Abstract

http://ssrn.com/abstract=1426152
 
 

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Islam’s Fourth Amendment: Search and Seizure in Islamic Doctrine and Muslim Practice


Sadiq Reza


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

Spring 2009

Georgetown Journal of International Law, Vol. 40, No. 3, 2009
NYLS Legal Studies Research Paper No. 09/10 #4
Islamic Law and Law of the Muslim World Paper No. 09-75

Abstract:     
Modern scholars regularly assert that Islamic law contains privacy protections similar to those of the Fourth Amendment to the U.S. Constitution. Two Quranic verses in particular - one that commands Muslims not to enter homes without permission, and one that commands them not to 'spy' - are held up, along with reports from the Traditions (Sunna) that repeat and embellish on these commands, as establishing rules that forbid warrantless searches and seizures by state actors and require the exclusion of evidence obtained in violation of these rules. This Article tests these assertions by: (1) presenting rules and doctrines Muslim jurists of premodern and modern times have articulated on the basis of the pertinent texts; (2) discussing the evidence, or the lack thereof, in the historical record that such rules operated in criminal practice in the premodern Arab-Ottoman Muslim world; and (3) comparing the apparent theories and policies of Islam’s pertinent provisions with those of the Fourth Amendment. The Article concludes that authority for Fourth-Amendment-like protections certainly exists in Islamic law, but assertions that such protections do so exist, or have ever been routinely practiced before the modern period, are unsupported by the doctrinal and historical records. There is, in the end, no obstacle to articulating search and seizure protections in Islamic law that meet modern notions of criminal due process; in this is the possibility of common ground between those who seek a greater role for Islamic law in today’s Muslim world and those who seek a lesser one.

Number of Pages in PDF File: 106

Keywords: Islamic law, sharia, Fourth Amendment, search and seizure, exclusionary rule, privacy

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Date posted: July 1, 2009 ; Last revised: June 2, 2011

Suggested Citation

Reza, Sadiq, Islam’s Fourth Amendment: Search and Seizure in Islamic Doctrine and Muslim Practice (Spring 2009). Georgetown Journal of International Law, Vol. 40, No. 3, 2009; NYLS Legal Studies Research Paper No. 09/10 #4; Islamic Law and Law of the Muslim World Paper No. 09-75. Available at SSRN: http://ssrn.com/abstract=1426152

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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