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Editor: Kevin Cole
Univ. of San Diego School of Law

Sunday, November 12, 2006

New Article Spotlight: Codifying Shari'a: International Norms, Legality, and the Freedom to Invent New Forms

From University of Pennsylvania Law School CrimProf Paul H. Robinson and others recently released "Codifying Shari'a: International Norms, Legality, and the Freedom to Invent New Forms." Here is the abstract:

The United Nations Development Program and the Republic of the Maldives, a small Muslim country with a constitutional democracy, commissioned this project to craft the country's first system of codified penal law and sentencing guidelines. This Article describes the special challenges and opportunities encountered while drafting a penal code based on Shari'a (Islamic law).

On the one hand, such comprehensive codification is more important and more likely to bring dramatic improvements in the quality of justice than in many other societies, due in large part to the problems of assuring fair notice and fair adjudication in the uncodified Shari'a-based system in present use.

On the other hand, the challenges of such a project are greater, due in part to special needs for clarity and simplicity that arise from the relative lack of codification experience and training. But there turned out to be perhaps unexpected advantages to undertaking a comprehensive codification project in the Maldives. While the lack of a codification tradition created difficulties, it also gave drafters the freedom to invent new codification forms that would be difficult to adopt in a society with an entrenched codification history.

While it was a concern that any Shari'a-based code could conflict with international norms, in practice it became apparent that the conflict was not as great as many would expect. Opportunities for accommodation were available, sometimes through interesting approaches by which the spirit of the Shari'a rule could be maintained without violating international norms. In the end, this Shari'a-based penal code drafting project yielded a Draft Code that can bring greater justice to Maldivians and also provide a useful starting point for modern penal code drafting in other Muslim countries.

However, the code drafting project also may have much to offer penal code reform in non-Muslim countries, for the structure and drafting forms invented here often solve problems that plague most penal codes, even codes of modern format such as those based upon the American Law Institute's Model Penal Code, which served as the model for most American penal codes. The challenges of accessible language and format, troublesome ambiguous acquittals, overlapping offenses, combination offenses, and penal code-integrated sentencing guidelines have all been addressed. [Mark Godsey]

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Any Shari'a-based code is in effect fiqh (Islamic law) and there needs to be a logical, conceptual, and legal distinction between divine law or God's Will and any endeavor to understand and interpret the divine will into human law. Shari'a, as such, is perfect and immutable, abstract and transcendent, while any human attempt to translate the divine will is subject to error, incomplete understanding, in short, fallibility, hence the variability of so-called Shari'a based legal systems throughout the 'Islamic world.' The plurality of legal codes and systems applies to fiqh proper, hence the somewhat motley character of Islamic jurisprudence (but not Shari'a, as God's Will is consistent, perfect, etc., not unlike the Platonic Good in function; indeed, the Divine Will in so far as it is the 'essence' of God should be construed in nonpropositional terms, as conceptual thought cannot wholly capture this essence, although the manifestation of this Will, through the Qur'an and ahadith, are the constraints within which one interprets the Shari'a. Shari'a can never be definitively, wholly, determinatively 'codified,' hence it does not make sense, strictly speaking (theologically, philosophically, linguistically), to speak of the 'codification of Shari'a.'

I will read the article and pass on my comments to Professor Robinson.

Posted by: Patrick S. O'Donnell | Nov 14, 2006 3:22:51 PM

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