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Islamic Law Barbaric? Severe, Very Few, Outdated? Permanence

04 May 2011

By Ahmed Abdullah

This is yet another accusation levelled against Islam - that its Shari'ah is barbaric. The word ‘barbaric' was originally used by the Greeks for ‘foreigners' to express the strange sound of their language. Later, this word was used to describe people who are ‘uncivilised, primitive, rough, uneducated, brutal, cruel, blood-thirsty and merciless' as opposed to being ‘advanced, civilised, cultured, humane and compassionate.'

It is true to say that not a single synonym of ‘barbaric' is applicable to the Islamic penal system. On the contrary, humane values lie at the heart of the criminal justice system in Islam and all the antonyms of barbaric are truly descriptive of the Shari'ah.

The object of punishment is not to relentlessly hunt down wrongdoers for retribution, but to see that peace, right and order are restored and this could be illustrated by the fact that the Islamic penal system almost wholly ‘‘lacks police, prisons and professional executioners."

The hudud may appear to be harsh in the eyes of those who have been swayed by false sentiments, but human experience shows that if a punishment was to act as ‘deterrent', then it has to be severe and exemplary.

Life cannot be safe if the habitual criminals are left unfinished and it is better to be severe to one and save many than to be unnecessarily lenient and thereby destroy many and put the lives of millions of others at risk.

The deterrent punishments in Islam on the surface appears to be harsh, but it is only meant for "such incorrigible offenders who stand as real obstacles in the healthy growth of human society" and "in fact, it was a vital instrument in the dynamics of building a new social order" and it radically abolished and amended the pre-Islamic systems where inhumanity and vengeance was the order of the day.

Prisons in Western societies are miserably failing its people and apart from being living hell, prison destabilises people and often has "a destructive effect on the personality."

Home Office statistics in Britain shows that longer sentences do not prevent reconviction and in fact 50 per cent males and 35 per cent females get convicted within two years after coming out of prison.

Thus, it is not true to say that prison is the more appropriate punishment for theft rather than the amputating of hand and if reducing the crime rate is the objective, then certainly the choice will be the Divine law – you compare the crime statistics of Saudi Arabia and America and judge which one is better.

Severe

Sentences may appear to be severe in Islam, ‘‘but still more strict and severe are the ‘procedures' laid down to be observed before a man may be convicted" and Rasulullah Sallallahu 'alayhi wa sallam said: "Avoid the hudud as much as possible. Wherever there is even a mild chance, release him, for releasing by an error on the part of the judge is better than to punish anyone with error." (At-Tirmizi and Ibn Majah)

Islam also teaches that "no bearer of a burden shall bear the burden of another" (Surah Al-Anam:164), it guarantees the accused immunity from ‘malicious prosecution' due to strict rules of evidence, it strongly advocates the equality of all before the law and in the realm of qisas (equitable retribution) it teaches that "let him not exceed in the matter of taking life for he is aided." (Surah Al-Isra:33)

Such is the humanity taught by Islam 1400 years ago!

Very Few

We have dealt with the humane values that Islam stresses even at the time of sentencing. For example, in the case of flogging, several conditions and restrictions are imposed ranging from the type of stick to who inflicts the punishment to where it should hit!

In actual practice, "very few had punishments (had been) prescribed," according to Rudolph Peters in The Islamisation of Criminal Law (1994, Germany).

Therefore, "Islam is a package deal which Muslims are bound to follow and if the progressive modern cultured societies can ‘tolerate' mass killing indiscriminately with atomic bombs, then certainly they can tolerate the amputation of the hands, flogging or stoning to death for certain ‘heinous' crimes i.e. sacrifice of a few individuals for the sake of the society as a whole," so said Mohamed Wassel in The Islamic Law- Its Application as It was Revealed in the Quran and its Adaptability to Cultural Change.

Outdated?

Yet another criticism against Islamic law is that it is ‘outdated'.

Outdated means ‘old fashioned, obsolete and unfashionable' and it is applicable to something which is ‘out of date', and to raise this objection against Islamic law doesn't make sense.

The Shari'ah is a living law today, as it was 1400 years ago, among the Muslim masses across the globe, though it may not be implemented in its totality.

I think the critic is not trying to pinpoint any particular ‘weaknesses' of Islamic law but is simply saying that the Shari'ah is too old and therefore we should forsake it for the latest modern trend.

There is nothing such as ‘modernism' in Islam as Islam is forever modern, progressive and dynamic because human trends show that what is modern today becomes obsolete tomorrow.

The Shari'ah emanates from Allah the All Wise who, being well aware of human conditions, has revealed a law (Surah Al-Ma'idah: 48) that is perfectly universal and applicable to all nations for all times.

It is not a system of law to be judged and evaluated as ‘good' or ‘bad' in accordance with the changing views of the population or the policies of the state and therefore the Shari'ah is radically different from the ordinary law in which the legislative authority is free to explain and comment on the law introduced by it which it can freely amend, cancel or withdraw.

Permanence

If the aim of the law is to control unacceptable human behaviour and to reduce the rate of crime, then there has to be an element of permanence so that it may be easily recognised by the citizens who after all, are the ones who are bound to follow the law (English law teaches that ‘ignorance of law is no defence').

But man-made laws change all the time according to changing ‘social attitudes' so much so that actions that were once regarded as ‘detestable' and ‘heinous' crimes (such as abortion, suicide, prostitution , homosexuality and adultery in England) are now regarded as ‘legal' and normal under the same laws!

Such is the nature of human laws which cannot fully comprehend human nature or predict the future and is constantly changing so much so that if I buy a law textbook today, it may not be valid for tomorrow.

Islamic law, therefore, does not recognise the liberty of (human) legislation, for it would be incompatible with the ethical control of human actions and, ultimately, of society.

That is why man-made laws have miserably failed and the rate of crime has reached epidemic proportion.

Islamic law is at once static as well as dynamic as a result of which it has attracted people of all nations over the last 1400 years and yet kept the social fabric of Islam compact and secure through the ages and this law shall be as responsive to the urges of a progressive society in the present and the future as it has been in the past.

So it's about time that the fallible Occidental homo sapiens change their ‘fashionable' attitudes of contempt for Islamic law so that they may be assured of their spiritual and material well being and create an ordered crime free society based on justice.

Islamia BT

 

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