Islam recognizes that morality and ethics are the roots of every good society. One finds abundance of social and spiritual traits in the fabric of Islam geared to accomplish better living. These traits, however, are not enough insurance against misconduct. Shari’ah, the Islamic Law, is a community moral law used to manage and govern a Muslim society and to control the behavior of its members to ensure its safety. Shari’ah is backed by the power of the state that enforces the law by means of consequence, penalties or remedies. In modern societies, an authorized body, such as a legislature or a court creates the law. While this type of legislations is true in Islam, however, the basic rules of Shari’ah are divine in nature.
As Karen Armstrong stated, in her book, Muhammad A Biography of the Prophet, “Unlike Christianity, which came to birth under the Roman empire, where the social and political order were already established and Jesus and St. Paul had to mainly worry about the spiritual order, Arabia had no political or social order,” Muhammad had to build a complete civil society. Besides establishing the spiritual aspects, he had to erect the social and political aspects as well. Hence, the affairs of the state, the civil, social and political aspects of Muslims’ lives are considered as divine as the spiritual aspects. This makes obedience of the rule an act of worship that the individual will be rewarded for.
Islam’s philosophy with respect to the spread of misconduct
is prevention. Part of the prevention mechanism is severe
penalty. The severity of punishment of a Muslim serves as
a giant deterrent to committing a crime. Because of the
severity of punishment, the majority of people would not
commit the violation or even begin to think of carrying
it out. The likeness of this policy is much like the common
practice of law-suits in the United States that are costing
violators millions of dollars in penalty, which has effectively
kept many violators away from committing a violation. An
example of this is the multi-billion law suit case against
the Tobacco companies, Philip Morris, R.J. Reynolds, Brown
and Williamson, Lorillard, the Leggett Group and Brooke
Limited charged with reckless disregard to misrepresenting
information relating to health cost them over 200 billion
dollars to a class case and over 246 billion dollars to
46 states’ case.
to the common expensive lawsuits are the stiffer penalties
in traffic laws that are implemented to reduce accidents
and death. In the same way, today’s courts of law
are stiffening the penalties and sentences to limit violations.
For example, a traffic citation point in 2003 requires eighteen
months to be removed off the driver’s record versus
six months requirement in the middle of 1980s. Similarly,
the level of intoxicant found in drunk-driving citations
has risen from 0.12% in the mid seventies to 0.1% to 0.08%in
the 2000’s. This restriction has saved thousands upon
thousands of lives from death in drunk driving accidents.
us illustrate the psychological effect of the severity of
punishment on people’s behavior. According to Islamic
law, the maximum penalty for professional theft is cutting
hands. It should be understood that this policy does not
mean that for every theft there is a hand to be cut. The
judge exercises other forms of penalties such as imprisonments
or fines. With the mere existence of the hand-cutting rule,
however, theft in Muslim societies never grew to the level
of proficiency and organized crime. The effect of severity
of hand cutting as a punishment for theft, and the shameful
impact on someone with his hand cut has almost completely
eliminated this social disease in the Muslim societies.
the penalty for a murder in the Islamic Law is death (Capital
Punishment). The wisdom in the severity of penalty is saving
lives. The Qur’an states:
“And there is (a saving of) life
for you in al-Qisas, the law of equal penalty (killer to
be equally killed); O you men of understanding, that you
may restrain yourselves.” Qur’an,
Since people are afraid to die or be executed, it would
be enough deterrent for a person to learn that if he or
she has slain a person, they will be disdained to death.
Thus, in setting this equal punishment, many lives are saved,
and sorrow and sadness for missing loved ones is eliminated.
When a Sentence
The maximum sentence of any violation of law is not applied
in every case. In the robbery and theft cases for example,
the maximum penalty of hand-cutting applies after the consideration
of many factors such as track record and whether the theft
was made for profit. In some cases, such as stealing food
because of severe hunger or to prevent death, there may
not be a penalty. An actual example that took place during
the Rule of Caliph Umar can be helpful to illustrate this
fact. A master brought his servant to Caliph Umar to cut
his hand for stealing. Umar asked the defendant whether
he stole from his master’s property. When the servant
did not deny the accusation, Umar asked him why he did it.
The servant explained that he did it because his family
had nothing to eat. Upon this, The plaintiff concurred that
the defendant’s claim was true. Further questioning
of the plaintiff led Umar to determine that the plaintiff
was at fault for not providing his servant adequate food,
labor and shelter. Then, Umar ordered the plaintiff to adequately
provide his servant’s needs and the case that was
against the servant turned out to be a case against his
master. This example asserts that Shari’ah is a community
law based on fairness and justice.
a Capital Punishment
The penalty for a murder is death. However, depending on
the circumstances, the Islamic judicial system permits settlements
and forgiveness. Thus, there is a substitute for the capital
punishment in the Islamic Law. Allah makes it more rewarding
to the slain family to forgive than to execute the sentence
of death on the murderer.
“O ye who have
believed, prescribed for you is legal retribution for those
murdered – the free for the free, the slave for the
slave, and the female for the female (no one other than
the killer should be executed). But if the brother of the
slain makes any remission, then grant any reasonable demand,
and compensate him with handsome gratitude. This is a concession
and a mercy from your Lord.” Qur’an,
Thus, the family of the victim has the right to demand punishment or to ask for monitory compensation. The third alternative the Islamic Law provides is pardon. The Holy Qura'n states that is preferable for the people to forgive.
"But if you pardon and overlook and forgive- then indeed, Allah is Forgiving and Merciful." Quran, 64:14.
regard to the forgivness, Dr. Ingrid Mattson of Hartford
Seminary states, “Because forgiveness it self is an
act that free the people who have been harmed from the sense
of anger and the sense of victimization, it empowers them
to have some control of the situation by giving that act
Flexibility and Ambiguity
Relaxing or stiffening a penalty for a particular violation
is an integral part of the Islamic Law. Penalty in the Islamic
Law is dependent on the nature of the crime. Factors such
as severity of damage, the background of the violator, his
or her intent and repeatability, play a major role in determining
the extent of the penalty.
the Prophet said: “Avoid
(the maximum) penalty (hudud) on the account of ambiguity
(shubuhat).” Since the punishment is mainly used as deterrent, if the
intent of the law in a particular case is fulfilled, the
judge then has the discretion to apply a lower sentence
and avoid the maximum penalty.
the judge may increase the penalty for a particular case
if he or she found it necessary to do so. The judicial Islamic
record is full of cases illustrating how justice was served
by the Islamic law. An interesting case with the Prophet
himself shows the ultra sensitivity of Islam towards justice.
A Jewish person by the name of Zayd ibn al-Luthah approached
Prophet Muhammad, with his hands grabbing the Prophet by
the clothes on his chest and saying: “You
the family of Abu Talib are mutle, always delinquent in
making payments.” Umar ibn al Khattab standing
by pulled out his sword and said: “O
Prophet of Allah, order me to cut this man’s head.” The Prophet replied: ”No, Umar
do not cut his head. Instead, you should counsel him to
be polite when he asks for his rights and ask me to give
him his money in the due time.” According to
the Prophet, the money he borrowed from Zayd ibn al-Luthah
was due the following week. Nevertheless, the Prophet ordered
Umar to give Zayd 8 dinars that he had owed him and an extra
8 dinars on top of it. When Umar objected and said: “O
Prophet why the extra 8 dinars?” The Prophet
replied: “This was a reward for
him because you scared him with your threat.”
Zayd ibn al-Luthah then said: “O
Prophet of God, our Scripture told us that one of the signs
of the Expected Prophet is that he will be with ample patience,
I was only examining your patience, and I believe you are
the Prophet of God.” See al-Wafaa be Ahwal
al Mustapha by al Jawzi.
It is only people of passion and deep love for others can
take the kind of high ground that Prophet Muhammad did in
The Spread of Vice
Islam sets vigorous control to minimize the publicity of
vice in a community. Publicity of vice leads to its acceptance
and acceptance of vice leads to the degeneration of the
entire society. The Qur’an clearly teaches:
“And do not approach
(avoid all situations that might possibly lead to) unlawful
sexual intercourses. Indeed, it is ever an immorality and
is evil as a way.” Qur’an,
“O you who have believed, indeed, intoxicants, gambling,
(sacrificing on) stones alters (to other than Allah), and
divining arrows are but defilement from the work of Satan,
so avoid (distance your self from any thing remotely related
to) it that you may be successful.” Qur’an,
“Say: My Lord has only forbidden immoralities –
what is apparent of them and what is concealed – and
sin, and oppression without right..” Qur’an,
“Indeed, those who like that immorality be spread
(or publicized) among those who have believed will have
a painful punishment in this world and the Hereafter.” Qur’an, 24:19.
this reason of limiting the news of vice and corruption,
Islam made it particularly difficult to prove fornication
or adultery cases. Let us read what Allah said in this regard:
“The woman and
man found guilty of sexual intercourse lash each one of
them with a hundred lashes, and do not be taken by pity
for them in the religion (i.e., Law) of Allah…and
those who launch a charge against chaste women, and produced
not four witnesses (to support their allegation), flog them
with eighty stripes; and reject their evidence…” Qur’an, 24:2-4.
penalty for adultery (made for mischief in the land) is
death and for fornication is 100 lashes. The penalty purifies
the person from the sin in this world and saves him or her
from the punishment in the Hereafter. One can imagine the
lesson a particular Muslim society learns from the execution
of a case of adultery to one of its members. This lesson
is certain to make each member stay as afar away as possible
from even thinking of committing such a mischief.
To prove the crime in either of fornication or adultery
cases, however, it is required from the accuser to bring
four witnesses. Each witness must testify that he or she
saw the penis in the uterus. If one of the witnesses was
not sure of this act, then all four witnesses must be lashed
eighty times for false accusation and for the spread of
undesired news. The possible penalty for conveying the fornication
news and the condition of four witnesses severely restricts
the legal cases in the court of law. These restrictions
in turn help contain the sexual news from becoming common
occurrence which may ease its acceptance in the community.
While Islam made these severe restrictions for a fornication
case to reach the legal system, it has left the door wide
open for sinners of such crime to repent and change their
bad habits privately.
Justice and Guarding Safety not Penalty
The intent of the Islamic law is to prevent crime and establish
justice and fairness, not simply to impose stiffness and
rigidity. Avoiding execution of penalty is recommended even
when an actual sin is committed. To substantiate our claim,
let us examine an example taken from the days of the Prophet.
A lady by the name of al Ghamediyah came to Prophet Muhammad
and said: “O Prophet of Allah
tah-Herni, purify me from my sin, I have committed adultery.” He said: “Maybe you kissed.” She said: “No, O Prophet,
I committed adultery.” He said: “Maybe
you touched.” She said: “No, O Prophet I committed fornication.” At this point, the prophet told her to come back after three
months. Three months later, al Ghamidyah came back to the
Prophet. He asked her if she was carrying a baby in her
womb. Her answer was positive and that she has a baby in
her womb. He then sent her away telling her to come back
after she bears the child. When she had the child, she came
back to the Prophet asking him to execute the penalty. Again,
Prophet Muhammad sent her away saying: “Go
breast feed the child for two years.” When
the two years were over, al Ghamidyah was at the doorsteps
of the Prophet and again asked him to apply the rule on
her. At this point, the Prophet ordered that she receives
From this example, one needs not to look hard to figure
out the many ways that the Prophet allowed this lady to
go away and seek repentance on her own and avoid the penalty.
One can also see that the Prophet was not eager to execute
her sentence, especially when she had a fetus in her womb.
Preserving souls, after all, is a sacred rule in Islam.
Furthermore, the Prophet did not order the lady into prison
or issued a warrant to capture her partner-in-crime to execute
the penalty on him since he had committed the sin as well.
spirit and essence of the Islamic Law in its severe penalty
is to save lives, stop corruption, disallow mischief, serve
justice, build a safer society and apply little or no penalty.