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:
The seminar will revolve around a single project: drafting a new criminal code for the Maldives. The work has been requested by the Maldivian government and is sponsored by the United Nations Development Program. Because the Maldives is by constitutional mandate an Islamic nation and, as a matter of law, all citizens are Muslim, the code will be the world's first criminal code of modern format that is based upon the principles of Shari'a.
After studying the existing Maldivian criminal law statutes and the criminal law principles contained in Shari'a, student teams will propose criminal code provisions and critique the proposals of others.
Selected students will have the opportunity to travel to the Maldives as part of the U.N. mission to coordinate the criminal code drafting work. (The Maldives is a nation of 1200 islands in the Indian Ocean that has for centuries been a transit point between Africa, the Middle East, and Asia and continues to have strong cultural connections to all three.)
Prerequisite: It is desirable but not mandatory that a student has taken or is taking Advanced Criminal Law. Enrollment requires permission of the instructor:
Those students accepted into the course will be notified by July 29.
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:
You object to my plan to assist the Maldivians in drafting a new criminal code. I think the opportunity ought to be enthusiastically embraced.
The Maldives does not allow the classic barbaric punishments of Shari'a, such as cutting off the hands of thieves or stoning adulterers to death. Indeed, Amnesty International reports that the country de facto abolished the death penalty for all offenses more than a half century ago. (And every one of the reforms you mention—independent judiciary, explicit limitations on police power, defense counsel at all stages, and moving away from the use of confessions—is something that the Maldivians themselves are now doing or committed themselves to do long before I ever showed up on the scene).
Does the country impose criminal liability and punishment that I find objectionable? Yes, which is precisely the reason that drives my interest in helping.
I do criminal code consulting for many countries. A few days ago, one client, China, beheaded a person for embezzlement. (Worse than anything the Maldivians have done.) Should I now refuse to advise them further on what I think a criminal code should look like? Your strategy of willful disengagement seems an odd way of bringing greater justice to the world.
The Maldivians are in the midst great social change. A special parliament called to draft a new constitution met for the first time two days ago; disagreements among the members spilled into demonstrations in the streets. A young and idealistic Attorney General, with much credibility with the people, was recently appointed, after police beatings of prisoners prompted riots. This man and many others in the country have made serious personal sacrifices to advance the cause of justice for Maldivians. He and others like him represent the forces of enlightenment that seek to move the country toward the principles of fairness and justice. When this man asks me to help draft a criminal code for his country, how could I possibly in good conscience refuse?
My views on criminal justice are well known. No one would think that I am inclined to tolerate barbaric punishments, nor would they think that I would renounce my independent judgment and be cowed into silence. (I was the lone dissenter in the promulgation of the United States Sentencing Commission guidelines.) If someone hires me to help draft a criminal code, that in itself tells you something about the person's agenda. If their goal is not fairness and justice, they are only hiring trouble. Why would they?
If the Western world had beat this country into submission through economic boycott and political isolation, we would take their request for Western advice to be a great victory. Why should the request to be shunned simply because some leaders of the country are people of conscience who by their own choice have sought the advice?
My goal is not to make their code "pretty," as you suggest, but rather to make it just. And the evidence to date suggests that this is their goal as well.
I do not know how the Maldivian criminal code project will turn out. Like many criminal code projects, it may go nowhere. I have no power other than the persuasiveness of my advice, which, experience tells, is often limited. But is it an enterprise worth undertaking? I would think it shameful to decline.
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:
there turned out to be perhaps unexpected advantages to undertaking a comprehensive codification project in the Maldives. While the lack of a codification tradition created difficulties, it also gave drafters the freedom to invent new codification forms that would be difficult to adopt in a society with an entrenched codification history.
While it was a concern that any Shari'a-based code could conflict with international norms, in practice it became apparent that the conflict was not as great as many would expect. Opportunities for accommodation were available, sometimes through interesting approaches by which the spirit of the Shari'a rule could be maintained without violating international norms. In the end, this Shari'a-based penal code drafting project yielded a Draft Code that can bring greater justice to Maldivians and also provide a useful starting point for modern penal code drafting in other Muslim countries.
However, the code drafting project also may have much to offer penal code reform in non-Muslim countries, for the structure and drafting forms invented here often solve problems that plague most penal codes, even codes of modern format such as those based upon the American Law Institute's Model Penal Code, which served as the model for most American penal codes. The challenges of accessible language and format, troublesome ambiguous acquittals, overlapping offenses, combination offenses, and penal code-integrated sentencing guidelines have all been addressed.
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
to published criticisms of that project, which asserted, among other things, that Shari'a cannot be codified, that it should not be codified, that the project was a shameful exercise in neocolonialism, that the project was an act of oppression in complicity with an insufficiently democratic government, and that the project was done badly because it got Shari'a wrong, because it sometimes did not follow Shari'a, or because it was insufficiently sensitive to the methodology and process inherent in Shari'a.
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.