By Ziauddin Sardar
July 29, 2008
Welcome to the blog Andrew. I've always tried to emphasise, in my earlier postings, the important of interpreting the verses of the Qur'an according to the context within which they were revealed. I will come to flogging soon, but the first point to make is that these verses were revealed in a society where, as you note, infanticide was common; there was the rule of tribal law, and no penal system. So the specifics have to be seen in this light.
But you ask a very important question: how do we make a transition from the specific to general laws that we believe God's justice demands today? Let me try to explain.
Crime and punishment is not a major theme of the Qur'an. Of around 600 verses that deal with legal matters, most, as we have already seen, deal with family matters such as divorce, marriage and inheritance. Only a handful of verses deal with crime and punitive injunctions. The issue of crime and punishment has, however, become controversial not because of what the Qur'an says but how it is treated in Islamic law, or Sharia. I will be devoting a whole blog to Sharia law, in week 37, when we move on to specific topics. Here, I am concerned only with what the Qur'an itself says about serious crime and related ideas and concepts.
The main concept associated with the Qur’anic view of criminal justice is Hud. It literally means "limit" or "boundary"; and signifies the limit of what is tolerable and permissible and what is not. In Islamic legal parlance, Hud has come to signify "fixed punishments", which cannot be changed because they are designed to prevent crime. However, when we examine the term in the Qur'an and compare it with how it has come to be used in Islamic law, we immediately come across a discrepancy.
We come across Hud 14 times in the Qur'an. Indeed, we have already encountered the term in 2:229-230, where it is mentioned no less than six times, in our discussion about divorce. After instructing the believers that divorce can only happen twice, and laying down guidance about how wives should be treated, the verse tells us that "these are the bounds set by God: do not overstep them", and concludes: "these are Hudud [plural of Hud] of Allah which he makes clear for a people who know'. The obvious point to note here is that there is no reference to punishment of any kind! When we examine the occurrence of the term elsewhere in the Qur'an (as in 2:187, 9:97, 65:1, 4:12-13, 58:3-5), it becomes clear that it is intended as a moral guideline: it describes the boundary within which good and virtuous human conduct is located, where decency resides. This becomes quite clear in the chapter entitled Repentance, 9:112: "The believers are those who turn to God in repentance; who worship and praise him; who bow down and prostrate themselves; who order what is good and forbid what is wrong and who observe (Hudud Allah) God's limits."
Thus, from the perspective of the Qur'an, Hud has nothing to do with punishment and everything to do with establishing the moral tone of the Muslim community. Nevertheless, this did not prevent classical jurists from establishing Hud punishments, particularly for adultery, theft and murder. The Hudood ordinance of Pakistan is all about such punishments.
The Qur'anic term for sexual crimes is Zina. It is problematic in that it can mean adultery, fornication or rape. But Zina is perceived, and indeed translated, simply as "adultery". The Qur'an prescribes two kinds of punishment for adultery. In 4:15, we read: "if any of your women commit a lewd act, call four witnesses among you, then, if they testify to their guilt, keep the women at home until death come to them or until God shows them another way".
There are three points to note in this short verse. First, the evidence required to prove adultery is exceptionally high - so high, in fact, that it is almost impossible to prove. Second, even with evidence, guilt is proven only with a confession. Third, the punishment that follows is confinement until such time as the guilty party is shown "another way". That is, they repent. So the overall emphasis here, I think, is on the guilty party to seek forgiveness and find alternative way of fulfilling their sexual desires.
Later, the Qur'an complicates matters - as it always does - to keep the believers on their toes! So, we have 24:2: "strike the adulteress and adulterer one hundred times". Let us put some context in here. The Qur'an was revealed in a society without state institutions such as prisons. It had to provide answers that were immediately applicable to the society it was addressing. Justice had to be dispensed and it had to be seen to be done. Hence, the advice: "ensure that a group of believers witness the punishment". The punishment, in my opinion, is totally contextual. It does not have universal validity. Moreover, before it can be carried out it still requires the stringent burden of proof and evidence mentioned in 4:15. And there is warning that we need to pay attention to: "those who accuse honourable but unwary believing women are rejected by God, in this life and the next" (24:23).
The Qur'anic term most often used in connection with theft and murder is Quisas. It is normally translated as "retribution" as in 2:178: "you who believe, fair retribution is prescribed for you in cases of murder". In a footnote to his translation, M A S Abdel Haleem explains that Quisas etymologically means "to track down". For classical commentators Quisas was synonymous with "making a thing equal with another thing". But the term has a much wider meaning in classical Arabic lexicons ranging from "to pursue someone" to "investigate by following ones footsteps". I think what the term implies is that the criminal should be pursued, tracked down, the crime investigated, and culprit should be punished fairly with due process of the law - all these meanings are implicit in the term. I find the conventional reductive rendering of qisas as "blood for blood" both to be appalling and a reflection of a medieval, tribal mindset.
We can say much the same about punishment for theft as for striking the adulterers. "Cut off the hands of thieves, whether they are men or women, as punishment for what they have done" (5:38) has to be viewed in the context of a tribal society whose norms it reflects. It is not meant to be a universal injunction for all times! The universal principle is that justice should be done and seen to be done; and fair punishment should be handed out according to the norms of a society.
Now, the conventional Muslim wisdom has it that the Qur'an advocates mandatory capital punishments. Hence, we see the prevalence of capital punishment in, say, Saudi Arabia, for all sorts of crimes. I beg to differ.
There are three reasons for this. First, there is the notion of compensation. The guilty party can be forgiven by its victims. The main verse used to justify capital punishment 2:178, goes on to say: "if the culprit is pardoned by his aggrieved brother, this shall be adhered to fairly, and the culprit shall pay what is due in a good way". So compensation is presented as a part of the whole package of "fair retribution", it should not simply be seen as an eye for eye.
Second, there is an overwhelming emphasis on repentance: whatever the crime, whatever the punishment, it does not apply to those "who repent later and make amends" (24:5). In all four instances where the Qur'an specifies a punishment for an offence, it stresses that the door to atonement and reformation is always open. So in 5:38, "cut off ... ", is immediately followed by "but if anyone repents after his wrong-doing and makes amends, God will accept his repentance". This is also consistent with the overall spirit of the Qur'an.
Third, the Qur'an sees human life as sacrosanct: "take not life, which God has made sacred" (6:151). "If anyone kills a person", we read in 5:32, "unless in retribution for murder or spreading corruption in the land - it is as if he kills all humanity, while if any saves a life, it is as if he saved the life of all people". Would this apply to an innocent person executed by some miscarriage of justice? I think so. Therefore, capital punishment is not presented in the Qur'an as a norm - but only in exceptional cases.
What would these exceptional circumstances be? I think they apply to those who, to use a common Qur'anic phrase, "spread corruption in the land". These would include serial murders, serial rapists, those who engage in land, sea or air piracy, hardened violent criminals who have no understanding of repentance and changing their ways - and I would also include terrorists. These are not the norms in any society; they operate over the outer limits, beyond the boundaries of Hudud Allah, the parameters prescribed by God for human behaviour.
The point about Hudud is that they represent the outer limits of human actions and not the norm. They do not apply as a general rule; but are the exceptions that apply in extreme circumstances. The other essential point is that a limit defines not only the measures that can be resorted to in unusual circumstances but that it also implies and entails the existence of a system within the limits. We cannot understand the limit without giving even more importance to what should exist within the limit. No proper appreciation of the Qur'anic view of crime and punishment can or should exist without first giving priority to establishing a social system that is just and equitable. It is the responsibility of the entire society to ensure a means of delivering genuine justice and equity, fair opportunity for all, is provided. Inequality and injustice - scourges such as poverty, oppressive hierarchies that exclude and demean groups or individuals - any of the perversions human society has managed to invent and tolerate must have a bearing on how we think of the validity of applying the limit. We cannot make people good, but we can and should strive to create conditions where there is every incentive and encouragement for people to respect each other and treat each other with dignity, in which case the limits might retreat almost to vanishing point.
The other consideration we should make in thinking about a bounded system, a society that recognises limits, is that it is free to adopt any measures, any form of legal arrangements, any ordinances and bylaws that fall within the limits to promote, encourage or indeed punish behaviour to ensure the limits are never breached. Muslims seem to have lost sight of this fact. If we have responsibility for making a good society we have responsibility to enact the procedures to bring it into being and sustain it in operation. The Hudud is not the only legislation there is or can be; rather it defines, or should define, exactly the point we do not want to arrive at.
The Muslim tragedy is that living on the edge, with only the outer limits at our disposal, has become the norm. It is a flaw not merely in Islamic law, but in popular understanding of what constitutes Islamic law and what living an Islamic society should mean. In the process Muslim societies have, not surprisingly, become extremist. Our problem is not merely making a transition from the contextually-rooted specific to general laws, Andrew. We need to concentrate on the norms of the human society we are guided to create, and frame our laws on the basis of dignity and mercy. The limit is harsh, the norm we lose sight of is the way of compassion, mercy and good governance that delivers human dignity for all. Now that is a transition worth making.