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The law of evidence in the Islamic criminal justice system: a critical appraisal in the light of modern technology
thesisposted on 2022-03-28, 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.