Public and private distinction in the Criminal Justice institutions of the modern Muslim state

Mohamed, Abdalgaber (2025) Public and private distinction in the Criminal Justice institutions of the modern Muslim state. PhD thesis, Birkbeck, University of London.

Abstract

This study examines the policies of public-private distinctions in the criminal justice institutions of the modern Muslim state. It argues that the public concept of criminal law and criminal justice is not currently well considered in modern Muslim states, causing ambiguity and vagueness in the public-private distinctions in the criminal justice system. Four relevant countries, namely Egypt, Saudi Arabia, the United Arab Emirates, and Qatar are referenced as case studies. It also argues that the proper recasting of Shari’a in the criminal justice institutions of the modern Muslim state should start from a theory of criminal justice as a public law that maintains the constitutional values of equality, justice, fairness, and non-discrimination. On the one hand, this public concept of criminal law also means that the state is the only and exclusive authority Walī able to provide the criminal justice service, prosecute the offenses, represent and restitute the victim, and punish the offender. The state should not delegate criminal justice services to private agents and should not normalize the practices of non-state agents punishing other citizens for criminal offenses. On the other hand, the public concept of criminal law also restricts the state from using public institutions to occupy private realms outside the state's remit arbitrarily. This study argues that the vagueness in the public-private distinctions has four main aspects. The first aspect is the absence of the public-private distinction, evidenced by defining the concept of the victim’s family, Walῑ. It argued that implementing the public justice approach in Islamic criminal jurisprudence and law would define the victim’s family with the same flexibility as the concept of the offender’s family. The second aspect of the vagueness in public-private distinctions is the state’s normalization, justification, and empowerment of customary-based criminal reconciliations. This study considers these practices as a form of privatization of criminal justice in which the state delegates one of its inherent functions to private agents who prosecute and punish other citizens. The third aspect is how the state uses public institutions and powers to intervene and occupy private realms, for example, by prosecuting magic, witchcraft, and sorcery. The last aspect is represented in the discussion regarding morality-based criminalization, which relies on jumping between public and private realms. These four aspects also demonstrated the impact of this vagueness and ambiguity on vulnerable parties, groups, and people. It argues that the vagueness in the public-private distinctions in the criminal justice institutions of the modern Muslim state enables the empowered groups, the elite, regimes, work sponsors, men, and majorities to gain more privileges, power, dominance, and control over the vulnerable groups such as minorities, workers, females, and foreigners. The thesis critically engages with these four aspects to conclude that criminal law and criminal justice services are public and rational institutions that work within the modern state, which has exclusive legitimate power to use violence. The public concept of these institutions means that the constitutional and fundamental human rights of justice, equality, and non-discrimination should be maintained. Last, the proper recasting of Sharīʻah within the criminal justice institutions of the modern state should start from the public and rational characters of criminal laws.

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