In order to make the variety of opinion manageable in practice and to impose some sort of order on it, two devices were used. The first and older one is the institution of the school of jurisprudence.
Scholars tracing their doctrine to the same early authority regarded themselves as followers of the same school. Ultimately, there remained four of them in Sunni Islam: the Hanafites, Malikites, Shafi ites and Hanbalites. These schools had, to some extent, a regional distribution: for instance, North Africa and Islamic Spain adhered to theMalikite school, Central Asia and the territory occupied by theOttoman Empire was dominated by theHanafites.
In order to create greater legal certainty, rulers could direct the q¯ad. ¯ıs they appointed to follow one school. However, within one school there also existed various and contradictory opinions. In the course of time, jurists began to assess these different opinions and assign a hierarchy of authority.
Some opinions were regarded as more correct than others. Although there was no complete unanimity about these hierarchies, they helped to make the legal discourse of one school manageable, especially for practitioners.
In the classical textbooks of fiqh, criminal law is not regarded as a single, unified branch of the law. It is discussed in three separate chapters:
(1) Provisions regarding offences against persons, i.e. homicide and wounding, subdivided into
(a) those regarding retaliation (qis. ¯as.) and
(b) those regarding financial compensation (diya).
(2) Provisions regarding offences mentioned in the Koran and constituting violations of the claims of God (h.uq¯uq All¯ah), with mandatory fixed punishments (h. add, pluralh. ud¯ud ); these offences are:
(a) theft
(b) banditry
(c) unlawful sexual intercourse
(d) the unfounded accusation of unlawful sexual intercourse (slander)
(e) drinking alcohol
(f ) apostasy (according to some schools of jurisprudence).
(3) Provisions concerning discretionary punishment of sinful or forbidden behaviour or of acts endangering public order or state security (ta z¯ır and siy¯asa).
Categories (1 (a)) and (2) are expounded in the fiqh books with great precision and in painstaking detail. They may be regarded as constituting Islamic criminal law in its strict sense, with characteristic features that set it apart fromother domains of the law, such as the absence of liability of minor and insane persons, the strict rules of evidence and the large part played by the concept of mistake (shubha) as a defence.
Category (3) is a residual but comprehensive one under which the authorities are given wide-ranging powers. They may punish those who have committed offences mentioned under (1) and (2) but could not be convicted on procedural grounds (e.g. pardon by the heirs of a victim of manslaughter, or evidence that does not satisfy the strict requirements), and also those who have perpetrated acts that are similar to these offences but do not fall under their strict definitions.
Moreover, under this heading the authorities can punish at their discretion all other forms of sinful or socially and politically undesirable behaviour. The punitive powers of the authorities are hardly restricted by law and, as a consequence, the doctrine offers little protection to the accused.
The provisions regarding bloodmoney (diya) (category (1 (b)) belong to the field of private law, since they deal not with punishment but with financial liability arising from a specific type of tort (i.e. homicide and wounding). Bloodmoney (diya) in cases of homicide or wounding is a financial compensation for damages suffered by the heirs of the victim (in cases of homicide) and for the victim himself (in cases of bodily harm).
That this is no punishment is clear from the fact that in many situations it is not the perpetrator who is liable for the bloodprice, but his ‘solidarity group’ ( ¯aqila), usually his agnatic male relatives. Nevertheless, I will discuss the rules on bloodmoney here, since the subject is intimately linked with the
criminal law of homicide and bodily harm.
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