The Face of Mercy in Islamic Law pdf download

THE FACE OF MERCY IN ISLAMIC LAW – Book Sample

THE FACE OF MERCY IN ISLAMIC LAW

The mantra that Islamic law has no place in modern societies is repeated by modern pundits in subtle, and sometimes, not-so-subtle ways. It is a recurrent theme in the media, frequently interpolated with certain shocking images for maximal effect.            Often the images used- including floggings, beheadings and stonings- are taken out-of-context and sometimes from different times, but never matter. The victims almost always are, of course, veiled women. The intended end result is a popular notion that the Islamic penal code is harsh, barbaric and a tool for the suppression of people. All of this is strengthened by attempts by contemporary Muslim individuals to reinterpret Islamic law in the absence of the Sunnah and the understanding of our traditional scholars.

Common to these efforts is a gross ignorance of the complexity, details and aims of the Shari‘ah. An objective and penetrating study of the topic would clearly reveal that Islamic law has a benevolent and enlightened side that is too often ignored. It is high time for Muslims to step forward and reclaim the noble role of the Shari‘ah in the enlightenment and progress of human society.

Before embarking on an examination of the details of the Islamic penal code, two points stand out most strikingly.

Punishments Are a Small Portion of Islamic Law

First, Islamic law is not equivalent to the hudood punishments. If Islamic law refers to the totality of the Shari‘ah, then legal punishments, which may be referred to hence as the penal code, represent only a tiny fraction of the bulk of the Shari‘ah. All punishments under Islamic law (referred to in Arabic as ‘uqoobaat ﻋﻘﻮﺑﺎت) fall into three basic categories:

1. Hudood punishments     ﺣُﺪُود

2. Qisas                                         ﻗِﺼَﺎص

3.   Ta’zeer punishments1   ِﺰﻳﺮ ﺗَﻌ

The Hudood punishments are those specific crimes whose punishments have been prescribed by Allah in the Qur’an or the Sunnah of His Messenger T. Their implementation, therefore, is due as a right owed to Allah, and no one has the authority to alter them. They are six in number according to the majority of the scholars:

1. Theft ( ﺳﺮﻗﺔ sariqah)
2. Armed robbery ( ﺣﺮاﺑﺔ hirabah)
3. Illicit sexual intercourse ( زﻧﻰ zina)
4. Slander ( ﻗﺬف qazhf )
5. Consuming intoxicants ( اﻟﺨﻤﺮ ﺷﺮب shurb al-khamr)

• Apostacy ( ردّة riddah).

The inclusion of the last two are subject to some debate, but that does not concern us here. Qisas is the Islamic code dealing with murder. It is not equivalent to the death penalty. Murder is a crime whose punishment is an exclusive right of the victim’s next-of-kin. The accused can be pardoned, be made to pay blood- money ( دﻳﺔ diyah) as monetary compensation, or be executed. Interestingly, Islam actually encourages the first option of pardoning.

All other offenses, which obviously represent the vast majority of crimes encountered in society, fall into the final category of Ta’zeer punishments. These are discretionary punishments whose details and implementation have not been clearly spelled out in the Shari‘ah, and are left to the rulers and societies to work out.

It is clear, therefore, that punishments form only a small component of Islamic law, and are fixed only for a very limited number of offenses. The constant association of Islamic law with stoning for adultery and amputation for thefts in the modern media is a deliberate effort to misrepresent the true nature of Islamic law. The Shari‘ah is not a vindictive, vengeful penal system focused on punishment. On the contrary, it is a comprehensive ethical code that emphasizes the universal values of peace, compassion and forgiveness and seeks to build an ideal society based on its noble ideals. The fact that out of the vast array of crimes known to man, only six- and according to some scholars, four- have been identified by the Shari‘ah for fixed punishments is testimony to this fact. The rest of the crimes, which include even murder, are open to arbitration and even pardon by the victims. Where else, can the family of a murdered individual grant clemency and forgive the killer? In contrast, some Western penal systems in modern nations carry a mandatory death penalty for murder.

It is for this reason that the law of Qisas is mentioned by Allah as giving life to the ummah.

“Verily there is life in the [law of] qisas for you, O people who understand, so that you may attain piety.” Holy Qur’an. Al-Baqarah 179

Avoiding Punishments Preferred

The second point worthy of notice is that Islamic law has certain mechanisms in place to actually prevent the implementation of legal punishments. How many people are aware that the Messenger of Allahstated the following?:

“Ward off the hudood punishments from the Muslims as much as you can. If there is any possible way for the accused, let him go. For a judge3 to err in pardon is better than his erring in punishment.”4

What are some of these mechanisms? Foremost among them are doubts and uncertainties. According to Islamic legal principles, doubts are to be interpreted to the benefit of the accused. The infliction of punishments requires absolute certainty of guilt, and any considerable degree of uncertainty in a case is enough to suspend punishment. As a matter of fact, the Prophetactually encouraged his followers to ward off these punishments by looking for these uncertainties:

“Ward off the hudood with the doubts (shubuhaat).”5

Maa’iz b. Maalik was person who presented himself to the Prophet confessing zina and requesting purification with the hadd. His story is scattered throughout the books of Hadith in numerous narrations. The Prophet repeatedly told him to go back and seek Allah’s forgiveness. After he kept returning, the Prophet made a number of attempts to make sure there was no doubt. Hesent his Companions to Maa’iz’s people to inquire if he was known to be insane. He was informed that there was no evidence of insanity nor was he known to have any defect in his mind. He then asked them whether he was intoxicated, and the Companions smelled his mouth and informed him that they could not detect any signs of alcohol on his breath. Only then did the Prophet implement the hadd of stoning.6 In additional narrations of this same story, the Prophe tasked Maa’iz some specific questions to avert any possible doubt:

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