The Principle of Nulla Peona Sine Lege in Islamic Law and Contemporary Western Jurisprudence

Abstract

One of the hall marks of the legal systems of the civilized world, both Western as well as Islamic, is that law, especially criminal law, does not operate retrospectively. This general rule is most of the times given constitutional backing, however, there are some exceptions to this general rule. Under Islamic law there are few instances in which punishment was given retrospectively. These are cases that endanger law and order and when an important public order is involved such as, li‘an (sworn allegation of adultery committed by either husband or wife), and qadhf (accusing an innocent women of adultery), then criminal law has been given retrospective effect. Western legal philosophers have reached almost similar conclusions.

Keywords: nulla peona sine lege, principle, retrospective effect, li'an, zihar, qadhf, Islamic law, Hart, Kelson, Fuller, Maxwell, accusing innocent women of adultery, pre-Islamic form of divorce