Foreword

Olaf Kondgen has produced an ambitious and (almost) complete bibliography of Islamic criminal law, listing publications from the early 19th century until now. This bibliography is unique in its size: the only two prior bibliographies are of a much smaller scale and older, produced in 2001 and 2011.

Kondgen's bibliography lists more than 3,600 titles in two parts: one part having titles on general legal concepts and another part with titles related to countries and areas. The former part contains 76 alphabetical sections from “abortion” to “zina”, ranging through subjects such as “blood money,” “cybercrime”, “hadd” “qasama" and “theft”. The latter part includes 45 geographical sections with titles related specifically to countries and eras.

This bibliography is a monumental academic achievement. It is first and foremost an indispensable tool for research on Islamic criminal law. However, this bibliography was not intended to completely list all publications in this field. The bibliography is printed in Western European languages and not in languages such as Arabic, Persian and Urdu. This is because such a bibliography is in practice too complicated to produce, as Kondgen mentions in the Preface. In my view there is another good reason. By concentrating mostly on English (and, to a lesser extent, other European languages) the bibliography reaches a wide international audience, also in Muslim-majority countries, where a growing part of academic production takes place in English as well (e.g. in Pakistan, Nigeria, Malaysia, Iran a.o.). Nevertheless, it is to be hoped that this bibliography will encourage the future compilation of academic output as well as publications on national legal practices written in the main regional languages of the Muslim world.

The present work, however, is not only a tool for research; it is also a document in which Kondgen demonstrates the development of the discipline of the study of Islamic criminal law during the last two hundred years.

First, it is striking that publications in this field have increased exponentially since roughly 1980. The entries published before 1980 are a mere 7% of the whole collection, which means that the remaining entries after 1980 amount to 93%. Indeed, studies of Islamic law have become more popular during the last decades of the 20th century. But there was another development in the composition of various fields: the relatively greater interest in criminal law. Until roughly 1980, the significance of Western studies on Islamic criminal law was relatively small within the whole field of Islamic law. When I was at the university studying Islamic law, the received wisdom of my professors, who had studied under scholars such as Snouck Hurgronje, Goldziher and Schacht, was that Islamic law, Sharia, was essentially regarded as an ideal and theoretical system of unchangeable rules, where only a few fields of law, such as family law, law of succession, waqfs, were understood as living law applied by the courts. Other fields, such as criminal law, were less interesting, being considered not as legal practice, but rather as theory, merely discussed academically among Muslim jurists but not enforced. Western legal publications on Islamic criminal law were therefore relatively rare. This changed, however, in the 1980s when the growth of Western publications on Islamic criminal law increased exponentially. There were two causes for this: the development of the study of the legal history of Islam and the victory of Islamist regimes in some countries.

During the later decades of the last century the court records in the archives of the Muslim world began attracting more and more legal historians. Before that they focused chiefly on social history. However, in order to read these records, many of them felt the need to comprehend the legal system, i.e., the actual working of the law as found in the records. I myself felt this need to understand the actual system of Egyptian law, when, in the 1980s, I acquired the 19th-century Egyptian fatwa collection of al-Fatawa al-Mahdiyya.

I was surprised to find that one volume of a fatwa collection on criminal law referred to concrete procedures in legal courts and administrative offices. Through these fatwas I had a bureaucratic link with the court records in the Egyptian archives. Scrutinising these records I could examine how the legal system worked before the British occupation.

The new generation of legal historians demonstrated that Islamic criminal law had not been abolished or fallen into desuetude, but was actually enforced, usually in combination with executive authorities or bodies. Studying court records in the various national archives many articles and books on the history of Islamic criminal law were published, as we can see in the bibliography.

The second factor explaining the expansion of titles on Islamic criminal law after 1980 is political. Of course, there are a few countries (Saudi Arabia, Yemen) where Sharia, including Islamic criminal law, has traditionally been enforced as the law of the land. However, as a result of the victory of Islamist regimes, Sharia was reintroduced in some other Muslim countries having Western-type law. This included the enforcement of Islamic criminal law codes, initiated in Libya (1972), Pakistan (1979), Iran (codified Islamic criminal law as of 1982), Sudan (1983), Northern Nigeria (2000) and Brunei (2013). The Islamisation of law, and especially criminal law, resulted in a critical and concerned interest of Western academic research and in the increase of titles concerning Islamic criminal law. Recent Islamisation of Sharia was first studied not by lawyers, but rather by students of religion and politics, for instance focusing on Salafism or by human rights specialists, examining to which extent the Sharia codes conflicted.

Going through the contents of this bibliography you will find that its subject is law, but with diverse entries: law can be understoodjust as legal practice and jurisprudence, but also as a legal phenomenon analysed through different disciplines: social science, politics, religion and history. This makes this bibliography a rich and multidisciplinary publication with a readership beyond legal specialists.

Rudolph Peters

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Source: Kondgen Olaf. A Bibliography of Islamic Criminal Law. Brill,2022. — 468 p.. 2022

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