Author granted license

Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International

Document Type

Article

Publication Date

Summer 2007

ISSN

1529-0816

Publisher

University of Chicago Law School

Language

en-US

Abstract

This article considers the relationship between Islamic law and the absence or practice of investigative torture in the countries of today's Muslim world. Torture is forbidden in the constitutions, statutes, and treaties of most Muslim-majority countries, but a number of these countries are regularly named among those in which torture is practiced with apparent impunity. Among these countries are several that profess a commitment to Islamic law as a source of national law, including some that identify Islamic law as the principal source of law and some that go so far as to declare themselves "Islamic states." The status of investigative torture in Islamic law has long been unsettled: most early classical jurists forbade it, but some later classical jurists permitted it in at least certain circumstances. The permission some jurists gave the practice in Islamic jurisprudence (fiqh) was matched and augmented by a broader license jurists gave executive actors in the realm of governance or administration (siyasa), a realm seen as necessarily less constrained by jurisprudential limitations. Historical evidence indicates that investigative torture was indeed practiced by executive actors at various periods and places of the pre-modern Muslim world. Nevertheless, statistical analysis indicates little or no correlation between the absence or practice of torture in today's Muslim-majority countries and the degree of commitment these countries profess to Islamic law. Instead, this article concludes, the absence or practice of torture in a given Muslim-majority country today (and the willingness of Muslim-majority countries to join international covenants that ban torture) correlates with the same factor with which it correlates in a given non-Muslim-majority country: the presence or absence of democratic government.

Comments

Chicago Journal of International Law, Vol. 8, No. 1, pp. 21-41, 2007

NYLS Legal Studies Research Paper No. 07/08-11

Find on SSRN

Share

COinS
 
 

To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.