Shariah: Commitment to Justice
While many people, both Muslim and non-Muslim, vocally and vehemently oppose Shariah law today in favor of western legal systems, this disenchantment tends to stem from either an unclear understanding of Shariah or instances of misuse of justice ‘back home’ in the name of Shariah. In fact, the establishment and internalization of justice is the supreme purpose of Shariah. The Quran states, “Thus we have made you a just nation, that you be witnesses over mankind, and the Messenger be a witness over you.” [2:143]
Further, God commands His believers: “O you who believe! Stand out firmly for justice, as witnesses to Allah, even though it be against yourselves, or your parents, or your kin, be he rich or poor. Allah is a better Protector to both. So follow not the lusts, lest you avoid justice; and if you distort your witness or refuse to give it, verily Allah is Ever Well-Acquainted with what you do.” [4:135]
This emphasis and primacy of justice was not at all introduced with Islam. In Ch. 57, verse 25, God reminds humankind of the fact that a similar code was brought by each previous Messenger so that “mankind may keep up justice.” Therefore, it is no surprise that the Code of Hammurabi and the Law of Moses also contain retributive laws, similar to the famous “an eye for an eye, a tooth for a tooth.” Islam, however, adds the following corollary to such retribution: It is better to forgive.
Today, such laws are considered by the vast majority to be medieval, barbaric, and primitive. Shariah, likewise, is intractably coupled with merciless executions, chopping off of hands and honor killings. To accept such a generalized picture of an intensely complex legal system is not only a disservice to divinely ordained laws but also to one’s own sense of integrity. Here is an attempt to dispel some of the prevalent myths and to bring clarity to the matter.
|Shariah Law & Common Law
|Both are committed to facilitating basic values such as freedom, human rights, justice, and equality
||Shariah has its roots in the divine writ, whereas common law has been founded by human beings
|Consultation and participation in the process of decision-making (shura) is common to both laws
||Certain laws and restrictions are timeless under Shariah (for instance, prohibition of alcohol) whereas laws and amendments can change at will within a democracy (for example, the ratification of the National Prohibition Act in the U.S. in 1919 and its official rejection in 1933)
|Shariah Law and Common Law both espouse the establishment of a federal government, the declaration of freedom of religion, the abolishment of guilt by association, the right to privacy, and matters such as common defense and peacemaking
||Shariah encompasses all areas of life, such as dietary laws, dress code, finances, and social aspects. On the other hand, common law leaves matters such as dietary considerations, relationships between consenting adults, dress code, and economic choices to the preferences of individuals
Shariah: Dispelling Myths
The Shariah consists of hadd punishments and tazir punishments; hadd crimes overstep God’s set boundaries whereas tazir crimes are committed against the society. The following hadd crimes have been mentioned in the Quran: murder, apostasy from Islam, theft, adultery, defamation, robbery and consumption of alcohol. Common tazir crimes include bribery, selling tainted or defected products, treason, usury, selling obscene pictures, etc.
While hadd punishments have been fixed in the Quran (such as retributive killing for murder and the chopping off of a limb for theft) there are many safeguards which are important to mention. For any punishment to actually take place, proof must be provided, along with a confession of the crime or witnesses testifying against the criminal. If any of these is not sufficiently presented, Islamic law requires the hadd crime to be treated as a tazir crime. (Some of the tazir penalties include counseling, fines, flogging, confinement, etc.)
Similarly, if a thief could prove that he/she only stole because of need, then the Muslim society would be held at fault and made to supply that need and there would be no hadd punishment. Likewise, to be penalized for adultery, the couple had to be actually witnessed performing the physical act by four people who were in a position to identify both parties without doubt. A retributive punishment may be averted if the aggrieved party is willing to accept blood money or to forgive, which is always considered to be the higher road to take in Islam. Indeed, to forgive when one has the right to take revenge is the ultimate form of mercy, and God reminds us over and over in the Quran that while He is Just, He is also Most Merciful. (See more: Shariah in the 2012 Presidential Race)
Forced marriages and honor killings are not at all sanctioned in Islam. Unfortunate deaths caused as a result of misguided emotions must be dealt by the courts as murders. Rape is a serious offence which is punishable by death, penalizing the rapist and exonerating the raped woman, treating her as a victim, not a complicit.
An example from the time of the Prophet Muhammad, peace be upon him, states:
Waa’il ibn Hujr said that a woman, in the life of the Messenger of Allah (pbuh), [left her home] intending to go for Prayer [in the mosque] when a man seized her and had sexual intercourse with her, while she let out a scream [for help]. The man fled, and she told a man what had occurred. A group from amongst the immigrants were told of this and they chased the man down eventually capturing who they thought it was, and took the man to her. She said that it was the man who did it to her. They took the man (and the woman) to the Messenger of Allah (pbuh), and the man was asked, ‘Who is the man who did this to her?’ The man confessed saying, “I am the one who did this to her, Oh Messenger of Allah!” The Prophet Muhammad (pbuh) said to the woman, “You can leave, for Allah has forgiven you!” The Prophet (pbuh) said to the man, “Your words are sound.” So he said regarding the man who had raped her, “Stone him”. He added, “This man has [sincerely] repented a type of repentance that if the people of Medinah would perform, Allah would accept it from them.” (Abu Dawood, Tirmidhi)
As for stoning, Ruqayyah Waris Maqsood, a British Muslim author, explains, “The correct Islamic method of stoning according to Sharia was similar to that advised by the Pharisees at the time of Jesus – the person was held fast in a fixed position, and a stone or rock that it took two men to lift (i.e. was heavier than one man could lift alone) was to be dropped to crush the head – it was not someone tied to a post and rocks hurled at them, although this has been done in some cultures. The point was that if someone really had to be executed, it was to be done swiftly, with as little torture as possible, and usually publicly so that no vindictive person could do further nasty things behind the scenes and get away with it.”
Muslim women may seek divorce for grounds such as physical or mental abuse, adultery, abandonment, etc. Alternatively, they may demand a divorce for no specific reason. With regards to custody of children, Shariah permits parents to decide with whom the children will stay; if they are in disagreement, they may allow the courts to decide for them. In principle, however, mothers are preferred as the primary caretakers for young children, and fathers are required to provide for the children’s maintenance.
When it comes to inheritance, a woman’s share is half of man, but then she has no obligation to make any financial contribution to the family, even if she earns; her money is hers to keep because her husband, father, or brother are required to provide for her. It is often claimed that a woman’s testimony is half of a man – the vast majority of scholars view that verse of the Quran [2:282] in the context in which it occurs, i.e., testimony regarding financial transactions. Jamal Badawi, professor at Saint Mary’s University in Halifax, Nova Scotia, Canada, explains that this verse cannot be taken as a general ruling because at another instance [24:6-9], no such exception has been made.
Non-Muslims under Sharia are protected so long as they pay the annual tax, called jizya; this is a nominal amount which does not amount to hardship on the part of the taxed. Their houses of worship are safe under Islamic rule and they are free to worship their religion; in other words, Sharia does not apply any pressure on them to change their existing religion to Islam. However, non-Muslims may voluntarily accept Islam. The various pockets of minorities which continue to exist in Muslim countries are testimony enough against theories which propound forced conversions and persecution of non-Muslims.
Unfortunately, in certain instances, Muslim countries have misused Shariah laws as a tool for injustice; however, that does not discount the fact that Shariah laws were sent by God to establish justice on earth. God’s original laws and their intent remain free of human blemishes. At the same time, authoritative people in the West are recognizing the value of Shariah laws and the right for Muslims to have a choice in legal disputes regarding family and finances: from the Archbishop of Canterbury Rowan Williams to Ontario’s former attorney general Marion Boyd to Harold Koh, the Legal Adviser of the Department of State under the Obama administration.
Shariah: Its Essence
Khurram Murad, the late Director General of the The Islamic Foundation, Leicester, United Kingdom, explained that there are there major themes in the Shariah: the individual, the society, and the family. The individual has been given a free will, a moral sense, and the knowledge of right and wrong; now it is up to him/her to realize his/her potential. Meanwhile, the individual’s life, person, freedom, possessions and honor are sacred and inviolable. Anyone who transgresses against her/him is subject to punishment, depending on the crime committed. Similar levels of justice are expected of her/him, if s/he commits the crime or is complicit.
The individual(s) must take responsibility for his/her action – this is why confessing is so important in the Shariah. And, the harsh punishments commensurate to the crime (whether hadd or tazir) serve as a definitive deterrent, specifically, for the criminal and his/her future actions and, generally, for the public. In fact, because the hadd punishments are already known, their severity is a preventive measure against lawlessness to begin with.
After all, it is the larger society which is at stake. “Social order and individual good should stand together – fused and harmonious, co-operating and assisting, interdependent and in equilibrium,” wrote Khurram Murad. He further likened family as the “cradle of the individual and the cornerstone of society.” Indeed, Shariah places great importance on all three of these “institutions” of life, returning over and over again to both the accountability and the inviolability of the human being – for a crime is essentially an act of injustice to one’s own self, a sin against God.
God wishes for us to internalize His concept of justice so we do not upset the balance of society. Our accountability with God will take place on the Day of Judgment, but our accountability to aggrieved members of the society has to be carried out here. While some may continue to deem such punishments as harsh, Muslims believe they are divinely-ordained by the Creator for His creation.
“And perfect are the words of your Lord in truthfulness, and in justice; His words cannot be changed; He is the All-hearing, All-knowing.” [6:116]
When the people of his tribe wanted pardon for a wealthy woman who was convicted of theft, Prophet Muhammad responded to their pleas thus: “O people, those who have gone before you were destroyed, because if any one of high rank committed theft amongst them, they spared him; and it anyone of low rank committed theft, they inflicted the prescribed punishment upon him. By Allah, if Fatima, daughter of Muhammad, were to steal, I would have her hand cut off.”
Umar, the second caliph of Islam, was renowned for his justice. Any of his subjects could easily approach him with a question or a complaint. He also used to walk through his city in the cover of darkness to check upon the welfare of his subjects. Once, when he tried to put a ceiling on the marriage-gift given to women upon marriage, a woman stood up and protested, using a Quranic verse as support. He recognized his mistake and responded, “The woman is right and Umar is wrong.”
When the third caliph, Uthman, sued a Jewish subject in court for stealing his court of armor, the caliph lost the case because the judge dismissed his two sons’ testimonies as insufficient due to their direct relationship to him.