The Disunity of Islamic Criminal Law and the Modern Role of Ijtihād

In: International Criminal Law Review

Abstract

Islamic law, and criminal law in particular, have been closed since its heyday of legal scholarship to external influences and new theoretical arguments and constructs. This, it is argued, is due to the lack of enlightened and revered scholarship that will enhance Islamic law and which is currently unavailable. This situation is unlike early and classical Islam where legal argumentation flourished and Islamic scholarship was generally open to external currents and philosophical ideas. Despite these limitations Islamic criminal law has not coalesced to shield itself from foreign elements, but instead lacks a single voice not only in practice but also in its theoretical bases among Muslim nations. We cannot therefore speak of 'an' Islamic criminal law nor can Muslims continue to ignore the beneficial role of ijtihād that should be utilised at least as a forum for discussion about bridging classic Islamic criminal law with contemporary Muslim needs. Many contemporary issues in Islamic criminal law are evidently based on prejudice, culture and less on a coherent understanding of Islamic theology itself. Islam possesses a plethora of outstanding legal scholars that should be allowed to contribute to an ijtihādī scholarly 'revolution'.

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