CRIME AND PUNISHMENT IN ISLAMIC LAW
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loginThis book deals with criminal or penal law (I will use both terms indis-criminately), the body of law that regulates the power of the state to inflictpunishment, i.e. suffering, on persons in order to enforce compliance withcertain rules. Such rules typically protect public interests and values thatsociety regards as crucial, even if the immediate interest that is protected isaprivate one. A case in point is theft. Many societies make the violation ofprivate property rights a punishable offence, although the interests harmedbysuch violations are in the first place private ones. However, these societiesregard the protection of property as essential for the social order and protectit by stronger remedies than those available under private law. The interestsprotected by penal sanctions vary from society to society. In some societiessexual acts between consenting adults are of no concern to the authori-ties, whereas in others the rules regulating sexual contact are regarded asso crucial for the maintenance of social order that violations are severelypunished. The same is true, for instance, with regard to the consumptionof alcohol and other psychotropic substances. Criminal laws, therefore,give an insight into what a society and its rulers regard as its core values.Islamic law does not conform to the notion of law as found, for example,in common law or civil law systems. Rather than a uniform and unequiv-ocal formulation of the law it is a scholarly discourse consisting of theopinions of religious scholars, who argue, on the basis of the text of theKoran, the Prophetich.ad ̄ıthand the consensus of the first generations ofMuslim scholars, what the law should be. Since these scholars interpretedthe sources in different ways, we often find various opinions with regardto one legal issue. The jurists and the rulers developed ways to make thesedifferences manageable for those who had to apply the law. The institutionof the ‘school of jurisprudence’ (madhhab,pluralmadh ̄ahib), uniting legalscholars around certain legal doctrines, brought greater coherence and con-sistency, because the adherents of such a school were bound to follow theopinions of the school’s founding fathers. Moreover, rulers could instruct judges to adjudicate only according to opinions of one school. However,even within one law school, there are many controversies on essential legalissues. In order to organise and manage this doctrinal variety, the adherentsof specific schools developed hierarchies of authority with regard to thedifferent opinions.
