al-Tashri al-Jinai al-Islami Muqaranan bil-Qanun al-Wadi
- Author died
- 1373 AH
- Editions
- Dār al-Kātib al-‘Arabī
al-Tashri‘ al-Jina’i al-Islami Muqaranan bil-Qanun al-Wad‘i (Islamic Criminal Legislation Compared to Positive Law) is a two-volume comparative legal treatise by the Egyptian jurist and judge Abd al-Qadir Awda (1325–1373 AH / 1907–1954 CE; also recorded as d. 1374 AH) . The work systematically contrasts classical Islamic criminal jurisprudence with modern statutory law, particularly Egyptian criminal law .
Background and Purpose
Awda authored the work to demonstrate what he viewed as the perfection and precedence of Islamic jurisprudence (sharia) over modern positive legal theories . He composed it during periods of daily rest and annual leaves while serving in official state duties in rural Egypt, where access to comprehensive libraries and reference works was limited . Although he initially hoped to compare Islamic civil law after finishing the criminal section, his primary legal undertaking was dedicated to criminal law .
Structure and Contents
The work is organized into two volumes divided between general and specific criminal law :
- Volume One (The General Part): Covers the general theory of crime and punishment . It analyzes the nature of crime, its classifications, and its essential constituent elements (the legal, material, and moral elements), as well as general rules governing criminal texts, such as non-retroactivity . It also examines the philosophy and classifications of punishment, including execution, multiplicity of penalties, and circumstances of remission or mitigation .
- Volume Two (The Special Part): Focuses on specific criminal offenses and their prescribed sanctions . It categorizes offenses based on the gravity and nature of punishment into fixed prescribed penalties (hudud), retributive and compensatory crimes (qisas and diya), and discretionary offenses (ta‘zir) .
Methodology and Scope
Awda adopted a modern legal style and terminology rather than traditional juristic jargon, aiming to make classical Islamic jurisprudence accessible to lawyers, judges, and students trained in modern secular legal systems, while aligning modern legal terminology with Sharia concepts .
In presenting Islamic law, he relied primarily on the four recognized Sunni schools of jurisprudence: the Hanafi, Maliki, Shafi'i, and Hanbali madhhabs . He noted that although he wished to include the legal positions of the Imami Shi'a, the Kharijites, and the Zahiris, his practical constraints and limited access to texts in rural posts prevented their inclusion . In his comparative analysis, he focused on comparing Islamic law directly with contemporary 20th-century positive law—predominantly the Egyptian penal code—rather than with historical stages of Western jurisprudence .
Publication
The work was printed in two volumes and saw multiple printings by publishing houses in Beirut, including Dar al-Kitab al-Arabi and Mu’assasat al-Risalah .
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