1. Issues
cannot be addressed in Isolation or out of context
2. Unquestionable
reverence and legislative authority of Prophet Muhammad (p.b.u.h)
3. Hadd or
Tazeer?
4. Severity
and Harshness of Islamic Punishment?
5. Postmodernism
and Islam
6. The Western
Media and the 'Knowledge Vacuum'
7. The Salman
Rushdie Affair
1. Issues cannot be addressed in isolation or out of context.
In dealing with the application of the Islamic penal system, first of all one has to try to understand its place within the Islamic legal framework as a whole or rather within Islam itself. It is well known that Islam provides a complete system for regulating every aspect of human life. The rules, obligations, injunctions and prohibitions laid down by or derived from the Qur'an and the Sunnah produce a complete picture of the Muslim community, from which no part can be removed without the rest being damaged. Equally no isolated part of this scheme, especially when taken out of context, can make any sense or be of any use. Mohammad S. al-Awa in his "Punishment in Islamic Law"(17) points out: "Within any legal system, the philosophy of punishment is an integral part of the system which cannot be understood or applied except within its principles, in order to protect the values recognized by it. If this is correct, and it is undoubtedly correct, then it must be completely wrong to borrow the penal philosophy of one legal system and adapt it to [or compare it with] another which is based on different principles and values ..."
2.Unquestionable Reverence and Legislative Authority of Prophet Muhammad (pbuh) - The Essential Tenet of Islam
The unquestioned reverence and legislative authority of the Prophet Muhammad has been acknowledged by the Muslims as the Messenger of God, and whatever he gave them in his lifetime, (i.e., commands as well as injunctions, in the name of his Sender, God), is accepted by the Muslims as indisputably final and most reasonable. The belief in the Messengers of God is useful even from the point of view of jurisprudence, in that the awe and respect and reverence towards them lead to the acceptance of certain fundamentals without any dispute. It is from this that other and further details may be elaborated. For this reason, the Muslim savants are very thankful to the generosity of God, for He gave men along with reason certain chosen human guides to help them in the conduct of life. These chosen ones pointed out God's commands (for He is the real Sovereign and Lawgiver) with regards to good and evil and with regards to their rights and the corresponding obligations.(18)
As to the technical terminology of 'hadd' (unalterable punishment) and "tazeer" (discretionary punishment) classification of punishments, according to Hanafi, Shafii and Zahiri(19) schools of law, the death penalty is a "hadd" punishment. The Hanbali and Malikki (20) do not classify it as "hadd" punishment. This difference of opinion arises mainly because of the different ways the grammatical imperative mood of the word 'kill' used in the Hadith may be interpreted. This punishment is based on a Hadith narrated by Ibn 'Abbas (Sahih Bukhari) in which the Prophet is reported to have said, "Whoever changes his religion, kill him." It is primarily on the strength of this Hadith that jurists have based their view that an apostate should be sentenced to death. Their work on the subject leads them to interpret the words, "kill him" as a grammatical imperative, (sighat al-amr), that is, an order which must be carried out. The jurists have held that the imperative, sighat al-amr, may be used in sixteen different ways. Some of them are: inimitability, recommendation, threat, permission and the literal meaning of the imperative which signifies a command or an order.(21)
Briefly, in the 'hadd' category of crime, the judge has no discretion to alter or reduce the prescribed punishment once the crime is proved. In the 'Tazeer' category of crime the judge has the discretion to impose the maximum (in the case of Blasphemy/Apostasy) death penalty or commute the sentence to life imprisonment or pronounce some other appropriate punishment, such as a fine, etc.
4. Severity and Harshness of Islamic Punishment?
Hudud punishments prescribed by the command of the Qur'an or the Prophet are, of course, considered most reasonable, fair and justified in the eyes of Muslims. We would like to quote Paragraph 229 and 230 from the book Introduction to Islam,(22) in order to explain the nature of Islamic law and morality as follows: "Islam is based on the belief of Divine revelation sent to men through prophets as intermediaries. Its law and morality, even its faith, are therefore based on Divine commandments. It is possible that in the majority of cases human reason also should arrive at the same conclusion but essentially it is the Divine aspect which has the decisive significance in Islam and not the reasoning of a philosopher, a jurist or a moralist, the more so because the reasoning of different individuals may differ and lead to completely opposite conclusions. Sometimes the motive of discipline is found underlying an obligation and practice which is apparently superfluous.
One may divide human actions, first of all, into good and evil, represented by orders and prohibitions. The acts from which one must abstain are also divided into two big categories: Those against which there is temporal sanction or material punishment in addition to condemnation on the day of the Final Judgement and those which are condemned by Islam without providing a sanction other than that of the Hereafter."
It must, therefore, be particularly noted that except in cases of extraordinary gravity, the public authorities do not take cognizance of them and it is at this juncture that the discretionary system of punishment (tazeer) comes to play its role.
It should also be noted that Islam attaches particular importance to morality "in its ardent desire to attack the very sources of evil and not merely certain of its manifestations. Islam has imposed, recommended, or otherwise encouraged certain practices, which astonish us sometimes if we do not take into consideration their profound motives. All religions say that fornication and adultery are crimes, but Islam goes further and prescribes means to diminish these temptations. It is easy to hope that everyone would develop individual morality in order to resist the temptations; but it is wiser to diminish the occasions in which persons with weak characters - who constitute the majority of human beings - need to engage in a battle where defeat is a foregone conclusion."(23) Perhaps the very aim of human society is none other than controlling temptations and remedying the damage already done.
This is the position of Islam and Muslims with respect to law, morality, prevention of evil, and its system of punishment.
Now we shall look at what one knowledgeable Christian scholar says of the severity of Islamic punishment.
An Excerpt from "Preliminary Discourse", by Charles Hamilton, (24)
"This book treats only of the punishment incurred by crimes of a spiritual nature [i.e. the Hudud punishment], those instituted for offences against a person or property being discussed under their respective heads. The punishment for adultery is certainly severe, yet we will not, perhaps, be forward to condemn this severity, if we compare it for a moment with what is recorded in the twentieth chapter of Leviticus upon the same point - in fact, from the nature of the evidence required, it was next to impossible that the offence should ever be fully proved, even among the tents of the Arabs; so that the institution of the prescribed punishment was in a great measure nugatory, except in cases of confession by the parties. That those confessions were sometime made in the early days of Islamism, is a fact; and made, as they were, at the certain expense of life, they afford a wonderful instance of devoted zeal among the first followers of Muhammad. Still, however, even in those instances, every means that precaution could suggest is enjoined to avoid the necessity of inflicting the sentence . . ."
"Chapter IV containing the penalties of drunkenness, exhibits a degree of lenient indulgence with respect to that vice which we should scarcely expect to meet in a Mussulman law-book, as it hence appears that a man may offend in this way, even to a considerable degree, without any danger of legal cognizance. [See below: "Adhab"]Slander [accusing a person of unchastity.] As treated of in Chapter V, comprehends all expressions which may either affect the reputation of a man or a woman previously possessed of a fair character, of the legitimacy of their issue and the punishment has added to it, an effect equally just and politic, namely incapacitating the slanderer from appearing as an evidence. [witness] on any future occasion."
"Discretionary correction [Tazeer], which forms the subject of Chapter VI extends to all petty descriptions of personal insult, even to abusive language. In fact two-thirds of the punishment in Turkey, Persia, or India, are inflicted under the name of Tazeer."
We must not pass this book without noticing the extraordinary indulgence shown to slaves, in subjecting them, for all spiritual offences, to only half the punishment of freemen. The reasons alleged for this leniency manifest an uncommon degree of consideration and feeling for the state of bondage."
Adhab (= torment, suffering, punishment)
“The punishment is considered in Muslim
law either as the right of God (hakk Allah) or as the private right of
man (hakk adami). In the latter case, the punishment is applied only at
the desire of the injured party (or of the latter’s relatives or heirs).
The punishment, e.g. retaliation, is inflicted upon the culprit as the
personal right of the plaintiff.
In the case of a transgression against God, the punishment consequently being then a hakk Allah, a peculiar principle in the law applies. God, it is supposed, is forbearing and, in fact, desires not at all the punishment of the transgressor. Punishment was considered in the beginning of Islam, just as in Arabian paganism, as a purification from sin. So for instance a certain Ma’iz b. Malik came to the Prophet and said to him: tahhirni “purify me,” i.e. punish me! Cf. I. Goldziher, Muhamm. Stud., i. 27, note I; do., Das Strafrecht im Islam (Fragen zur Rechisvergleichung, gestellt von Thm. Mommsen, beantworiet von H. Brunner, c.s.) P. 101, 104, note 2. But the Prophet is stated to have said “God will forgive the sins of every believer except when the sinner himself makes them known. God loves those of his servant that cover their sins.”
On the ground of this tradition, there is a prescription in the Muslim law books that when the punishment is to be considered as a hakk Allah the transgressor should hide his guilt as much as possible and not confess it, and even when he does confess it revoke this confession. He should rather turn himself to God in stillness, for God accepts his conversion when his intention is pure.
The witnesses too are recommended not to testify to the detriment of the accused person, and it is meet that the judge should show the latter all the circumstances extenuating his guilt and the validity of revoking his confession. The judge may even entirely remit the punishment except when the right of a man is also injured at the same time and the latter demands the punishment of the guilty one.
Only in the case of a punishment established by the law (hadd) the judge has no choice and must execute the punishment. With regard to the latter punishments even an intercession on behalf of the culprit is not allowed, while otherwise it is recommended. But in order to establish the guilt of the culprit in these cases, a very difficult legal proof is always required. In fact the rules of the Muslim canon-law offer everybody the opportunity for escaping such punishments. Practically there is only one ground on which the legal evidence and the execution of “determined punishments” may be based, namely the confession of the culprit himself; so that in this respect, the “determined punishments” have the character of penitence.” 31
The following additional differences and distinctions between the Islamic and western ideologies, philosophies of life and legal systems (including systems of punishment) deserve particular attention: –
All civilized legal systems aim at combining the rigidity of their principles through the legislation of a set of rigid constitutional laws with the relative flexibility of the regular civil and criminal laws of the country. As to the ability of the Islamic system of law to adapt itself to the changing needs of society, Muslims are very particular in pointing to this unique aspect of their system which accommodates the changing needs of society. Muslims maintain that the Islamic system combines these two opposite aspects more successfully than those systems which are not based on Divine Law. The uniqueness of Islam lies in the fact that the Divine Law which includes a strict and severe regimen of punishment (i.e., Hadd punishments) is absolutely inflexible and unalterable, whereas the system of punishments falling under the category of Tazeer are very adaptive and very flexible because they accommodate changing needs in the continuous evolution of human society. Simply put, western constitutions are amendable, although with very rigid rules for very special circumstances. In Islam, however, the Shariah (i.e. the Qur’an and the Sunnah), which may be regarded as a parallel to the western style of constitutional law, is not amendable – period. The rationale for the extreme rigidity of the Islamic Shariah Law (i.e., the Qur’an and the Sunnah of the Prophet) which is distinct from the rest of the Muslim jurisprudence (Fiqh), is that the provisions of the Shariah deal with such matters that are of a universal and perpetual nature. These principles relate to the three basic unchanging human needs from the beginning to the end of time which relate to man’s physical, moral and spiritual aspects of life. Obviously these needs never require changing. Just as wholesome foods are necessary for physical nourishment so are good and virtuous deeds necessary for moral nourishment and a constant awareness of man’s position in the universe vis a vis his Creator is necessary for his spiritual nourishment.
Now to take a quantum leap from the 18th century to the present we will discuss current issues. To wit:
The predicament and promise of postmodernism is the subject of an interesting book, Postmodernism and Islam, by Akbar S. Ahmed, Professor of Anthropology at Cambridge University, England. Professor Ahmed also has written and produced "Living Islam," a six-part television series for the BBC England.(25)
In his book, Professor Ahmed says, "As Muslims, we will live in the postmodern world which is just beginning to shape our lives; therein lies the Muslim predicament: that of living by Islam in an age which is increasingly secular, cynical, irreverent, fragmented, materialistic and, therefore, for a Muslim, often hostile. However, postmodernism also promises hope, understanding and toleration - and this is where it connects with Islam. In an age of cynicism and disintegration, Islam has much to offer."
6. The Western Media and the 'Knowledge Vacuum'
Professor Ahmed further asserts that the present encounter with its universal Western culture and pervasive technology, is perhaps the most forceful of onslaughts on Muslim civilization yet. Islam appears so threatened and vulnerable because it is so amorphous and because it appears in the most unexpected places. The TV and VCR in its character and origin, has become part and parcel of Western civilization. It needs no passport or visa for it can invade even the most isolated home and challenge the most traditional values.
According to Professor Ahmed, even a Muslim like His Highness the Agha Khan who is known to be sympathetic to the West and who scrupulously avoids political controversy, is concerned about the relationship between Islam and the West. He feels that the perception of Islam as a dark threat to order, is never far from the Western mind. The Agha Khan further says, "With Islam encompassing a large area of the world with significant populations, Western society can no longer survive in its own interest by being ill informed or misinformed about the Islamic world. They have to get away from the concept that every time that there is a bush fire, or worse than that, it is representative of the Islamic world. So long as they make it representative of the Islamic world itself, they are sending erroneous messages back. This is what I call a 'knowledge vacuum'. It is hurting everyone."
Professor Ahmed then states that "we cannot, therefore, even in our modern or postmodern age, ignore or disregard what traditionalists have believed to be necessary. More specifically, for the traditionalists, the larger message of Islam, rather than the narrower sectarian or personal quibbles, is of paramount importance. As a result they believe both in the universal message of God as well as in inter-faith dialogue.
Seyyed Hossein Nasr has pointedly underlined this same need in the following way: "There is also the very important task which lies ahead for Muslims to try to make peace on a theological level, not only on a political level, with other religions in the West, to extend a hand, which Islam has always done [in the past], to Judaism and Christianity and to other religions."
This need to create a better understanding in order to eliminate this 'knowledge vacuum,' assumes an even greater urgency in light of many recent developments. For example, consider the atmosphere which has surrounded the Rushdie affair and the enmity which it has created. An even more tragic example is the Balkan onslaught with its policy of 'ethnic cleansing.' These examples show how desperate is the need for communication and tolerance. Professor Ahmed says in relation to this need that, "even the hope and promise of the modern and postmodern era seem to be losing their appeal and any claim to tolerance, liberal-mindedness and laissez-faire, seems a hollow and spent force. 'To each his own thing' type of thinking, which was supposed to be changing the world, is not so in practice and reality."
"In their shrill intolerance of opposing voices, some of these labelled 'post-modernist' authors sound suspiciously like other more conventional authors of earlier times. We saw how lines were drawn in the Rushdie affair at many points, stereotypes negated and paradoxes created. Many staunch Christian priests were totally supportive of Muslims, while many liberal intellectuals sounded like Inquisition Priests in their shrill and blanket condemnations. In the one case, a millennium of hostility to Muslims was set aside; in the other, a century of liberal philosophy . . . In their emphasis on ethnicity, many postmodernist political movements generate racial violence which is as barbaric as any we know of from primeval tribal warfare. Ethnicity is the unprimed and potentially most explosive reality of human society, as we see in the disintegrating communist states. Its links with postmodernism are still to be discovered clearly. Muslims and Marxists slit the throats of fellow Muslims and fellow Marxists; ethnicity in these cases overrides larger ideological loyalties. Our age is littered with notorious examples."
Ayatullah Khomeni had condemned Salman
Rushdie because his book was considered blasphemous; the Pope condemned
Madonna for her provocative songs. As head of his respective religious
structure, each did what was expected of him by his followers. Any Muslim
cleric would have reacted to this book in the same manner as the Ayatullah;
any Catholic priest would have found Madonna's songs distasteful.
17. Mohamed S. el-Awa, Punishment in Islamic Law, Indianapolis, MD: American Trust Publications, 1982.
18. Muhammad Hamidullah, The Muslim Conduct of State, Lahore, Pakistan: Sheikh Muhammad Ashraf, 1977, paragraph 10
19. Collectively, it would be a fair estimate to say that they comprise an overwhelming majority of say 95% or so of the total Muslim population. No reliable statistics are available to this writer at the present time.
20. A very small minority, perhaps an estimated 5% or so of the total Muslim population. No reliable statistics are available to this writer at the present time.
21. (Baydawi Minhaj al-wusul pp. 37-38); Nasafi, Manar al-anwar fil Usul al-Fiqh, pp. 24-29; Khallaf, Usul al-Fiqh, pp. 194-195. Examples of these forms of usage may be found in the first authority, i.e. Baydawi. vide Mohamed S. el-Awa, Punishment in Islamic Law, Indianapolis, MD: American Trust Publications, 1982.
22. Muhammad Hamidullah, Introduction to Islam, op cit.
23. Muhammad Hamidullah, Introduction to Islam, op cit. paragraph 391
24. Shaikh Burhann'd-din al-Marghinini, al Hedaya, Eng. trans. Charles Hamilton, Islamic Book Trust, New Delhi, India, 1982
25. Akbar S. Ahmed, Postmodernism and Islam, Rutlege, 1992
31. Excerpt from:
The Shorter Encyclopedia of Islam, by H.A.R. Gibb and J.H. Kramers, E.J.
Brill, 1995, Leiden, The Netherlands, pg. 15