From Textuality To Universality The Evolution of Hirābah Crimes in Islamic Jurisprudence

Abstract

The issue of the escalation of crime, which is increasingly varied and is getting heavier, is becoming a global concern. The development and progress of the world seems to have contributed to changes in the type and quality of crime, not only in the form and method, but also in the damage it causes. Crime trends increasingly point to collective crimes, systematic crimes, and crimes with extensive and massive excess damage. This article intends to criticize the systematic change (evolution) that has occurred in the concept of hirābah crime in Islamic law from a classical to contemporary perspective. The qualitative analysis of this article is focused on three fundamental issues, namely; hirābah interpretation, hirābah liability, and hirābah punishment. The author reveals in the conclusion that; first, based on its elements and characteristics, the definition of hirābah can be expanded to include new types of crimes such as; terrorism, rape, and drug trafficking and smuggling. Second, it is necessary to reconstruct the ḥirābah responsibility theory into a formulation that considers the principle of legal certainty and the principle of equality before the law. The reconstruction model, among others, is the affirmation that all people who involve themselves in the crime are perpetrators of hirābah (with an ishtirāk approach). Likewise, reconstruction efforts are needed to enforce equality of accountability between male and female actors. Third, as a serious crime, hirābah deserves a severe punishment and has a strong deterrent effect, as offered by Islamic law. However, the opportunity to give dispensation to the punishment will always be open if the perpetrator can prove his seriousness in repenting.