Naeem's Blog

Last night I was able to catch CNN’s special report called God’s Warriors. Overall, there wasn’t anything groundbreaking in the report. Christiane Amanpour gave a nice informative presentation on various Muslim instances around the world.

From the political Ikhwan in Egypt to the theocratic Ayatollahs in Iran to a suicide bomber in Palestine to an American Muslimah in NYC, Amanpour provided a nice balanced view of the Muslim Warrior – although it would have been nice if she had visited the two largest Muslim countries, Indonesia and Pakistan.

She did the mandatory profiles of the equally unlikable Osama bin Laden and Ayaan Hirsi Ali (if you don’t know about her, consider yourself lucky for those extra brain cells you’ve saved) plus one interesting profile of a female ‘jihadi’ – the American-Muslim sister living in NYC, whose jihad is to wear the hijab and practice her Islam in the overly secular American society. Oh, and don't get me started on the cooky Daveed character - not sure if he's still a practicing Muslim. Something just didn't jive about that dude.

Overall a nice compilation of the Islam side of the three-part series called God’s Warriors (she covered the Xian and Jewish warriors in the other two parts). If you saw it, you didn’t really waste your time. And if you missed it, you really didn’t miss too much.

Anyways, I’m not writing to review the program. I wanted to highlight a point brought up by the head of the Ikhwan al-Muslimeen in Egypt. When asked about the Shariah hudood punishments (such as stoning and lashes), Mohammad Akef said very clearly that if Shariah were to be implemented in Egypt today, these punishments would NOT be applied. He reasoned that the appropriate environment has not been established where such punishments can be meted out.

Sadly, this is a point that is lost all too often on the misguided masses, as well as their even more misguided leaders, who call for the punishments as if that is what Shariah is all about.

This point seems almost too obvious to point out (as I feel that many of you already believe this basic precept), but I wanted to highlight parts of Hashim Kamali’s article titled “Punishment In Islamic Law: A Critique Of The Hudud Bill Of Kelantan, Malaysia”, where he summarizes the positions of several 20th century Islamic scholars on the issue of hudood punishment:

"A remarkable fact about the Shari`a", according to Maududi, is that it is "an organic whole" and any arbitrary and selective division of the general scheme of Shari'a is therefore "bound to harm the spirit as well as the structure of the Shari'ah. There were people, Maududi added, who selected a few provisions of the Islamic penal code for implementation without realizing that those provisions need to be viewed against the background of the whole Islamic system of life. To enforce those provisions "in isolation would in fact be against the intention of the Lawgiver".

In his book, Punishment in Islamic Law, Salim el-Awa has quoted Maududi and confirmed his analysis to the effect that Islam envisages a comprehensive scheme of values for society. What has happened is that many Muslim countries have borrowed the penal philosophy of an alien system. Under such circumstances, it is totally wrong, el-Awa adds, to attempt to enforce the hudud as an isolated case. It does not make sense under the present circumstances, el-Awa adds, to amputate the thief's hand when he might have no means of livelihood, or to "punish in any way for zina (let alone stoning to death) in a community where everything invites and encourages unlawful sexual relations". El-Awa then concludes: "One can say that the application of the Islamic penal system under the present circumstances would not lead-to the achievement of the ends recommended by this system".

Commenting on the hadd of adultery, al-Qaradawi has also underscored the change of environment and the temptations that modern society has created. We have, on the one hand, the high, and in some places, exorbitant costs that are incurred in marriage, dower, and what follows, that is providing a house and furniture etc., and. on the other hand, the numerous other temptations that tax the limits of individual self-restraint:

The justice of Islam does not admit the logic that the command of God is executed on the thief as punishment for what he or she might have stolen and yet we neglect the command of God on the payment of zakah (legal alms) and the social support system (al-takaful al'ijtimai') of Islam. There is only one verse in the Qur'an on the hadd of theft but literally dozens of ayat (versey on zakah and helping the poor.

Muhammad al-Ghazali has advanced a similar argument and finds certain aspects of the debate on the enforcement of hudud to be less than acceptable and convincing. "We do not dispute", wrote al-Ghazali, "that the hudud are a part of Islam, but we find it strange that they are considered to be the whole of it". To enforce the hudud, we need to establish an Islamic political order first. Ghazali went on to comment, "we wish to see these punishments enforced ... but not so that the hand of a petty thief be cut while those punishments are waived in cases of embezzlement of fantastic funds from public treasury".

These and similar considerations have led Mustafa al-Zarqa to the conclusion that the prevailing environment is unsuitable for the enforcement of hudud. He then invokes the legal maxim of Shari'a that, "necessity makes the unlawful permissible al-darurat tubihu al-mahzurat", (the origin of this legal maxim is Qur'anic (al-Baqarah, 2:173). Al-Zarqa further adds, when emergency or unavoidable situations hinder an obligation (wajib) then the latter may be temporarily postponed. Based on this argument al-Zarqa concluded that the hudud may be substituted with temporary measures and alternative punishments until such a time when conditions are right for their proper enforcement.