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

53 Pages Posted: 31 Oct 2006 Last revised: 17 Aug 2016

Paul H. Robinson

University of Pennsylvania Law School

Adnan Zulfiqar

University of Pennsylvania Law School

Margaret Kammerud

Independent

Michael Orchowski

Independent

Elizabeth A. Gerlach

Independent

Adam L. Pollock

Independent

Thomas M. O'Brien

Independent

John C. Lin

Independent

Tom Stenson

Independent

Negar Katirai

Independent

J. John Lee

Independent

Marc Aaron Melzer

Independent

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.

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

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. Journal of Comparative Law, Vol. 2, No. 1, 2007; U of Penn Law School, Public Law Working Paper No. 06-26. Available at SSRN: https://ssrn.com/abstract=941443

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 ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

Margaret Kammerud

Independent

No Address Available

Michael Orchowski

Independent

No Address Available

Elizabeth A. Gerlach

Independent

No Address Available

Adam L. Pollock

Independent ( email )

No Address Available

Thomas M. O'Brien

Independent

No Address Available

John C. Lin

Independent

No Address Available

Tom Stenson

Independent

No Address Available

Negar Katirai

Independent

No Address Available

J. John Lee

Independent

No Address Available

Marc Aaron Melzer

Independent

No Address Available

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