Sheikh al-Qaraḍāwī's Independent Reasoning (Ijtihād) in Reformulating Contemporary Islamic Criminal Jurisprudence within the Framework of the Modern State

Abstract

Objective: The present article presents Sheikh al-Qaraḍāwī’s innovative legal interpretations and choices on issues of Islamic criminal jurisprudence. It also examines al-Qaraḍāwī’s independent legal rulings across various branches of criminal jurisprudence, analysing and evaluating them according to the principles he set for contemporary ijtihād (independent legal reasoning). Methodology: This study employs an inductive, descriptive, and analytical approach. First, it traces al-Qaraḍāwī’s ijtihād in criminal jurisprudence topics. Second, it examines his legal reasoning in light of his stated principles of ijtihād and his objective of adapting Islamic law to fit within the framework of the modern state. Third, it analyses his independent rulings (ijtihādāt) in relation to contemporary writings on criminal law. Results: Islamic criminal jurisprudence was a central focus for Sheikh al-Qaraḍāwī as he worked to develop an approach to Islamic law that fits within the framework of the modern state while upholding the principles of the Sharia. He consistently maintained that any effort to implement criminal punishments prescribed in Islam must be grounded in a contemporary understanding of the Sharia’s foundational sources. Sheikh al-Qaraḍāwī views Islamic criminal jurisprudence as fundamentally concerned with safeguarding religion, life, progeny, intellect, and property for all people. He believes that Islamic punitive measures primarily aim at promoting values and upholding human rights principles without discrimination based on religion, race, colour, or gender. Al-Qaraḍāwī’s views covered a range of complex criminal issues, including his stance on abolishing the death penalty, gender equality in matters of blood money, retribution between Muslims and non-Muslims, the changing jurisprudential concept of guardianship in retribution cases, the minimum threshold for amputation on theft, criticism of the modern prison system, punishment by stoning, the crime of apostasy, and his critique of the prevailing European narrative on corporal punishments in Islam. Originality: The originality of this study lies in its focus on the overlooked distinction between public and private matters in modern and pre-modern Islamic criminal jurisprudence.