Acknowledgments: I would like to acknowledge and thank Adriana Perez-Rodriguez for her inspirational commitment to women’s rights and her leads on current human rights’ issues in the wider Middle East. I would also like to convey my gratitude to Aneesa Chaudri and Jonathon Russell for their constructive insights and criticisms during the development of this article.

Since Huntington published The Clash of Civilizations, and particularly since the September 11th 2001 attacks, there has been a growing concern which has plateaued somewhat suggesting that Islam is at perpetual conflict with the existing world order. There are two points which should be raised with this in mind. Firstly, that the current world order is perfectly compatible with Islam. Secondly, that Huntington is admittedly due a degree of credibility insofar as he acknowledges other civilisations at conflict with one-another. In this article, I aim to highlight the similarities between Western and Islamic ethics and legal traditions. In particular, I intend to reemphasise the significant contributions of both Islam and Christianity in the rise of the presumption of innocence – or “innocent until proven guilty” – as a Western and global, legal norm, urging for a reincorporation of genuine Islamic ethics in the actions and policies of self-anointed Islamic regimes.

Just three years ago, Mahnaz Mohammadi, a filmmaker with a reverent concern for women’s rights in Iran, had experienced an untried arrest, joining other activists and artists in the country’s Evin prison. Mahnaz suffers from a critical health condition and was denied access to legal representation, an act which completely undermines the substantial consensus advocating fair trial and a presumption of innocence as held in traditional Islamic fiqh (or jurisprudence). Iran, of course, declares itself an Islamic Republic despite the fact that it has similarly been responsible for the untried detentions of Pegah Ahangarani, Maryam Majd, Zahra Yazdani, Maryam Bahrman and Mansoureh Behkish, among others. When juxtaposing the domestic policies of Eastern and Western regimes, I of course remind myself that many Middle Eastern tyrannies have been established as a direct or indirect consequence of European colonial rule and, in some cases, short-term conflict strategies. In spite of this, we shouldn’t take any responsibility away from the leaders of seemingly Islamic states which continue to distance their regimes from the sense of constitutional security advocated and endorsed by traditional Islamic fiqh.

It would be admittedly misleading to claim that the presumption of innocence had been introduced by Islam. Rather, Islam had endorsed and substantially helped to develop the ethical principle into a largely uncontested global norm. Under a historical analysis, two underlying principles can be distinguished from the legal presumption; the first of which asserts the burden of proving on the accuser whilst the latter extends that it is the conviction and not the accusation which affirms criminal status. Before the introductions of both Christianity and Islam, the first of the two maxims had emerged as early as eighteenth century BC when the Babylonian Code of Hammurabi incorporated it as one of its core principles. The ancient code makes numerous references to swearing before God in order for the accused to declare innocence, a practice which G. S. Duncan notes is found in Exodus 2I:8-9. Most of the early discourse demanding proof from the accuser therefore appears to have emerged through widespread encounter across the greater Mediterranean region. Religious scholar A. H. Godbey writes in 1905 that the Hammurabian code had actually reflected the legal principles of ‘all early nations. Even Aryan peoples have known no other till a relatively recent period [sic]’.

Placing the burden of proof on the accuser had been attributed to the various constitutions of Ancient Egypt through to Imperial Rome in spite of their worse practices, after which the presumption of innocence substantially developed. An extensive study of the Codex Theodosianus – a large compilation of Roman imperial laws – reveals that the rights-based component of the presumption of innocence emerged protecting the accused from criminal status until any possible point of conviction. This was a custom endorsed and largely propelled by Frankish king Charlemagne and Pope Innocent III. These constitutions surpass the point by which Rome accepted Christianity as its religion, and a similar discourse which built on the presumption of innocence further emerged in the Islamic world, our crucial point of consideration as we remember the numerous activists detained today without trial in Iran and elsewhere. Swiss academic Marcel Boisard provides substantial research on Islamic theology in international law and states that ‘[a]cademic treaties dealing with law and administration were translated in Italy from Arab texts and circulated all over Europe’ both through professorship and religious decrees.

It was prominently in Islamic Iberia, or what more-or-less constitutes modern-day Spain, that the presumption of innocence had been later implemented by their qadis (judges) whose judgements were revoked in cases of renewed questions of fact. Iberian qadis are today renowned for their highly principled and ethical nature and remain responsible for a paradigmatic, Islamic politics which many of our modern-day Muslim states should at least incorporate to a greater extent. As early as twelfth century Hispania, Delfina Serrano finds that only once the claimant had relevant evidence did the qadi invite the defendant to present her or his case, highlighting the similarities between Islamic Iberia and Christian Rome long after the fall of the Roman Empire in Western Europe.

An enviable discourse between the Islamic and non-Islamic parts of the Mediterranean increasingly protecting the rights of untried citizens gained momentum through King Louis IX who, returning from Palestine, received a Friar who’d observed the customs of ‘unbelieving Princes’ (i.e. Muslims) before implementing major legal reforms for France. Louis’ Scribe, Jean de Joinville, took note of how the Friar spoke of a Christian and Islamic respect for fairness and justice according to their legal principles which King Louis had equally been championed for. According to Boisard, Louis IX, who had also received Thomas Aquinas, thereby ‘created the French legal administration by appointing “royal inquirers,” by instituting testimonial proof, and by permitting the recourse of “making a plea to the King.”’ Saint Aquinas had consulted Andalusian polymath Ibn Rushd (known in the Western world as Averroes) on Aristotle’s work. As we simultaneously observe Islamic Iberia, the institutionalisation of testimonial evidence under Louis IX mirrored a quintessential Islamic practice- though it is worth highlighting that any discrediting of a witness’ integrity had been grounds for judgements to be revised in Andalusian Spain. In his Bidayat Mujtahid, Ibn Rushd similarly finds, at least for the Sunni madhahib, that all of its Islamic schools agree that accusations are to be dismissed when testimonial evidence is discredited in the absence of more preferable forms of proof. At least on paper, this remains the general perspective within the Islamic legal tradition. Thus, although France followed suite in embedding the presumption of innocence into its domestic legal framework, the Islamic world held claim to more controlled measures which ensured as fairer trial as possible once evidence is indeed presented to the court in question.

By the sixteenth and seventeenth centuries, certain practical measures were in fact put in place which differentiated the French presumption of innocence from its early Islamic and Roman counterparts. Whilst investigation was acquitted given doubt surrounding evidence just as in Islamic Spain, and whilst suspects equally retained the right to buy, sell, inherit or donate wealth just as under the Roman constitutions, public officials had their positions suspended given that ‘the acts performed by public officials accused of a crime would have been constantly challenged, thus likely to result in “daily embarrassments and conflict”’. More controversially, use of torture during investigation had not been abolished in France until the eighteenth century when King Louis XVI’s Declaration of Rights outlined that ‘every kind of rigor used … ought to be severely repressed by the law’. Islamic legal practices had never endorsed torture during investigation, though England did not similarly renounce torture before trial until its Prison Act of 1877. The Islamic world had therefore been at the forefront of upholding fair rights and trial for un-convicted suspects, and only by looking at global developments over time does it seem so evident that questionable Islamic regimes now hold a tendency to evade intricate theological rulings and to even justify their right to rule over a nation via more simplistic rhetoric.

It is unclear, under the leadership of Rouhani, what will exactly happen to Iran’s “outspoken” actress Pegah Ahangarani, imprisoned in 2013. Saudi Arabia similarly holds political activists Omar al-Saeed, Mohammad Fahad al-Qahtani and Abdullah al-Hamid without trial. According to the Geneva Conventions, ‘anyone charged with an offence is presumed innocent until proved guilty’: the approach of some Middle Eastern regimes to untried suspects continues to render Islam’s substantial, historical contribution to the presumption of innocence more-or-less redundant.

Across history, it is ever-apparent that Islam has significantly contributed to the development of the presumption of innocence as a global, legal norm. The discourse between Islam and the West had been a philosophical, political, legal and cultural exchange which could agree that it is better for a guilty person to escape than for an innocent person to suffer. Irrespective of the current worse practices of ostensive Islamic states, the religion’s inherent commitment to fair trial before prosecution is embedded in numerous Arabic legal documents, the paradigmatic institutionalisation of the presumption of innocence in Andalusia and the inspiration, however indirect, that Louis IX received from the Islamic and Christian worlds as he employed his royal inquirers, Islamic-style testimonial evidence and pivotal system for pleading innocence to the King. Somewhere along the lines, the intricate system which underlies the Muslim presumption of innocence had been and continues to be undermined by the simplistic and unjustifiable actions of self-anointed clerical leaders – it’s high-time many Muslim countries reincorporated Islam’s true ethical code and came at peace with themselves and, above all, with humanity itself.

Osama Filali Naji – constructive comments welcome