One of the most important lessons that the Egyptian legislature should learn from Islamic law is the continuous evolution of Islamic law rules, corresponding to the developments of the requirements and needs of society. Namely, in most of the historical periods of Islamic law, Shariea was not an obstacle to the needs of society. These continuous evolutions started with the birth of Islamic law.
To illustrate: Islamic law prescribes the death penalty for deliberate homicides under the philosophy of retaliation that obliged societies at the time to kill the offender only when he killed the victim, soul for soul. During this time, the tribe of the victim used to kill tens of people as revenge for killing one of its members. Then the other tribe countered this revenge with another, which led to wars between the tribes for many years. Consequently, the Quran – the primary source – obliges the people to adopt the philosophy of retaliation, imposing the sanction only against the individual offender and not passing the right of killing to any other member of his tribe or family. In addition to the policy of revenge for the victim, the pre-Islamic societies did not recognize equality in the process of imposing the penalty; for example, a man was not killed for killing a woman. By prescribing the death penalty for deliberate homicides, Islamic law protected those societies from suffering continuous wars.22
Furthermore, the two primary sources of Islamic law associated the philosophy of lenity, forgiveness, and mercy for the offender with the victim’s family for the death penalty.23 As a result, the philosophy of
22 Bahnasi, Ahmed Fathei, Al Qisas in the Islamic Jurisprudence, (English: Retaliation in The Islamic Jurisprudence), Dar Al Shorouk, (Cairo, 1989).
23 Quran says “O you who have believed, prescribed for you is legal retribution for those murdered - the free for the free, the slave for the slave, and the female for the female. But whoever overlooks from his brother anything, then there should be a suitable follow-up and payment to him with good conduct.” Al Baqra Chapter, 1: 178. It also says, “And We ordained for them therein a life for a life, an eye for an eye, a nose for a nose, an ear for an ear, a tooth for a tooth, and for wounds is legal retribution. But whoever gives [up his right as] charity, it is an expiation
Islamic law, by prescribing the death penalty, was actually to restrict the execution to the offender, thus preventing the uninterrupted killing between tribes.
In addition to the main philosophy of the primary sources, Islamic law schools changed the laws to align with societies’ needs. The prominent Islamic law scholars understood the main purposes of Shariea, the philosophy of the punishments, and the primary sources; therefore, they began to develop a set of rules, legal theories, and legislations for their respective societies under the umbrella of Shariea purposes and philosophy.24 Some examples of legal scholars responding to society’s evolving needs include Islamic criminal procedural rules, such as the victim’s opinion; witnesses conditions; the offender’s confession; the blood money right; the doubt maxim; the development of the “family”
concept from the literal meaning to the wider meaning of the entire community; the obligation of the government to pay the blood money for the indigent offender; and the independence of the judicial system.25 In short, Islamic law schools strove to make the Shariea rules more developed and more consistent with society’s needs.
The lesson of adapting Islamic law rules to the evolving needs of society must be followed by the Egyptian legislature to update Egyptian laws to address the contemporary needs of the Egyptian
community. as well as to address the evolving international values about the death penalty issue. Since the Egyptian legislature started to codify the laws, neither the substantive nor the procedural rules of
for him”, Al Maeda Chapter, 5: 45. Anas Ibn Malik narrated, "No case requiring retaliation was ever brought to the prophet, but he would enjoin pardoning”. Sunan an-Nasa'I, 4784, Book 45, Hadith 79. See more at Chapter 2.
24 Auda, Jasser. Maqasid Al-shariah As Philosophy of Islamic Law: A Systems Approach, London: International Institute of Islamic Thought, 2008.
25 See, Rabb, Intisar A, Doubt's Benefit: Legal Maxims in Islamic Law, 7th-16th Centuries, Princeton University, Ann Arbor, (2009). Rabb, Intisar A, Reasonable Doubt in Islamic Law, Yale Journal of International Law 40.1, 41-94, (2015). Rabb, Intisar A, The Islamic Rule of Lenity, Vanderbilt Journal of Transnational Law 44, no.5, 1299-1351, (2011). Salama, Maamoun, General Principles of Criminal Evidence in Islamic Jurisprudence, in Bassiouni, Cherif, ed.
The Islamic Criminal Justice System, 109-123, (New York, Oceana, 1982). Hallaq, Wael B, An Introduction to Islamic Law, Cambridge: Cambridge University Press, 2009. Feldman, Noah, The Fall and Rise of the Islamic State,
Princeton: Princeton University Press, 2008. Hallaq, Wael B, The Origins and Evolution of Islamic Law, Cambridge, UK: Cambridge University Press, 2005.
the death penalty have been adequately reformed to be up to date with modern Egyptian society’s development and international values.26 Furthermore, comparing the contemporary substantive rules of the death penalty with the situation that prevailed one hundred years ago demonstrates that the current situation is even more severe and terrible.27 Egyptian legislation on the death penalty should be reformed to be consistent with the contemporary developments in Egyptian society and in international human rights law.
3. Conclusion
In conclusion, Article 2 of the Egyptian Constitution, as well as the social and cultural aspects of Islamic law, oblige the Egyptian legislature to consider the tragic issue of the application of the death penalty in Egypt. It is not only the substantive and procedural rules of Islamic law that must be followed by the Egyptian legislature, but also the process and mechanism of adapting the law to the nature of the communities that must be followed, if there is to be successful reform of the death penalty.
Additionally, basing the reform of the death penalty on the values, rules, and philosophies of Islamic law will achieve balance between Egyptian cultures, beliefs, and nature on the one hand, and the international campaign against the death penalty on the other hand. The nature of the Egyptian people is to accept suggestions, reforms, and legal commands based on their own religion and faith.
Finally, the Egyptian government and the other Muslim countries that are affected by Islamic law should stop opposing the international campaign for death penalty reform by claiming that the imposition of the death penalty is a religious ritual that cannot be opposed or reformed in Muslim
26 Ibid, Zanati, supra note, 6.
27 Reprieve Organization, Justice Denied: Mass trials and the death penalty in Egypt, November 2015. Retrieved from; https://www.reprieve.org.uk/wp-content/uploads/2015/11/2015_11_18_PUB-Egypt-Death-Penalty-Report.pdf.
societies. Egyptian law scholars, Islamic law scholars, and Egyptian judges all must put forth the effort to propose the appropriate recommendations for death penalty reform in the Egyptian legal system.