An aspect of Islamic legislation that receives particular attention from contemporary scholars and researchers is Islamic criminal law. This is naturally related to the importance attached to Fiqh which incorporates the scholarly efforts exercised by Islamic scholars throughout Islamic history. These efforts have provided detailed studies of the principles of Islamic law and explained its issues as outlined by the different schools of Islamic law. Needless to say, that methodological differences between these schools lead, inevitably, to differences in their approaches to detailed issues.
My own interest in this aspect of our legal treasures started right at the beginning of my law studies. My attention was drawn to the fact that our highly respected teachers and scholars allocate long chapters in their primary books of Fiqh, or Islamic law, to the areas of civil law, and pay only cursory attention to the area of criminal law. A highly respected teacher explained to me that this is due to the fact that our contemporary man-made laws are derived, to a large extent, from Islamic law, while our criminal laws rarely refer to Islamic law. At the time, this answer did not seem to me very convincing, because it simply reiterated the problem, without explaining its reasons or solution. My first attempt to undertake a research leading to a Ph.D. degree was at the University of Alexandria, when my intended subject was "Political Crime as Viewed by Islamic Law and Human Law". Circumstances, however, blocked my way to pursue this objective, and I had to leave the country. Later, I pursued my postgraduate studies in London where I chose a wider subject, looking at the ‘Penal Theory in Islam and Human Law’.
My efforts in this area led me to the conclusion that although a number of historical and political factors had contributed to the neglect of Islamic criminal law, one main reason for this neglect has been the lack of scholarly effort, or ijtihad, in this area. Moreover, when ijtihad was undertaken, its results were not published or properly circulated. It is clear that ijtihad cannot function with full vigor unless it is motivated by practical implementation. Yet, the absence of such implementation must not stop researchers and scholars from making their efforts in the pursuit of ijtihad to define the Islamic viewpoint on every contemporary issue. They must also explain how Islam may be fully implemented in the changing circumstances of the Muslim community in its different areas.
It is well known that political leaders, legislators and those who are able to introduce change in Muslim countries are certainly at fault, from the Islamic point of view, if they slacken in the implementation of Islamic law. Similarly, scholars and researchers, particularly those among them who are qualified to undertake ijtihad, are at fault when they do not explain the applicability of Islamic law at present in their communities. Indeed their duty of explaining such applicability is stated in the Qur’an in several verses, such as: "Those who conceal the clear proofs and guidance We sent down, after We have expounded it clearly for mankind in the Book (i.e. the Qur’an), shall be cursed by God and by other people." (2: 159) "God has made a covenant with those who were granted revelations (when He bade them): ‘Make it known to mankind and do not conceal it." (3: 187)
It may not be said that these verses apply to earlier communities. Islam considers scholars to be the heirs of prophets. They do not inherit from them any money, but they inherit their task of expounding God’s message and explaining how it may be applied. Such explanation is necessary in every generation so that people should realize that Islam, God’s message, has been fully delivered to them. It is then that people would face one of two alternatives, expressed in the Qur’an as follows: "So that he who would perish might perish in clear evidence of the truth, and that he who would remain alive might live in clear evidence of the truth." (8: 42)
Sheikh Ahmad Ibraheem, a former professor of Islamic Law at the University of Cairo and his colleagues who were the first to teach Islamic law in Egyptian universities were keenly aware of such duty. Hence, when the University started to award the doctorate degree, they directed their students who wished to pursue such studies to concentrate on Islamic criminal law. Thus, a number of early theses tackled such subjects, like the thesis prepared by Dr. Ali Sadiq Abu Heif on ‘Blood Money’ in 1932, and the one on ‘Retaliation’ by Dr. Ahmad Muhammad Ibraheem in 1943.
In the introduction to his thesis on retaliation, Dr. Ibraheem says that he chose his subject after long deliberation. "The criminal aspect of Islamic law," he says, "continues to be the prime target of those who denounce Islamic law and those who call for abandoning it. These people have won the first round in this battle."
What is most singular is that this first round, as described by the learned professor, remains in full effect today. In my view, a main reason for this state of affairs is the lack of scholarly efforts, or ijtihad, we suffer from, and the neglect of publicizing and circulating the results of such efforts when they are made. This is due to a general feeling among those who are able to make such efforts that neither ijtihad nor the publication and explanation of its results is of much use. But this is a wrong conception, because scholars are required to make the truth known. They are not responsible for ensuring that people should uphold and implement what they explain to them. Such indeed is the duty God assigned to His noble messengers: "It is not for you to make people follow the right guidance. It is God who guides whom He wills." (2: 272) "Give warning; your mission is only to warn them. You are not their overseer." (88: 21-22)
There are countless areas that need the exercise of scholarly effort, or ijtihad, within Islamic criminal law. Indeed several areas have so far benefited by such efforts. We will be looking at some of these in the next few articles, God willing.