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Islamic Ideology ( 7 Feb 2021, NewAgeIslam.Com)

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The Existential Dimension and Forgiveness Overtones of the Quranic Verses on Amputation Punishment Offer a Ground to Waive This Mode of Punishment in Islamic Criminal Law


By Muhammad Yunus, New Age Islam

8 February 2021

(Co-author (Jointly with Ashfaque Ullah Syed), Essential Message of Islam, Amana Publications, USA, 2009.)

The object of this article is to bring across the existential dimension and forgiveness overtones of the following Qur’anic verses as translated by Yusuf Ali:

“The punishment of those who wage war against Allah and His Messenger, and strive with might and main for mischief through the land is: execution, or crucifixion, or the cutting off of hands and feet from opposite sides, or exile from the land: that is their disgrace in this world, and a heavy punishment is theirs in the Hereafter except for those who repent before they fall into your power: in that case, know that Allah is Oft-forgiving, Most Merciful (5:33-34)

“As to the thief, male or female, cut off his or her hands: a punishment by way of example, from Allah, for their crime: and Allah is Exalted in power. But if the thief repents after his crime, and amends his conduct, Allah turns to him in forgiveness; for Allah is Oft-forgiving, Most Merciful (5:38-39).

It is notable that the pronouncements of amputation in both the passages are immediately followed by forgiveness clauses and both the passages conclude with the declaration of divine forgiveness and mercy.

The Classical Islamic Law (Sharia Law) mandates amputation as spelled out in above passages as hudud punishments for transgressing the limits set by God. Their application is however subject to the severity and nature of the offence.

The Prophet is also reported to have waived them for minor cases of theft (Volume 8, Sahih al Bukhari, Acc. 780, 781, 783,785, 786, 787, 788.)

Historical Setting of The Verses 5:33, 5:38

Since ancient times until the advent of Islam, the Arabs lived in tribal settlements. Each tribe was headed by a chief and there was no hierarchy of power or authority The tribes were structurally independent of each other. There was no centralized civil administration, no intra-tribal police force, no court of law, no trial for crime, no jail, and no institution for punishing the criminal. So the criminals had almost unlimited power. In fact the tribal setting of the era did not admit of any individual accountability or punishment of crimes. Crimes were charged to tribes. An innocent member of a tribe could be nominated to receive punishment for the crime committed by another member of the tribe. This was in flagrant ignorance of the universal principle of justice that epitomized the Qur’anic message. The Qur’an had to address this in a compelling manner as the concept of universal justice was alien to the Arabs and ran against the interest of tribal leadership

As the revelation was coming to a close, the tribal order was disappearing with increasing pace of conversion and evolution of an Islamic Umma (community). It was now time for the Qur’an to assume a ‘policing’ role and enforce personal accountability and punishment for all kinds of prevalent crimes

There were past examples of rulers inflicting amputation punishment on those who defied them or stormed about the land on killing and plundering spree. The Qur’an threatens its audience with such punishments in the referenced verses. However, the forgiveness clauses immediately after the spelling out of punishment and the concluding reference to divine mercy and forgiveness and the Prophet’s reported waiver of hudud punishment for minor offences (mentioned above) clearly indicate that the intention of the Qur’an was not to mandate the mode of punishment - amputation per se- as normative.

In light of the foregoing illustrations, legislating the Hudood (amputation) punishment for all times could amount to freezing the Qur’anic criminal justice to its era.

As human perception of physical punishment has changed immensely since the medieval ages, the Qur’anic punishment - which were tailored to its era, appear brutal and barbaric this day This militates against the image of Islam as a religion of peace and mercy and gives license to Muslim terror groups to perpetrate brutal and barbaric crimes. The doctors of Law in Islam may therefore actively consider substituting the amputation punishment with alternative modes – as has been done in many Muslim majority countries under the behest of constitutional law.

This is not a novel thinking. Muhammad Asad, one of the most learned and distinguished scholars of this era, concludes his exhaustive review of the noted verses in similar tone as follows:

1.    : “The attempt of the commentators to interpret the above verse (5:33) as a legal injunction must be categorically rejected however great the names of the persons responsible for it.”(Note 45, Sura 5, The Message of the Qur’an, Muhammad Asad).

2.    “Umar waved the hadd (amputation punishment) of hand cutting in a period of famine which afflicted Arabia during his region” thus restricting its application “within the context of an already existing, fully functional social security scheme”.

Besides, the Qur’an puts the underlined punishment (execution, or crucifixion, or the cutting off of hands and feet from opposite sides in the mouth of Pharaoh (7:124, 20:71, 26:49), whom it describes as the epitome of evil. So, it will detract from God’s Mercy and Greatness to legislate the same punishment to offenders for all times

The fact is Crime changes its form across space time matrix of civilization. So does the definition of its severity (what is severe in one region or era may be minor in another region or era), the methods for identifying and tracking the criminal, for establishing the criminal charges, and the nature of punishment. Hence, it was simply impossible for the Qur’an to cover this ever changing and expanding domain for all humanity for all times. In other words, it was physically impossible for the Qur’an to prescribe a singular mode of punishment for crimes that occur in infinite variations and settings across the space time matrix of human civilization. It was probably for this reason that the Qur’an left the interpretation of its laws in the hands of experts groomed in this field:

“Of the people of Moses there is a section who guide and do justice in the light of truth.” (7:159).

“Of those We have created are people who direct (others) with truth. And dispense justice therewith.

The author of this article accordingly indemnifies himself against any charge or suggestion of denying the ‘rights of God’ by penning this article for he knows well that the ‘right of God’ is realized or safe-guarded not so much by awarding amputation punishment for major crimes– but more so by creating a comprehensive system of criminal law that it leaves on human agency to evolve with the progress of civilization.

Related Article:

The Classical Islamic Law (Islamic Sharia Law) is NOT a Word of God!

The Classical Islamic Sharia Law is NOT a Word of God! (Part II: The Way Forward)

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Muhammad Yuns, a Chemical Engineering graduate from Indian Institute of Technology, and a retired corporate executive has been engaged in an in-depth study of the Qur’an since early 90’s, focusing on its core message. He has co-authored the referred exegetic work, which received the approval of al-Aznar al-Sharif, Cairo in 2002, and following restructuring and refinement was endorsed and authenticated by Dr. Khalid about El Fad of UCLA, and published by Amana Publications, Maryland, USA, 2009.

URL:    https://www.newageislam.com/islamic-ideology/the-existential-dimension-forgiveness-overtones/d/124252

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