UNILORIN SHARIA’H JOURNAL
TO BE CITED AS: (2000) I.U.S J
SHARIA AND THE ATTRIBUTES OF THE RULE OF LEGALITY
SAADU Y. K
In view of the conspicuous absence of express mention of the principle of
legality as a concept under the Sharia, it become imperative to investigate
whether Shariah penal law at least recognize some essential attributes of
the maxim Nullum crimen nulla poena sine lege:
1. Principle embodied in the Rule Against Retroactivity
The rule of non-reactivity is one of the fundamental attributes of legality.
The Qur'an enjoins on the Muslims in clear and plain terms:1
"And marry not those women whom your fathers
married, except that had already happened in the
past. Lo! It was ever lewdness and abomination and
evil way.
Forbidden unto you are your sisters except what
had already happened."
It is a record fact of history that the primitives Arabs claimed to inherit
parental conjugam and also married their sisters, the Quranic revelation
put an end to this evil practice prospectively.2 With a view to avoid whole
sale social disorganisation only future acts were declared prohibited, and
the past acts were simply condemned as abomination. The Quran further
augment the same theme where it declare thus3
"Tell those who disbelieve that if they cease
(Persecution of believers) that which is past will be
forgiven
God had permitted trade and forbidden usury.
Those who after Receiving direction from
their Lord Desist, Shall be .pardoned for the past,
their case in for god (to judge). .. . . . . . ."
The above verses amply reflect the basic idea that any law laid
down in the Qur'an was expressly declared to apply prospectively.
The Quranic decision was plainly epitomized by the Prophet in his
last sermon to the Muslims when he declared:4
I
"Any blood guilt traced back to the period of
I
Jahiliya should be disregarded
".
The Muslim jurists on the basis of the Qur' an and Sunna have held
that on obligation exists prior to the enactment of a legislation and
the acts unless expressly declared prohibited continue to be
permissible, so has been summed up the position in a single
expression no crime no punishment without law.5 A brief survey as
in above astoundingly establish that shari'a rule-out retroactivity of
penal law. This is what the Sura XVII: 15 strictly emphasize:
"Never did the Lord destroy the townships until
He had raised up in their mother towns a
Messenger reciting unto our revelations". .
2. Vague Legal Formulations
The second attribute of the' principle of legality is that legal formulations in a
statute should not be vague that repressive interpretation are not given to such
statutes.
In order to avoid legal quibbling that may ultimately lead to injustice, the sharia
discourages and prohibits the use of vague expressions and semantic syllogism.
The Qur'an in this regard specifically directed the Prophet:6
"0 you who believe! fear God, and (always) say A
word directed to the right".
Abu verse as follows:7.
" ........ we must not speak unreasonably and
when we do speak we must not beat about the
bush but go straight to the right. . . . . .."
It may be said that the God enjoins the Muslims to talk in plain languages
and avoid use of vague expressions. The Sunna of the Prophet in this
context goes long way to explain the importance of being clear and crisp in
speech. He is reported to have said8:
"Talk to the people accordil1g to their wisdom
and the level of understanding."
The rule discernable from the Qur'an and the sunna as cited above is that
a legislative rule or a statute should be ordinarily understandable, very
plain and simple in its construction so that ordinary people before hand
Irnow the content of prohibitions, and shape their activity after making full
exercise of their self determination, long before, they are caught in act. It
is strictly to keep up with the principles of legality that Muslim jurists
permit interpretation of vague expressions only by ulema, who are well
trained in the methods of interpretation.9 And do not allow an ordinary
Judge to exercise Ijtihad unless he is qualified so to do. .
3. Accessibility and Knowledge of Law
The knowledge and accessibility to a rule have. a direct nexus with the
effective enforcement of law. It ensures certainly and proper applicability of
law; besides people s4all have no reason to plead ignorance of law. This
object in modem states is achieved by enactment of a -law by parliament,
publicity through press and other means of communication. Sharia does not
ignore this necessity and emphasise to achieve and ensure knowledge and
accessibility to a rule. In view of the importance of knowledge of a rule of law
the Qur' an at different places and in different contexts repeat that people in
the past were punished only after they were foretold to observe the laws. The
Sharia, in order to achieve this purpose primarily declare education
compulsory on all Muslims irrespective of class and sex considerations. The
Quran declared:10
"And whoever is given knowledge is given
great wealth.
Allah will exalt those of you who believe and those who
are given knowledge to high degrees".
The Holy Prophet made it incumbent on those who came to him to seek
knowledge and to impart the same to others. II He desired, even, those who
were considered to be in the lowest strata of 1'10 society to be up lifted to the
highest level through education.12 For this purpose the Prophet himself
made arrangements' for the education of the people in general and the
women in particular. 13
The purpose of compulsory education inter alia was ensure that the Muslim
before hand knew the substance of the code of contained in the divine
revelation so that they can identify the abominable and the prohibited, so that
they can voluntarily refrained from forbidden' or illegal conduct. Clearly
understanding the implications of the Qur'an and ~ in this context, Umar Thn
Khitab in the time of Caliph Abu Bakr compiled the Quranic prohibitions and
sent copies of it to the governors of Muslim provinces. This was the first
attempt towards codification of the Shari'a.14 It is reported that in his capacity
as Caliph Umar pardoned an accused who pleaded ignorance of the Quranic
prohibition about Khamr.15
On the basis of the Qur'an and the Sunna Muslim jurists emphasise that the
malefactor should, know about the criminality of an act and his knowledge
about its prohibition shall determine his liability.
16
The Sharia and the Nature and Scope. of the Principle of Legality.
Under Islamic legal system, human activity can be classified into watertight
comportments. I? The acts which fall within the province of haram (prohibited)
and makruh (abominable) attract either attention of divine law or that of
Islamic state. Muslims are of the opinion that human acts within former
category can be haram-liZatihi (per se harmaful) or haram li -eyzihi
(otherwise harmful). 18 The acts harmful per-se have been immediately
addressed to by the Qur'an because these acts are dangerous and can
damage the hannonious development of the individual and his intelIect,
Inunan dignity and descent, public peace and tranquility, and lastly the
peaceful organisation of an Islamic state. 19
In view of gravity and serious nature of these acts, severe and fixed punishments
calIed hadd have been Prescribed punishments.20 Other which are "Otherwise
harmful", no Punishment is laid down in the Qur'an e.g. what sh~u1d be
punishment for extorting money by cheating, fraud or embezzlement the Qur'an
does not prescribed any punishment nor does the Sunna. The same is the case
where some acts are declared makruh abominable. Except certain indicators
discemable from the Sunna not much is available to guide a judge on this issue.
However with aim to suppress Sadd el-zara'a (material haram that leads to
damage) of such act Islamic state shall legislate and prescribe a fixed
Punishment or 'it may simply criminalized the act and leave punishment to
discretion of a judge, is unanimously accepted by jurists. The act so criminalised
by the Islamic State is known as tazir offence and the punishment.21
Between the huddud and tazir is one mnre category offences which is primarily
connected with hudud bnt diametericalJy different from it. In such cases the
punishment cannot be inflicted by state unless the victim calIs for it. The state
has no claim where the victim pardon the offender contrary to hudud and Tazir
offences. These offences are knowns as 'Diyyat'. It is at these levels we need to
ascertain the applicability and operational worth of legality principle.
(a) Huddud
Huddud the plnral of hadd is variedly defined. However in Islamic penal law it
means all those acts which are haram li-Zatihi (harmful
per se); injurious to
the male factor himself the community of ' Muslims, therefore criimnalised with a
penalty is fixed by the Quran and the Sunna. Such acts are seven in number
namely Zina
(adultery and fornication), qadf (delineation) Khamr (drinking of
alcohol), irtid"g (apostasy), zal"aQ;j (theft), hiraba (anned robbery), ' Bagbi
(rebellion against the state). The Jurists are not in agreement with regard to the
classification of the above acts nonetheless, the majority concede to the above
classification. 22
The Sharia (Quranand the Sunnah) in plain, and understandable language
declare the above acts as crime so has been punishment fixed. The judge has
no discretion once guilt is established beyond doubt.
The judge has to award the full punishment fixed by Sharia. This punishment
can neither be increased nor decreased nor can a judge take a lenient view of
the case once the case is reported to the court and the guilt is proved?3
Besides, the fixed content of law and the punishment it is a historical fact that
huddud laws were neve applied retroactively. However, some jurists are 9f the
opinion that at least in four cases the huddud hiws operated retroactivity4
These jurists rely on the cases regarding ~, Lim and Haraba decided by the
prophet.25 It is usually alleged that law that criminalized the acts of~, lilln and
haraba was revealed to the Prophet after the cases were decided by him. and
not earlier. But a close examination of the instances referred to above
establish that the conclusions of these jurists are more based on their
perception and interpretation than on historical facts. The revelation dealing
with qadf was revealed earlier to the incident of accusation of Sayyidat Aisha.
The Prophet punished Qadf in accordance with the law revealed before hand.
This can be ascertained from the Qur'an that comprehensively leads with the
incident. A view that the hllild for qadf was revealed after this incident is a
speculation not supported by facts.26 The case of Hilal bin Ummayya who
accused his wife by lian reported the case to the Prophet and the Prophet
asked Hilal bin Ummayya to produce four witnesses or else face the hadd for
Qillif. Hilal insisted on his oath and said that the God alone could save him.27
Upon this the Prophet. Received a revelation wherein he was' directed to
accept the oath; and a genuine complainant was saved from being punished
for qadf. 28
The last case is about the group of the people from the tribe of Ukal and
Urayana of Medina who were sent by the Prophet to a place where (zakat)
livestocks were reared. This group killed the herdsmen and took over the herd.
As per the facts of the case, the Prophet did not inflict a punishment that was
prescribed for hiraba under sura V:28, 33 but got them killed in the same way
as they had killed the herdsmen.29 This was a decision strictly in accordance
with the Quranic stipulations which prescribe:3O
And if ye do catch them out catch them no worse then they catch you out:
The revelation dealing with huddud is not only specific and certain but very
easily understandable. A judge has a little discretion to exercise, so the judge
cannot inflict punishment at his will.
(b) QisaslDiyat
The law of qisas is as old as Islam itself; the Qur'an states that his law was
equally prescribed to Jews in Torah:3l
"We ordained therin for the life for life, the eye for eye, nose for
nose, ear for ear, tooth for
tooth and wounds equal for equal."
The Qur'an makes an improvement upon the old law by substituting:32
" . ...if anyone remits the retaliation By way of
charity it is an Act of Charity. An act of atonement for himself.
And if any fail to judge By (the light of ) what God Hath
revealed, they are (no better than) wrong doers"
The Hadith of the Prophet made it more comprehensible where the Prophet
stated that33
"If a man is murdered his parents may either ask for retaliation or, if
they prefer to accept compensation or
pardon the malefactor."
The punishment for intentional homicide and also for other supervision of the
state. If the avenger pardons the malefactor the pardon shall apply to retribution
and not to legal compensation unless contrary evidence is established.34
According to Imam 'Malik, where retaliation is inapplicable, the pecuniary
compensation s recoverable in addition to a discretionary punishment.
35
The
Hanafis and Hanbalis are of the view that in such situation the punishment shall
be handed down after taking due care of the reputation of the malefactor and
other surrounding circumstances.36
Muslim jurists have developed minutest details of law of qisas and the mode of
its payment of diyat. Once the nature of the injury is established the quantum of
compensation fixed by law or otherwise agreed upon is to be formally
sanctioned by the court. The law in this regard is neither uncertain nor lacking
any formal ramifications 'therefore dependent on the will and arbitrary discretion
of the court.37
(c) Tazir
The word tazir means to prevent, to discipline and reform.28
It is in this sense that .the expression has been used in the Qur'an. In its legal
sense it means a lrnkYm (law) aims to suppress the dangerous effects of an act,
haram li-geyrihi (an act not per se wrong) or makruh (abominable).
The Qu'an imposes an absolute duty on the Muslims to enjoin believers to
righteous deeds and forbid them from committing wrong. At the same societal
level, the ruler is overall in charge of the affairs of the Muslims, so is under a
duty to discourage and prevent the commission of a activity violative of
Sharia.29 The 'amer bi! mauruf and nihi anil munkar is the main source of state
authority that commends a ruler to take measures to suppress acts that may
cause damage to the individual or to the state. This is what the Muslim scholars
have pleaded time and again in support of secular laws promulgated by the
Muslim rulers. Bi-haqi a Muslim Scholar observes that:3O
"(A) Monarch ............. (has) right to give orders and punish transgressors
independent of though not contrary to the law of God."
The mostly cherished notion about this is that a judge may exercise discretion to
the disadvantage of an individual and arbitrarily punish an act without prior notice
to the public.
To allow a judge free hand inveitably leads to a conclusion that the law on tazir
is the result of good or bad logic of the judge, it will depend on his good or bad
disgestion on the violence of his passions, and all those little Circumstances
which change the appearance of objects in the flunctuating mind of man. This
appears to be an apparent conclusion. But in close focus, a judge is bound by
dictates of the grundnorrn that prescribe that an individual, be he a judge or a
layman, has to promote righteous conduct and weed out evil from the society. In
the course of administration of justice, a judge cannot make arbitrary exercise of
his discretionary power.
It is equally essential that the judge should be unbiased and above human
passion. This is summed up by the principles of natural justice endorsed by
the Shari' a. This apart, where an act is expressly criminalised under a statute
the judge is bound to follow the law. Considerations like the nature of crime,
conditions of the offender, his subjective culpability are inseparable limitations
imposed on a judge by Islamic Penal justice. This limitation serves important
and immediate check on the discretionary powers of the judge. Though in
practice discretionary authority solely rely on good or bad conscience of the
judge is true about all legal systems and the Sharia is not an exception to it.
Conclusion
In conclusion, it may be emphatically submitted that Shari' a ordains a
balanced safe guard system for the protection of an individual and his rights.
The principle of legality claimed to be bedrock of modern penal systems was
preclaimed by Shari'a in centuries back, under the authority of the Quranic
revelations, precepts of the Prophet and the Sunna of righly guided Caliphjs.
Hence, it has continued to be an inseparable constituent of Islamic penal
procedure until date.
The Muslims, therefore, need not to be apologetic either for the Quran or the
Prophet, except 'Ulema which virtually yailed to theories the breader
formulations of dispensation of justice. These formulations conjunctively
eptomise the principle of Islamic legal theory of strict emphasis on the
application of the principle of legality notwithstanding absence of express
mention of the principle.
*Lecturer in the Department of Islamic Law, Faculty of Law, University of IIorin
1. Sura iv:22, iv:23
2. A.A.A. Fyzi, (1974) Outlines of Mohammedan Law. New Delhi Press, p. 140.
3. Sura Viii:38, sura ii:275.
4. M CheW Bassouni.
5. Abuzuhra, (no date) Jarima Wal'Uauba filfiqh al-Islamic, Cairo, p.152.
6. Sura xxxnI: 70
7. The Holv Our'@, Sura XXXIII: 70, F. note, 3775 at P. 1129
8. See AbdulRahim, (1987) Mohammedan Jurisprudence. Hamada Press,
Lahore, p. 121
9. Sura II:269, Sura LXIII:2
10 See Muhammad Ali, (1934) A Manual ofHadi!h, p.34 citing Bukhari, III:25.
II. Ibid at 35.
12 Syed Sabah-U-Din Abdul Rehman, Op. Cit.,
13. Muhammad Ibrahim Trust, (no date) Alchol, Karachi, p.133-34. ,
14. For example the knowledge of the illegal nature of the act on the part of thief
(Sariq) is one of
the essential conditions that shall determine liability of the malefactor. '
15. On the basis of Awamir and Nawahi Duties and prohibitions the Muslim
jurists have classified human activity into five major categories. Al-Wajib
(binding) al-mandub (recommended but not binding), haram (strictly
prohibited), makruh (abominable, though no prohibition is explicite), mubah
(regarding which Sharia is different) For details see Abu Zuhra, op. cit, p. 18896.
16. Ibid, p. 194.
17 Ibid., p. 195.
18. See Ibn Farhun, (130H) Tabsllat aI-H~ Vol. n, p. 66.
19. See Abu Zuhra, Op. Cit., p. 179,
20. M. Cherrif Bassouni, Op. Cit., 136-139.
21. Ibid.
22. Ibid, p. 139.
22 'Quran xxiv:4
23 Bu.Idwi, Vol. (Xli), 91 - 94.
24 Sqra~:126.
25 Sura V: 45
26 Sanan Ib\l Maih.. Abwab aI-Divym, Vol. (ll), 125.
27 Al-~adai waI-Sanai, Vol, (7),246,
28 Ibid
29 See Abu Zuhra, op. cit, 178-79.
30 Abu-ZMra expressly described that !Ja1lli and Amr are the main guide to
Stqpress a bad act since it is bed stone of siyasa Shari’iyya.