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.
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.