Understanding the
foundations and basic principles of the Islamic Shari’ah are certainly
important, but the attention of the world these days is focused mostly on only
one aspect of the Shari’ah—the criminal punishment system. It has been
called barbaric, backward and cruel, yet most people, even a significant
percentage of Muslims, know precious little about this system and its rulings.
The primary goal of every
criminal punishment system is the security and stability of the general
populace. Certainly, security is a basic human need, no less important than
food and shelter. Without security, society will quickly disintegrate into
anarchy.
The Islamic criminal
justice system is no different in this regards. As mentioned earlier, it is
aimed at preserving the five universal pursuits: life, intellect, religion,
lineage and property. For example, to protect life it sets down the law of
retribution, to protect intelligence it imposes punishment for drinking
alcohol, and to protect property it established punishment for theft, and so on. Consequently, the Islamic penal system
is based upon a number of principles, some of which are:
1.Nothing is prohibited with the exception of that specified in the
Revelation. Deeds can only be prohibited if their prohibition is clearly stated
in the Quran or Sunnah. This principle is stated in many verses of the Quran,
like: “We punish no one until after we send a Messenger.” {17:15}
Thus, all actions are assumed to be permissible, unless there is clear proof
indicating otherwise.
2.No one can be held responsible for the crimes of another. Thus in
Islamic Law, the individual is solely accountable for his or her crime. The
Qur’an has established this principle in many verses such as: “And every
soul earns not [blame] except against itself, and no bearer of burdens will
bear the burden of another.” {6:164}
3.The Islamic criminal system, like other Islamic institutions, is
equally applicable to everyone, and no one is above the law in Islam. Everyone
is equal before it, no matter what his or her standing in society might be. The
Quran has established this principle of universal equality before the law in
the following verse: “O mankind, indeed We have created you from male and
female and made you peoples and tribes that you may come to know one another.
Indeed, the most noble of you in the sight of God is the most righteous of you.
Indeed, God is All-Knowing and Acquainted.” {49:13}
The Prophet Muhammad pbuh also
clearly demonstrated this principle of equality before the law when a woman
from the Makhzum family—a very wealthy and powerful family—committed theft. The
local people tried to have her acquitted because of her family’s standing, but
the Prophet said: “O people, those who came before you were destroyed because
they used to pardon their nobles when they stole, but would apply the
punishment on the weak. By God, if Fatimah, the daughter of Muhammad, committed
theft, I would amputate her hand.” [Muslim]
4. Punishments are never to
be carried out if there is doubt as to whether or not the crime has been
committed, or whether or not there was a legal justification for making it
excusable (like necessity, reasonable ignorance, incompetence, etc.). The
Prophet established this principle through his gentle behavior with people who sought
to admit their crimes as will be detailed below.
Furthermore, in addition to
retribution, Islamic Law recognizes two other categories of criminal
punishments. The first are punishments that are detailed in the Quran and
Sunnah for specific crimes. These punishments cannot be waived or modified when
a conviction is pronounced.
The other category of punishments
is of a flexible nature. These are to be applied in cases where the divine
texts establish the prohibition of certain actions without setting down a
specific punishment. In such cases, the political authority can then take the
particular circumstances of the criminal into consideration and determine the
most effective way to protect society from harm as well as reform the offender.
Thus, punishments in Shari’ah Law are of three kinds:
Anyone who studies Islamic
Law will find that it is distinguished by certain unique features that are not
found in other legal systems. These characteristics have been responsible for
its stability, growth, and relevance for over fourteen centuries. Indeed, the Shari’ah
has a lasting and global appeal, because it is the final, divinely revealed law
for all of humanity, as it is connected with the last of the divinely revealed religions—Islam.
Thus, it is a must for the Shari’ah to have unique characteristics so as
to provide it with the durability and stability necessary to deal with the
ever-changing needs presented by humanity—throughout the globe and across time.
Islamic Law is the
broadest, most comprehensive system of legislation in the world, far more
complete than any man-made legal system today or at any point in history. It
was applied, through various schools of thought, from one end of the Muslim
World to the other for the past fourteen hundred years. Only in recent times,
with the impact of the colonization of the Muslim lands, has it temporarily
ceased to operate except in limited fashion in a few places. It also had a
great impact on other nations and cultures throughout its history.
*Watanabe L. (2012) The
Possible Contribution of Islamic Legal Institutions to the Emergence of a Rule
of Law and the Modern State in Europe. In: Al- Rodhan N.R.F. (eds) The Role
of the Arab-Islamic World in the Rise of the West. Palgrave Macmillan,
London
Many civilizations of the
world borrowed their own legal systems from Islamic Law by way of contact with
Islamic Spain, Sicily, West Asia, and the Balkans. * Boisard, M. (1980). On the
Probable Influence of Islam on Western Public and International Law. International
Journal of Middle East Studies. Vol. 11, No. 4, pp. 429-450. Retrieved
from: https://www.jstor.org/stable/163176
Some of the unique features
of Islamic Law are the following:
1. Nobility of purpose.
Every system of law has an objective that it seeks to fulfill. This objective
varies from culture to culture. It also varies due to the changing aims and
objectives of those in power. For this reason, changes and amendments are commonplace,
as nations employ law as a means of directing their citizenry to certain
objectives.
Islamic Law, on the other
hand, is not shaped by society. Quite the contrary, society is shaped by it.
This is because man did not create it, but in fact, he must recreate himself in
conformity to it. In short, Islamic Law aims at a great objective: that of
realizing the benefits and best interests of both the individual and society,
warding off whatever is to their detriment and giving preference neither to the
needs of the individual, nor to those of society as a whole.
2. Islamic Law is divine
revelation. All the injunctions of Islamic Law are revelation from God, so the
one who is legislating for mankind is their Creator, Who knows best what will
be of benefit to his creation in both this world and the next. He knows the psychological,
as well as physical, makeup of the human being, what will be in harmony with
it, and what will clash with it. Regarding this, God says:
Does the One who created
not know? And he is the Gentle, the All-Aware. {67:13}
Man-made law, on the other
hand, is the product of the human intellect that has limited insight and is
continually learning and readjusting. For this reason, man-made law is often
subject to deficiency and error. Therefore, the legislations that come from human
effort are not always suitable for human nature.
3. Applying the rulings of
Islamic Law constitutes obedience to God. Following Islamic Law is a way of
worshipping God and earning His reward. Similarly, disobeying it equals
disobedience to God and is deserving of His punishment. Some types of crime have
prescribed punishments that are supposed to be carried out in this world.
Others hold the threat of punishment in the Hereafter. Hence, the individual
Muslim is always policing himself, not only out of fear of God (as opposed to
only fearing the state), but also in hope of His Mercy and His eternal reward in
the Hereafter—which for many people is a far stronger incentive to obey God.
As for man-made laws, the
primary incentive to obey them istied
to the fear of criminal prosecution and civil liability, not the hope of
attaining blessings and rewards from God. Likewise, disobedience to such laws
does not result in as much a feeling of guilt, as long as it goes unnoticed by
the authorities.
4. Islamic Law holds the
distinction of being complete in all senses. It requires no amendments, no
additions or subtractions. It comes to regulate four different facets of human
interaction:
the relationship between the individual and his Creator,
the relationship
between the individual and himself,
the relationship between the individual and
other members of society, and
the relationship between the individual and the
state.
If we compare Islamic Law
in this respect to any of the man-made legal systems, we will find that the
latter primarily deal with the relationship between the person and others, and
the person and the government. As regards the individual’s relationship with
himself, who can often be his own worst enemy, it offers no guidance. It is
also silent about his relationship with his Creator, who brought the person
into existence and submitted the rest of Creation to his needs. In this area
though, secular man-made law has conceived the idea of “separation of Church
and State,” where God is kept out the law.
This notion of “separation
of Church and State” is rejected by the Shari’ah, since God is the only
Legislator in that He sends down the Law. Even though ethics is an integral
component in both Islamic and secular legal systems, Islamic Law differs slightly
since it is also concerned with the future of the human being, not only in this
worldly life, but also in the eternal life to come, by enjoining acts of
worship that must be carried out by every believer in this faith.
5. Permanence in principles
and flexibility in application. Islamic Law is built upon a set of fixed,
unchanging principles derived from the Quran and Sunnah which have been
accurately recorded and preserved. Many of these texts contain general rules
for legislation, without going into all the precise details relating to
application. This allows the judge the discretion to take changing
circumstances into consideration.
For example, in formulating
the Islamic political system, the religious texts give a general outline which
includes such things as justice between the citizenry, obedience to political
authority, consultation between Muslims, and cooperation in righteous conduct.
At the same time, the texts leave the application of this general outline to
practical circumstances that require a measure of flexibility. If the outlined
objectives of Islamic government are implemented, the manner in which they are
carried out or the different forms that this might take are not at issue, so
long as the rulings imposed by the sacred texts and the principles of the Shari’ah
are not violated.
Modern legal systems on the
other hand have very limited collections of permanent principles, often in the
form of constitutions that are successively altered by amendments, to go by
with the result that change and reform often lead to the downfall of their
basic national goals and fundamentals over time. The foundations and principles
of most of these legal systems, although sometimes based on the concept of
precedent, as in the US, are exposed to change and substitution so often that
they become the targets of sport and corruption for a number of lawyers and
legislators looking for their own gain.
6. The absence of
difficulty. Islamic Law does not impose any obligations of great severity or
difficulty.
Whoever closely examines
the rulings of Islamic Law will find within them an obvious pattern of making
things easier for the person. Moreover, all obligations that have been imposed,
from the onset, have had leniency and ease taken into consideration for the
ones who must carry them out.
God has decreed that every
legally accountable person must perform five prayers a day, no individual
prayer requiring more than a few minutes. The one who is unable to stand is
permitted to sit. Additionally, the traveler is given the license to shorten
their prayer. Additionally, fasting is
obligatory for one month out of the year. In spite of this requirement,
breaking the fast is permitted for the one who is traveling or ill; and so on.
The obligations imposed by
Islamic Law are few. They can all be learned in a short period of time. They do
not have many particulars and secondary factors to consider, making it easy to know
them. This is attested to by God’s words:
God does not intend to make
difficulty for you, but He intends to purify you and complete His favor upon
you, that you may be grateful. {5:6}
Chopping off hands, stoning
adulterers, whipping fornicators, beheading murderers—headlines from the
grocery aisle shock tabloids or ancient forms of criminal punishment? Actually,
these are some of the words that come to mind when the Islamic legal code, or Shari’ah,
is mentioned these days.In this
chapter, the Shari’ah will be examined and understood in the light of
not only the pertinent evidences from the Quran and Sunnah, but also comparatively,
from the standpoint of modern crime statistics.
Firstly, Shari’ah is
the Islamic term that represents the complete and comprehensive system for
regulating both public and private activities in an Islamic territory. It is
based entirely upon the laws and rulings found in both the Quran and Sunnah, in
one way or another. It is designed to govern the person’s relations and duties towards
God, his fellow man, his environment and even himself. It thus directs every
sphere of human activity including the spiritual, moral, social, economic and
political aspects of life.
The issues dealt with by
the Shari`ah, in specific, can be broken into three categories:
theology, ethics and law (fiqh).Fiqh,
or Islamic law, is the branch which relates to the regulation of the outward
behavior of people. This includes the rulings pertaining to the conduct of the
human being with respect to his Creator (verdicts concerned with prayer,
fasting, charity, pilgrimage, etc.). It includes those rulings concerned with
the interactions between people, such as those pertaining to the penal system, business
transactions, marriage, and divorce. Likewise, it also includes the rulings
pertaining to the individual and the state, in both war and peace, such as
military obligations, wills and property laws, amongst other things.
The ultimate aim of the Shari’ah,
though, is the common good of mankind as a whole—Muslim and non-Muslim. As
such, the Shari’ah is responsible for protecting or preserving five universal
rights in the human being; the right to life, intellect, lineage, religion and
property. One might ask though, why is the right to freedom not included?
Freedom in Islam
Islam considers freedom to
be a natural right of every human. Without freedom, life loses all of its
meaning. Islam elevates freedom to such a high level that it has made free
thought the primary way of realizing God’s existence, His existence being a fact
that needs no external proofs or miracles to be known. God says in the Quran:
There is no compulsion in
religion. Guidance is clear from error. {2:256}
This verse states that you
cannot force someone to believe anything if they themselves are not convinced,
even if you were to put a gun to their head or sword to their neck. A person
must be convinced through their own free thought. If compulsion is forbidden in
the matter of the worship of God, the most vital and essential concern in the
life of a human (as seen in Islam), then how can it be tolerated in any other
matter? This Islamic emphasis on free will and free choice can further be noted
in the words of the great Companion and Caliph Umar ibnul Khattab, who is
recorded to have said to one of his governors, “Have you enslaved the people
after God had created them free?”
The Definition of Freedom
Freedom is a person’s
choice to do something, or not to do it, based upon their own free will and
without interference from anything. It establishes the fact that every human is
in control of their own affairs and that they are not owned by anyone, neither on
the individual or state level.
But, does “freedom” mean we
should be left entirely without any rules or regulation?
Islam’s recognition of
everyone’s individual freedom does not mean that it leaves the person free of
all rules and restrictions, because that kind of “freedom” is more aptly
characterized as anarchy, and actually infringes upon the rights and security
of others. No one's freedom should come at the expense of another’s. For this
reason, Islam sets down certain guidelines that guarantee balanced freedom for
all. These guidelines are:
1.The freedom of individuals or communities should never jeopardize
the general order of society or destroy its foundations.
2.The freedom of the individual should not lead to the loss of more
general societal rights (e.g., one’s personal right of free speech should not
jeopardize the general security of another group of people).
3.The freedom of an individual should infringe upon the freedom of another
individual.
It should also be
remembered that one of the primary goals of the message of Islam is to release
people from the constraints of the worship of their desires and the created
beings, and to free them to the openness of the worship of the Creator.
