ASSIGNMENT – Legal History

SUBJECT CODE: LLB 108

TOPIC – Salient features of Islamic criminal law and changes

introduce by the English law

Department of Law Trinity Institute of

Professional Studies

Submitted to: Submitted by:

Assistant Prof. Ms. Rashima Sharma Bhumika Bisht
BA LLB 2023-2028 Semester: II
Sub: Legal History Roll No. 70327903823

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 ACCKNOWLEDGEMENT

I would like to express my heartfelt gratitude to all those who have contributed to the completion
of this assignment.

First and foremost, I extend my deepest appreciation to my professor, Ms. Rashima Sharma, for
her invaluable guidance and unwavering support throughout the duration of this assignment.

I am also grateful for the support and resources provided by Trinity Institute of Professional
Studies. The conducive academic environment has played a crucial role in the successful
completion of this assignment.

Finally, I am grateful to my family members, classmates and friends for proofreading my work
and catching several errors.

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 INDEX

S.No Particulars Page No.

1. Introduction 4
2. Facts of the Case 4
3. Legal Issues Of the Case 5

4. Judgment 5-6

5. Significance 7

6. Caparo Three Part Test 7

7. Conclusion 8

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INTRODUCTION
Islamic criminal law, also known as Sharia penal law, is a comprehensive legal system derived
from the religious principles and teachings of Islam. Its foundations are rooted in the Quran, the
holy book of Islam, and the Sunnah, which consists of the teachings and practices of Prophet
Muhammad (peace be upon him).
This assignment studies the salient features that characterize the Islamic approach to criminal
jurisprudence and also the changes introduced by the English Law in it . Islamic criminal law is
distinct from secular legal systems in its divine origins, sources of legislation, categorization of
crimes and punishments etc.

ISLAMIC CRIMINAL LAW

The foundations of Islamic criminal law are rooted in the principles of justice, deterrence, and
the maintenance of social order. The primary sources of Islamic criminal law are the Quran and
the Sunnah1, which provide guidelines and specific injunctions regarding criminal offenses and
their punishments.
Crimes in Islamic law are generally classified into three main categories:
 Hudud (plural of Hadd): These are crimes with fixed punishments prescribed by the
Quran or the Sunnah, such as theft, adultery, apostasy, and consuming intoxicants.
 Qisas: Crimes involving bodily harm or murder, where the victim or their family has the
right to demand retribution or accept compensation (diya).
 Tazir: Offenses for which the punishment is not specified in the Quran or Sunnah, and the
judge has discretionary power to determine the appropriate punishment based on the
circumstances.
Islamic criminal law places a strong emphasis on evidence and due process, with stringent
requirements for proving guilt, particularly in cases of hudud crimes. It also considers the intent
behind an act as a crucial factor in determining the severity of the punishment.

While the principles of Islamic criminal law are derived from religious sources, their
interpretation and implementation can vary across different schools of Islamic jurisprudence and

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Arabic term for the prophet Muhammad's way of life and legal precedent.

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different Muslim-majority countries, as they may be influenced by local customs, legal systems,
and historical contexts.
SALIENT FEATURES OF ISLAMIC CRIMINAL LAW
It's important to note that the interpretation and implementation of Islamic criminal law can vary
across different schools of Islamic jurisprudence and different Muslim-majority countries, as
they may be influenced by local customs, legal systems, and historical contexts. Some of the
salient features of Islamic Law are :
 Sources: The primary sources of Islamic criminal law are the Quran and the Sunnah,
while secondary sources include ijma2 and qiyas3.
 Categories of crimes: Crimes in Islamic law are generally categorized into five main
types:
a. Hudud4: Crimes with fixed punishments prescribed by the Quran or the Sunnah, such
as theft, adultery, apostasy, and consuming intoxicants.
b. Qisas: Crimes involving bodily harm or murder, where the victim or their family has
the right to demand retribution or accept compensation (diya).
c. Tazir: Offenses for which the punishment is not specified in the Quran or Sunnah, and
the judge has discretionary power to determine the appropriate punishment based on the
circumstances.
d. Diya: The term “diya” signed “blood money” which meant money compensation
payable to the person wronged. In case of unintentional injuries, the amount of ‘diya’ was
payable at the fixed rate.
e. Siyasat: It authorized the rulers to prescribe punishments for those offences which were
not covered under any of the categories mentioned above. Siyasat punishment were
exemplary in nature and their gravity could even exceed that of Hadd or Quisa.
 Emphasis on evidence: Islamic law places a strong emphasis on evidence and due
process. For example, the conviction for adultery requires the testimony of four male
witnesses or a confession.
 Concept of intent: Islamic criminal law considers the intent behind an act as a crucial
factor in determining the severity of the punishment.
2
consensus of Islamic scholars
3
analogical reasoning
4
plural of Hadd

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  Gender equality in punishment: In some cases, such as theft or robbery, Islamic law
prescribes the same punishment for men and women.
 Deterrence and prevention: Islamic criminal law aims to deter crime and maintain
social order through the implementation of punishments, while also emphasizing
forgiveness and rehabilitation.
 Emphasis on repentance: Islamic law encourages repentance and allows for the
reduction or waiving of punishment in certain cases where the offender demonstrates
genuine remorse and reform.
 Victim's rights: Islamic law recognizes the rights of victims and their families,
particularly in cases of bodily harm or murder, where they have the option to demand
retribution or accept compensation.
DEFECTS OF MUSLIM CRIMINAL LAW
Islamic law, like any legal system, has been subject to criticism and debates regarding its
potential defects or areas that may require reform or reinterpretation. Here are some of the
commonly discussed defects or criticisms of Islamic criminal law:

 Rigid punishments: Some of the punishments prescribed in Islamic law, such as

amputation for theft and stoning for adultery, are considered by many to be excessively
harsh and incompatible with modern human rights standards.
 Evidentiary requirements: The strict evidentiary requirements in Islamic law, such as
the need for four male witnesses to prove adultery, are seen by some as impractical and
hindering the administration of justice.
 Discrimination against women: Critics argue that certain aspects of Islamic law, such as
the differential treatment of women in matters of inheritance, testimony, and personal
status, are discriminatory and violate principles of gender equality.
 Apostasy laws: The punishment for apostasy (leaving Islam) in some interpretations of
Islamic law is considered by many to be a violation of the freedom of religion and belief.
 Lack of codification: The absence of a single, codified Islamic legal system and the
reliance on various interpretations by different schools of jurisprudence can lead to
inconsistencies and uncertainties in the application of the law.

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  Corporal punishments: The use of corporal punishments, such as flogging or
amputation, is considered by many to be inhumane and a violation of human dignity.
 Limited scope for reform: Some argue that the divine and immutable nature of the
primary sources of Islamic law (Quran and Sunnah) makes it challenging to adapt and
reform the law to address modern societal needs and human rights standards.
 Implementation challenges: In some Muslim-majority countries, the implementation of
Islamic criminal law has been criticized for lacking due process, fair trial guarantees, and
adherence to human rights principles.

REFORMS BROUGHT ON MUSLIM CRIMINAL LAWS

The Charter of 1726 introduced English laws in presidency towns but the Muslim criminal law
was law of land in the Mofussils of Calcutta Presidency towns.

In 1765 the Diwani rights of Bengal. Bihar & Orissa was received by the Company. The British
government did not make interfere with Muslim Criminal law but gradually certain reforms were
introduced on the basis of principles of justice and reasonableness.

The British colonial government introduced several reforms to the Islamic criminal law system
in the territories under their rule. Here are some of the key reforms:

A. Codification of laws
B. Establishment of secular courts
C. Abolition of certain punishments
D. Changes in evidentiary rules
E. Reforms in personal laws
F. Introduction of English legal principles
G. Establishment of police and prison systems
H. Legal education

Codification of laws: The British government codified criminal laws, replacing the traditional
system of Islamic jurisprudence based on the interpretation of religious texts. This led to the
development of penal codes, such as the Indian Penal Code of 1860, which was later adopted by
many other British colonies.
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Establishment of secular courts: The British established secular courts to handle criminal
cases, limiting the jurisdiction of Sharia courts to personal status matters, such as marriage,
divorce, and inheritance.

Abolition of certain punishments: Certain punishments prescribed by Islamic law, such as

amputation for theft and stoning for adultery, were abolished and replaced with punishments like
imprisonment and fines, which were more in line with English common law.

Changes in evidentiary rules: The strict evidentiary rules of Islamic law, such as the
requirement of four male witnesses for proving adultery, were relaxed or replaced with
evidentiary standards based on English common law.

Reforms in personal laws: The British introduced reforms in personal laws, such as allowing
women to inherit property and granting them more rights in matters of divorce and custody of
children.

Introduction of English legal principles: The British introduced legal principles from English
common law, such as the concept of crime being an offense against the state, the presumption of
innocence, and the separation of powers between the executive, legislative, and judicial branches
of government.

Establishment of police and prison systems: The British established modern police and prison
systems, replacing the traditional Islamic systems of law enforcement and punishment.

Legal education: The British introduced English-style legal education, training lawyers and
judges in the principles of English common law, which replaced the traditional Islamic legal
education system.

CONCLUSION
In conclusion, Islamic criminal law, or Sharia penal law, is a comprehensive legal system rooted
in the divine sources of Islam – the Quran and the Sunnah. It presents a unique approach to
criminal jurisprudence that is distinct from secular legal traditions.

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The salient features of Islamic criminal law discussed in this assignment highlight its emphasis
on categories of crimes, evidentiary requirements, the concept of intent, gender equality in
certain punishments, victim's rights, deterrence, prevention, and the importance of repentance
and rehabilitation.

However, Islamic criminal law has also faced criticism and debates regarding certain aspects,
such as the perceived harshness of some punishments, evidentiary challenges, concerns over
gender discrimination, and the limited scope for reform due to the immutable nature of its
primary sources.

Moreover, the charter of 1726 introduced English Laws and gradually changed the Islamic
criminal law in accordance with the principles of justice.

BIBILOGRAPHY

 Dr. N.V. Paranjape, Indian legal & constitutional history 206 (Central law
Agency,Allahabad,6th edn,2006)

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 Dr. S.C. Tripathi, Indian legal & constitutional history 100 (Central law
Agency,Allahabad,3rd edn,2017)
 Iilsindia


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