The Principle of Legality in Islamic Criminal Justice System
Hazara Islamicus, January-June 2018, Vol. 7, Issue 1, pp. 107-120
14 Pages Posted: 22 Apr 2015 Last revised: 20 Aug 2018
Date Written: April 20, 2015
This work focuses on the principle of legality and the various other maxims regarding the rights of the accused under Islamic criminal justice system. Its main findings are: that the principle of legality (mabda’ al-Ibahat) is the most basic principle (mabda usuli) of Islamic criminal law. This principle has two postulates: 1) no crime without law, and 2) no punishment without law. The natural outcome of these two principles is another principle, that is, ‘no retroactive application of criminal law’. The majority of authors consider the principle of legality as absolute, however, this work carves out certain exceptions to it. In case a crime endangers the peace and security of the state or the interest of the community is involved or when giving retrospective effect would be necessitated by the interest of the community rather than the individual or when the application of the principle is beneficial to the accused, then it is allowed to give criminal law retrospective effect. In addition, this work finds out that the principle of legality is not against Islamic law as is the opinion of some scholars. This principle is intended to safeguard the fundamental rights of the accused either by not charging him or giving him lesser punishment even if that punishment be promulgated subsequent to the commission of the crime. Books of classical Islamic law do not focus on the basic principles of Islamic law. Those that exist are either mentioned in each separate chapter devoted to a specific crime or they must be found by deduction. Adhering to the principle of legality means that Islamic criminal justice system was well advanced since the dawn of Islam.
Keywords: Justice, Law, Rights, Principles, Crime
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