N.Kalkayeva

Candidate of Law sciences, Associate professor of Sub-department for Political Sciences and Social-Economic disciplines, Institute of Magistracy and PhD Doctoral Candidacy, Kazakh State Pedagogical University named after Abay, Almaty, Republic of Kazakhstan

CRIMINAL AND LEGAL NORMS OF THE SHARIAH

One of the excellent branches of Kazakh history – Kazakh ancient traditions, customs and relations in social life completely coincide with the modern concept of law. Every work carried out with the purpose to study in detail such invaluable national treasures is a result of systematic work enriching the spiritual heritage of our nation. [1].

Upon coming into force of the Constitution the Criminal Law has derived from it, which consists of the structure based on composed regulations and object expressing the will of the legislator.

Criminal and legal norms of Shariah are generated from four sources: The Holy Quran, Sunnah, Ijma and Qiyas. Criminal and legal understanding of crime and punishment results from perceiving or feeling of faith. If so, according to Shariah all prohibited deeds are deemed to be crimes. The danger of the committed crime is considered as a sin before “Allah” and its size depends on the caused harm.

It is known that the Holy Quran consists of 114 Sura and 6238 Ayahs. Suras are classed as Meccan or Medinan, depending on where the verses were revealed. Besides religious rules and divine guidance, the Holy Quran includes a list of rights. But we can not call them a code or collection of laws, therefore it is a book that covers interrelated religious and legal issues [2]. Its omnipotence is not related to state administration, but to the will of Allah, - says Subkhy Makhmasini [3, 14 p.]. Islamic legist scientists consider the Holy Quran as the authoritative source of Islamic Law, and the source of the Holy Quran is the will of Allah and nobody can limit it.

In actuality the ayahs contained in the Holy Quran cover legal rules referring to all aspects of the law, including the criminal law, they are given through religious concepts. If we will take into consideration the historical reality of the period when the Holy Quran was originated, as it was related to emergence of the state and law on the exact territory, it seems that the Quran was intended to solve social, economic, and political issues of that period. Many centuries have elapsed and society has passed through several development stages, therefore nowadays in the time of advanced society, of course it is impossible to find in this book the solution to every problem. We can use it as data and also we can try to study and analyze its concepts and rules concerning legal norms, especially those related to settlement of crime and punishment issues. The Holy Quran had touched upon several types of severe crimes. For example, theft, robbery, murdering with enmity, wounding, bribery, adultery, false accusation, drinking, killing own child by parents, hooliganism etc.

Numerous sura and ayahs of this book explain that the crimes committed by people are deemed as crimes before Allah too. In addition punishments inflicted for committing some of the above listed crimes are also used to take vengeance. The principal source of Shariah – the Holy Quran rules indicate that at pre-Islamic period some crimes were judged unfairly, therefore in order to prevent such drawbacks the Shariah stipulates inflicting punishment according to severity of a crime taking into account difference between types of crimes, severity degree and it declares struggle against crimes. For instance at the pre-Islamic period, the punishment for intentional killing was placed not only on the guilty person but their family too, even sometimes the whole tribe of the criminal was killed. Shariah had another point of view, according to it each criminal should be punished depending upon his or her crime.

We deem reasonable to divide crimes covered by Quran into two groups:

1) crimes with prescribed punishments;

2) crimes without prescribed punishment.

The ayah 33 of “The Dinner Table” tells: “The punishment of those who wage war against Allah and His apostle and strive to make mischief in the land is only this, that they should be murdered or crucified or their hands and their feet should be cut off on opposite sides or they should be imprisoned; this shall be as a disgrace for them in this world, and in the hereafter they shall have a grievous chastisement”. This Sura also tells that apostasy is a crime and prescribes a punishment for it. The ayah 38 of this Sura says that: “And (as for) the man who steals and the woman who steals, cut off their hands as a punishment for what they have earned, an exemplary punishment from Allah; and Allah is Mighty, Wise”, the ayah 45 says that: “And We prescribed to them in it that life is for life, and eye for eye, and nose for nose, and ear for ear, and tooth for tooth, and (that there is) reprisal in wounds; but he who foregoes it, it shall be an expiation for him; and whoever did not judge by what Allah revealed, those are they that are the unjust”. It became known that the punishment for such crimes as theft and deliberate wounding and other punishment are already prescribed by Allah.

The ayah 178 of Sura “The cow” says that: “O you who believe! retaliation is prescribed for you in the matter of the slain, the free for the free, and the slave for the slave, and the female for the female, but if any remission is made to any one by his (aggrieved) brother, then prosecution (for the blood wit) should be made according to usage, and payment should be made to him in a good manner; this is an alleviation from your Lord and a mercy; so whoever exceeds the limit after this he shall have a painful chastisement. The ayah 2 of Sura “The Light”: “(As for) the fornicatress and the fornicator, flog each of them, (giving) a hundred stripes, and let not pity for them detain you in the matter of obedience to Allah, if you believe in Allah and the last day, and let a party of believers witness their chastisement”. The judgement indicated in this ayah concerns single and alone or widow (without family) fornicatress or fornicator. If fornication was done by a married man or woman, the punishment prescribed for them – killing by throwing stones and ayah 4 of Sura “Ayah” says: “And those who accuse free women then do not bring four witnesses, flog them, (giving) eighty stripes, and do not admit any evidence from them ever; and these it is that are the transgressors”.

Not informing or concealing crimes is also deemed as a crime and is punishable. It is proved by 282 ayah of Sura “The Cow” tells: “and call in to witness from among your men two witnesses” and ayah 135 of Sura “The Woman”: “O you who believe! be maintainers of justice, bearers of witness of Allah's sake, though it may be against your own selves or (your) parents or near relatives; if he be rich or poor, Allah is nearer to them both in compassion; therefore do not follow (your) low desires, lest you deviate; and if you swerve or turn aside, then surely Allah is aware of what you do.

Ayah 31 of Sura “The Children of Israil” sayss: “And do not kill your children for fear of poverty; We give them sustenance and yourselves (too); surely to kill them is a great wrong” and ayah 35 of this Sura “And give full measure when you measure out, and weigh with a true balance; this is fair and better in the end”.

Shariah prescribes special punishments for parents who kill their own child, for cheating trade customers and for breaching trade law. These crimes belong to the category of crimes with inexact punishments. It was indicated that the whole society struggled against these crimes.

And also ayah 32 of Sura “The Children of Israil” by stating: “And go not nigh to fornication; surely it is an indecency and an evil way” defined fornication as very severe crime in Shariah and declared struggle against fornication.

The ayah 7 of the Sura “The Bunishmemnt’( Apai, surelerdin atin arab tilindegi atin nemese taza agilshindagi maginasimen zhazbasaniz maginasi ozgerip ketedi,) “... and whatever the Apostle gives you, accept it, and from whatever he forbids you, keep back, and be careful of (your duty to) Allah; surely Allah is severe in retributing (evil)”. 179 ayah of sura “The cow” says: “ And there is life for you in (the law of) retaliation, O men of understanding, that you may guard yourselves”.

The meaning of the above stated ayahs tells that if economics and social and cultural, educational and legal measurements are applied in coordinated form, the struggle against crime will be efficient.

The second basic source of the Shariah is Sunna. Ayah 59 of Sura “The woman” tells: “O you who believe! obey Allah and obey the Apostle and those in authority from among you; then if you quarrel about anything, refer it to Allah and the Apostle, if you believe in Allah and the last day; this is better and very good in the end”.

“Sunnah” is an Arabic word that means habit or usual practice. It includes aspects of ethics and morality, purity, prayer and worship, as well as matters of social and familial relations. The Sunnah is considered to be an integral part of the Holy Quran and together with the Quran forms the foundation of Shariah. In L. Masse`s judgment who is the well-known French orientalist-scientist one can support Sunnah without the Quran, but support the Quran without Sunnah is impossible [17, 72 p.].

According to the opinion of Khadith investigating scientists Sunnah is the manner or deeds of Muhammad, while hadith is a collection of the narrations and approvals. It is Prophet Muhammad`s different instructions, statements, opinions, words concerning different issues that are not included in the Quran.

It cited an example of sins – crimes taking place at that time. Also the person who concealed and do not inform about the crime was subjected to cruel punishment. One of hadith tells about Rasullallah coming tp stage and saying: “Khamr is a haraam intoxicating drink. Khamr is made of five substances – grape, persimmon, wheat, barley and honey and heady drink. Any intoxicating drink – haraam”.

Crimes not indicated in the Quran and Sunnah, especially taazir punishment, participation in crime, situations clarifying criminal responsibility and other issues were considered in some degree, we can say concepts of crime and punishment in hadiths were analyzed at the point of practice collection of that time. Therefore Sunnah is enriching and supplementing the Holy Quran and Sunnah with its rich experience is a source of the Shariah.

On the assumption of the above stated we can notice that the punishment system of Shariah is forgiving especially when it concerns corporal punishment, death penalty and etc. Those persons who have protectors or who had repaid the damage were exempted from a penalty. For example, M. Kapustin having investigated history law of Turkey and Persians concluded that punishment for rich persons was replaced by imposing a fine or confiscation of property [4].

Ijmā' is an Arabic term referring ideally to the consensus of the community. Ijma refers to the consensus of eminent scholars of Islam on some complicated issues after the death of Muhammad Prophet. Ijma comes next to the Quran and the Sunnah as a source of Islamic doctrines. Ijma solved all issues of all aspects of Sharia law, including issues concerning a crime and punishment. The following terms are mandatory for the Ijma to be just and legal:

- in accepting of it should participate contemporary scholars and they should have absolutely one opinion;

- though scholars live in different cities and states they should have much experience;

- Ijma is possible only after the death of Prophet Muhammad.

In case if one can not find solution from above stated three laws then it should use analogical reasoning method. Qyias (analogical reasoning) gives an opportunity to make a decision through analogical reasoning of that problems which were not solved on the basis of the Quran, Sunnah or Ijma.

For example, 18 clause of General part of RK Criminal Law includes a norm about ‘if the person committed the crime was drunk, he would not be exempted from criminal responsibility’, and the Shariah prohibites to drink intoxicants.

This proves the link between the Sharia and the Criminal Law. So, it is deemed to be haraam. It is called crime, because it makes harm to health, conscience, property of the person id est forces to commit a crime. Therefore drinking was forbidden and is deemed as a crime. Khamr literally means 'wine', and has been prohibited by Islam. This prohibition covers everything that acts as an agent of intoxication. That’s why lawyer-scientists compared all intoxicants with alcohol and the similar ones categorized to haraam products and prohibited them. The basic problem is khamr, judgment prescribed by the Quran for it – forbidding. Because consumption of haraam products leads one to commit a crime making harm to health, conscience, property, sense of the person. As intoxicants were forbidden as haraam, this problem is completely solved and consumption of intoxicants is determined as crime. The reason of naming qyias as one of the sources of the Islamic Law – it investigates development of the society and social – economic and political, spiritual changes occurring during development process and the purpose of qyias is on the basis of analysis to ensure not falling behind of all legal aspects and to advance legality.

The Holy Quran includes an ayah about intoxicating drink: “O you who believe! intoxicants and games of chance and (sacrificing to) stones set up and (dividing by) arrows are only an uncleanness, the Shaitan's work; shun it therefore that you may be successful”.

Islamic lawyers started comparison only upon understanding the reason, purpose, profit, basis and concept contained in the texts of the Quran, Sunnah and Ijma. Applying comparison in Shariah was approved by all mazhubs, scholars. It became effective only in case of using it by highly qualified specialists, lawyers. Application of comparison is indicated in the Holy Quran and Sunnah too.

For example, the Holy Quran invite people to do things analyzing and reasonably. “O you who believe! It contains very important ayahs”. In this article we stated about four sources of the Shariah. The opinion about absence of law and by-law acts and application of only Shariah sources in Islamic State during development period and under Four Chalifs` rule is not correct. At that time the state carried out own legal works by second degree method id est court practice, which assigns exact punishment and legal knowledge.

The development process of criminal and legal norms of the Shariah had gained specific historical peculiarities. So legal scientists highly appreciates the Shariah sources and do not compare them anything. Consequently, as was stated above, the criminal and legal sources of the Shariah have gained adjusting ability at legal aspect.

The structure of Criminal Law through linking with criminal and legal norms of the Shariah adjusts regulations of the criminal law.

Table of authorities

1 . Dulatbekov N.O. Applying of Criminal punishment (issues of theory and practice). Almaty, 2003, - p. 43.

2 . The Holy Quran (English version) / Translator Shakir, M. H., 1997. – 388 p.

3 Mahmasani S. Philosophy of Islamic law. – Beirut, 1952. - V.2. – p. 530.

4 . History of law. Ch. 1 / Kapustin M. – Yaroslavl,1872. – p.279.