A second pillar of the concept of justice is that of due process. This means that there must be a certain procedure through which laws are enacted, or through which punishments are levied, or guilt or innocence in a court of law is decided. While it is difficult to exactly define due process, most of us have a sense of what this term means. It is a set of rules and regulations that ensure that care is taken that the rights of citizens, especially those who oppose the government, are not violated.

Not long ago, the author watched a movie called "Judge Dredd," starring Sylvester Stallone as a policeman/judge who rides about the city, quickly investigating a crime scene within seconds or minutes, deciding single-handedly on the guilt or innocence of the parties involved and upon the punishment they are to receive, and immediately administering the punishment himself without a process of oversight or appeal. This represents the antithesis of the due process concept. The reason this less than classic film is mentioned in this serious context is that it woefully parodies the current state of justice found in certain modern-day regimes which try to associate themselves with Islam.

By contrast, in our Constitution, Article 1, Section 9, Clause 2, there is a wonderful example of the due process guaranteed to each citizen: Clause 2: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." Habeas Corpus is a court order requiring the government to bring a prisoner to court to explain why he or she is being held. It is designed to protect people from unlawful imprisonment. The Constitution, as quoted above, stipulates that government cannot suspend it, except in times of rebellion or invasion.

A second example of due process may be found in the Eighth Amendment, dealing with bail and punishment: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." Hence, part of due process is that bail should not be excessive, except in cases of serious crimes, and should not be used in and of itself as an impediment to a person’s freedom in lieu of lawful sentencing by the court. Also, the Eighth Amendment prevents cruel and unusual punishment from being inflicted and imposes the notion of due process on the execution of punishments. These precise concepts are found in Islamic jurisprudence in its classical era, many centuries before they appeared in the West. For example, in one of the most famous and earliest legal books in Islamic history, authored over a millennium ago, Caliph Umar is quoted as saying, while pronouncing judgement in a famous case: "In Islam, no one can be imprisoned without due course of justice."14

More directly, the explicit formulation of Habeas Corpus in Islamic jurisprudence came at the hands of the leading jurist of early Islamic history, a man named Abu Yusuf (who died over 1,200 years ago), in a written message to the ruler of the Muslim world at that time (Caliph Harun al-Rashid):

"Order all of your executors to look into the matter of those who are under arrest pending investigation of a crime each and every day, such that any upon whom there is a punishment should be punished and released and any of whom against which there is no legitimate case should be released immediately. And inform them that they should not be excessive in punishment, and by such excesses, step out of the bounds of that which is lawful." 15

Hence, these directives, appearing over a millennium ago in the writings and the practice of the Muslim world were echoed much later in the principles underlying our own Constitution. Contemporaneously, in Medieval Europe, there was very little semblance of due process or the rights of defendants before magistrates, royalty or inquisitions.

There are even more specific opinions in Islamic jurisprudence that are probably more protective of human rights than even our own standards today. Some of these can be found in the writings of yet another great scholar of Islam, Ibn Hazm, in his famous book of jurisprudence, the Muhalla (1064 C.E.). Ibn Hazm was born toward the close of the first millennium in the city of Qurtuba (Cordoba), in Spain. Although he was raised in a wealthy and powerful family, he devoted his life to the study of Islam and Islamic jurisprudence, and much of his writings toward extracting the pure essence of the religion. In this work, he discussed 2,308 specific issues in Islamic law. The following is quoted directly from his section of punishments: "Issue 2168: Putting a suspect in prison is not allowed."

Ibn Hazm felt that a suspect had not yet been proven guilty. Jail, however, is a punishment for those who are guilty, and putting a possibly innocent person in jail, while he awaited trial, or during the course of his trial, was considered by Ibn Hazm to be unlawful. This standard is more liberal than even that stipulated by the Fifth Amendment to the Constitution: "...nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law..."

"Issue 2173: Torture of any suspect is forbidden, even if done to force disclosure of the truth about any crime."

"Issue 2179: Any punishment of a suspect should be executed only after full investigation and if firm evidence is established by qualified witnesses. Any uncertainty regarding guilt must stop execution of punishment." 16

In this last pronouncement, Ibn Hazm anticipates the later development of our standard of reasonable doubt, as well as echoes directly the instructions of Prophet Muhammad to the Muslims centuries before: "It is better for a leader to mistakenly pardon the guilty than to mistakenly punish the innocent."17

Ibn Hazm also addressed the issue which we have come to know today as "double jeopardy," stating about the rights of criminals:

"After the execution of his punishment, he must not be put in jail. He has already paid for his crime as indicated by God Almighty. The governor is not authorized to change such punishment or add to it."18 This pronouncement negates both the possibility of double jeopardy and that of arbitrary punishment. In our modern day, this prohibition comes in the form of the Fifth Amendment to the Constitution, as quoted above, and in relevant portion again: "...Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb..."19