Islamic criminal law criticism of article 5 of the universal declaration of human rights on the application of qishash punishment

Salsabila, Adzanah Mariska and Najmudin, Deden and Faizal, Enceng Arif and Pahlevi, Mohamad Syahreza (2025) Islamic criminal law criticism of article 5 of the universal declaration of human rights on the application of qishash punishment. Jurnal Hukum Islam, Faculty of Sharia and Law, Sultan Syarif Kasim State Islamic University Riau, 25 (2). pp. 79-100. ISSN 2443-0609

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Abstract

The application of qishash punishment in Islamic criminal law is often debated because it is considered to be contrary to Article 5 of the Universal Declaration of Human Rights (UDHR), which rejects all forms of cruel, inhuman, and degrading punishment. This accusation is certainly misleading because it views qishash only from a symbolic-artificial perspective. The purpose of this study is to interpret Article 5 of the UDHR, analyse the concept of qishash punishment in fiqh jinayah, and critique Article 5 of the UDHR in relation to the application of qishash punishment. This research uses qualitative research with a normative juridical method through a statute approach, conceptual approach, and comparative approach through library research on primary and secondary legal sources, which are then critically analysed. The results of this study are able to criticise Article 5 of the UDHR with two main arguments, namely, first, qishash is not a cruel, inhuman, and degrading punishment; second, there is caution in the application of qishash punishment through various critical theories and logic (emotivism theory, deconstruction theory, logical fallacy, cultural relativism theory, critical human rights theory, and postcolonial theory). The novelty of this research lies in its attempt to critique the human rights perspective on the application of qishash punishment by offering a maqāṣid al-syarī‘ah approach, namely qishash as a mechanism for protecting the right to life (hifz al-nafs) as well as a form of substantive and proportional justice. The academic contributions of this research include enriching the study of Islamic criminal law with an integrative perspective, offering a critical analysis of the interpretation of Article 5 of the UDHR, and providing normative references for the development of a more contextual national criminal law.

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