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)
-----
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.
New Age Islam, Islam Online, Islamic Website, African Muslim News, Arab World News, South Asia News, Indian Muslim News, World Muslim News, Women in Islam, Islamic Feminism, Arab Women, Women In Arab, Islamophobia in America, Muslim Women in West, Islam Women and Feminism