New Age Islam
Tue Oct 26 2021, 09:27 PM

Islamic Sharia Laws ( 22 Sept 2010, NewAgeIslam.Com)

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Stoning to Death: Separate the spiritual message of Islam from penal laws

By Ishtiaq Ahmed

The task in hand for modern Muslims is to separate the spiritual, moral and ethical message of Islam from penal laws reflecting the sensibilities of tribal society of the seventh century

Stoning to death is practised as a routine punishment for adultery in Iran and Saudi Arabia. When the Taliban ruled in Afghanistan, they too imposed it with a relish and did it with the same enthusiasm in their enclaves called Islamic emirates when they ruled in some pockets of Khyber Pakhtunkhwa and Swat valley. There is no doubt that the origin of this barbaric punishment is the Old Testament of the Jews. The Jewish Torah prescribes it for a host of other offences as well. It is not mentioned in the Quran. However, all the five schools of Islamic jurisprudence — Hanafi, Shafai, Maliki and Hanbali of the Sunnis and the Ja’afri of the Shias prescribe it for adultery. On this point of law, there is complete unanimity of opinion. I believe the Khawarji school of thought adheres to it as well.

How does one explain this unanimity of opinion of all historical schools of thought and schools of jurisprudence of Muslims when it is not a law derived directly from some explicit injunction in the Quran? The reply of the traditionalists and fundamentalists would be that rajam or stoning adulterers is based on the sunnah of the Prophet (PBUH) to which all his pious successors adhered. Therefore, it becomes a part of the Islamic legal system and practice because the sunnah of the Prophet (PBUH) is the second major source of shariah.

However, in the modern period, a host of objections have been raised against stoning of adulterers, most notably by the Ahl-e-Quran school of thought. The Ahl-e-Quran argue that if the origin of an Islamic law cannot be traced to the Quran, it is not an Islamic law. The Ahl-e-Quran do not, in principle, reject the authority of sunnah, but insist that nothing can be called Islamic law unless it is categorically mentioned in the Quran. Proceeding on such an assumption, the Ahl-e-Quran deny that stoning was practised during the time of the Prophet (PBUH) and his pious successors. They allege that it came into existence during the time of the Abbasids (750-1258), when most of the hadith literature was compiled and declared authoritative. From the Ahl-e-Quran point of view, hadith literature is not authoritative and binding if there is no direct back up for it in the Quran.

There is no doubt that a considerable portion of the hadith literature is of questionable authenticity, and indeed during the Abbasid period many innovations came into being that were perhaps not present during the time of the Prophet (PBUH) and the Khulafa-e-Rashideen (Rightly Guided Successors). However, that is no foolproof argument that existing practices in the seventh century Arabia were not continued by the Muslims even if they were not mentioned in the Quran.

Let us take the religious law and practice requiring all Muslim males to be circumcised. I would very much welcome some Ahl-e-Quran protagonist showing me where it is mentioned in the Quran. The fact is that it is not mentioned anywhere in the Quran. I doubt if the Ahl-e-Quran do not adhere to circumcision on grounds that it is not mentioned in the Quran.

It is no doubt based on Jewish law and practice, which the Muslims adopted along with many other laws and practices of the Jews, Christians and pagan Arabs. More examples can be given of Muslims incorporating practices from the Jews, Christians and pagan Arabs into their legal practice and social rules. There is nothing surprising about this. Laws reflect the conditions and culture of the society in which they are formulated.

Let me turn to another major flaw in the Ahl-e-Quran mode of reasoning. The most pervasive crime against women is rape. I would challenge any Ahl-e-Quran debater to show me if it is mentioned anywhere in the Quran. It is not. The hudood laws refer to adultery based on the assumption that two married individuals voluntarily have illicit sexual intercourse, and fornication, which is illicit sexual relations between unmarried individuals. There is absolutely no concept of rape as a crime in which an unwilling individual is subjected to sexual intercourse by one or more individuals. The later jurists did innovate and introduced the notion of zina-bil-jabr and since then rape is recognised as a crime. Previously, it did not exist even as a concept.

The problem, however, is not whether stoning to death is genuinely Islamic or not and if it is mentioned in the Quran then and then only it becomes an Islamic law. Rather the much bigger moral and philosophical question is the following: can barbaric laws of any kind be justified in the modern period? Would it be appropriate to chop off the hand of a thief or the leg and arm of a robber or to lash fornicating individuals simply because such punishments are mentioned in the Quran? The Jewish Torah has set forth the most extensive list of barbaric punishments, but modern Jews have abolished them. The Christian West has its own history of barbaric punishments, but they too abandoned them. Suttee, or wife-burning, is prohibited in India though it does take place once in a while. The task in hand for modern Muslims is to separate the spiritual, moral and ethical message of Islam from penal laws reflecting the sensibilities of tribal society of the seventh century.

The well-known English journalist Robert Fisk has presented a detailed investigative report, ‘The crimewave that shames the world’ in The Independent, September 7, 2010, about so-called honour killings. Not surprisingly, the highest incidence of such crimes is in the Muslim world, though even some non-Muslim Middle Eastern minorities and Hindus in India practise it. What I found particularly shocking was that after murdering a daughter or sister, a Muslim culprit can walk away scot-free because the Islamic law of qisas (retaliation) allows heirs to pardon the criminal. Thus, other family members can pardon the offender. All such relics of barbarism have to be done away with. Already in the 19th century, Maulvi Chiragh Ali wrote that the Quran is not a book of law. Justice Munir has also advanced similar arguments. Privately, most of the educated Muslims I talk to agree with me that hudood laws, blasphemy laws and many other such laws are anachronisms that have no place in the 21st century. More such voices need to be heard in the public space.

The writer is a Professor Emeritus of Political Science, Stockholm University. He is also Honorary Senior Fellow of the Institute of South Asian Studies, National University of Singapore. He can be reached at billumian@gmail.com

Source: Daily Times, Pakistan

URL: http://www.newageislam.com/islamic-sharia-laws/stoning-to-death--separate-the-spiritual-message-of-islam-from-penal-laws/d/3461


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