Abstract

http://ssrn.com/abstract=941443
 
 

Citations (1)



 
 

Footnotes (254)



 


 



Codifying Shari'a: International Norms, Legality & the Freedom to Invent New Forms


Paul H. Robinson


University of Pennsylvania Law School

Adnan Zulfiqar


University of Pennsylvania Law School

Margaret Kammerud


University of Pennsylvania Law School

Michael Orchowski


University of Pennsylvania Law School

Elizabeth A. Gerlach


University of Pennsylvania Law School

Adam L. Pollock


affiliation not provided to SSRN

Thomas M. O'Brien


University of Pennsylvania Law School

John C. Lin


University of Pennsylvania Law School

Tom Stenson


University of Pennsylvania Law School

Negar Katirai


University of Pennsylvania Law School

J. John Lee


University of Pennsylvania Law School

Marc Aaron Melzer


University of Pennsylvania Law School


American Journal of Comparative Law, Vol. 2, No. 1, 2007
U of Penn Law School, Public Law Working Paper No. 06-26

Abstract:     
The United Nations Development Program and the Republic of the Maldives, a small Muslim country with a constitutional democracy, commissioned this project to craft the country's first system of codified penal law and sentencing guidelines. This Article describes the special challenges and opportunities encountered while drafting a penal code based on Shari'a (Islamic law). On the one hand, such comprehensive codification is more important and more likely to bring dramatic improvements in the quality of justice than in many other societies, due in large part to the problems of assuring fair notice and fair adjudication in the uncodified Shari'a-based system in present use. On the other hand, the challenges of such a project are greater, due in part to special needs for clarity and simplicity that arise from the relative lack of codification experience and training. But there turned out to be perhaps unexpected advantages to undertaking a comprehensive codification project in the Maldives. While the lack of a codification tradition created difficulties, it also gave drafters the freedom to invent new codification forms that would be difficult to adopt in a society with an entrenched codification history.

While it was a concern that any Shari'a-based code could conflict with international norms, in practice it became apparent that the conflict was not as great as many would expect. Opportunities for accommodation were available, sometimes through interesting approaches by which the spirit of the Shari'a rule could be maintained without violating international norms. In the end, this Shari'a-based penal code drafting project yielded a Draft Code that can bring greater justice to Maldivians and also provide a useful starting point for modern penal code drafting in other Muslim countries.

However, the code drafting project also may have much to offer penal code reform in non-Muslim countries, for the structure and drafting forms invented here often solve problems that plague most penal codes, even codes of modern format such as those based upon the American Law Institute's Model Penal Code, which served as the model for most American penal codes. The challenges of accessible language and format, troublesome ambiguous acquittals, overlapping offenses, combination offenses, and penal code-integrated sentencing guidelines have all been addressed.

Number of Pages in PDF File: 53

Keywords: Islamic Model Penal Code, Shari'a, United Nations Development Program, Republic of the Maldives, codified penal law, sentencing guidelines, international norms, Muslim, drafting, criminal law and procedure

Accepted Paper Series


Download This Paper

Date posted: October 31, 2006 ; Last revised: December 16, 2009

Suggested Citation

Robinson, Paul H. and Zulfiqar, Adnan and Kammerud, Margaret and Orchowski, Michael and Gerlach, Elizabeth A. and Pollock, Adam L. and O'Brien, Thomas M. and Lin, John C. and Stenson, Tom and Katirai, Negar and Lee, J. John and Melzer, Marc Aaron, Codifying Shari'a: International Norms, Legality & the Freedom to Invent New Forms. American Journal of Comparative Law, Vol. 2, No. 1, 2007; U of Penn Law School, Public Law Working Paper No. 06-26. Available at SSRN: http://ssrn.com/abstract=941443

Contact Information

Paul H. Robinson (Contact Author)
University of Pennsylvania Law School ( email )
3501 Sansom Street
Philadelphia, PA 19104
United States
Adnan Zulfiqar
University of Pennsylvania Law School
3501 Sansom Street
Philadelphia, PA 19104
United States
Margaret Kammerud
University of Pennsylvania Law School
3501 Sansom Street
Philadelphia, PA 19104
United States
Michael Orchowski
University of Pennsylvania Law School
3501 Sansom Street
Philadelphia, PA 19104
United States
Elizabeth A. Gerlach
University of Pennsylvania Law School
3501 Sansom Street
Philadelphia, PA 19104
United States
Adam L. Pollock
affiliation not provided to SSRN
No Address Available
Thomas M. O'Brien
University of Pennsylvania Law School
3501 Sansom Street
Philadelphia, PA 19104
United States
John C. Lin
University of Pennsylvania Law School ( email )
3501 Sansom Street
Philadelphia, PA 19104
United States
Tom Stenson
University of Pennsylvania Law School
3501 Sansom Street
Philadelphia, PA 19104
United States
Negar Katirai
University of Pennsylvania Law School
3501 Sansom Street
Philadelphia, PA 19104
United States
J. John Lee
University of Pennsylvania Law School
3501 Sansom Street
Philadelphia, PA 19104
United States
Marc Aaron Melzer
University of Pennsylvania Law School
3501 Sansom Street
Philadelphia, PA 19104
United States
Feedback to SSRN


Paper statistics
Abstract Views: 4,097
Downloads: 692
Download Rank: 19,522
Citations:  1
Footnotes:  254

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo3 in 0.438 seconds