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on 02-05-2005 12:18
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For many years ago, the state of the Muslim empire thrived under the rule of Islam, society prospered and felt safe under the watchful eye of the Shariah law governing the state. Today some Islamic countries still bear the laws of Shariah, unfortunately, the world has adopted a false notion of Shariah law as backwards, savage, illogical and most of all unjust. Such accusations are not only blasphemous but extremely to the contrary of Islamic justice. Accusers of such irreverence cannot be fully to blame, as many of the so-called implementers of Shariah have tampered with it in many unlawful ways in order to gain pleasure personally. This article hopes to enlighten the reader with the law of Shariah and to clear up the misconceptions regarding it.
Before analyzing Shariah Law, one should first understand the rulemaking in terms of Islam and the domains of Islam. Islam considers religion and government hand in hand; it isn’t an Islamic government if the law of Islam is not implemented. Thus, Islam is strictly against secularism.
If two parties among the Believers fall into a quarrel, make ye peace between them: but if one of them transgresses beyond bounds against the other then fight ye (all) against the one that transgresses until it complies with the command of Allah; but if it complies then make peace between them with justice and be fair: for Allah loves those who are fair (and just). (Al Hujurat: 9)
Some may debate that secularism is right and that the so called church and state should be separated. Most of the arguments used by such people refer to such events as the massacres that occurred as a result of the ignorance of the church and the ignorance of the so called religious authorities. It is essential right now to note, that Islam provides a guideline for dealing with criminal law which is not only just but seems to integrate both roles sensually. Government regulations and religious regulations differ according to role; however their essential belief system and ethical beginning remain the same. Therefore, it becomes easier to implement, both on the judicial system as well as the general public as whole.
After understanding that inside Islamic law, the criminal law is judged under the same preceding of religious injunctions, there are two main common factors of Shariah law (in this case governing crimes) that should also be understood. One being that Shariah law values the rights of individuals and society (as whole) however when it comes to a choice between the two societies has a higher status than individual. Compared to the contemporary criminal law, Shariah law is a lot more successful. Rather than meting out the punishment with respect to just the criminal and the victim, Shariah law does something further, by giving out punishment which can serve as recompense to the victim, a reminder to the people, and an assurance that justice will prevail.
Al Uqubat is the formal name that is given to criminal or penal law in Islam. Al Uqubat (the Penal law) covers both crimes related to the individual as well crimes at large. As mentioned earlier, the Shariah fulfils the rights of both individuals and society at large. So, Al Uqubat deals with both crimes against society and a crime against only an individual. The Penal law is further divided into two main sources: the Hudud and Ta’zirat.
First let us analyze the two sources of law: Hudud and Ta’zirat. Hudud is plural for the Arabic word Hadd (prevention; restraint; prohibition). Furthermore, it is a restrictive and preventive ordinance which is stated by Allah concerning those things that are Halal and those things that are Haraam. Therefore, Hudud means the statutes of Allah considering the Halal and Haraam. Hudud are further divided into two categories: the first dealing with the prescribed to statutes to mankind (such as that concerning food and drink, marriage and divorce) and the second dealing with the punishments given to those who transgress the bounds set by Allah. The Ta’zirat, on the other hand, is the laws that are made by the Islamic state in order to uphold societies. Such as the laws governing traffic regulations, immigration policies etc. , which may not have been necessarily mentioned inside the branches of Hudud. One example can be the imposition of fines upon a person who transgresses a bound of the law, an imprisonment for a particular offence, or probation of some sort.
Most commonly, critics of the Shariah law bring about cases in which doubt existed inside the case and the Hadd punishment was handed out. It is important for these critics that the application of Hadd in such a case is not allowed. The Prophet Muhammad (saw) has given the ruling regarding the prevention of Hadd in case of doubt in the following Hadith:
Prevent the application of Hadd as much as you can whenever doubt persists.’
Of course even if doubt is there, the judge cannot just let the criminal go. As such the criminal may be given a form of Ta’zir.
Another essential to note is that the Hadd punishment cannot be handed to the following three people: the insane, the immature, and the sleeping persons. Thus, people who are not in a sane state or possessing the mental capability of a normal human being will not be given the Hadd punishment.
The Hadd punishment is generally given under seven cases:
1. Committing murder, manslaughter, or another form of physical harm to human being
2. Punishment for stealing
3. Punishment for the acts of adultery and fornication.
4. Punishment for slander (Qadhf)
5. Punishment for apostasy
6. Punishment for drinking
7. Punishment for highway robbery.
Regarding Murder
Islam considers human life sacred and a violation of the sacred gift is most evil.
Allah says in Ayah 5:32:
If any one slew a person – unless it be for murder or for spreading mischief in the land – it would be as if he (slaw) the whole people: and if anyone saved a life, it would e as if he saved the life of the whole people. (5:32)
In a Hadith, The Prophet of Allah (S.A.W.) declared:
The greatest sins are to associate something or someone with Allah and to kill human beings.
Qasas (the Law of Equality) is applied to the person who killed an individual purposely. Qassas, derived from the word Qassa meaning to cut or to follow track of pursuit, refers to the law of equality or equitable revenge for a previously committed act of murder. Islam accords the treatment of an intentional murderer should be the same as the action he’d committed, that is he/she should be given the capital punishment of death. The punishment will only take place if the case is proven beyond a doubt, as no Hadd punishment may be given in case of doubt. Also if the person is forgiven or there is doubt in the case. Blood money (Diyah) is given to the victim’s family. Exceptions are made in the following cases: in the case of Jihad (war of defense), those who plot to overthrow government, those who are given the punishments accorded by Hadd are the one’s who give Hadd.
Zina (Adultery)
Do not come nearer to adultery for it is shameful (deed) and an evil, opening the road (to other evils). ( 17:32)
Zina means illegal intercourse between a man and a woman who are unmarried. It doesn’t matter if they have respective spouses, if they’re single, or if it’s done with each other’s consent. Such an act is extremely evil and is a crime against the set statute of Allah. Also, the act of Zina opens the door to many other evils, as such the punishment for Zina is great. There are definite Hadd punishments mentioned in the Quran and the Sunah for those who commit Zina. The Qur’anic revelations regarding it, like many other topics, were gradual. However, as accorded by the Shariah, which has been derived from several Qur’anic verses and Ahadith, the punishment of Zina has been made quite clear. For the unmarried person, they should be given 100 lashes and be sent on exile. If the offender is unmarried, there are two cases. One he should be given a 100 lashes then stoned to death, or, two, he should be stoned to death. Of course in order for this Hadd to be applied: the offended must be sane, be a Muslim, be married, matured, and be a free man (not a slave).
It also must be proven without a doubt, and with the production of four witnesses, or a voluntary confession, that the act did take place. If the accuser cannot bring these four witnesses, he’d be charged with the crime of slander or defamation, which brings us to the next topic.
Qadhf: Defamation
Qadhf means defamation, and is when a person falsely accuses a Muslim of Zina or doubts the paternity of a child. It is a great crime in Islam to lie and ruin the honor of a fellow Muslim. On this, Allah says in the Quran:
And those who launch against chaste women, and produce not four witnesses (to support their allegations) flog them eighty stripes. And reject their evidence ever after. For such men are wicked transgressors. (24:2)
The punishment for such an individual is eighty lashes, and his witness can never be accepted again.
Al Sariqah: Theft
Prophet Saw said
Your lives and properties are forbidden to one and another until you meet on the day of resurrection.
If the following six conditions are met then the property is deemed to be stolen:
1. Property taken away secretly
2. Taken away with criminal intention
3. The thing is legally owned by the person who it was stolen from
4. The stolen property is under the possession of the thief.
5. The property has reached the value of Nisab.
The Quran states regarding the punishment for theft:
As to the theft male or female, cut off his hands or her hands: a punishment by way of example From Allah, for their crime: and Allah is exalted in Power and Wise.
The punishment of Hadd is applied if the person who committed theft is sane, he’s an adult, he wasn’t compelled to steal, and he wasn’t in a state of hunger when committing the deed.
If the Nisab is reached and the thief did not do the crime out of necessity, then the punishment will be enacted. In such cases, others will not deem it acceptable to commit theft, as such acts serve a as a lesson for everyone.
Al Hirabah: Highway Robbery
Al Hirabah: highway robbery is a heinous crime against society and a great punishment is derived against it. The Quran has called it an “a war against Allah and His Messenger” and an attempt to spread mischief in the world. See Ayah 5: 32.
There are four main instances regarding the Al Hirabah and its punishment:
1. If the robber kills but can’t get away with the loot. He is to be killed but not crucified.
2. If the robbers robbed and killed. He is to be crucified.
3. If the robbers took away the property forcefully without killing. He is to have one arm and leg cut off.
4. If they only attempted robbery, and did not kill or rob. Then he should be exiled. However, if it is a woman then she shouldn’t be exiled as it would lead to a greater sin of adultery.
Khamr: Intoxication
Khamr: wine drinking, is forbidden in the Quran and has been criticized many times in many Ahadith. The drinking of wine was gradually forbidden in Islam, just like some other deeds. Intoxication leads to many other crimes. It is ironic that in the west, drinking and driving remains to be one of the greatest offences to hit the roads and remain literally incurable. Yet they view the Shariah law with respect to Khamr to be backwards and savage.
The exact punishment for the drinking of Khamr was reached by Ali (r.a) when nothing was found in the holy Quran and the Prophets Sunnah. Ali (r.a)’s suggestion that eighty lashes be given as a punishment for drinking was accepted on the grounds that after drinking a person tends to make false accusation and the punishment for false accusation in the Quran was eighty lashes.
According to the schools of thoughts, there is slight difference. The Shafi’i school holds that the punishment for drinking wine is only forty stripes, while the remaining schools maintain that the punishment for drinking wine is eighty lashes.
Al Riddah: Apostasy
Al Riddah: apostasy means the rejection of the religion of Islam in favour of another religion through action or through words of mouth. The Riddah may also refer to not believing in any of the five pillars of Islam or rejecting any of the beliefs outlined in Eman e Muffassal. The punishment for apostasy is death, and is accorded by the Hadith of the Prophet (SAW) as follows.
Whoever changes his religion from Islam to anything else bring end to his life.
Thus the punishment for apostasy is death.
The Shariah and Juveniles
Juveniles cannot be given the Hadd punishments if they commit a crime. However, the judge has the right to discipline as he sees fit, so that they will not be prompted to commit the crime again. Juveniles under Shariah law refer to all of those who have not yet reached the age of puberty.
The criminal law according to Shariah is very just and logical. It is very contrary to the beliefs held by many in the world, which are ignorant of the laws of Shariah. Applying the Shariah law to many countries today would actually provide the world with a lower crime rate. The irony of the world is that it will criticize anything however not put their money where their mouth is, as the crime rate increases so does backwardly the so-called humanitarian rights of the criminal.
Bibliography:
1. Abdur Rahman Doi: Shariah: The Islamic Law Taha Publishers Ltd.: London 1997
2. 12 March, 2003 Islamic Criminal Law: http://saif_w.tripod.com/explore/crime/islamic_criminal_law.htm January 26, 2005
3. Taha Ghayyur Understanding the Punishment of Shariah: http://www.youngmuslims.ca/articles/display.asp?ID=76 January 26, 2005
Last update : 02-05-2005 12:18
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