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The Obligation of Legal Maxims in Crimes and Legal Penalty

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Sakinatul Syafiqah

on 2 December 2013

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Transcript of The Obligation of Legal Maxims in Crimes and Legal Penalty

The Obligation of Legal Maxims in Crimes and Legal Penalty
Introduction
A legal maxim is defined as “a general rule which applies to all of its related particulars”.

One of the roles of legal maxims is attaining good Islamic governance.

It also acts as a shield to protect the public interest such as protection of religion, life, reason, descendents and property

When it is Forbidden to take a thing, it is Forbidden to give it
any activities or transactions that contain haram elements are prohibited and cannot be used for any lawful purposes.

This legal maxim states that harm should be eliminated to safeguard people interest. However, if benefits conflict with harm, there are two possible scenarios.

If the benefit is greater than harm, securing the benefit is preferable.
In contrast, if the benefit is less than or on the same level as the harm, preventing harm is preferred.

Avoid Hudud Punishment in case of Doubt
Definition of Hudūd:
Technically = Prevention
Literally = it can be said as what a judge imposes to prevent the criminal from reverting to what he did, an estimated and legal penalty regardless of whether it is the right of Allah (swt) or the right of human being.

Definition of doubt:
Technically = uncertainty and confusion.
Literally = it is what looks like regular but it is not, no certainty whether it is forbidden or permissible.

Freedom from Liability is a Fundamental Principle
*A person is not liable or held responsibility solely on the claims that has been made against him or her, unless the person who made the claim has prove to accuse the defendant.

Repelling an Evil is Pereferable to Securing Benefits
Eg:Adultery crime
Penalty of adultery:
First, punishment to married man and woman is stoning till death. Second, the punishment to unmarried man and woman are hundred lashes and banishment for one year
Response regarding the doubt on proving the crime:
It is required two means of proving the crime: firstly, there must be clear, free and irreversible confession. Secondly, the testimony of four witnesses that they seen the action clearly, fully and accurately at the same time.

Eg :Robbery / stealing crime
Penalty for robbery/stealing:
Punishment for the theft if him or her killed the victim is death sentence.
If the theft not killed the victim, the punishment is cutting off the hands and feet from opposite sides.

For example, the income earned through riba is not allowed to be used to perform ibadah i.e. sadaqah, zakat, performing hajj and prayer
Reasons for Allah prohibit riba are:
bring damage to the humans’ dignity.
Give disadvantageous to the people who are involve in the transaction i.e. debter
The example of crime is apostasy.

Apostasy (murtad) which literally means 'one who turns back' from Islam.The legal penalty for Muslim who commits an apostasy is deserved to be killed.

The scholars agree that conditions for apostate to be executed are:
He or she will be given three days to repent.
After that, if he or she repent and accept Islam, he will be released
However, if he still does not repent, he must be executed

Reasons the apostate should be executed are:

The law of Allah Himself as stated in Quran.
Apostate will cause people especially Muslims to start to doubt about Islam by damaging the spiritual and souls that could land up in blazing fire of Hell for eternity.

Matters are Determined by Intention
In Islam, all matters, actions and words are determined by our intention or niyah. Thus, in criminal action, all crime is based on theirs intention and proven by the evidence to give penalty
Example:

When someone killed someone (which many jurist it is Muslim) there will be punished by death penalty which applied in qisas (Islamic Law).
Qisas:
Is equality or same. Which mentioned in Quran and Hadith, where there is life by life, money by money and more. Which are equally paid.
An injury cannot be removed by similar injury
This legal maxims explained that not all injury can be settled or removed by the same injury.
Example:

Those who are unintentionally killed someone, can be exception from having mandatory penalty, which called diyat. This happen when there are mercy from the victim's family or forgiveness from the victim.
Diyat:
Diyat is exception or reduction in the punishment of qisas.
Conclusion
There are many legal maxims can be applied to all crime. However, each crime there are Islamic Law that can be used in order to give punishment.
One is held responsible for one's confession
Confession stands as evidence, it is assumed that the confessor is being truthful with regard to what actually happened
For that reason, he is bound by his own admittance. This admittance is not transferable to any other suspect

For instance, if two persons or more were being accused of murder and in the first instance, all of them denied the charge but one of them, without any force or circumstance beyond his capacity, later came forward and confessed his involvement in the crime and stated that the crime was actually committed by him and some other people. In such case, he would be liable based on his confession, whereas the other suspect would not be convicted based on his confession until some other proof emerged to establish their involvement.

However, if the crime is adultery and he confessed his and others’ involvement in it but if later, his incrimination of the others was found to be untrue, or there is no sufficient required proof, he would be punished for the said crime and also for the crime of qadhf (false accusation).

Retraction of confession
It emphasizes the importance of establishing criminal justice in Islam to protect the rights of victims, and at the same time to prevent inflicting severe punishment on an innocent accused
In a case of murder, retraction of confession is not allowed

For example, if someone confessed that he had killed another person and later retracted his confession, his retraction would not be heard because of the right of the individual involved and the acceptability of retraction in such a situation would endanger criminal liability.

The reason why this is so is because if retraction were to be allowed in such instances, it would ultimately lead to prejudice against people’s rights and justice would not be established.
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