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Codifying the Hudud: Law, Ethics and the Transformation of Islamic Law in Modernity
Abstract
In contemporary conversations regarding Islamic law and ethics, two influential voices, Dr. Khaled Abou Fadel and Dr. Tariq Ramadan, have both called for a moratorium on the hudud punishments arguing that they are unethical and contravene international humanitarian law. Although the nuances of their arguments differ, they both agree that the principles the hudud punishments seek to protect are immutable, but the punishments themselves can and should be amended to coincide with what is ethically acceptable as a form of criminal punishment. Certain detractors posit that the hudud punishments cannot be abandoned wholesale; instead creative solutions should be found whereby the hudud punishments are retained and international humanitarian law is not violated. This paper presents an example of such creativity in the codification of Islamic penal law in the Maldives in the last decade. According to the constitution of the Maldives, the Shari’a undergirds legislation, thus Article 15 gives provision to the hudud punishments. However, legislators have framed the hudud in an original way. This paper will explore how the penal code of the Maldives has attempted to retain the hudud punishments, but amended them such that their implementation cannot be deemed unethical according to international human rights laws. I will argue that this is done in two ways: first, by a tripartite source model which creates law on the basis of Maldivian statutes, the Shari’a and Maldivian shared community values; and second, by implementing the hudud symbolically not formalistically. The Maldivian case becomes important because not only does it demonstrate ethical and legal challenges present in both implementing and abandoning the hudud, but it also provides a lens into the transformation of Islamic criminal law in contemporary Muslim societies where political institutions and Western notions of the ‘rule of law’ reign supreme.
Discipline
Law
Geographic Area
Indian Ocean Region
Sub Area
Islamic Law