Criminal Limits and Prohibition Norms in Comparative Legislation

The philosophy of the lawful (halal) and the unlawful (haram) and criminal limits in the three revealed religions revolves around the protection of human society against chaos and dissolution, safeguarding the great universal principles without which life cannot be sustained.

In Islamic Sharia, the texts of the Quran and the Sunnah came to preserve five fundamental necessities: religion, life, intellect, progeny, and property. Thus, good things were permitted and impurities were forbidden, such as carrion, spilt blood, pork, what has been sacrificed to other than God, and alcoholic beverages, while simultaneously permitting animals slaughtered by the People of the Book. This system was accompanied by prescribed punishments to deter major crimes, such as the punishment for theft, armed rebellion (hiraba), adultery—for the proof of which four upright eyewitnesses are required—, the punishment for defamation (qadhf) amounting to eighty lashes in defense of honor, and the law of retaliation (qisas), which was complemented by opening the door to forgiveness and compensation (diya). Islam surrounded the application of these punishments with an impenetrable wall of strict judicial guarantees, something that the noble companions applied with a deep awareness of the purposes of the law (maqasid), just as Califa Omar ibn al-Khattab (may God be pleased with him) did by suspending the application of the punishment for theft in the Year of Drought, in the year eighteen of the Hijra, due to the well-founded suspicion of famine and extreme necessity, and as Ali ibn Abi Talib (may God be pleased with him) did through rigorous judicial verification to open the door to repentance, which was captured by the companions in the golden legal rule:

Avoid criminal limits through doubts as much as possible, for it is better for the judge to err in forgiving than to err in punishing

Likewise, the four imams—Abu Hanifa, Malik, Shafi'i, and Ahmad—agreed on distinguishing between fixed punishments (hudud) and discretionary punishments (ta'zir) entrusted to the judge, broadening the margin of doubts that annul the punishment and establishing regarding the lawful and the unlawful the comprehensive jurisprudential principle:

Pressing needs make the forbidden lawful to the extent necessary to repel the destruction of life, without exceeding or transgressing

Examining the Talmud, whose sages enumerated six hundred and thirteen legislative commandments divided into two hundred and forty-eight positive precepts and three hundred and sixty-five prohibitions, we find in the tractate of Chullin an extreme rigor in food regulations known as kashrut. The Talmud requires that ritual slaughter be performed by an authorized slaughterer using a perfectly smooth knife without notches, prohibits the sciatic nerve, requires meat to be soaked and salted to extract blood, and strictly prohibits mixing meat and milk, a prohibition that extends to separating utensils and waiting between three and six hours after consumption, based on the expanded rabbinic interpretation of the rule:

You shall not boil a kid in its mother's milk, nor mix meat utensils with milk utensils at the same table or cupboard

Regarding the penal code contained in the tractate of Sanhedrin, where courts were divided into bodies of three judges, twenty-three, or seventy-one, and despite the Torah establishing four severe punishments—stoning, burning, the sword, and strangulation—the Talmudic sages imposed almost impossible conditions to prove the crime, such as the requirement of two eyewitnesses accompanied by a verbal warning to the offender seconds before committing the act and their confession of having received said warning. Famous is the phrase of the sages in the Mishnah:

A court that pronounces a death sentence once every seven years or every seventy years is considered a bloodthirsty and cruel court

On the other hand, in the Gospel, Christian legislation—after an initial abstention from four prohibitions regarding sacrifices to idols, blood, strangled animals, and sexual immorality—chose to eliminate ritual food prohibitions, replacing the law of retaliation in interpersonal relations with the law of love and tolerance, in accordance with the famous evangelical directive:

Let him who is without sin among you be the first to throw a stone at her, and respond to offense with forgiveness and absolute remission

Thus, Christianity delegated deterrent punishments to temporal civil authorities, reserving spiritual and disciplinary sanctions for the Church, which highlights the contrast between Talmudic ritual rigor, evangelical spiritual elevation, and the balanced legislative realism of Islam.