Restorative Justice in the Islamic Penal Law: A Contribution to the Global System

IntroductionRestorative justice is a recent concept. Its exact characteristic is still evolving, even in the Anglo-Saxon countries, where the theory is borne over the past three decades (Doolin, 2007; Hill, 2008; Mousourakis, 2004; Roach, 2000; Schmid, 2003). The theory has started to take a global shape (Archibald & Llewellyn, 2006; Hudson, 2007), with the United Nations' attempt to adopt restorative standards as part of international human rights law (Braithwaite, 2002; United Nations, 2000; United Nations Office for Drugs and Crime, 2006). Yet the concept of restoration is rooted in many religions and indigenous cultures (Katz & Bonham, 2006; Sarre, 1999).As opposed to traditional/retributive justice, restorative justice assumes that crime relates to private relations between people. It is not a public matter. Thus the state remains aside while victims and offenders resolving their disputes. It follows that victims or their smaller community, particularly families, reserve the final say in determining the offender's fate on a case-by-case basis. If victims give up their right to prosecute, the perpetrators would ideally evade penalty. A whole process takes place in lieu of classical penalty, however. The purpose is to hold offenders accountable for the harm done, rehabilitate and reintegrate, or restore, them into the community (Consedine, 1999).Restorative justice tends to be flexible. Its processes take various forms depending on the gravity of the crime, damage caused, personal and social status of the offender, his or her sex, age, family, education and victim's position. Such forms include, inter alia, compensation, conciliation and pardon. To these ends, the offender could be fined, asked to provide an apology and express regret, placed under probation or required to provide services to the victim or to the community. Restorative justice is viewed, theoretically and in practice, as one model in comparative criminal justice systems (Meier, 1998). It is not the alternative. Other models include 'retributive', 'deterrent' and 'rehabilitative' (Knox, 2001). Hence, restorative justice can work for certain crimes, not all in relation to all offences; for some victimizers or victims, not all persons; and in given communities, not everywhere.This paper explores the extent to which certain approaches embedded in Islamic jurisprudence, fikh, relating to criminal law are similar to contemporary restorative justice practices. The paper relies on the understanding the concept of restorative justice, of restorative practices in a number of countries, mainly in the United States, Canada, Australia and England. It considers existing international standards as developed by the United Nations over the past few years. As to Islamic law, the paper relies on classical jurisprudence in order to assess whether a restorative theory has been known in the early centuries of Islamic legal scholarship. It does not depend on restorative-like practices in Islamic states at the present time (Rahami, 2007); because criminal law applicable in most of these countries is either Western-imported law or tribal law that does not necessarily relate to Islam.Besides this introduction and the conclusion, the paper is divided into two parts. The first addresses the major, or macro, rules embedded in Islamic jurisprudence that might be considered as restorative practices: compensation, conciliation and pardon. The following part highlights a number of detailed, or micro, measures that had been set out by Muslim scholars that can be placed within the scope of restorative proper in one way or another. The conclusion would clarify where restorative justice theory stands within the Islamic penal law and assess the extent to which Islamic law differs or resembles modern restorative justice trends of various systems worldwide.Macro Restorative Justice Techniques: The Victim's OptionsAccording to Islamic jurisprudence, victims can restore their rights by a variety of ways. …

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