ORIGINS OF THE PRINCIPLE OF LEGALITY
CHAPTER 1: THE PRINCIPLE OF LEGALITY IN DOMESTIC LEGAL SYSTEMS
1.3 The principle of legality nowadays
1.3.3 Islamic law
1.3.2.3 Lex certa and stricta: clear and well-defined laws and strict interpretation
Common law countries uphold as well the requirement of clear and well-defined laws (lex certa), considered as a prerequisite of legal certainty.356 Regarding the lex stricta requirement, while in civil law systems it is mainly understood as prohibiting analogy, common law jurists interpret it in a more general manner. Lex stricta is contemplated as a general requirement of strict interpretation addressed to the judges, including the general prohibition of extending criminal statutes to the detriment of the accused.357 However, analogy is permissible in Anglo-Saxon countries, though with important limitations and constraints, and it allegedly conforms the grounds for common law developments and evolution.358 For example, in the United Kingdom analogy is only accepted if the legal extension could have been foreseen by the accused.359 In the United States, analogy is as well permitted, but its application is significantly limited by the general prohibition of ambiguity and vagueness.360 In fact, the courts avoid imposing criminal penalties if they are not clearly defined by law, and reject applying them by analogy.361
requirement intrinsically included in Islamic law.363 In fact, according to the Koran, God does not punish humans before having sent a Messenger to warn them.364 In this vein, the Koran and the Sunnah, the body of traditional social and legal custom and practice of the Islamic community,365 include the definition of certain crimes and punishments (hudud, quesas, diyya).366
The Sharia (Islamic law) includes some rules that can be directly associated with the principle of legality. A relevant maxim establishes that “the conduct of reasonable men (or the dictate of reason) alone is of no consequence without the support of a legal text”,367 meaning that conducts can only be prohibited (hara ̄m) based on a legal text.368 Likewise, the Sharia declares that “permissibility is the original norm” (al-asl, fi’l-ashya ̄’ al-iba ̄hah),369 meaning that if not forbidden by the law, all conducts are permissible.370
The non-retroactivity rule is generally recognized as well in Islamic law, with the exception of the retroactive application of norms in favour of the accused.371 According to the general scheme of the Koran, the majority of offences only have prospective effects and it is established that those committing a criminal conduct before it was considered a crime, would be pardoned.372 The Sunnah endorses this non- retroactivity principle. As an example, when embracing Islam, Amr ibs al-As, the commander who led the Muslim conquest of Egypt, asked the Prophet whether he would be held accountable for his previous transgressions. The Prophet replied that Islam obliterates what took place before its establishment. Similarly, the Prophet
363 Kress, «Nulla poena nullum crimen sine lege», 2010, para. 11; Mohamed Badar, «Islamic law (Sharia) and the jurisdiction of the International Criminal Court», Leiden Journal of International Law 24, n.o 2 (2011): 423.
364 Munir, ‘The Principle of Legality in Islamic Criminal Justice System’, 109.
365 Asma Afsaruddin, ‘Sunnah’, in Encyclopædia Britannica (Encyclopædia Britannica, inc., 2018).
366 Kress, ‘Nulla Poena Nullum Crimen Sine Lege’, 2010, para. 11.
367 As cited in Badar, ‘Islamic Law (Sharia) and the Jurisdiction of the International Criminal Court’, 423.
368 Badar, 423; Munir, ‘The Principle of Legality in Islamic Criminal Justice System’, 3–4.
369 As cited in Badar, ‘Islamic Law (Sharia) and the Jurisdiction of the International Criminal Court’, 423.
370 Badar, 423.
371 Ibid.
372 Munir, ‘The Principle of Legality in Islamic Criminal Justice System’, 110.
refused to punish crimes occurred prior to Islam.373
Therefore, Islamic law would be consistent with legality premise nullum crimen, nulla poena sine lege. Nevertheless, the general adherence to legality is challenged by some particularities. Even though retroactivity is generally forbidden, some exceptions are recognized. Retroactive application of the law is accepted when required by the interest of the community or when needed to guarantee peace and security of the Muslim community.374 The acceptance of analogy in certain circumstances seems problematic for the principle of legality under Islamic law. According to the majority of Muslim jurists, it is acceptable to expand the scope of some crimes by analogy, as it is the case of the hadd of zina crimes (adultery/fornication), extended to cover homosexuality.375
However, the ta’azir crimes constitute the most challenging case for the nullum crimen principle. Islamic criminal law can be divided into two general categories: fixed law (hadd or hudûd) and flexible law (ta’azir).376 When a criminal conduct does not fall under the first category, it is judged as a ta’azir, as is the case of criminal assault, kidnapping, abduction, forced labour or lesbianism.377 The punishments for these crimes are not fixed, and depend on the discretion of the judge (qadi).378 The objective of these penalties is to re-educate the criminal and prevent the commission of other crimes.
Therefore, the punishment is individualized, and can substantially vary depending on the circumstances and the character of the offender.379 Western scholars consider this a clear violation of the legality principle.380 On the contrary, most Muslim writers argue that the broad discretion given to the judges works as a safeguard and balance to the principle of legality, preventing potential problems arising from its inflexibility.381
373 Badar, ‘Islamic Law (Sharia) and the Jurisdiction of the International Criminal Court’, 424.
374 Munir, ‘The Principle of Legality in Islamic Criminal Justice System’, 117.
375 As explained, with further references in Munir, 110.
376 Marli Chandra, ‘The Penology of Islamic Criminal Law: Reintroduction of Islamic Penology’, Al-’Adalah 15, no. 2 (2018): 349.
377 Mamman Lawan, Ibrahim N. Sada, and Shaheen Sardar Ali, An Introduction to Islamic Criminal Justice (UK Center for Legal Education, 2011), 63, https://www.heacademy.ac.uk/system/files/Introduction_to_Islamic_Criminal_Justice.pdf.
378 Ibid.
379 Chandra, ‘The Penology of Islamic Criminal Law: Reintroduction of Islamic Penology’, 362.
380 See, with further references Kress, ‘Nulla Poena Nullum Crimen Sine Lege’, 2010, para. 11;
Badar, ‘Islamic Law (Sharia) and the Jurisdiction of the International Criminal Court’, 424.
381 For an overview of these opinions see, with various references, Badar, ‘Islamic Law (Sharia) and the Jurisdiction of the International Criminal Court’, 423.
Nevertheless, there are also opinions defending that primary sources of Islamic law do not allow ta’azir crimes to be exempt from the legality principle requirements, and that a correct interpretation of these sort of crimes would be respectful with this principle.382 It should be noted that this debate between Muslim and western scholars falls within the wider discussion on whether Islamic criminal laws respect or not democracy and human rights. Even among Islamic scholars it exists a broad variety of views and opinions depending on different definitions and understandings of Islamic laws.
Traditional interpretations consider human rights incompatible with Islamic law, and even deny the need of such compatibility.383 On the contrary, modern interpretations tend to find common ideas and values, considering possible a harmony.384 From the other side, the ECtHR has declared that a regime based on the Sharia does no respect human rights, particularly regarding criminal law and criminal procedure.385 However, experts on Islamic law and human rights specialist have strongly criticized this opinion.386
Anyhow, it should be noted that the principle of legality, introduced by colonial powers, have been incorporated in most Islamic legal systems, and nowadays traditional Sharia is only applied in very few Islamic States.387 Even in those States, an effort is being made to codify criminal conducts and maximum punishments in order to limit the discretionary powers of judges, especially regarding ta’azir crimes.388
382 See, with further references Munir, ‘The Principle of Legality in Islamic Criminal Justice System’, 116; Badar, ‘Islamic Law (Sharia) and the Jurisdiction of the International Criminal Court’, 424.
383 As explained, with further references in Said Mahmoudi, ‘Islamic Approach to International Law’, Max Planck Encyclopedia of Public International Law, 2019, para. 58.
384 Mahmoudi, para. 58.
385 Refah Partisi (The Welfare Party) and Others v Turkey, Apps Nº 41340/98, 41342/98, 41343/98 and 41344/98, ECtHR, 31 July 2001, para. 72, available at:
https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-59617%22]}.
386 As explained in Mahmoudi, ‘Islamic Approach to International Law’, para. 64.
387 Mahmoudi, para. 105.
388 Kress, ‘Nulla Poena Nullum Crimen Sine Lege’, 2010, para. 11. For further information on Islamic law and the Sharia, their complex relationship with human rights or on the Islamic criminal justice system see, among others M. Cherif Bassiouni, The Shari’a and Islamic Criminal Justice in Time of War and Peace (Cambridge: Cambridge University Press, 2013).
1.3.4 The principle of legality around the world: a general overview