Tuesday, July 3, 2018
Mohamed A. Arafa (Alexandria University - Faculty of Law) has posted Islamic Criminal Law: The Divine Criminal Justice System between Lacuna and Possible Routes (2 Journal of Forensic and Crime Studies 102 (Spring 2018)) on SSRN. Here is the abstract:
The Islamic legal system differs from other legal attitudes, as civil law traditions described by law’s codification or common law practices based on binding judicial precedents. In Islamic law, there is neither history of law’s classification, nor an understanding of binding legal precedents. The process of ijtihad (analogical deduction) in Islamic (Sharie‘a) law, though, is alike to Case law model. This article discusses the main principles of criminal law substantially and procedurally and the rules of evidence for each crime is so strict and need a lot of work to proof its commission and to apply the punishments, so it sounds stricter in application than the positive laws without any contradiction to them, so it outlined and described the essential features of Islamic criminal law.
Some scholars argued that international human rights values should be interpreted, applied, and practiced by domestic cultural and religious ideals. Islamic criminal law is genuinely rooted in the revelations’ tests and as such is divinely based and driven, not to remark circuitously mingled with spirituality and ethics while instructing human dignity’s philosophies and life appreciation’s values. So, in the end, as the Islamic human rights law charter is earlier than the Human Rights Declaration, so we may not ask ourselves if Islamic law is compatible with HR so, instead, we may ask which parts of the that law or the Sharie‘a norms are similar to the HR Declaration and how they are applied in each country.