A Comparative Analysis of the Principle of "No Punishment Without Clarification" in Islamic Criminal Law and International Law

Abstract

This article provides a comparative analysis of the principle of "No Punishment Without Clarification" (Qubḥ ʿIqāb bi Lā Bayān) in Islamic jurisprudence and the principle of "Nullum crimen sine lege" in international law. Both principles emphasize the necessity of individuals’ awareness of laws and obligations before punishment is enforced, aiming to achieve criminal justice. In Islamic jurisprudence, this principle, grounded in divine justice and revelation, underscores the requirement for clear and explicit communication of obligations. Conversely, international law, based on human consensus and legal codification, upholds "No crime without law" as a pivotal tool to prevent injustice. Despite significant similarities, differences exist in their approaches to sources, criteria for clarification, and the implementation of these principles. Islamic jurisprudence recognizes both Shari’ah-based and customary declarations as primary tools for communicating obligations, whereas international law prioritizes formal and transparent codification. Challenges in harmonizing these principles, particularly in aligning them with global human rights standards and differences in legal sources, are explored. The article concludes by proposing measures to strengthen the convergence between these two legal systems, highlighting the potential for such harmonization to promote criminal justice and reduce inconsistencies globally.