Islamisation and Modernisation Within the Uae Penal Law: Shari'a in the Pre-Modern Period

Abstract

The criminal law of the United Arab Emirates (UAE) derives from two primary sources: Islamic law (Shari'a) and modern criminal law based on the provisions of the Federal Penal Code. This series of articles will examine the relationship between these two sources and the conflicts and problems arising from this relationship. In the UAE as in other Muslim countries, Shan'a was the traditional source of detailed legal rules for over a millennium. The binding authority of Shari'a is not conferred by the state, rather it is rooted in the Muslim belief that Sharifa is divinely ordaimed. The Qur'an (considered by Muslims to be the very word of God Himself), and the Sunnah (which details the Prophet Muhammad's interpretations and applications of the Qur'an), constitute ffie basic sources for Shari'a. From these two sources, Muslim jurists derived the detailed legal rules of Islamic law. According to traditional Shari'a legal theory, the deviation of such legal rules is entrusted solely to the jurists. It follows that the formulation of Shari'a detailed law is neither the prerogative of the Muslim state nor the right of Muslim courts. Islamic legal theory states that the right of law-creation is exclusively possessed by God and is not a prerogative of the state, as modern political and legal theories claim. Man thus has no right to create law; his role is esseniially corimed to formulating and discovering God's law as it is contained within Shari'a textual sources (i.e. the Qur'an and the Sunnah). The Federal Penal Code (1987) of the UAE, however, is the result of federal government legislation and as such is both modem (i.e. non-tradiiional) as well as secular. Most of the Code's provisions either originate from or are influenced by Western criminal laws. The Code's inherent contradictions created problems for the Emirates' legal system. The Penal Code attaches equal significance to de . . . @