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Is Shari'ah not too concerned with law and punishment? And are these punishments not too harsh, barbaric and outdated?
Shari'ah is sometimes translated as "Islamic Law" but it should be understood that it goes beyond what is the concern of the courts in serving justice.
The meaning of the Arabic word "Shari'ah" is "a path to be followed". Shari'ah is the holistic law regulating the way of life leading to Allah, based on the teachings of the Qur'an and Sunnah. Consequently, Shari'ah is not limited to matters of belief, ritual and religious practice. In its widest sense, Shari'ah deals not just with regulations of Muslim religious observances, but also the whole field of family law, the law of inheritance, and of property and of contracts. It has provisions for all the legal questions that arise in social life and also deals with criminal law and procedure, with constitutional law and laws regulating the administration of the state and the conduct of war, as well as international relations. Religion in Islam has never been confined to just a private affair between man and God but more so, a dynamic and accountable relationship between man and his environment (physical as well as social).
In other words, Shari'ah's spheres encompass the social, political, administrative, economic, legal, moral, educational as well as the spiritual, and so while sanctioning certain legal regulations for the order of society, it also includes other aspects of commendable moral behaviour such as returning good for evil, assisting people even if they have no legal claim on you, and doing your moral duties as a good member of society. Likewise, it includes avoidance of doing things that are wrong, even though they may not be offences carrying punishments in a court of law. From this, it would be reasonable to conclude that Shari'ah is not an entirely new set of laws - many states and leaders throughout history have implemented aspects of Shari'ah even while not being Muslim in name.
Most intellectuals would concur that society may only be managed effectively through a coherent system or collection of systems in a harmonious whole, which function to fulfil the aims of that society and its definition of development. For an ardent Muslim, human society can never meet its potential for concurrent spiritual and worldly advancement without the Shari'ah. Furthermore, it is the practical embodiment of otherwise simply professed principles/values. In a book entitled Modern Trends in Islam, Professor H.A.R. Gibb writes "The kind of society that a community builds for itself depends fundamentally upon its belief as to the nature and purpose of the universe and the place of the human soul within it. This is familiar enough doctrine and is reiterated from Christian pulpits week after week. But Islam possibly is the only religion which has constantly aimed to build up a society based on this principle. The prime instrument of this purpose was law." Hence, the rationale of Shari'ah is far greater than a mere concern with punishment, though spurious Muslim movements may have at times unwittingly trivialised Islam by their overzealousness to introduce the penal code removed from the entire letter and spirit of Shari'ah as an integrated whole.
The opinion that legal punishments in the Shari'ah are barbaric stems from viewing them in isolation, rather than within the whole context of the Shari'ah itself:
- Punishments are only a section of the legal system which itself is only a section of the Shari'ah. In contrast to Shari'ah prescriptions for personal morality and spiritual practices obligatory for Muslims, Shari'ah laws which are legally enforceable on state citizens are those which affect the security and wellbeing of the society as a whole. Every legal ruling (be it to do with personal or public life) is backed up by sanctions or punishments for those who violate them. However, the Shari'ah looks beyond mere legal accountability and justice in this life to the accountability and justice of the Hereafter (Qur'an 99:7-8). Some punishments are those that are required to be administered by the state for the sake of public order and meeting the objectives of a peaceful and just society, while others are left for Allah alone to administer, if He so wills.
- Unlike the secular concept of law which ignores certain aspects of morality (as can be seen from the legalisation of bestiality, pornography, interest, etc.), Shari'ah is not separable from ethics or morality. Shari'ah involves certain fixed laws that are binding on both the ruler and the ruled, as well as flexible methods for creating new laws and interpreting old laws to meet changing societal conditions, all of which must accord to universal ethical principles laid down by the Ultimate Sovereign. This may be contrasted to the entirely mutable laws of a secular state, which may be formulated and partially implemented through the lobbying of certain interest groups and subsequent disputation among legal and political officers of the State. The ultimate authority in a secular state is an equally mutable constitution and/or its ruler(s), who may or may not be subject to questioning according to the principles of a higher authority. Whereas Shari'ah laws must be guided by eternal codes of morality and noble pursuits, secular laws are not guided by anything other than arbitrary notions of "progress" (usually material), the wishes of those who appeal to the government (through public lobbying or bribery), and the ambitions of those campaigning to win the next election (ie. relative values).
- The purpose of Shari'ah's legal code is to guide both individuals and society towards peace and justice, and to prevent crime and deter criminals. One of the major objectives of the spiritual and moral aspects of Shari'ah is to minimize the need for the courts and prisons, which are a burden on society and the taxes of the population. A thief in the American state of Ohio, for example, who steals $350 may be put into prison for a year (tried, fed, clothed, sheltered, insured, put through labour and recreation, monitored, etc.) all at a cost to the Public Treasury of $68,000! Not to mention the extra welfare payments which may have to go to the thief's family to sustain themselves during his absence! Such money could have educated the thief for the duration of an entire degree, and could have prevented him from stealing in the first place. The law enforcement industry in modern nation-states (lawyers, police-officers, prison-wardens, etc., and their various establishments) appears to thrive on a market of crime, and is impractical to institutionalise in less-industrialised communities.
- The Islamic Legal System is required to take societal considerations into account before applying punishments. In Shari'ah, the State is required to cater for the rights and needs of citizens (e.g. by encouraging economic activity, providing jobs and education, and providing adequate social welfare mechanisms through Zakat and similar institutions), and to ban whatever is conducive to crime. Only then does it have the full right to give the prescribed or specific punishments.
- The cutting off of the hand (amputation) of a confirmed thief by an Islamic State would not be just unless the State has provided the thief with no excuse to steal, e.g. employment and/or social welfare for the poor and needy. Moreover, punishment for theft also depends on the age of the thief, amount stolen, reasons for stealing, where the object was stolen from, etc. In other words, a thief is only punished when he has no reasonable excuse for stealing. A well known tradition records that the Caliph Umar had a thief once brought before him, whereupon he was asked the reason for his theft. The man replied that he was a slave and his master had not provided enough for him. Umar immediately summoned the thief's master and warned him "The next time your slave steals out of hardship, it will be your hand we will cut."
- The family is the most important social institution responsible for the upbringing of the next generation of a society. The family has the greatest influence on the morality of any generation. The Shari'ah is therefore very strict with regard to the protection of the objectives of the family. Adultery, being one of the greatest family breakers and an immorality in itself, is punishable with death. This severe punishment, however, serves more as a deterrent in view of the strict conditions required before it can be enforced. No less than four reliable and dependable witnesses who each saw the physical act taking place are required for a judge to rule such a punishment. Since adultery in the presence of up to 3 witnesses is still not punishable by the law (in this world), it seems that the accusation that Shari'ah is too severe and barbaric with respect to adultery is simply because Islam has not allowed adulterous intercourse to take place in public!
- As there is no priestly class in Islam, every learned individual is entitled to be either or both a spiritual and/or a legal authority. Political and legal matters are not necessarily decided upon by stereotypically religious figures. Hence, Shari'ah does not espouse a theocracy per se and has provisions in place to inhibit any monopoly of determining law by traditional chiefs, emirs and mallams, who nowadays are more experts in custom, tradition and public rituals than statesmanship as such. Moreover, Shari'ah emphasises principles and objectives as authoritative, not acronymns or personalities.
- Whatever punishment is to be given for any crime is carried out strictly by the legal authorities concerned after a fair trial and not by just any citizen who thinks he knows the law. The burden of proof in Shari'ah lays with the accuser, and, in many cases, accusers who cannot substantiate their accusations with the required number of credible witnesses against such crimes as adultery are issued with punishments such as flogging for attempting to ruin the honour of another. In addition, false witnesses are no longer permitted to testify in the courts. Through adopting such strict standards for plaintiffs, the Islamic legal system attempts to eradicate abuses of legal proceedings by lawyers and those bearing grudges on others, as well as reduce the number of cases being brought to court altogether.
- No other legal system has controlled crime and brought a greater degree of peace and security to citizens than that of Islam's. With all the fuss and propaganda from those against Shari'ah legal punishments, crime rates (particularly for heinous crimes) are surging in most secularised societies and Westernised legal systems. In one of such countries, statistics show that every 6 minutes a woman is being raped and every 25 minutes a person is being murdered. Laws in such places have significantly failed in deterring crime, and thus have left the innocent feeling unprotected, vulnerable and extremely insecure. By contrast, countries implementing the Shari'ah penal code and its complementary welfare obligations have some of the lowest crime rates in the world.
- Those claiming Shari'ah punishments are barbaric and outdated may be interested to note that in the Old Testament of the Bible, death for adultery (Deut. 22:22) and flogging (Deut.25:1-3) are recognised legal punishments with divine sanction. The laws of some Western countries also include punishments such as hanging, electric chair, lethal injection and so on for serious crimes such as murder.
Since God is All-Knowing and Most Just, why shouldn't we leave all punishments to Him, rather than risk doing any injustice?
The purpose of punishment under the Shari'ah, is to discourage those who are not conscious of God's will from committing crime or vice (i.e. protection of innocent in this world). Although ultimate justice is in the Hereafter, Islam is not only for peace in the Hereafter but also in this world. Human rights and a peaceful, secure existence cannot be sustained when there is absolute freedom, as freedom to harm would infringe upon a person's rights not to be harmed. In the end, there must be some value judgement placed on a person's respective rights and freedoms in a particular situation, and hence a balance based on certain limitations. Lack of this balance gives rise to conflict (as in the West) between social order and individual freedom. In any society there is a maximum degree of crime and immorality it can reasonably tolerate. Shari'ah is to therefore protect the good, and not the bad. Society as a whole is more important than an individual criminal. Not everyone is ruled at all times by their conscience, and so limitations on certain freedoms in order to secure certain rights can only be implemented in some cases through having punishments.
Punishment is also to make evil/bad recognised as undesirable (e.g. punishment of children), just as reward is to teach desirable deeds. If it is fair to leave punishment to God; why do we reward the good? Sympathy in the West seems to be more with the criminal than with the victims, which leads to proliferation of crimes.
Punishment under Shari'ah is a command from Allah. Similarly in the Old Testament, the 10 Commandments of Moses carry their own respective legal punishments, e.g. Deuteronomy 22:22, which says that if a man is caught having intercourse with a married woman, both of them must die.
Jesus (peace be upon him) himself also found it necessary to inflict punishment on the money-changers and animal-sellers in the Temple (John 2:13-16). He made a whip and drove them out of the Temple and upset the tables of the money-changers, accusing them of turning the place into a market. The fact that he did not ignore them or leave them to God implies that those who selfishly obstruct the positive objectives of society and its various bodies are obliged to undergo punishment and/or correction of some sort.
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