Nature of Crime in Criminal Law and Islamic Sharia

Abstract

The nature of crime has been examined in criminal law and Islamic Sharia not only to clarify its essence in both systems and fill an existing gap but also to determine the similarities, differences, and the most suitable theory. The study aimed to analyze the nature of crime in both criminal law and Islam, addressing a gap previously discussed by followers of the natural law school. Based on this, two primary perspectives exist in criminal law: relativists and absolutists. Relativists believe that crime does not inherently exist; rather, it is defined by the state. In contrast, absolutists argue that good and evil exist naturally, and the state only has the authority to identify crimes. Alongside these two perspectives, Islam presents a balanced theory where the general principle is permissibility, and crime is an exception. In Islam, crimes are categorized into two types of fixed punishable crimes (Hu dud and Qisas). These crimes harm fundamental values such as human life, lineage, intellect, honor, wealth, and religion. Allah (SWT) has designated these as crimes and prescribed specific punishments for them, emphasizing their necessity across all times and places. Discretionary punishable crimes (Ta’zir): These offenses depend on three conditions either they involve a sinful act, go against public interest, or have an inherent immorality. The authority to define and penalize such crimes is granted to the state leader (or criminal law). In conclusion, the study found that there is no single unified perspective on the nature of crime in criminal law. However, in Islam, a balanced and well-structured theory exists, which significantly differs from criminal law and, based on strong reasoning, proves to be the superior approach.