Capital Punishment in Classical Islamic Jurisprudence: A Case Study of Pakistan and Afghanistan

Abstract

This article critically examines the use of qatl (capital punishment) in Pakistan and Afghanistan in light of classical Islamic jurisprudence (fiqh). It argues that, although both countries have adopted in their constitutions systems of law based on Islamic judicial ethics, the current death penalty practice is a far cry from the strict procedural and evidentiary rules written by the classical jurists into fiqh (Islamic legal theory) for ḥudūd (fixed punishment) and qiṣāṣ (retaliation) crimes. The research commences with a presentation of the theoretical structure of capital punishment in classical Sunni law, and focuses on murder, unlicensed warfare/banditry (ḥirābah) and unlawful sexual intercourse (zinā). It carefully describes the many legal doubts (shubuhāt) and the strict evidentiary criteria (e.g., the need for confession or multiple eyewitnesses) that classical jurists set to prevent the penalty from being carried out. After that, a dual case study is presented, looking at Pakistan's and Afghanistan's legal systems from the past and present. It illustrates how Pakistan's hybrid system, which combines Islamic law with penal codes from the British colonial era, has resulted in a large number of people on death row, mostly for non-ḥudūd offences, despite an ineffective legal system. The course of history in Afghanistan, principally under the Taliban, on the other hand, shows a more straightforward but frequently violent implementation of Islamic criminal law, usually eschewing traditional protections. The study concludes that these states' current implementation of the death penalty usually exploits the symbolic authority of Islamic law while ignoring its substantive, mercy-oriented legal philosophy, leading to systems that are frequently harsher and less equitable than those of their classical precursors.