[Paul H. Robinson:] U Penn Prof for Shari'a
by Daniel Pipes
Translations of this item:
Today, July 26, 2004, is the day any of you who are students at the University of Pennsylvania Law School must get in your resumé and a grade sheet if you want to participate in the newly-announced seminar on "Islamic Criminal Law: Drafting a Criminal Code for the Maldives."
The law school's registrar, Gloria Watts, sent out a notice informing students of changes in the fall semester's course offerings, as first noted at LittleGreenFootballs.com. One of them is that Paul H. Robinson, Colin S. Diver Distinguished Professor of Law, cancelled his "Criminal Law Theory Seminar" and replaced it with the three-credit Maldive project. Robinson's course description explains the reasons for the shift in the seminar's topic and its urgency:
He also has published scholarly articles in nearly every top law review – those of California, Chicago, Columbia, Georgetown , Harvard, Northwestern, Oxford, Stanford, Texas, UCLA, Virginia, and Yale. Finally, he leads "the only two criminal code reform projects in the United States," those in Illinois and Kentucky.
It is easy to see how Professor Robinson would jump at the chance to develop what he calls "the world's first criminal code of modern format that is based upon the principles of Shari'a." Here is an opportunity for a leading criminal law practitioner to do something completely different – not Anglo-Saxon common law, not Napoleonic Code, but Shari'a. No wonder he ditched his standard seminar.
And, as expressed in his "Report on the Criminal Justice System of the Republic of Maldives: Proposals for Reform," he finds the present Maldivian criminal justice system inadequate, to the point that it "systematically fails to do justice and regularly does injustice." He sees the need for wide-ranging reforms, and believes that without dramatic change, the system is likely to deteriorate further. Robinson's preliminary thoughts for reform include such basics as making the judiciary an independent branch of government, limiting the police' right to search, establishing the defendants' right to legal counsel, and ending the present practice of relying primarily on confessions as the basis for establishing criminal liability.
These are worthy objectives, to be sure, but Professor Robinson should stand back from this project and reassess it. This leading scholar, through his work in the Maldives, will render more acceptable Shar'i provisions about killing apostates from Islam, subjugating women, keeping slaves, and repressing non-Muslims (in this light, note the matter-of-fact comment in the course description that "as a matter of law, all citizens [of the Maldives] are Muslim").
Rather than cleanse and modernize the Shar'i code, I appeal to Professor Robinson to reject the Maldive commission and take a totally different approach in his seminar, critiquing that code's criminal provisions from a Western point of view. He and his seminar students would then show how this religiously-based legal system contradicts virtually every assumption an American makes, such as the separation of church and state, the abolition of forced servitude, the right not to suffer inhumane punishments, freedom of religion and expression, equality of the sexes, and on and on.
The Shari'a needs to be rejected as a state law code, not made prettier.
July 28, 2004 update. In response to the above critique, Professor Robinson has written me the following:
Pipes reply: Prof. Robinson's explanation of his project makes our differences clear: I focus on the substance of the Shari'a and he on the Maldivian means to carry it out.
Oct. 7, 2004 update: The Associated Press provides more information on the Maldive project. A draft code should be ready by the end of November. Fifty students applied for the class and eighteen were accepted. Many of the issues in the course resemble lawmaking in the West, such as statutes dealing with theft, kidnapping, fraud, forgery, and criminal culpability. Indeed, the AP's David B. Caruso reports, from interviewing several students, that they "found little in Islamic law that requires the strict enforcement of centuries-old social norms favored by some Muslim scholars, and much in it that promotes social justice."
(The counterargument presented in the Caruso article is made by me; I compare the efforts in this class to "working on the criminal law in Saddam Hussein's Iraq." I also called the Shari'a incompatible with many Western values and argue it should be rejected as a source of state law, "not made prettier.")
It is dismaying to find that law students at a major school like the University of Pennsylvania being convinced that the Shari'a promotes social justice.
Jan. 15, 2006 update: The Final Report of the Maldivian Penal Law & Sentencing Codification Project is now available. Volume 1 contains the Text of Draft Code (including Sentencing Guidelines) and Volume II contains the Official Commentary. Both were "Prepared by Professor Paul H. Robinson and the University of Pennsylvania Law School Criminal Law Research Group, Commissioned by the Office of the Attorney General of the Maldives and the United Nations Development Programme."
July 28, 2006 update: Paul Robinson takes our debate to a new level entirely in a 56-page draft research paper, "Shari'a, Legality, and the Freedom to Invent New Forms: Americans Drafting an Islamic Model Penal Code," put out by the University of Pennsylvania Law School. Written with eleven of his students on the project, the paper uses my criticism of the Maldives project as its base and then replies to it.
In it, the authors, all members of the Criminal Law Research Group primarily responsible for work on the Draft Maldivian Penal Code ("DMPC"), ask two questions: (1) Does participating in the Maldive Shari'a project mean becoming complicit in perpetrating injustice? (2) Does the project have value or does it amount to making the Shari'a prettier, as I accused it of doing? The article, in brief, replies with a "no" and a "yes," respectively, while justifying the group's work for not just the Maldives but for all Muslims and non-Muslims alike.
But, as the text states atop each page, "Draft Only – Do Not Cite," means I cannot meaningfully reply to it.
Oct. 31, 2006 update: Robinson and the eleven law school students published today a 53-page paper "Codifying Shari'a: International Norms, Legality & the Freedom to Invent New Forms." From the abstract:
Apr. 30, 2007 update: Robinson and one student posted a 8-page paper today, "Of Neocolonialism, Common Law and Uncodifiable Shari'a: A Reply to Professor An-Na'Im." In it, they respond
Feb. 26, 2013 update: Comes news of a crime from the Maldives, more specifically from Feydhoo in Shaviyani Atoll, in the country's north: a 15-year-old girl was raped by her step-father, made pregnant by him, and then had her baby killed by him. The police, in investigating this crime, also learned that the girl had engaged in consensual pre-marital sex. Therefore, she has been ordered to remain under house arrest at a children's home for eight months and is slated to receive 100 lashes (which she can delay until she is 18). Comment: One wonders how the code written by Robinson and his students would lead to a different result than this barbaric ruling.
May 8, 2014 update: The University of Pennsylvania Law School issued a press release today, "Penal code drafted by Prof. Paul Robinson and students is enacted in the Maldives," which announces that the Maldivian legislature, the People's Majlis, enacted his code, which it hails as "the first modern, comprehensive penal code in the world to incorporate the major tenets and principles of Islamic law." It will take force in the Maldives in 2015. The release quotes Robinson:
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