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Shariah - The Way of Justice
INTRODUCTION
Adroitly manipulated exposure to the imagery of
a whip cracking on a naked back and a veil enshrouding
a woman’s face has led many to believe that
the Shari’ah , the divine code of Muslim conduct,
is in reality no more than a collection of values
and practices that are primitive, uncivilized and
barbaric. What to a Muslim is the object of his
longing and endeavour has been very subtly projected
as a relic from the dark ages which enslaves the
woman and inflicts punishments on the criminal which
are cruel, inhuman and degrading.
The Qur’an most certainly does prescribe corporal
punishment for certain serious social crimes and
it does lay down the principle of retribution, or
qisas; it is very emphatic, too, about the crucial
role of the family in human society and therefore
insists on assigning different well-defined roles
to men and women; and it does lay down many other
regulations and laws and expects Muslims to obey
the eternally valid injunctions of God and His Prophet.
But will these and similar provisions of the Shari’ah
really plunge society back into darkness? Are they
inhuman and barbaric? Are they an indicator of Islam’s
inability to keep pace with the demands of human
progress? The issues need to be examined seriously
to determine the place and valued of the Shari’ah
and its provisions in the ultimate order of human
civilization and happiness. The need for this examination
is especially acute in the view of the dogmatic
position adopted by the West on these questions.
A host of Western writers have said it, and the
media continue to harp on the same theme: unless
Islam is prepared to relent on these and other legal
provisions of the Shari’ah ‘ there can
and will be no accommodation; only a continuation
of Western rejection of Islam’. Such vehemence
makes one wonder whether the loud chorus about the
Shari’ah, and such of its specific provisions
as pertain to women and punishment, is in all cases
the result of genuine misunderstanding and moral
indignation, or whether the issue is merely being
used by some as a whipping-boy to settle scores
with Islam – old and new.
No apologies or excuses are needed to explain away
or make acceptable to the West what has been so
clearly laid down by the Qur’an and the Prophet
in this regard and what has been so consistently
accepted and adhered to by Muslims. There should
be no place in dialogue with the West for such tortuous,
self-deprecating arguments as: ‘polygamy is
permitted, but the conditions of justice attached
to it makes it effectively prohibited’. Or:
‘Corporal punishment is prescribed but hedged
in with such unworkable requirements of evidence
that it is virtually impossible to carry it out.
Or, at least, it cannot be carried out unless an
"ideal" just society is established, when
it will in any case become unnecessary’.
Why those who advance this specious logic should
think that God would lay down things which were
impossible to practice is not made clear. As if
He does not know how to say what He means, and say
it clearly! Such excuses are unfair to the Qur’an
and the Prophet, and an affront to their wisdom,
and at the same time illogical and implausible to
the unconvinced.
TOWARDS BETTER UNDERSTANDING
I do not intend to convince everyone, for this is
humanly impossible; nor offer excuses, for they
are neither necessary nor convincing. What I therefore
wish to attempt is to discuss the place of justice
in the Shari’ah and the basis and nature of
the provisions regarding women and criminal punishment
in a way that may at lest generate understanding
and tolerance, if not agreement. It should be recognised
that the discussion here can be only brief and general,
and perhaps will not do full justice to Islam’s
position on important and complex issues like the
place of women in Muslim society.
SHARI’AH: THE TRUE EMBODIMENT OF JUSTICE
Specific provisions of the Shari’ah can be
properly understood only in the context of its total
scheme – its conceptual basis, primary objectives
and goals and overall framework.
CONCEPTUAL BASIS
Shari’ah literally means ‘way to water’
– the source of all life – and signifies
the way to God, as given by God. It is the Way which
encompasses the totality of man’s life. Being
God-given, the Sharia’ah is the manifestation
of His infinite mercy. It is thus also the only
true embodiment of, and the best way to, justice.
THE SOURCE OF JUSTICE
Man’s quest for justice without recourse to
divine help, and failure to find it, is the most
persistent and tragic theme of human history. For
justice, an ideal deeply cherished, ardently desired
and ceaselessly pursued by mankind from the very
first day of its existence on this planet, can never
be truly conceptualised nor practiced unless it
is rooted in the belief in One God.
He, the infinitely Merciful and Absolutely Just,
has created everything with a purpose and in perfect
harmony and balance. He has also guided every creation
so that it fulfils that purpose. The whole universe
and all creation is sustained on this foundation.
Justice for man, therefore, as for everything else
in creation, lies in obeying God by doing what He
has laid down as ‘right’ and avoiding
what He has laid down as ‘wrong’. It is
only God who can establish in the intricate network
of interrelationships and roles, mutual rights and
obligations and consequent rewards and punishments
on the basis of absolute standards of justice. That
is the reason divine guidance is frequently called
the ‘Balance’ in the Qur’an (al-Rahman
55: 1 - 9). All other sources of knowledge and modes
of determination, whether scientific enquiry, pure
reason or empiricism, suffer from one deficiency
or another, being rooted in human imperfection.
JUSTICE: THE SUPREME PURPOSE
Justice is the supreme purpose and ruling spirit
of the Shari’ah. It provides the framework
for the entire corpus of Islam, shaping and moulding
its beautiful configurations. The paramount purpose
for which the Prophets were sent and struggled all
their lives was to guide man to achieve justice.
‘We sent our messengers with clear signs, and
sent down with them the Book and the Balance so
that men may conduct themselves with justice’
(al-Hadid 57:25)
This is also the very ideal for which the community
of Islam, the Ummah, exists as a separate entity.
‘Thus We made you a just community, that you
be witnesses to mankind’ (al-Baqarah 2:143).
And again: ‘O Believers, be you upholders of
justice, witnessing for God alone’ (al-Nisa’
4:135).
Indeed, no conception of Islam and Muslim should
be possible without justice. Justice, in Islam,
lends meaning and colour to all human endaevours,
both on an individual level and as a societal ideal,
extending from now into eternity. It servers as
the ultimate criterion for the internal ordering
of the soul and the external regulation of relationships.
The Qur’an repeatedly emphasises that Zulm
– wrongdoing – has absolutely no place
in Islam.
ULTIMATE CRITERION OF JUSTICE
The Shari’ah itself is therefore the ultimate
criterion of justice and mercy, and cannot and ought
not to be measured against changing human standards.
‘And perfect are the words of your Lord in
truthfulness, and in justice; His words cannot be
changed; He is the All-hearing, All-knowing’
(al-An’am 6:116).
Having been given by God, through the last of His
prophets, and, therefore, for all time to come,
it could not be otherwise.
Changes in human understanding, progress in standards
of civilization, which is considered to be linear
in time, and advances in technology are all supposed
to generate genuine pressures on the Shari’ah
to change or to give up those parts which do not
seem to rhyme with the late twentieth century time.
But what has really changed? Has man changed? Essential
human nature, its motives and drives, its emotions
and desires have remained virtually unchanged throughout
the ages. Technology has certainly advanced and
some ways of looking at the world have altered but
no new definitions of concepts like ‘cruelty’,
‘civilized’, ‘justice’, ‘equality’
have emerged to command universal adherence. Man’s
lusts and fears, hopes and anxieties, loves and
hates, aspirations, yearnings and longings remain
what they have always been. Similarly, the idea
that something which evolves later in time is necessarily
superior to that which preceded it is also untenable.
The only absolute and universal criteria can be
those given by God, the All-knowing, whose words
are above any change.
OBJECTIVES AND FRAMEWORK
PLACE OF THE INDIVIDUAL
The overall scheme of the Shari’ah and its
various specific provisions are largely determined
by the way Islam resolves the perennial question
of tension between the individual and society and
the fundamental and crucial role it assigns to the
family.
The concept of the individual and the emphasis on
his achievement is not the product of modern Western
thought, as many people have tried to make the world
believe. The individual has always been the cornerstone
in Islam’s total scheme and plan of justice,
though in a way fundamentally different from the
Western concept. His status and achievement neither
depend upon nor can be measured by the standards
of ‘consumption’. In the sight of God,
real human progress is moral, not material; its
real measure is possible in the life Hereafter,
not in this world.
This theme is so patently obvious and prominent
in the Qur’an that it requires no substantiation.
On the Day of Judgement, it will be individuals
in their personal capacities, and not groups and
societies, who will be held fully responsible and
accountable for what they have done in their earthly
lives. ‘Everyone of them will come to Him on
the Day of Resurrection, all alone’ (Maryam
19:95). And: ‘Now you have come to Us, alone,
just as We created you the first time!’ (al-An’am
6:94).
This is because it is the individual who has been
given free will, a moral sense and the knowledge
of right and wrong. It is therefore also important
that he should be fully enabled to achieve his purpose
and realise his potential. This seems to be the
primary thread running through the entire fabric
of the Shari’ah. His life, person, freedom,
possessions and honour are sacred and inviolable:
no human being, not even the most powerful ruler,
has the right, privilege or authority, unless acting
in accordance with the law of God, to take anyone’s
life, harm anyone physically, take away their possessions
or violate their honour.
IMPORTANCE OF SOCIETY
Having said that, it is important to recognise that
the individual lives in a society without which
he can neither survive nor find fulfillment. Social
order and its good are not separate from or in conflict
with individual good. Both should stand together
– fused and harmonious, co-operating and assisting
– in the service of their One God. Both are
inter-dependent and in equilibrium. Both have their
well-defined functions and orbits to follow. ‘It
behooves not the sun to overtake the moon, nor does
the night outstrip the day. Each floats in its orbit’
(Yasin 36:40). Also the balance is provided by divine
guidance in the tensions between various components
oh human life – between the individual and
society, between man and woman. The congregational
nature of all forms of worships – whether prayers,
charity, fasting or pilgrimage – and great
stress on the formation of the Ummah as an integrated
whole amply reflect Islam’s concern for society
and its employment as a means of the individual’s
development, purification and self-realization.
THE FAMILY
The family is the most fundamental unit in the total
scheme of social order in Islam. It enjoys the highest
status and the most prestige. It is the fount of
the human race, its culture, society and civilization.
Procreation is made possible because of sexualisation
and it is institutionalised in the family. Similarly
the family achieves the development of the individual
and his transition into society.
The family is a divinely inspired institution in
the sense that it came into existence with the creation
of man.
‘O Mankind, remain conscious of your duty
to your Lord, who created you of a single soul;
and, of like nature, created its mate; and from
the pair of them created and spread many men and
women’ (al-Nisa’ 4:1).
A man and woman, only because they are different
and yet complementary, are capable of forming the
unity of family, which is essential for the fulfillment
of the individual and the realization of the common
good. The family is thus the cradle of the individual
and the cornerstone of society.
The family is Islam cultivates and strengthens
faith in One God. It preserves and communicates
values and culture. It provides a stable environment
for the development and fulfillment of the individual
and enriches the lives of all its members, providing
each the caring and sharing which he or she needs.
However, like any other social institution, the
family can survive only if the roles within it are
clearly differentiated and strictly followed.
As only women are capable of bearing children,
even if no other differences between men and women
are accepted, Islam assigns to the female the primary
responsibility for home and family; while man is
assigned the primary responsibility for life outside
the home. Every institution needs a head and the
role of head of the family and responsibility for
its economic support also devolve on the male. Despite
this primary division, men have the duty to share
household burdens and women are not debarred from
roles outside the home. And within the home, the
woman shares the power and responsibilities of the
head of the family, and may even become one if circumstances
so require.
NATURAL SEQUELS
It therefore follows that any act which vitiates
against the individual or which tends to weaken
or isrupt the social order, especially the family,
is no less a serious crime than, say, high treason
against the state. The Shari`ah has accordingly
made every possible arrangement to ensure, within
the constraints of human limitations and imperfections,
that the individual is not hampered in seeking in
his fulfillment and carrying out the purpose of
his creation; that the two pillars of the family,
man and woman, continue to participate in and strengthen
the family in accordance with the roles assigned
to them; and that the social fabric is not damaged
by any single person’s vandalism.
The role assigned to both man and women by the Shari’ah
and the arrangements it makes to protect and reinforce
these roles, can only be appreciated in the above
perspective. Similarly, the severe penalties for
extra-marital sex, theft, libel and drinking, and
the prescription of requital, or qisas for murder
and physical injury, must be seen in the context
of this overall scheme of life.
WOMAN
ROLES WITHIN THE FAMILY
The social roles assigned by the Shariah to man
and woman within the family emanate from one simple
but profound reality: the two are biologically and
sexually different; only the woman can bear children.
Other important psychological, physical and social
differences follow from this. But even if, for the
sake of argument, these other genuine difference
are dismissed as having been ‘socially caused’,
the reality of this biological and sexual difference
is impossible to deny.
Obviously the role of bearing children is one that
the woman can neither shirk nor transfer, unless
the ear of test-tube babies is ushered in or mankind
decides to extinguish itself. Sex difference, reproduction,
role of differentiation, sexual morality, survival
of the family, healthy child development and the
health and strength of society are closely inter-linked
and mutually dependent phenomena, in which sex-based
role differentiation is the key to the stability
of the entire system. If it is abandoned, the whole
chain will snap: sexual morality will collapse,
personality disorder will be rampant, anarchy and
chaos will the order of the day. In short, the family
will vanish.
There is no convincing case however for saying that
role differentiation is socially caused; on the
contrary, the cumulative weight of all evidence,
whether from pre-history or history, indicates unmistakably
that every society has chosen to do things the same
way, even the contemporary West, which is so vociferous
in professing ‘equality of the sexes’.
No society is on record which has ever progressed
without placing woman in full charge of the home.
DIFFERENT BUT NOT INFERIOR
Hence the principle in the Shari'ah: the woman's
place is in the home. However, it is very important
to note that to be different is NOT to be inferior.
Islam attaches no stigma to being a woman; there
is no inferior nature, no myth of Fall and no responsibility
for original sin. To bear and rear children is no
disgrace either. To rule over and manage the kingdom
of home - that haven of human happiness and progress
- is no mean achievement. Home and children can
be degrading and a burden only in a society which
chooses to make them so. In Islam, domesticity is
not a devalued sphere of human life, nor is home
in any way inferior to public life. Indeed, the
very epithet 'confined to the four walls of the
home' is absurd to a Muslim, as the home in Islam,
far from being a place to be looked down upon with
contempt, is more important and sacred than even
a parliament building or a university, and certainly
more prestigious, creative and rewarding than the
shop floor or secretarial desk, where two thirds
of 'emancipated' women finally end up working. EQUALITY,
NOT SIMILARITY
Equality is one of those human yearnings which usually
elude definitions. Its translation into roles, rules
and norms has always been subjective. Unfortunately,
it is being used by modern feminists as a slogan
in their campaign to erase all role differentiation.
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It is being used, too, as a smokescreen from behind
which to direct the barrage of attacks against the
Shari'ah for its various provisions regarding women.
That equality is a profound human urge and a genuine
human ideal is beyond doubt. What is equally true
and obvious is that equality of role does not necessarily
mean similarity of role. Once equality is confused
with similarity, the only possible conclusion is:
'A truly equal two-sexed society is unimaginable'.
Ending role differentiation is bound to have catastrophic
consequences as already noted, for the interlinked
phenomena of sexual morality, the family, reproduction,
child-rearing, personality development and society,
as is already evident in the West. Even such an apparently
relatively minor phenomenon as the spread of contraceptive
techniques has been profoundly instrumental in promoting
extra-marital sex, changing sex values, upsetting
and confusing roles, disrupting the family and devaluing
child-rearing and home life. Population control may
have been achieved but a glaring questing mark over
the final destiny of the human race has appeared.
Islam recognizes the obvious differences between
man and woman and shapes their social roles accordingly,
but it lays no less emphasis on the similarity of
their essential natures as human beings and on their
right to equality of opportunity to find fulfillment
through their roles in this world and, finally and
more importantly, in the eyes of their God in the
life hereafter. According to the Shari'ah, man and
woman are equal as human beings and have an equal
number of mutual obligations and rights. The family
unit has the man as its head, for no institution can
survive without a head,; but this is no way makes
the woman unequal to man. She is not obligated even
to take her husband's name and lose her identity.
Her share in inheritance is one-half of the male share,
but she is under no obligation to make any financial
contribution to the maintenance of the family.
Many specific provisions of the Shari'ah regarding
the rights and obligations of women, their conduct
and behaviour, their dress and segregation, marriage
and divorce laws and work outside the home can be
better understood in this light. But, what is equally
important to bear in mind is that some of the prevalent
practices in the Muslim societies today, that have
come into vogue as a result of centuries of decadence
and stagnation as well as un-Islamic influences, should
not be used to understand and judge Islam.
SEX OUTSIDE MARRIAGE
Sex, in Islam is not a taboo to feel guilty about.
It is a natural and creative urge, a God-given gift.
But the bond of marriage must be tied before enjoying
the pleasures of sex, which are the rewards for the
responsibilities that the man and woman bear in rearing
a family; these joys lighten the burden and cement
and bind the relationship. To seek sex outside the
limits set by God is a sin, to seek it within these
limits is therefore an act of worship.
If sex inside and outside marriage were equally legitimate
or easily available, the sacred institution of the
family would be gradually destroyed. Islam therefore
not only completely prohibits all forms of sexual
deviation and pre and extra-marital sex; it arranges
to make them highly inaccessible and also severely
punishable. Hence the regulations about covering various
parts of the body and the social mixing of the sexes.
POLYGAMY
Polygamy is permitted by the Qur'an; though it is
not enjoined, as some people apparently believed.
Justice is enjoined, as far as is humanly possible,
otherwise one should remain monogamous. Thus, disadvantages
of a polygamous marriage are recognized, but not to
the extent of prohibiting it legally. This legal provision
can be properly understood only in the context of
Islam's position on two important issues, as already
explained. Firstly, that the family is the cornerstone
of human society and any extra-marital sex is completely
prohibited. Married life is the most desirable way
of life - Islam wants a woman to be a wife and never
a mistress. Both man and woman have to make some sacrifice
to make a success of family life. Secondly, Islam's
law is for all times to come and should therefore,
as far as is practical, cater for all possible social
and individual situations. Legal provision, like a
total ban on divorce or polygamy may indeed result
in far more serious consequences than they may solve.
Even in countries where polygamy is illegal, it may
be argued, monogamy is fairly rare, so sex outside
marriage is considered as polygamy, as it should be.
It is left to the societies and individuals , within
the freedoms and prohibitions laid down by Islam,
to regulate their conduct as they may desire. What
is important to note is that it takes a woman, in
addition to a man, to make a polygamous marriage;
for no marriage in Islam can never take place without
her consent. And the first wife can also claim a divorce
if she cannot live with the situation. Hence it is
entirely within the power of individuals virtually
to eliminate polygamy without recourse to law.
MARRIAGE AND DIVORCE
Women's consent is an essential legal condition for
marriage in Islam. If such consent is not being obtained
in Muslim societies today, the problem is a result
of social circumstances, not of the legal provisions
of the Shari'ah. The situation must change once the
Shari'ah is implemented.
It is certainly simple in theory for a man to divorce
his wife in Islam. But it is found to be very difficult
for him to do so in practice; the very low rate of
divorce is enough to prove this. Indeed, the power
to divorce is more of a responsibility to save the
marriage. Among the things permitted by God, divorce
is the most disliked by him, said the Prophet. On
the other hand, while the woman cannot pronounce divorce
like the man, it is not difficult for her to obtain
one, even on the ground of her husband's physical
appearance not being to her liking.
WORK OUTSIDE THE HOME
To preserve the role differentiation and to retain
the incentives for strengthening the family, Islam
discourages women from working outside the home. This
discouragement in no way prejudices a woman's right
to own property, to conduct business, to receive and
impart education, to engage in cultural and creative
activities, and even take up job when necessary. Yet
to ask woman to work outside the home is indeed to
make her unequal; it is to ask her to take on the
enormous stress of doing two jobs.
The urge to work is only natural, but work as the
center of life is one product of a society which is
consumption-oriented and where status depends on earning
capacity. Women work today, not only through economic
necessity, but because they are under other subtle
pressures; accusations of wasting their talents on
'degrading' domestic chores, lack of status, boredom
and isolation. In Islam, as we have already noted,
the whole orientation of the individual and society
is radically different. Work is still very important,
but the real goal in life is to please God.
PUNISHMENTS
Punishments have always been considered an integral
part of the concept of justice. Indeed, a common man
would find it hard to think of justice as something
very different or separate from rewarding or punishing
people according to how well or badly they observe
the body of the mutual rights and obligations obtaining
in their society. But if the concept of punishment
is universal, the controversies surrounding it are
nonetheless intense. We shall now look at some basic
Islamic principles concerning punishments.
BASIC PRINCIPLES
Man is responsible for his actions: this simple truth
provides the whole basis for the justification of
punishment. For, to fulfil the purpose of this creation,
he has been granted the freedom to choose and act,
and the moral sense to distinguish between right and
wrong. Responsibility goes with knowledge and freedom.
Punishment cannot therefore be meted out to anyone
for someone else’s actions, for acts intended
but not performed or for acts done under duress or
while not of sound mind. Everyone must be equal before
the law and their guilt must be established by the
due process of justice.
REPENTANCE AND PUNISHMENT
Punishment in Islam has nothing to do with the notions
of atonement, expiation or wiping away of sin. A crime
is essentially an act of injustice to one’s own
self, a sin against God. It can be wiped away only
by God, and that He does when a person turns to Him,
truly repentant and seeking forgiveness. Between man
and God, therefore, the total emphasis is on repentance,
and punishment can be no substitute for it. But a
crime is also an act against the social order and
in this sphere mere repentance cannot be a substitute
for punishment which is a means of protecting and
strengthening the society.
PROPORTIONAL JUSTICE
It is important to note that there is no concept in
Islam of the punishment being exactly and justly proportional
to the crime. Absolute and truly proportional justice
would require the exact and complete evaluation of
such complex factors as intentions and motives, the
surrounding circumstances, the causes and repercussions-
factors which human judges must consider but cannot
evaluate fully and which only God, in the new moral
order to be set up in the life after death, can measure.
Islamic punishments are not therefore to be judged
on the scales of proportional and full retribution.
They are however laid down by the Being who is infinitely
Merciful and Wise, and are therefore more suitable
for the particular crimes than what can be prescribed
by any human legislatures or judges.
PART OF A WHOLE
Most importantly, punishments are only a part of a
vastly larger integrated whole. They can neither be
properly understood, nor successfully or justifiably
implemented in isolation. First, law is not the main,
or even major, vehicle in the total framework for
the reinforcement of morality; it is the individual’s
belief, his God-consciousness and taqwa, - that inherent
and innate quality which makes him want to refrain
from what displeases God and do what pleases Him.
Second, justice is a positive ideal which permeates
and dominates the entire community life; it is not
merely an institutionalized means of inflicting punishment.
Third, and consequently, a whole environment is established
where to do right is encouraged, facilitated and found
easy and to do wrong is discouraged, inhibited and
found difficult. All men and women are enjoined, as
their foremost duty, to aid, exhort and commend each
other to do good and to avoid evil.
FUNCTIONAL NATURE
Penalties in Islam are more of a functional nature,
to regulate and deter. God has laid down a body of
mutual rights and obligations which are the true embodiment
of justice. He has also laid down certain bounds and
limits to be observed and maintained for this very
purpose. If men and nations desire to move in peace
and safety on the highways of life, they must stick
to the ‘traffic lanes’ demarcated for them
and observe all the ‘signposts’ erected
along their routes. If they do not, they not only
put themselves in danger, but endanger others. They
therefore naturally make themselves liable to penalties
–not in vengeful retribution – but to regulate
the orderly exchanges in man’s life in accordance
with justice.
It is a significant contribution of Islam that these
penalties are called hudud (boundaries) and not punishments:
they are liabilities incurred as a result of crossing
the boundary set by God. An important consequence
of these hudud having been laid down by God, and not
by man, is that it is beyond human authority to reduce
or supercede them out of a sense of mercy greater
than that of God; nor can a tyrant or autocrat add
to them out of a greater sense of strict justice.
For no one can be more merciful or wiser or more just
than God himself.
Another important function which these punishments
serve is educative, and thus preventive and deterrent.
The Qu’ran alludes to this aspect when it describes
them ‘as exemplary punishment from God’
(al-Ma’ida 5:38). Punishments are thus designed
to keep the sense of justice alive in the community
by a public repudiation of the acts violating the
limits set by God. They are expected to build up in
the society a deep feeling of abhorrence for transgression
against fellow human beings, and therefore against
God - a transgression which, according to the Qur’an,
is the root cause of all disorders and corruption
in human life.
RETRIBUTION - QISAS
Apart from punishments for transgressions like extra-marital
sex, theft, libel and drinking, the Qur’an also
provides for the principle of qisas – retribution.
When a person causes physical injury or harm to a
fellow human being, Islam gives the injured party
the right of equal requital – the well-known
principle of ‘an eye for an eye, a tooth for
a tooth’. This procedure is persistently labeled
by critics as primitive and uncivilized. In the Islamic
view of history, it is worth pointing out, what is
primitive has never been necessarily uncivilized.
The first man was given all necessary knowledge and
guidance, and though he may have been technologically
backward compared to the twentieth century, he definitely
was not humanly backward. Uncivilized is what man
thinks and does in deviating from the divine order.
In the eyes of the Qur’an‘in retribution
(qisas) lies the source of life for you’. The
reasons are obvious. First, the right of retribution
belongs to individuals, not society or the state;
this simple shift in responsibility results in a profound
and far reaching change in the whole system of implementing
justice. The state does not have to intervene every
time two human beings are involved in a dispute. Thus,
instead of starting an irreversible process of trial
and punishment, it leaves the ground open for settlement
between individuals, without interference by impersonal
bureaucratic machinery, though under no circumstances
can the individual take the law into his own hands.
The injured person in his turn may forgo his right
to retribution by forgiving, or may agree to accept
a monetary or token recompense instead. The Qu’ran,
in fact, highly recommends the act of forgiving. Thus,
under qisas punishment is avoidable without burdening
the executive or judiciary with the dilemma of whether
to exercise mercy. As against a court which must act
according to law once a case is brought before it,
an individual is free to act as he wishes. Justice
has to be blind, but an individual may take circumstances
into account, and suspend judgement in the hope of
being forgiven by God in the hereafter. Very few realize
hat the principle of qisas even allows capital punishment
to be avoided.
MERCY AND LENIENCY
Having prescribed punishments and imposed strict and
meticulous, though not impossible, conditions of evidence,
Islam has built in a whole range of principles and
precepts which reflect not a frenzied desire to flog
and stone but a compassionate urge to avoid and eschew.
Islam does not allow either the state or individuals
to spy upon people unless well-founded suspicion exists
that a crime is being committed or a fellow human
being’s rights or interests are in jeopardy.
Nor is it obligatory to report every crime. Where
possible, settlements outside court are preferred.
The punishment is swiftly over; the guilty man and
his family do not have to live with the kind of lengthy
public stigma that they would have had to endure in
the case of a prison sentence at the end of a trial.
The imposition of divinely prescribed hudud enhance,
and not diminish, the individual’s dignity and
stature in society and before God.
ALLEGED CRUELTY
As to the alleged cruelty of physical penalties, one
wonders if to deprive a man of his freedom -- his
most precious and valuable possession – and his
right to act and continue to make moral choices ,
to live with his family, to work and support them
is not more cruel. Indeed, a prison term can inflict
untold misery on innocent people whose lives are intertwined
with the life of the prisoner. Prison becomes a school
for hardening criminal behavior and a breeding ground
for recidivism. Why should it be considered more cruel
for a man found drug trafficking to be given ten lashes
than to be sent to languish in prison for, say, ten
years.
REFORM SYNDROME
Why does Islam want to punish and not reform? The
question is fallacious, for in Islam every institution
of society is value oriented and owes a responsibility
towards the moral development of every person from
the cradle to the grave. Reform is therefore a pre-crime
responsibility and not a post-crime syndrome and nightmare.
Islam makes every effort to ensure that inducement
to commit crime is minimal. Once the crime is committed,
the best place for reform is in the family and in
society, where a criminal is to live after punishment,
and not in a prison where every inmate is a criminal;
unless of course a society considers itself to be
more corrupt and less competent to effect reform than
a jail! Against this, the ‘modern, enlightened’
approach is to provide every inducement to crime by
building a society based on conspicuous consumption;
to make society, education and every other institution
‘value – free’ and then to try to reform
a criminal by segregating him and keeping him in a
prison.
PROCEDURAL JUSTICE
Sentences in Islam are certainly harsh, but still
more strict and severe are the procedures laid down
to be observed before a man may be convinced. These
procedures are modeled on the paradigm of the Day
of Judgement, when even God, though he is All-knowing,
and Just, will not punish anybody unless He establishes
his guilt. To let nine criminals go free is preferable
to convicting one innocent man, said the Prophet.
CONCLUSION
The Shari’ah is an integrated homogenous whole.
Once one understands its basic concepts, objectives
and framework, one cannot but conclude that it is
capable of creating the most human and just society,
a peace and blessing for mankind. Difficulties only
arise when critics try to measure the ocean of divine
knowledge, wisdom and justice with their own thimble
of pedestrian criteria and standards.
Today’s Muslim societies are not model societies
— they are infested with ills and evils –
yet the comparatively stable family life, absence
of delinquency, low crime rates, much greater freedom
from drugs and alcoholism, warmth of brotherhood,
generosity and mutual aid and help – all these
are the legacies of that divinely given code of life,
the way to Justice, which once they used to adhere
to, and yearn to have the change to return to –
the Shari’ah.
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