Sharia law and the death penalty

In many Islamic countries which continue to carry out executions, the death penalty has become a taboo subject. Governments frequently use Sharia to justify why they retain and apply capital punishment, and this can seem to close discussion on the subject. However, Sharia law is not as immutable on the death penalty as many scholars or states say.

Among the misconceptions about Sharia law is the belief that there is a clear and unambiguous statement of what the punishments are for particular offences. In fact, there are several different sources referring to punishments, and different schools of Sharia law give different weight to them. There is a belief that Islamic judges are required to impose a fixed and predetermined punishment for certain offences without discretion or without permitting mitigating evidence to be admitted into court. This is not true. Additionally, there is also the belief that Sharia law is widely used in national legislation and practice in Islamic countries, in the Middle East and North Africa (MENA) region and elsewhere. In fact, most countries in the MENA region maintain a dual system of secular courts and religious courts, in which the religious courts implement various aspects of Sharia law.

This publication by Penal Reform International aims to correct misapprehensions and to give readers an understanding of Islamic law and jurisprudence relating to the death penalty. It describes the sources of Sharia law and the relative importance of each source. It lays out the different offences that may attract the death penalty and the different views about each, showing that Sharia law does not explicitly compel Muslim states to apply the death penalty. It examines the offences and evidentiary requirements that are required for a death sentence under Sharia, finding that they are so restrictive that they make it almost impossible to impose such a punishment in practice.

Contrary to traditionalist interpretations of the Sharia that make the death penalty permissible for four proscribed offences (premeditated murder, adultery, apostasy and ‘waging war against God’), Islam takes a much more flexible and lenient approach. It does not require the death penalty, but instead provides opportunities for it to be avoided. This publication examines each offence in turn, reviewing the context in which it was established and the debates between schools of Islamic thought and jurisprudence. It also examines Sharia law in relation to other offences that may carry the death penalty in majority Islamic states, pointing out that many offences that carry the death penalty (such as drug offences and sorcery/witchcraft) cannot do so on the basis of Sharia. Finally, the paper looks at how the death penalty relates to other obligations in Islam, in particular the importance of family and how this relates to children of those sentenced to death.

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