AS PENAS HUDUD DO DIREITO MUÇULMANO: UMA ANÁLISE CRÍTICA À LUZ DOS DIREITOS HUMANOS

Abstract

This monograph deals with Muslim Criminal Law, more specifically on fixed penalties in the Islamic criminal area. It is analyzed how these penalties, which constitute the corporal punishment of whipping, amputation and capital punishment, violate Human Rights, illustrated here through the instruments international agreements of the Universal Declaration of Human Rights and the Covenant International Civil and Political Rights. However, to get to this discussion the origin of Islam and Muslim Law is studied, as well as its four sources: the Quran, the Sunna, consensus and the analogical process. It is also studied the internal organization of Muslim Criminal Law, with the investigation of the division of this branch made by Islamic legal science, which takes place, in contrast to Brazilian legislation, based on the penalties to be applied, not in relation to the matter violated by the crimes in question. As such, the category of fixed penalties joins the other two, that of the qysas penalties, applied to the crimes of homicide and injury corporal punishment, and that of ta’azir punishments, which, in turn, cover crimes that do not fit into either of the first two groups. An analysis of the aforementioned Human Rights provisions make clear the incompatibility between this area of Law and fixed penalties imposed by Muslim Law. It is proposed a reinterpretation of Shari'a, redirecting its analysis to its own principles, which in their literal sense are mild and compatible with international standards. This would allow the abolition of corporal penalties and their exchange for penalties alternatives, without questioning or contradicting the Sacred Law. Furthermore, it is proposed a greater participation of countries with an Islamic majority in the development of instruments norms on the subject of Human Rights, so that the idea of that these fundamental rules are only the fruit and instrument of influence of the Western. To this end, a methodology is used that combines a exploratory, which is presented through bibliographic, virtual and legal analysis of devices, doctrine and sacred texts, with an interpretative and qualitative of the resources studied. Among the main authors used are: Joseph Schacht, Francesco Castro, Mark A. Gabriel, Massimo Papa and Rudolph Peters. The alternatives proposed for the impasse brought about become necessary given the present and future global trend towards the protection and expansion of human rights Fundamental Rights, as well as the growing international conflicts in regions of Islamic majority.