The Taliban are back in the saddle and, with them, the dreadful spectre of the harsh punishments meted out in their previous time in power: public hangings and stonings, amputation of hands and public floggings. Veteran Taliban fighter and senior official Mullah Nooruddin Turabi explained in a recent interview that these penalties – including hangings and amputations – are “very necessary” in order to achieve “deterrence”.
When the Taliban first came to power in 1996, observers predicted Afghanistan would be propelled back into the middle ages. Are we headed the same way today? In fact, far from signalling a return to the spirit of Islam’s medieval legal tradition, the Taliban’s interpretation of Islamic criminal justice is an exceedingly narrow and, arguably, misguided version.
On a fundamental level, the Taliban’s approach suggests disrespect for some basic rules of traditional Islamic criminal law. Indeed, the Taliban amputate the hands of thieves not because it is particularly “Islamic” to do so, but simply – and cruelly – because they can.
Islamic criminal law and human rights
Traditionally, Islamic law, or Sharia, is based on the few legal verses contained in Islam’s sacred scripture, the Qur’an, as well as on the sizeable body of reports about sayings and deeds of the Prophet Muhammad (who died in AD632), the Sunna.
Over the course of Islamic history, Islamic jurists (fuqaha’) debated at length which of the reports in the Sunna are reliable, and they developed a complex set of rules about how to interpret the Qur’an and the Sunna. They also determined under what conditions it is legitimate to extend the Qur’an’s and the Sunna’s norms to novel cases, and they carefully described the rules of analogical reasoning (qiyas) that are to be applied in the process.
In the area of criminal law, Islamic jurists distinguished between different types of crime. Firstly the small number of “statutory crimes” – the so-called hadd offences, for which severe penalties are mandated by the Qur’an and the Sunna.
Then there was talionic punishment – the principle of a like-for-like punishment, or an eye for an eye, known as qisas, for homicide and cases of infliction of bodily harm, where punishment can be waived by the victim’s family and converted into a fine, or diya. Finally, the area of “discretionary punishment” (ta’zir), which is imposed at the judge’s discretion and should never exceed hadd punishment.
Contemporary debates about Islamic criminal law tend to centre on hadd offences and their punishments, to a large part because of their shock value. There is no easy way to square traditional Islamic criminal law, especially hadd law, with the modern idea of universal human rights. The right to bodily integrity and the right to choose one’s religious belief and sexual orientation are diametrically opposed to the violent hadd punishments for “offences” such as adultery and theft.
In fact, this is why in all but a few Muslim-majority countries, including those that explicitly refer to Sharia law in their constitutions, penal law is not Islamic. The current Egyptian penal code, for example, is influenced by the Italian criminal code, while the Moroccan penal code is inspired by French legislation.
There are exceptions, including Saudi Arabia, Iran and, now, the Taliban’s Afghanistan. But for the Sharia-based, criminal law of these countries to claim an “authentic” Islamic pedigree, it would need to respect some basic principles of Islamic criminal law, anchored in the premodern tradition of Islamic jurisprudence.
One such principle is that a person cannot be punished for doing something that is not prohibited by law. When it comes to punishments such as flogging and amputation, this principle was taken very seriously by medieval Muslim jurists. One cannot, they taught, simply extrapolate from one “offence” to another and apply the same punishment – as they stated, “there is no analogical extension of hadd punishments” (la qiyasa fi al-hudud).
As noted above, the group of hadd crimes and punishments is small. Most medieval jurists counted no more than five or six such offences (theft, brigandage, adultery, unfounded accusation of adultery, consumption of alcoholic drinks, and apostassy), defining them narrowly.
Another, equally important principle formulated by medieval Islamic criminal law theorists is that “hadd punishment is to be averted on the strength of legal doubt”. Standards for proof in Islamic criminal law are extremely high. Barring confession by the perpetrator, only male eyewitness testimony is regarded as acceptable evidence – circumstantial evidence is generally not accepted.
Both confessions and testimonies must explicitly name the crime. Mere insinuation, or use of euphemisms, does not suffice. The testimony of a secondary witness – though admissible in other areas of the law, the law of contract for example – is deemed unacceptable in Islamic criminal law.
In sum, premodern Muslim jurists were reluctant to see the serious penalties of Islamic criminal law implemented. No such reluctance, alas, appears to characterise Mullah Turabi and the Taliban.
The common good
Late-medieval Islamic criminal law inserted some loopholes into the fabric of the law for the despotic state to intervene and impose harsh punishment based on political expediency. From roughly the 13th century, “crimes against the state” came to be added to the above-mentioned list of five or six offences punishable by (extreme) corporal punishment, and many of the restrictions that applied to “discretionary punishment (ta'zir) were lifted.
Past experience suggests the Taliban authorities will be keen to exploit these loopholes. However, it would still be wrong to assume that the Taliban’s approach to Islamic criminal law reflects the true "spirit” of Islamic law.
Of course, none of this distracts from the fundamental tension between Islamic criminal law and the idea of universal human rights. But the principle commonly found in western and other legal systems that punishments are justified as long as they help to create a better society is not alien to Islamic law.
Pre-modern Muslim jurists regularly identified the common good (al-maslaha al-‘amma) as an essential goal (maqsad) of Islamic law. And even Turabi speaks of “deterrence” as the reason why Islamic criminal law should be implemented, rather than claiming that the amputation of hands for theft is God’s revealed law and therefore immune to challenge.
But we are a long way away, it seems, from an open, philosophically informed discussion about how the common good is best achieved, and what this would mean for Islamic criminal law. As Turabi himself told the Associated Press: “No one will tell us what our laws should be.”