Disproving the Claim of Inherent Incompatibility Between Islamic Criminal Law and International Human Rights Law
Citation:Drea, Breda Josephine, Disproving the Claim of Inherent Incompatibility Between Islamic Criminal Law and International Human Rights Law, Trinity College Dublin.School of Law, 2022
Breda J. Drea Ph.D. Thesis.pdf (PDF) 2.441Mb
Is Islamic Criminal Law incompatible with International Human Rights Law? If so, is this incompatibility inherent arising by reason of the texts of both Sharia and the International Bill of Rights, or does it exist by reason of how various entities interpret these texts? Divided into three parts, the first part of the thesis explores the Islamic legal framework and the approaches to interpretation, before focusing on a delineation of the hudud crimes and punishments and an identification of the problematic aspects, in terms of the perceived collision with International Human Rights Law; those being, the presence of God, and the cruel nature of the physical punishments. The second part comparatively analyses the current instruments that represent the International and Islamic world views of human rights before asking how their values compare, and, what impact their similarities and distinctions have. The central conclusion is that the perceived incompatibility between the two is not inherent for two reasons. Firstly Shari?a provides scrupulously for the kind of due process concerns in relation to criminal prosecutions and investigations that are demanded by International Human Rights. Secondly, the core values that underpin IHR are also the core values that underpin Shari?a. Where they are at odds this is because of particular interpretive approaches adopted both by the United Nations Human Rights Committee, and by Muslim fundamentalists, that have the effect of creating a divide between these two ideological worldviews. The third part of the thesis reintroduces the identified problematic aspects and tests them against the thesis proposition that fundamentalist interpretations are at play in both schemes. An alternative, rationalist, interpretation of the Islamic texts is proposed as a means of closing the incompatibility gap and is supported by the modernisation of Judaic Law precedent in the state of Israel.
Author: Drea, Breda Josephine
Publisher:Trinity College Dublin. School of Law. Discipline of Law
Type of material:Thesis
Availability:Full text available