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The law of evidence in the Islamic criminal justice system: a critical appraisal in the light of modern technology

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thesis
posted on 28.03.2022, 21:31 authored by Souha Korbatieh
Sharia has continuously developed since Islam's inception in the seventh century CE. This thesis focuses on hudud criminal law evidentiary requirements, particularly adultery, and critically assesses the impact of modern technology on these laws. Many modern Muslim states implementing sharia or a part of it are struggling to incorporate technological advancements into their criminal evidence rules. In assessing the desirability of updating sharia proofs, this thesis establishes modern technology can be comfortably incorporated as circumstantial proof in sharia under the legal concept of ijtihad. Such proof, however, means it cannot be used to prove hudud crimes, such as adultery, which would contravene maqasid of sharia and hudud, including contravening sharia privacy principles. Instead, modern technology, such as DNA testing, should be used as paternity verification at a wife's request to establish her innocence in li'an cases or to prove paternity under family laws to provide welfare rights to children. In a similar vein, CCTV footage may beneficially be treated as admissible evidence in establishing truth and justice in Islamic criminal law. This thesis concludes by (a) finding that, while modern technology can be incorporated within sharia evidence laws, there are restrictions on its use due to the unique aspects of hudud and its sharia objectives; and (b) offering pragmatic recommendations to integrate modern technology in the sharia criminal law of evidence.

History

Table of Contents

I Introduction -- II Sharia Law : Sources, Objectives and Reform -- III Sharia Criminal Law and Procedures: Crimes, Punishment and Evidence -- IV The Probative Value of Modern Technology in Sharia Criminal Law -- V Reforming Sharia Criminal Law to Use Modern Technological Evidence -- VI Conclusion & Recommendations

Notes

Bibliography: pages 80-86 Theoretical thesis.

Awarding Institution

Macquarie University

Degree Type

Thesis MRes

Degree

MRes, Macquarie University, Faculty of Arts, Department of Law

Department, Centre or School

Department of Law

Year of Award

2020

Principal Supervisor

Rafiqul Islam

Rights

Copyright Souha Korbatieh 2020

Language

English

Extent

1 online resource (86 pages)

Former Identifiers

mq:72300 http://hdl.handle.net/1959.14/1283422