[Paul H. Robinson:] U Penn Prof for Shari'a
by Daniel Pipes
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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:
Who is Paul H. Robinson? The Penn Law School description of him boasts that he is "one of the world's leading scholars on criminal law" and his credentials are certainly impressive. They include his having served as a federal prosecutor, as counsel to the U.S. Senate's Subcommittee on Criminal Laws and Procedures, and having written a dozen books, among which are numbered the standard lawyer's reference book on criminal law defenses, an internationally-known Oxford monograph on criminal law theory, a highly-regarded criminal law treatise, a popular innovative case studies course book, and a ground-breaking empirical study of the conflict between criminal law rules and lay intuitions of justice.
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 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.
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. But, as the text states atop each page, "Draft Only – Do Not Cite," I shall await the final version before offering any reply. July 28, 2011 update: Five years have passed and no final version. Respecting the authors' wishes, I shall not reply to the draft.
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 has engaged in consensual pre-marital sex. She was found guilty, has been ordered to remain under house arrest at a children's home for eight months, and is slated to receive 100 lashes. She has the option to delay the punishment until she is 18.
Comment: One can't help but wonder what role the work of Paul H. Robinson and his students had in this barbaric ruling.
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