Interrogating Two Concepts in Islamic Criminal Jurisprudence: Victim’s Family vs. Offender’s Family

In: Yearbook of Islamic and Middle Eastern Law Online
Gaber Mohamed PhD Candidate, Birkbeck School of Law, University of London London UK
Assistant Lecturer, School of Shariʿa and Law, Al-Azhar University Cairo Egypt

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Calls for abolition of the death penalty invariably encounter a negative response by those political regimes which exploit the classical rigid definition of victim’s family concept. The death penalty could not be abolished by the legislative authority because the heirs of victim are the only people who have the right to waive death penalty based on the classical understanding of the definition of the victim’s family. I argue that if the definition of the victim’s family is revisited to have the same flexibility as the offender’s family, the Nation-State may be included in the definition, and the legislative authority will have the power to abolish the death penalty. Furthermore, revisiting these two terms within the contemporary context would have an impact on the gap between Shariʿa and national legal systems. The social contexts of the two legal systems have been shaped based on two different social bases: modernity and pre-modernity. The two different social bases have created a gap that is exploited in many controversial issues, not only the death penalty in the Muslim world but also harsh penalties in some Muslim legal systems, the right of a husband to discipline his wife, gender equality, legal perspectives on homosexuality, the absence of a clear distinction between public and private realms, and ignoring any distinction separating out the role to the public and nation in crimes of homicide and bodily injuries. Thus, the purpose of reviewing these two concepts from a perspective oriented towards the contemporary context is an attempt to bridge the gap between national criminal legal systems and the Shariʿa pre-modern criminal system, so that these controversial issues may be appropriately relocated in the modern national systems of Egypt and the Muslim world.

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