Constitutionality of Referral Provisions

A Comparative Study between Criminal Law and Islamic Jurisprudence

Abstract

In light of the referral texts laid down by the legislator in the Hudud legislations and the Qisas and Diyah Law, fundamental questions arise about the legality of this referral and the controls governing it; supporters of the Latin school argue that it conflicts with the principle of criminal legality, since it grants the judge the authority to craft the text, which is originally among the legislator’s powers, whereas supporters of the Anglo-Saxon school argue for the possibility of the judge’s participation in establishing legislation, especially since this school fundamentally relies on judicial precedents, while Islamic jurisprudence does not object to the judge exercising legislative authority provided that the requisite scholarly competence is available, and it contains many applications related to legislative referral

This disagreement among the three schools has an impact on the subject of the referral; does its scope remain limited to criminalization and punishment, or does it extend to their details? And if it concerns details, is it confined to secondary aspects, or does it go beyond them to include the essential details linked to the criminal characterization?

In addition to the importance of the clarity of the text as a basic pillar of the principle of criminal legality; for the ambiguity of the referred-to text may hinder the judge from interpreting the text and applying it properly, which threatens legal security and weakens the intended benefit of the referral

These considerations are reflected in the issue of referral in the Hudud legislations and the Qisas and Diyah Law; because applying the foundations of the Latin school and strictness in criminal legality often leads to a complete rejection of the idea of referral, and exactly the opposite when adopting the rules of the Anglo-Saxon school