May 6, 2003

Understanding Punishment in Shariah [I]: Its Role & Principles at a Glance


 

 

 

 

Skilfully manipulated display of the imagery of a whip cracking on a naked back
of a Nigerian woman and a veil enshrouding a woman?s face in Afghanistan have
led many to believe that Shariah, the divine code of Muslim conduct, is
in reality no more than a set of principles and practices that are primitive,
unrefined and barbaric. As Khurram Murad states, ?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 inflicts punishments and harshness on the criminal that
are cruel, inhuman and degrading.
?
[i]
 

Shariah literally means ?way to water??the source of all life[ii].
Therefore, to a Muslim, Shariah signifies the way to God as given
by God.

 

 

 

 


This two-part treatise seeks to objectively explore the forms and role of
punishments prescribed by the Islamic Law. An attempt is made to highlight the
framework and factors that distinguish the Shariah, as a mechanism of
retribution, reform, and deterrence, from the judicial system prevalent today.
This study is by no means an apologetic response to the barrage of criticisms
that the Islamic text and laws face today.


FOUR FUNDAMENTAL PRINCIPLES OF
PUNISHMENT & JUSTICE IN SHARIAH


The Quran certainly does legislate corporal punishment for certain social crimes
and it does allow for the option of retribution (Qisas, as it is called
in Arabic). In order to comprehend the purpose of punishments in Islam, it is
vital that the fundamental principles related to justice and responsibility, are
studied.


FIRSTLY, the notion of accepting
responsibility for one?s own actions and one?s accountability before God are
central to the Quran?s theme.

A human being has been called ?Vicegerent of God? in the Quran; i.e. his or her
purpose of creation on this earth is to be representative of God and to govern
it with a sense of justice and equity. For, to fulfil the purpose of his or her
creation, one has been granted freedom to choose and act, and a moral sense to
distinguish between right and wrong. Unlike secular societies, where the human
intellect and freedom have increasingly and virtually become the ultimate
authorities, as argued by John von Heyking, a Professor of Study of Civil
Society at
University of
Calgary
[iii],
Islamic law keeps personal freedom checked with personal responsibility. As
Hasan al-Anani elaborates, ?The ability of a person to bear his
responsibility independently strengthens his freedom, which is the most
important aspect of responsibility, both for self-development of an individual
and for the development of the community
.?[iv]


SECONDLY, a careful survey of
the Islamic injunctions would reveal that Shariah?s aim is ultimately to
serve human welfare.

Salman al-Oadah explains: ?Shariah?s general precepts return to
universal principles under which falls every aspect of human welfare. The five
universal principles of Islamic Shariah are: To preserve one?s life,
religion, reason, lineage, and property
.?[v]
It is interesting to observe that each of the major punishments (also known as
?boundaries? or Hudood) prescribed by the Quran, deals with the violation
of one of the five universal objectives of the Islamic law. For instance, to
preserve life, it prescribes the law of retribution. To preserve religion, it
legislates the punishment for apostasy. In addition, to preserve reason,
Shariah
prescribes the punishment for drinking. To preserve lineage, it
stipulates the penalty for fornication and false accusation against a chaste
innocent woman. Moreover, to preserve wealth, Islamic penal system specifies the
punishment for theft and highway robbery.


THIRDLY, it is imperative to
note that punishment in Islam has nothing to do with the notions of atonement,
expiation, or wiping away of sins.

A crime is essentially an act of injustice to one?s own self. It can be removed
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 the corporeal punishment can be no substitute for it. At the
same time, a crime is also an act against the social order and in this sphere,
as some may argue mere repentance cannot be an alternative for punishment.
Keeping these two distinctions (i.e. crime against God and crime against
society) in perspective, John Burton, Professor of Law and Religion at
University of Toronto, provides an interesting insight, ?This sounds somewhat
like the distinction that the Protestant theologians drew between two uses of
the law. The first use was to help the person realize his/her total dependence
on God. The second use was to maintain order in society
.?


FOURTHLY, penal laws are only a
part of a larger integrated whole of the Shariah.

They can neither be properly understood, nor justifiably implemented in
isolation. Khurram Murad states three points elucidating the place of penal
system in the Islamic law:

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

 

 

This is not to say,
of course, that the contemporary practice of certain zealots of Shariah
has not exaggerated, or even misplaced, the position of punishments in the
Shariah
. Undoubtedly, the elaborate infrastructure of Islamic penal code,
and its implementation, as expounded by the four major classical Muslim jurists
and schools of jurisprudence, has largely been manipulated, if not ignored, by
the so-called upholders of the Shariah today. One may wonder, in the
regions where Shariah is supposedly implemented today, is a punishment
executed as a last resort, after all the attempts of counseling, and the
investigation of offender?s and victim?s circumstances as well as witnesses,
have been exhausted?


[Note:
Continue the second part of this discourse “Understanding
Punishment in Shariah [II]: Its Method, Allowance & Application
“]




[i]

Khurram Murad, Shari?ah The Way of Justice,

(Markfield, Leicester: The
Islamic Foundation, 1999), 3.



[ii]

K. Murad, Shari?ah: The Way of Justice, 5.



[iii]

John Von Heyking. The Harmonization of Heaven and Earth?: Religion,
Politics, and Law in
Canada.
1999.



[iv]

Hasan al-Anani, Freedom and Responsibility in Quranic Perspective,
(Indianapolis: American Trust Publications, 1990), 189.



[v]

Salman Awdah. http://islamtoday.net/english.



[vi]

K. Murad, Shari?ah: The Way of Justice, 16.

Leave a Comment