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geschichte
Zeitschrift des
Max-Planck-Instituts
für europäische
Rechtsgeschichte
Herausgeberin
Marie Theres Fögen †
Redaktion
Rainer Maria Kiesow
Kent D. Lerch
Karl-Heinz Lingens
Rg 12 2008
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António Manuel Hespanha 12 Form and content in early modern legal books
Bridging the gap between material bibliography and the
history of legal thought
to exist« (4). That happened as a result of the to illustrate the tendency of reintroduction of
modernization and westernization of the Muslim Islamic criminal law within basically western-
world. Modernization came either as a conse- styled legal systems. For each country the author
quence of colonization or as an endowment of has outlined the political circumstances in which
the political elite of some Muslim countries. In Islamic criminal law was introduced, the content
both cases, a recently modernized, centralized of relevant laws and their eventual deviations
and bureaucratized state needed a new legal from classical doctrine. Namely, reintroduction
system as an instrument of social control. Thus, of Islamic criminal law was achieved through the
the Muslim world during the nineteenth century means of state legislation – a process which was
saw the change in the areas of criminal law. not only limited to the area of discretionary pun-
These changes were of three kinds: (1) complete ishments but also included fixed punishments
abolition of Islamic criminal law; (2) reform of and retaliation. During this process of codifica-
Islamic criminal law and (3) reform of siyasa tion, modern Muslim states departed from the
justice. In this chapter the author focuses on the classical doctrine in order to make criminal law a
latter two kinds of change. He has taken the more efficient instrument in their hands. On the
British India and North Nigeria as examples for other hand, Muslim states which embarked on
the reform of Islamic criminal law and the Otto- the policy of reintroduction of Islamic criminal
man Empire and Egypt for the reform of siyasa law are signatories to international human rights
justice. Reform in India and North Nigeria end- conventions. These conventions ban »cruel, de-
ed up with the creation of criminal law which grading, or inhuman punishment«, proclaim the
was Islamic only by name. Reform in the Otto- principle nulla poena sine lege, equality before
man state and Egypt ended up with the codifi- law, freedom of religion and freedom of expres-
cation of area of siyasa justice. In some coun- sion, as well as the basic right of children not to
tries, like Saudi Arabia, which managed to avoid be subject to the death penalty, life imprison-
any Western impact, Islamic criminal law con- ment and cruel, degrading or inhuman punish-
tinued to be applied. Even though Islamic crim- ment. Reintroduction of Islamic criminal law has
inal law was almost removed from legal practice, brought these countries in conflict with accepted
it continued to be studied, taught and discussed. international obligations.
This continued life of Islamic criminal law will The author does not subscribe to the view
acquire new meaning when Islamist parties and that the Sharía is not compatible with human
groups formulate a claim for the establishment rights. He is of opinion that the Shari’a is open
of an Islamic state and the implementation of for development and rather that the question of
Islamic criminal law during the twentieth cen- remedy of state legislation in Muslim countries
tury. which opted for reintroduction of Islamic crim-
In the fifth chapter the author has discussed inal law should be considered. A possible remedy
the role of Islamic criminal law today. Saudi would be: (1) »to stimulate debates among Mus-
Arabia was taken as a country exemplifying un- lims on the interpretation of religious sources
interrupted application of Islamic criminal law. with the aim of providing great legitimacy for
Several other countries such as Libya, Pakistan, human rights norms«; (2) to explore the signifi-
Iran, Sudan and Northern Nigeria were chosen cance of a position developed by some Muslim
Kritik
groups »for suspending the law of hadd until and cases. The documentary basis of the book
there is an Islamic society based on social jus- consists of relevant sources and literature in
tice …« (184). The author’s opinion is that these the field. With its concept and elaboration, this
strategies are in long run significant for human book transcends abstractness of dogmatic treat-
rights enforcement in Muslim countries where ment of Islamic criminal law, on one hand, and
Islamic criminal law is introduced. Finally, in the mere dwelling on historical forms of applica-
sixth chapter the author has highlighted major tion of Islamic criminal law, on the other hand.
themes of each chapter and connected them in a It shows to the readers a dynamic picture of
comprehensive conclusion. Islamic criminal law: relations between reveal-
In terms of the structure and content, this ed law and juristic doctrine, fixed definitions of
book represents the most comprehensive treat- crimes and punishments and the area of discre-
ment of the topic so far. The classical doctrine of tion, sacred law and political power, law and
Islamic criminal law is systematically presented. society. With this book, an important gap in the
The practical aspect – its application from the literature on Islamic criminal law has been filled.
sixteenth to the twenty-first century – is cover-
ed by choosing representative historical models Fikret Karcic
* Walter Lukan, Ljubinka 1 Friedrich Jäger, Bosniaken, Holm Sundhaussen vor: Ge-
Trgovčević, Dragan Vukčević Kroaten, Serben. Ein Leitfaden schichte Serbiens: 19.–21. Jahr-
(Hg.), Serbien und Montenegro. ihrer Geschichte, Frankfurt a. M. hundert, Wien u. a. 2007.
Raum und Bevölkerung – Ge- u. a. 2001; Tim Judah, The Serbs.
schichte – Sprache und Literatur – History, Myth and the Destruction
Kultur – Politik – Gesellschaft – of Yugoslavia, New Haven, Lon-
Wirtschaft – Recht, Münster: don 1997; Wolfgang Libal,
LIT Verlag 2007, 880 S., Die Serben. Blüte, Wahn und Ka-
ISBN 3-8258-9539-4 tastrophe, München, Wien 1996;
seit kurzem aber liegt ein Stan-
dardwerk zur serbischen Ge-
Rg12/2008