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Prof. Robinson gives keynote address on the codification of Shari’a-based criminal law in developing Muslim countries at University of Tehran conference

March 06, 2019

On March 5 and 6, Penn Law’s Colin S. Diver Professor of Law Paul Robinson spoke at the University of Tehran in Iran, discussing the codification of Shari’a-based criminal law in developing Muslim countries. Robinson gave an opening keynote address and also made closing remarks at the International Conference on Criminal Law Developments in the Muslim-Majority Countries in the Light of Interaction between Shari’a and Law.

The Research Institute of Criminal Science and Criminology, Faculty of Law and Political Science at the University of Tehran organized the conference. Conference sessions featured scholars discussing a range of subjects, including the interaction between Shari’a and law in the constitutions and criminal codes of Oman, Qatar, and the United Arab Emirates, modern citizenship and political philosophy in Iran, and the process of reconciling secular and religious laws.

Robinson, an expert in criminal law and criminal code reform, has previously worked with several Muslim-majority countries to write criminal codes based upon principles of Shari’a. Watch the videos or read the text of Robinson’s keynote address below.

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Codifying a Sharia-based Criminal Law in Developing Muslim Countries

Paul Robinson

In my remarks today I would like to argue that there is value in codifying criminal law in a way that incorporates the principles of Shari’a, to the extent that the members of the society have internalized those principles. In an increasingly complex and legalistic modern world, the codification of the Shari’a principles touching criminal law may be the best way of assuring that those principles are carried forward.

There are good reasons for the present strong trend toward codifying a comprehensive statement of the elements of all offenses, defenses, and liability rules. First, codification provides fair notice of the criminal law’s rules to the people who are bound by them. Second, codification increases uniformity in application, so similar cases are treated similarly. It is hardly justice when similar cases are treated differently simply because they are decided by different judges. Third, codification provides a platform for refinement and improvement of the criminal law in the future. It is difficult to have public discussion and debate if the rules and their application are unclear or subject to differing interpretations. Only a clear, unambiguous codified text can provide the clarity needed. Finally, codification of the criminal rules makes clear that the power to revise the rules is clearly within the hands of the national government rather than in the hands of an individual judge.

These virtues probably explain why the past several centuries have seen a persistent march toward greater and more comprehensive criminal law codification. The shift between uncodified or partially codified law and comprehensive codification moves in only one direction. There are almost no instances of a country, having shifted to a comprehensive criminal law codification, abandoning it to return to a system of uncodified or partially codified criminal law.

I have worked on criminal law codification projects in a number of countries, including two developing Muslim countries. I have also directed criminal law codification projects for states and the federal government in the United States. So I am sensitive to the challenge of codification both from the academic and the practical point of view.

For many developing countries, the task of codifying their criminal law can be a challenging project and we are lucky that there are international organizations willing to assist developing countries to undertake such ambitious projects by providing both funding and expertise. The United Nations Development Program (UNDP) and the International Development Law Organization (IDLO) are just two of such organizations, and they have done a fine job helping developing countries with criminal law codification projects around the globe.

As useful as these international organizations are, however, there is also a natural tension between the internationals and the locals. It is natural for the internationals to want to promote adoption of international norms in the new criminal codes. But I have reservations about the wisdom of their pressing for the incorporation of these norms if they conflicted with local community views. I think all parties, both the internationals and the locals, are better off if a criminal code is based upon the shared judgments of justice of the ordinary people within the society, rather than based upon international or Western norms. Here’s why.

One could certainly make some democratic arguments in favor of having criminal law enshrine the community’s judgments of justice. Criminal law protects us from the most egregious harms and we allow it to impose the most serious sanctions. So it is particularly appropriate in a democracy that the members of the society decide what constitutes a crime and how much punishment will be imposed.

But that is a political and philosophical argument. I want to argue that having criminal law track ordinary people’s judgments of justice has great practical value as well. Modern empirical studies by social scientists have shown that a criminal law that tracks the community’s judgments of justice can build a reputation with the community as being a moral authority to which they should defer and acquiesce. A criminal justice system that can earn such “moral credibility” with the community can increase its power to gain compliance and, particularly importantly, to cause people to internalize the criminal law’s norms. In other words, a criminal law that earns a reputation for being just can harness the powerful forces of social influence and internalized norms in order to benefit society by better controlling crime and by strengthening societal norms. In contrast, the empirical studies suggest that a criminal law that regularly conflicts with ordinary people’s judgments of justice can lose moral credibility, inspire resistance and subversion, and undermine the system’s crime-control effectiveness and socialization power.

This relationship between tracking community views and the criminal code’s effectiveness is both sensitive and continuous. It is sensitive in the sense that we know from empirical research that every incremental reduction in moral credibility produces an incremental loss in the criminal law’s ability to control crime and internalize norms. The relationship is continuous in the sense that it does not matter how good or how bad your current criminal justice system is at the moment. Whatever its current state, improving its moral credibility with the community will incrementally increase its effectiveness, and reducing its moral credibility with the community will incrementally decrease its effectiveness.

Thus, the message to the internationals who sponsor criminal law codification projects is that they ought not insist upon a criminal code that tracks international norms but rather one that tracks local norms. If they force upon the locals a criminal code of international norms that conflict with local norms, it will simply serve to undermine the code’s legitimacy and moral credibility, which will undermine the value of the entire project. They can advance their own agenda better in the long term if they help establish an effective criminal code, which might then be a vehicle for future shifts of community views toward international norms.

The internationals can of course provide arguments to the locals for why the international norms ought to be adopted. And if at some point local norms shift to better align with international norms, then the criminal code ought to be amended accordingly. But demanding that the code adopt rules that conflict with local norms is a losing strategy from the beginning because it will tend to discredit the entire project in the eyes of the local community.

It should be pointed out that the same arguments for having criminal law track community views apply equally to the political elites in the country. They are likely to be in control of the criminal law codification process and no doubt would be tempted to draft the code to reflect their own views without regard to the views of the larger community. Such an approach may promote their political agenda but, to the extent that it conflicts with existing community views, it will damage the code’s reputation and ultimately its effectiveness.

I have little doubt that some political elites or religious leaders will want to push back against this point. The clerics might understandably argue that “the criminal law must reflect God’s rules, whether the people have internalized those rules are not.” The strength of this claim is undeniable. However, what the clerics must understand is that there is a hidden cost to insisting upon a criminal law rule that the community sees as unjust, for it undermines the criminal law’s moral credibility and longer-term can undermine the legitimacy and support for Shari’a. 

There is one important exception to the rule that criminal codes ought to reflect community views. One can imagine a situation where political, social, and religious leaders want to change community norms on one issue or another. Can they use criminal law reform to help them do that? 

If the criminal code has in other respects tracked community views and has earned moral credibility with the community, social reformers can take the “moral credibility chips” that it has earned and “spend” them to help change community views. If citizens have come to see the criminal code as a reliable statement of what is and is not truly condemnable, then a criminal code change that criminalizes new conduct, for example, will be taken as a persuasive signal that this new conduct is indeed condemnable.

If the attempt to shift community views is successful, then the law-community conflict will soon disappear and the law’s moral credibility will be maintained. However, if community views do not promptly show movement toward adopting the criminal law’s new rule, then the reformers ought to back off, return the law to match existing community views, and perhaps try to use other mechanisms, such as religious or educational institutions, to change community norms before they have criminal law criminalize the new conduct.

To return to the issue of the common points of tension between the international organizations and the local community, while this problem exists to some extent in most criminal law codification projects, it is a particular challenge in developing Muslim countries. Many Westerners assume that a criminal code based upon Shari’a would in all respects look like the severe penalties that they see in the hudud offenses. Thus, the internationals may well oppose any reliance upon Shari’a in drafting a criminal code.

But this concern comes from a misunderstanding of Shari’a and the hudud offenses. In my experience, the principles underlying the treatment of criminal law cases under Shari’a are very similar to the standard principles underlying criminal law around the world. I am certainly no Shari’a expert but it seems clear, for example, that Shari’a holds central a principle of proportionality between blameworthiness and punishment, as do most criminal law systems in the world. Indeed, even in the definition of what constitutes a crime and in the factors that distinguish more serious and less serious offenses, there is an enormous amount of overlap around the world. The differences that do exist tend to be those that relate to the relatively few number of culturally dependent offenses such as those relating to family and religion. But the vast majority of the criminal code provisions in a Shari’a-based criminal code would be entirely compatible with the provisions of a Western criminal code. But this enormous level of agreement is hidden by Westerners’ mistaken assumption that the hudud offenses reflect the typical principles of justice contained in Shari’a.

The hudud offenses do present a special challenge for codifying criminal law in a developing Muslim country. It is common for the local community to be devout and to want to honor their religion and the teachings of the Koran as they draft their criminal code. On the other hand, it is also common that many aspects of the hudud offenses conflict with the local community’s existing norms. What is to be done? 

In these situations, sometimes thoughtful analysis and creative drafting can help accommodate the points of tension. For example, if the local Muslim community does not in fact support use of the death penalty but, out of their devotion to Islam and the Koran, does not wish to formally abolish it, the criminal code can formally adopt the death penalty but, following Shari’a’s principle of proportionality in punishment, specifically provide that this uniquely harsh punishment must be reserved for the uniquely most egregious case. Thus, if one can imagine a case worse than the case at hand, then the death penalty ought not be imposed in the case at hand but rather reserved under the proportionality principle for use only in the most egregious case.

Similarly, if the local community’s modern judgments of justice do not support lashes as a punishment, the criminal code can preserve that formal punishment but convert it into a formal occasion of symbolic public condemnation where ceremonial lashes cause no pain or injury. A similar symbolic approach might be taken with regard to other traditional penalties, such as cutting, stoning, or physical retaliation.

In other instances, however, existing community norms may conflict with the hudud offenses in a way that leaves little room for a creative accommodation. For example, some Muslim communities may reject the propriety of serious penalties for apostasy, criticizing Islam, failure to fast, adultery, or false claim of adultery, among others. But even here, it is possible to seriously limit the application of the offense by adding a series of restrictions on its scope or by creating special proof requirements that typically cannot be satisfied.

I understand and to some extent support such attempts at accommodating the tension between the traditional offenses and the community’s modern sensibilities. However, it is worth noting that these kind of accommodations are less attractive than the two approaches at accommodation described previously. Those previously-described approaches are entirely principled, while these are less so.

Given the proportionality principle, it really does make sense to limit the death penalty to the most egregious offense imaginable. And in the use of purely ceremonial lashing or other symbolic punishment, the law is being open and straightforward about what it seeks to do: the violation deserves public censure but not physical punishment.

In contrast, the latter approach – setting unattainable proof requirements, for example – seems more like cynical manipulation. If the conduct is truly sufficiently condemnable to deserve criminal liability, then it deserves some punishment, even if the punishment is simply formal public condemnation. But criminalizing the conduct then making its prosecution impossible would seem to be gameplaying, which will tend to undermine the criminal code’s moral credibility. People may wonder: Is the conduct criminally condemnable or not?

To conclude my remarks, I very much understand the motivation of many groups to want to push hard for a new criminal code to reflect values important to them. The international organizations have a conception of human rights and freedoms that is dear to them. Political and religious authorities in a country want the criminal code to promote the values that they hold important. However, modern social science research has shown us the dangers and hidden costs of allowing these global or national political or religious preferences to shape a criminal code in ways that conflict with existing judgments of justice of the community to which it applies. In contrast, a criminal code that tracks community views can harness the powerful forces of social influence and internalized norms, and this power can be used to help shape community views in the future, to bring long-term change or to provide long-term stability.