论伊斯兰教传统刑法

本文主要按照伊斯兰教传统刑法的特点,就其"经定刑"、"同态复仇"和"酌定刑"作了较为全面且深入的讨论。认为伊斯兰教传统刑法虽是当时社会刑事法律的主要表现形式,自有其时代的局限性。但对治理一个尚不成熟的社会来说,亦有让我们可理解之一面。随着历史的发展和社会的变革,古典刑法只在当今部分伊斯兰国家尚有保留和实施。所有这些,对我们今天较为全面地认识和理解伊斯兰教传统刑法的两面性是有所帮助的。

Studies on traditional law of Islam

For a long period of time, discussion about hudūd, which includes lapidation for adultery, stripe for bibulosity and cutting hands for stealing, is widely scattered through many domestic and foreign mass media. Particularly in the reports of western media, the cruelty of Sharī‘a(Islamic law) was criticized from the prospects of human rights and humanitarian .Objectively speaking, the westerner’s viewpoints are sarcastic to some extent. Nevertheless, studies on Sharī‘a(Islamic law) from the prospects of intellectual history and social influence are not not very common, especially there have no rather comprehensive discussion about qisās and ta‘zīr with the exception of hudūd till nowadays. In view of this, a correspondingly in-depth and comprehensive discussion about qisās, ta‘zīr and hudūd is made mainly according to the characteristics of islamic traditional law in this paper. The author holds that Sharī‘a(Islamic law), which was the main form of criminal law of that traditional society, has ages localization itself on one hand, but also has its understandability to a disordered and primary society which was hard to manage with uncivilized phenomenons such as infanticide on the other hand. With severe penalties of Sharī‘a, brutal quotidian events, such as violence, robbery, vendetta, fornication, salvery, which disrupted the social stability, undermined the social order, violated humanism, were curbed effectively, and society at that time became more stable and ordered gradually. Of course, with the historical development and social change, classical criminal law are only retained and implemented in some Islamic countries today, and this situation will help us to study and understand comprehensively the dual characters of Sharī‘a(Islamic law).