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Towards a Contemporary View of Islamic Criminal Procedures: A Focus on the Testimony of Witnesses

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This paper challenges the traditional conception of Islamic criminal law and provides alternatives to the rules of criminal procedures that are both compatible with modern life and the sprit of Shari'ah. The first part of the article provides a brief explanation of the four main sources of Islamic law. The second part focuses on the different classifications of crimes in Islamic law and explains Shari'ah's classical rules of evidence. It gives answers to some complicated legal questions by examining the law's underlying rationales. For example, the author challenges the conservative view that calls for the imposition of the death penalty onto apostates and clarifies that such punishment has no foundation in Shari'ah. He also explains why, from an evidentiary standpoint, the crime of rape should be qualified as haraba as opposed to zina, which both entails a harsher penalty for the perpetrator and more lenient evidentiary requirements from prosecutors. Finally, the author contests the traditional stream of Islamic thinking by arguing that in criminal matters, the testimony of female witnesses should be equal to that of males and that in hudūd crimes, scientific evidence should be given the same status as the testimony of eye witnesses.

Affiliations: 1: Human Rights Lawyer, Cairo, Egypt;, Email: tarek.badawy@mail.mcgill.ca

10.1163/157302509X454717
/content/journals/10.1163/157302509x454717
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/content/journals/10.1163/157302509x454717
2009-07-01
2016-09-26

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