Applications of Islamic Political Theory in Libyan Law: The Punishment for Adultery as a Case Study

Abstract

The issuance of legislation is an authority granted by Islamic law to the ruler, taking into account the general principles issued by Islamic law in matters not explicitly addressed in the texts, as well as choosing the opinion most suitable to the people's circumstances from among the opinions of the various schools of Islamic jurisprudence. A set of laws has been issued in Libya that take into account the application of the principle of Islamic governance, including the punishment for adultery. This punishment was specifically addressed in Law No. 70 of 1973. The aim of this study is to understand the foundations upon which the law on the punishment for adultery is based, and then to determine the extent to which the texts of the law adhere to the principle of Islamic governance. The punishment for adultery is defined linguistically and technically, and the elements of this crime are discussed, as well as who has the right to file a lawsuit. The study also addresses the impermissibility of waiving this crime due to its severe harm to the individual and society, as prohibited in the hadith. It further explains that circumstantial evidence is a means of proof in our time, and that the punishment for the perpetrator, male or female, is one hundred lashes, as stated in the verse regarding unmarried individuals. The law contradicts scholarly consensus by equating the punishment for adultery with that of an unmarried person, making the punishment for both lashes, whereas the punishment for adultery committed while married is stoning, not lashes. The paper states that Islamic law recognizes discretionary punishment (ta'zir) as a disciplinary measure to be resorted to in cases where there is no prescribed punishment (hadd) or expiation (kaffarah). This is established in the Quran and Sunnah.

The paper concludes that, through inductive reasoning and analysis of Law No. 70 of 1973, it was found that most of its provisions conform to the principles of Islamic political theory (siyasah), except in the case of adultery committed by a married person and an unmarried person. The law does not differentiate between them in terms of punishment. Therefore, Article 2-1 of this law concerning adultery committed by a married person should be amended to ensure full alignment between the law and the principles of Islamic political theory.