But the debate about whether an immoral act can be criminalised will probably never end.
CRIMES and criminal law are societal definitions: they are recreated, affirmed, and mobilised in the daily lives of ordinary citizens.
Both crimes and criminals do not just concern workers or administrators in the justice system, such as officers of enforcement departments or courts, but the general public.
What the crimes are and who the criminals are, are to be determined according to the norms and values of society. For instance, leaving a toddler at a public place unattended is not a crime in one place, but it may be a serious crime in another place.
A dilemma always exists in the creation of crimes and criminal law. The reason for criminalisation of an act has always been an issue to discuss; be it in jurisprudence and academia, or even debate among political parties.
The general criminal law theory that has been developed a long time ago is the “Harm Principle”. “Harmful” is among the most popular reasons for criminalising an act.
If an act is harmful, there is justification to criminalise it. But it is easier said than done.
The harm principle has various dimensions. I am not going to explain the various dimensions of harm principle due to limited space. Only a few are mentioned here.
It is celebrated in human rights theory that all men are free and no one should be allowed to cause harm to another. Whoever causes harm to another must face the consequences, after due process, whether he is to be punished in the form of retaliation or in the form of punishment for his action.
However, within the “harm to others” principle, there exists the idea of acts that are harmful to society, but the victim is not physically seen. Or, if it is seen in society, it takes longer to be identified as a victim.
That is to say, when an act does not directly or physically affect anyone else, then the act has no victim. Thus, it is developed from this theory that, without a victim, there is no crime.
In a more recent development of criminal law theory, the aim of criminal law, in particular, criminal punishment, is the protection of the public against harm. For instance, should a serial rapist be incarcerated for life?
Thus, if a person has been convicted for any criminal act, he shall be punished. But the question to be answered is what kind of punishment or how serious the punishment should be.
The incarceration of offenders in serious crimes probably fits the description of the “harm prevention principle”.
Harmful conduct is another dimension of the harmful principle. Can harmful conduct be criminalised?
Can an act be made a crime because it is simply evil or immoral, even if the conduct itself is not harmful? This question leads to more serious deliberation on some portion of the discussion on law and morality.
Can an immoral act be criminalised? Jurisprudential debate on morality and law continues without a clear ending. Probably it will never end.
The jurisprudence of criminal law in Islam faces a similar dilemma. What actions or inactions may be criminalised?
Probably in Islamic theory, a simple explanation is that all sinful acts are bad. But not all “bad” actions or inaction should be criminalised.
Some Muslim jurists provide basic guidelines in criminalisation. That is to say, in making an act or inaction a crime, the action must be harmful to the five important “indispensables” in Islam, namely: religion, life, intellect, offspring and property.
Criminal law therefore aims to protect these five in order to achieve an orderly society. The creation and application of criminal law is not simple.
Certainly, ijtihad is required before crimes or punishments are enacted. Ijtihad in Islamic law is the process of making a legal decision by experts, through interpretation of the legal sources, the Quran and the Sunnah.
Ijtihad must be carried out according to locality, masses and time. The realistic and contemporary character of Islam in general, and Islamic criminal law specifically, must be adopted in the making of the law.
In the creation of offences, or in carrying out the ijtihad process, the values and the fullest understanding of the Islamic way of life cover three important aspects: faith in Islam, the superb character of human beings and dealings with all others must be made present in the provisions of law.
In other words, the law needs proper wording and a magnificent enforcement process.
Prof Madya Dr Shamrahayu A. Aziz is Principal Fellow at Ikim’s Centre for the Study of Syariah, Law and Politics. The views expressed here are entirely the writer’s own.
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