Legislative Colonialism in Muslim Countries
I begin
by stating that, as a Muslim, I undoubtedly stand with those who call for the implementation of Shari`ah—not only because it serves the interests of our Ummah, but also because, as Muslims, we are commanded by
Allah SWT.
Divine
teachings cannot be approached according to human whims, where some are adopted
and others abandoned. In this sense, there exists an Islamic stance grounded in faith and in a comprehensive worldview of
life and the universe. One cannot select one aspect of the teachings of Allah
while neglecting another.
The Quran
states: {O believers! Fasting is prescribed for you.}
and {˹The law
of˺ retaliation is set for you in cases of murder}—and we are obligated to implement these commands.
However, I will later explain my perspective regarding the distinction between
beliefs, acts of worship, and social dealings.
Understanding the Objectives of Shari`ah
The
network of Islamic teachings that governs human affairs requires clarification
and differentiation between its various aspects. Islam, through its laws, aims
to preserve people’s lives, wealth, and honor—this is what we understand as the
objectives of Shari`ah. Achieving this preservation requires two essential
elements:
First Pillar: Faith and Moral Responsibility in Islam
The first
is a doctrinal and ethical matter: that a person is internally motivated to
protect the rights of others, safeguard their sanctities, and adopt a position
rooted in faith and morality toward individuals, society, and the environment.
Human rights in Islam are protected and sacred, and this sanctity must also
reside within every believing Muslim.
It is
reported in a hadith that the Prophet (peace be upon him) looked at the Ka`bah
and said: “What is it that is more honored than
you, and whose honor is more sacred than yours! And the believer’s honor is
more sacred to Allah than yours. Allah has made you sacred, and He has made
sacred the blood, wealth, and honor of the believer.”
This
indicates that human rights possess a sanctity that must never be violated. This
principle is further reflected in the Prophet’s definition of a Muslim and a
believer: “the Muslim is from whose tongue and
hand the Muslims are safe”, and “the
believer is the one from whom the people's lives and wealth are safe”.
Second Pillar: The Role of Punishment in Maintaining Justice
However,
despite the clarity of these teachings, they alone are not sufficient to
preserve justice and order
within a society. Therefore, it became necessary to reinforce them with
deterrent punishments—measures that restrain the criminal who abandons
faith-based commitment and follows personal desires, thereby harming others and
society.
This
constitutes the second requirement for safeguarding human rights and
maintaining social order in an Islamic society. The imposition of punishment
instills fear of retribution, prescribed penalties, and consequences in those
inclined toward crime.
Retribution and Fixed Punishments in
Islamic Criminal Law
Islam has
established precise boundaries in this regard. It prescribed legal retribution
(qisas) in cases involving violations of people’s rights, and it set
fixed punishments (hudud) in matters where the rights of Allah are
predominant, even if intertwined with human rights.
This is
the key distinction between qisas and hudud: in qisas, the
interest of human beings is more evident, whereas in hudud, the right of
Allah is more prominent.
Shari`ah vs Man-Made Law
Of
course, no civilized society can exist without a legal system of punishment.
However, there is a clear distinction between Shari`ah and man-made laws derived
from foreign legal systems.
Shari`ah
considers alcohol prohibited, based on the necessity of protecting the human
mind from intoxication and impairment, along with the corruption that results
from it. Protecting people from alcohol and drugs is regarded as part of the
rights of Allah, and thus the punishment for alcohol consumption was
legislated.
In
contrast, man-made law punishes only when a drunk person causes public
disturbance or commits another crime while intoxicated. Meanwhile, Islamic law
prohibits intoxication altogether to preserve the human mind.
Similarly,
Islam prohibits adultery to protect people’s honor and preserve society. In
contrast, prevailing man-made laws in our countries—largely derived from French
law—permit adultery in practice, as it is not considered a crime if it occurs
with mutual consent. Consent is only considered absent in cases such as rape or
when one party is a minor.
Here, the
difference between Shari`ah and man-made law is clear and irreconcilable.
Moral Consequences of Legal
Permissiveness in Western Societies
The
secular legal approach has led Western societies
to a state of near-total permissiveness—not only regarding adultery but even
extending to the legalization of same-sex relations.
Another
distinction between Shari`ah and man-made law in the issue of adultery is that
a wife’s adultery is not considered a societal concern unless the husband files
a complaint. Even the father or brother has no right to intervene.
The
judiciary’s position depends entirely on the husband’s stance—whether he
pardons or not—indicating that society and its moral values play no role.
The Islamic Ruling on Murder and the
Role of Forgiveness
As for
killing, Islam strictly prohibits it. The punishment for intentional murder is
legal retribution (qisas), unless the victim’s guardian grants pardon.
In such
cases, people of goodwill may attempt to persuade the guardian to forgive and
accept financial compensation (diyah). If the guardian accepts, qisas
is waived, but the state still retains the right to impose a discretionary
punishment.
In
reality, the implementation of qisas and the punishment for adultery
played a major role in deterrence and in reducing crime rates in Islamic
societies. In contrast, leniency toward such crimes under man-made laws and
legislative colonial influence has led to an unprecedented rise in crime rates.
At first
glance, the Shari`ah approach may appear harsh and punitive. However, a deeper
look reveals that it is, in fact, more merciful toward individuals, society,
and even those inclined toward crime.
We must
also not forget that the absence of Islamic qisas has expanded the
phenomenon of personal revenge, thereby
increasing overall crime rates.
Building a Virtuous Society
Reducing
crime rates—and even reaching a virtuous society where crime is nearly
nonexistent—is a long-term goal for Muslims.
Achieving
such a society requires establishing justice among people to eliminate the root
causes of crime. It also requires increased awareness and the cultivation of
noble values within individuals.
As long
as crime exists, punishment and retribution remain necessary. {There is ˹security of˺ life for you in ˹the law of˺
retaliation.} [Al-Baqarah 2:179]
In
general, I support the implementation of legal retribution and prescribed
punishments. However, we must carefully examine Islam’s position regarding
these punishments. Islamic law seeks to avert them in cases of doubt and
restricts their application to the narrowest scope.
For
instance, the punishment for adultery serves primarily as a deterrent, and
cases in which it was actually implemented were extremely rare due to the
strict conditions and requirements.
When a
man came to the Prophet (peace be upon him) confessing adultery and requesting
the punishment, the Prophet initially turned away from him. Only after the man
insisted was the punishment carried out. Notably, the Prophet did not inquire
about the woman involved, considering the confession as evidence limited to the
confessor alone.
As Ibn
Taymiyyah explains, the man refused to suffice with personal repentance—which
would have been enough to purify him—and instead insisted on being punished in
this worldly life.
Judicial Discretion in Islamic Law
Let us
now consider the position of the judge or ruler.
When a
person is brought before the court with a proven crime, scholars such as Ibn
Taymiyyah and Ibn Al-Qayyim indicate—based on the Prophetic tradition—that the
judge may suspend the punishment in a first-time offense.
If a
student or young person commits theft for the first time, as a slip or moment
of weakness, and the judge observes remorse, regret, or shame, he may suspend
the punishment, encourage repentance, and accept it. He may also impose a
discretionary penalty such as admonition, flogging, or imprisonment, depending
on what he sees appropriate.
However,
if the individual repeats the crime multiple times, then the prescribed
punishment—such as amputation of the hands—may be carried out.
This
ruling may appear harsh, but is imprisoning someone for many years truly more
merciful or more protective of society?
There are three types of hands:
- A working hand that deserves reward,
- An idle hand that deserves the opportunity to work and produce,
-
And a corrupt hand whose corruption has been proven repeatedly—should society
not be protected from it?
I believe
that the habitual criminal should face the prescribed punishment. Of course,
society has a role in determining who qualifies as a habitual offender.
For Further Reading:
- Constants and Changes in Western Civilization
- 6 Things Muslims Regret After Experiencing Them
- Do Wars Reshape the Hierarchy of Values?
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