Proving Hudud Crimes: Islamic Sharia Rulings and Libyan Criminal Legislation — A Comparative Study

Abstract

The procedural rules for establishing Hudud crimes in Islamic Sharia exemplify the balance between protecting society and averting punishments due to legal doubts (shubuhat). These crimes require specific, strictly defined conditions and methods of proof, precluding unrestricted evidentiary freedom. For instance, establishing theft or highway robbery (hirabah) requires the perpetrator's confession or the testimony of two upright male witnesses who describe the crime precisely—while taking into account any doubt regarding ownership or financial entitlement that might avert the prescribed punishment. Regarding zina (illicit sexual intercourse), the Islamic legislator imposed the strictest evidentiary standards, requiring the testimony of four upright male witnesses based on direct observation or repeated, explicit confessions; this serves to protect personal honor and prevent the spread of indecency. Conversely, the crime of false accusation of unchastity (qadhf) is established through the testimony of two men or a confession, yet avenues exist to avert the punishment—such as proving the truth of the accusation under Sharia or invoking the li'an procedure between spouses. The Libyan legislator has been influenced by these rigorous jurisprudential rules, though its successive legislative efforts have fluctuated between explicitly stipulating these restrictive evidentiary methods and adhering to the "most widely accepted view among the more lenient schools of thought" (al-mashhur min aysar al-madhahib); this approach aims to ensure compliance with Sharia principles while avoiding procedural latitude that could lead to arbitrary application.