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Torture and Islamic Law


Sadiq Reza


New York Law School; Visiting Professor, Boston University School of Law (2014-15)


Chicago Journal of International Law, Vol. 8, No. 1, pp. 21-41, 2007
NYLS Legal Studies Research Paper No. 07/08-11

Abstract:     
This article considers the relationship between Islamic law and the absence or practice of investigative torture in the countries of today's Muslim world. Torture is forbidden in the constitutions, statutes, and treaties of most Muslim-majority countries, but a number of these countries are regularly named among those in which torture is practiced with apparent impunity. Among these countries are several that profess a commitment to Islamic law as a source of national law, including some that identify Islamic law as the principal source of law and some that go so far as to declare themselves "Islamic states." The status of investigative torture in Islamic law has long been unsettled: most early classical jurists forbade it, but some later classical jurists permitted it in at least certain circumstances. The permission some jurists gave the practice in Islamic jurisprudence (fiqh) was matched and augmented by a broader license jurists gave executive actors in the realm of governance or administration (siyasa), a realm seen as necessarily less constrained by jurisprudential limitations. Historical evidence indicates that investigative torture was indeed practiced by executive actors at various periods and places of the pre-modern Muslim world. Nevertheless, statistical analysis indicates little or no correlation between the absence or practice of torture in today's Muslim-majority countries and the degree of commitment these countries profess to Islamic law. Instead, this article concludes, the absence or practice of torture in a given Muslim-majority country today (and the willingness of Muslim-majority countries to join international covenants that ban torture) correlates with the same factor with which it correlates in a given non-Muslim-majority country: the presence or absence of democratic government.

Number of Pages in PDF File: 23

Keywords: torture, Islamic law, Islamic, Islam, Muslim

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Date posted: October 24, 2007 ; Last revised: May 29, 2008

Suggested Citation

Reza, Sadiq, Torture and Islamic Law. Chicago Journal of International Law, Vol. 8, No. 1, pp. 21-41, 2007; NYLS Legal Studies Research Paper No. 07/08-11. Available at SSRN: http://ssrn.com/abstract=1024230

Contact Information

Sadiq Reza (Contact Author)
New York Law School ( email )
185 West Broadway
New York, NY 10013
United States
212-431-2374 (Phone)
212-431-2804 (Fax)
HOME PAGE: http://www.nyls.edu/pages/394.asp
Visiting Professor, Boston University School of Law (2014-15) ( email )
765 Commonwealth Avenue
Boston, MA 02215
United States
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