Muslim justice, and the human rights issue in the context of traditional and non-traditional judicial systems. All these aspects have helped to highlight the major problems, debates, and controversies related to the topic. Although the majority of scholars have expressed their criticism on the cruelty of punishment, some of them strived to justify and explain why the hand amputation can be the case in the Islamic society. In particular, it has been assumed that the Islamic society is a harmonized unity, in which religion, politics, and culture could not be considered in isolation because all principles of the social order are grounded in the Quran. In this context, the Islamic world has its unique set of moral and ethical principles, which differ significantly from the ones accepted in the traditional criminal justice system.