Keeping the State Out: The Separation of Law and State in Classical Islamic Law
The implementation and enforcement of Islamic law, especially Islamic criminal law, by modem-day Muslim nation-states is fraught with controversy and challenges. In Pakistan, the documented problems and failures of the country’s attempt to codify Islamic law on extramarital sexual relations have led to efforts to remove rape cases from Islamic law courts to civil law courts. In striking contrast to Pakistan’s experience, the Republic of the Maldives recently commissioned a draft of a penal law and sentencing guidelines based on Islamic law that abides by international norms. The incorporation of Islamic law into the legal systems of various countries around the world makes understanding Islamic criminal law especially important. In Crime and Punishment in Islamic Law: Theory and Practice from the Sixteenth to the Twenty-first Century, Rudolph Peters presents a thorough survey of Islamic law from the Ottoman period to today. He situates the reader by first discussing classical Islamic-law doctrines regarding crime, evidence, punishment, and the principles underlying criminal law. After providing a doctrinal foundation, he examines how the doctrine was and is actually used in practice. Since the enforcement and practice of criminal law has varied greatly in the Muslim world from region to region and from time to time, Peters focuses his study on examining the practice in one specific state-the Ottoman Empire (p. 3). He then discusses the wave of modernization of criminal law that began in the mid-nineteenth century, usually with the onset of colonialism. Peters concludes by examining Islamic criminal law today, and especially its resurgence in various countries around the world (p. 2). In his examination of classical doctrine and its implementation in the Ottoman Empire, Peters shows the complexity of the Islamic legal system and its doctrine. He points out that the physical punishments often associated with Islamic law in the popular imagination (amputation, stoning, etc.) were rarely applied (pp. 92-93, 100). One aspect of the Islamic system that Peters does not discuss in depth, however, is the overall relationship between the law and the state in the classical system; during the Ottoman era this relationship underwent significant changes causing reverberations still being felt in the present day. This Notice examines the changing relationship between Islamic law and the state, and its political implications for today. Part I analyzes Peters’ arguments about criminal law in the Ottoman Empire. Part II examines the classical relationship in which the formulation of the law remained outside the province of the state, and contrasts the classical period with the changes that took place under the Ottoman Empire. Finally, Part III considers possible modern-day implications of both the classical and Ottoman systems.