DO MUSLIMS THEMSELVES UNDERSTAND HUDUD?

Hence, even during the time of the Abbasids, Hudud was not part of the Sharia. The Sharia Court (kadi) only handled matters concerning religious, family, property, and commercial law (like here in the UK as well) while matters of crime came under the government’s authority.

NO HOLDS BARRED

Raja Petra Kamarudin

The Constitutional Rights Foundation of the US published that piece below: The Origins of Islamic Law.

That is actually just one of numerous articles regarding the matter so to be honest I picked this one at random because it appears to be the simplest and shortest of the lot. There are other articles that run into 50, 60 or hundreds of pages. There are also many good books on the matter, which you can even download into your Kindle in case you have gone electronic like me.

Unlike The Ten Commands that was revealed to Moses in one go, the Qur’an was revealed to Prophet Muhammad progressively over a period of 22 years.

(Note that when I make a statement I, of course, mean that this is what the Muslims believe, which non-Muslims may not also believe. Hence I am not making a statement of fact. I am relating the doctrine of Islam. Therefore we do not need to go into a debate about whether God does exist or whatever, like some of you like to do).

Now, the only chapter of the Qur’an that guides Muslims regarding one of the crimes under the Sharia, slander, is probably chapter 24, the Chapter of the Light (Surah An-Nur).

This is entirely my opinion, of course, but I say this because chapter 24 clearly lays out the circumstances, procedure, as well as the punishment, for the crime of slander. In other parts of the Qur’an, although it tells you the dos and don’ts, it is not clear as to the procedure on how the ‘trial’ should be conducted and the punishment if convicted like chapter 24 does.

The article below says: The Koran sets down basic standards of human conduct, but does not provide a detailed law code. Hence this supports my opinion that, other than chapter 24 of the Qur’an, the other parts of the Qur’an do not spell out how things are to be done.

We must also understand that the Qur’an came in two stages, the Mekah stage and the Medina stage. The Mekah stage deals with doctrine and articles of faith while the Medina stage deals with the Islamic Code.

Even then in things such as the consumption of alcohol it developed from do not drink too much (till you get drunk), to do not drink before you pray (to avoid uttering nonsense when you pray), to a total ban on liquor. Hence liquor was not banned outright in the beginning. It was only banned outright in the final stage.

Now let us go to what is written below.

Following Muhammad’s death in A.D. 632, companions of Muhammad ruled Arabia for about 30 years. These political-religious rulers, called caliphs, continued to develop Islamic law with their own pronouncements and decisions.

The Sharia also stems from the Prophet Muhammad’s teachings and interpretations of those teachings by certain Muslim legal scholars. Between the seventh century when Muhammad died and the 10th century, many Islamic legal scholars attempted to interpret the Sharia and to adapt it to the expanding Muslim Empire.

Now this tells us that the Sharia was not fully developed and completed by the time the Qur’an had been fully revealed 22 years later at the time of the death of the Prophet. It was developed over 600 years through interpretations and opinions, first by the Prophet’s four companions and then by religious scholars and leaders. More importantly, much of the Sharia is not from the Qur’an but from the Sunnah and Hadith, which, again, is a matter that Muslims are debating till this very day.

The article below also says: From that time, the Sharia has continued to be reinterpreted and adapted to changing circumstances and new issues.

This means the Sharia continues to develop even until today, 1,400 years later.

Another important issue, as the article below mentions: The Umayyads appointed Islamic judges, kadis, to decide cases involving Muslims. (Non-Muslims kept their own legal system). Hence non-Muslims were not subjected to Islamic laws.

The Umayyads ruled for about 100 years and then were toppled by the Abbasids who ruled for 500 years, during which time the Sharia was fully developed. Hence in total it took more than 600 years after the death of Muhammad, basically till around the time of the Fourth Crusade when the Christians retook Constantinople, for the Sharia to be completed.

Note what I said, the Sharia was not developed by Prophet Muhammad. It took 600 years to develop the Sharia. And it is based on the interpretations and opinions of religious scholars and leaders. Hence the Sharia is not the word of God as stated in the Qur’an per se but the interpretations and opinions of certain people who regarded this as the word of God.

This is my opinion, of course, but the following statement in the article below supports what I say: The Abbasids encouraged legal scholars to debate the Sharia vigorously. One group held that only the divinely inspired Koran and teachings of the Prophet Muhammad should make up the Sharia. A rival group, however, argued that the Sharia should also include the reasoned opinions of qualified legal scholars. Different legal systems began to develop in different provinces.

The fact that there is still not enough clarity on what the law should be, the following part of the article below states:

In an attempt to reconcile the rival groups, a brilliant legal scholar named Shafii systematized and developed what were called the “roots of the law.” Shafii argued that in solving a legal question, the kadi or government judge should first consult the Koran. If the answer were not clear there, the judge should refer to the authentic sayings and decisions of Muhammad. If the answer continued to elude the judge, he should then look to the consensus of Muslim legal scholars on the matter. Still failing to find a solution, the judge could form his own answer by analogy from “the precedent nearest in resemblance and most appropriate” to the case at hand.

In other words, the Sharia is not carved in stone like what many Muslims believe.

Now, some say that Hudud is supposed to be part of the Sharia. In Malaysia, Hudud is not part of the Sharia (which is the bone of contention of PAS). However, we must note what the article below says:Under their absolute rule, the Abbasids transferred substantial areas of criminal law from the kadis to the government. The kadis continued to handle cases involving religious, family, property, and commercial law.

Hence, even during the time of the Abbasids, Hudud was not part of the Sharia. The Sharia Court (kadi) only handled matters concerning religious, family, property, and commercial law (like here in the UK as well) while matters of crime came under the government’s authority.

This should be food for thought for those debating the issue of Hudud. At least if you want to debate this first of all know what you are debating. Muslims have been debating this for 1,400 years and still they have not reached a consensus. So it is not quite an open-and-shut case as some may believe.

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The Origins of Islamic Law

Islamic law represents one of the world’s great legal systems. Like Judaic law, which influenced western legal systems, Islamic law originated as an important part of the religion.

Sharia, an Arabic word meaning “the right path,” refers to traditional Islamic law. The Sharia comes from the Koran, the sacred book of Islam, which Muslims consider the actual word of God. The Sharia also stems from the Prophet Muhammad’s teachings and interpretations of those teachings by certain Muslim legal scholars. Muslims believe that Allah (God) revealed his true will to Muhammad, who then passed on Allah’s commands to humans in the Koran.

Since the Sharia originated with Allah, Muslims consider it sacred. Between the seventh century when Muhammad died and the 10th century, many Islamic legal scholars attempted to interpret the Sharia and to adapt it to the expanding Muslim Empire. The classic Sharia of the 10th century represented an important part of Islam’s golden age. From that time, the Sharia has continued to be reinterpreted and adapted to changing circumstances and new issues. In the modern era, the influences of Western colonialism generated efforts to codify it.

Development of the Sharia

Before Islam, the nomadic tribes inhabiting the Arabian peninsula worshiped idols. These tribes frequently fought with one another. Each tribe had its own customs governing marriage, hospitality, and revenge. Crimes against persons were answered with personal retribution or were sometimes resolved by an arbitrator. Muhammad introduced a new religion into this chaotic Arab world. Islam affirmed only one true God. It demanded that believers obey God’s will and laws.

The Koran sets down basic standards of human conduct, but does not provide a detailed law code. Only a few verses deal with legal matters. During his lifetime, Muhammad helped clarify the law by interpreting provisions in the Koran and acting as a judge in legal cases. Thus, Islamic law, the Sharia, became an integral part of the Muslim religion.

Following Muhammad’s death in A.D. 632, companions of Muhammad ruled Arabia for about 30 years. These political-religious rulers, called caliphs, continued to develop Islamic law with their own pronouncements and decisions. The first caliphs also conquered territories outside Arabia including Iraq, Syria, Palestine, Persia, and Egypt. As a result, elements of Jewish, Greek, Roman, Persian, and Christian church law also influenced the development of the Sharia.

Islamic law grew along with the expanding Muslim Empire. The Umayyad dynasty caliphs, who took control of the empire in 661, extended Islam into India, Northwest Africa, and Spain. The Umayyads appointed Islamic judges, kadis, to decide cases involving Muslims. (Non-Muslims kept their own legal system.) Knowledgeable about the Koran and the teachings of Muhammad, kadis decided cases in all areas of the law.

Following a period of revolts and civil war, the Umayyads were overthrown in 750 and replaced by the Abbasid dynasty. During the 500-year rule of the Abbasids, the Sharia reached its full development.

Under their absolute rule, the Abbasids transferred substantial areas of criminal law from the kadis to the government. The kadis continued to handle cases involving religious, family, property, and commercial law.

The Abbasids encouraged legal scholars to debate the Sharia vigorously. One group held that only the divinely inspired Koran and teachings of the Prophet Muhammad should make up the Sharia. A rival group, however, argued that the Sharia should also include the reasoned opinions of qualified legal scholars. Different legal systems began to develop in different provinces.

In an attempt to reconcile the rival groups, a brilliant legal scholar named Shafii systematized and developed what were called the “roots of the law.” Shafii argued that in solving a legal question, the kadi or government judge should first consult the Koran. If the answer were not clear there, the judge should refer to the authentic sayings and decisions of Muhammad. If the answer continued to elude the judge, he should then look to the consensus of Muslim legal scholars on the matter. Still failing to find a solution, the judge could form his own answer by analogy from “the precedent nearest in resemblance and most appropriate” to the case at hand.

Shafii provoked controversy. He constantly criticized what he called “people of reason” and “people of tradition.” While speaking in Egypt in 820, he was physically attacked by enraged opponents and died a few days later. Nevertheless, Shafii’s approach was later widely adopted throughout the Islamic world.

By around the year 900, the classic Sharia had taken shape. Islamic specialists in the law assembled handbooks for judges to use in making their decisions.

The classic Sharia was not a code of laws, but a body of religious and legal scholarship that continued to develop for the next 1,000 years. The following sections illustrate some basic features of Islamic law as it was traditionally applied.

Family Law

Cases involving violations of some religious duties, lawsuits over property and business disputes, and family law all came before the kadis. Most of these cases would be considered civil law matters in Western courts today.

Family law always made up an important part of the Sharia. Below are some features of family law in the classic Sharia that would guide the kadi in making his decisions.

* Usually, an individual became an adult at puberty.

* A man could marry up to four wives at once.

* A wife could refuse to accompany her husband on journeys.

* The support of an abandoned infant was a public responsibility.

* A wife had the right to food, clothing, housing, and a marriage gift from her husband.

* When the owner of a female slave acknowledged her child as his own, the child became free. The child’s mother became free when the owner died.

* In an inheritance, a brother took twice the amount as his sister. (The brother also had financial responsibility for his sister.)

* A husband could dissolve a marriage by repudiating his wife three times.

* A wife could return her dowry to her husband for a divorce. She could also get a decree from a kadi ending the marriage if her husband mistreated, deserted, or failed to support her.

* After a divorce, the mother usually had the right of custody of her young children.

Criminal Law

The classic Sharia identified the most serious crimes as those mentioned in the Koran. These were considered sins against Allah and carried mandatory punishments. Some of these crimes and punishments were:

* adultery: death by stoning.

* highway robbery: execution; crucifixion; exile; imprisonment; or right hand and left foot cut off.

* theft: right hand cut off (second offense: left foot cut off; imprisonment for further offenses).

* slander: 80 lashes

* drinking wine or any other intoxicant: 80 lashes.

Officials of the caliph carried out the penalties for these crimes.

Crimes against the person included murder and bodily injury. In these cases, the victim or his male next of kin had the “right of retaliation” where this was possible. This meant, for example, that the male next of kin of a murder victim could execute the murderer after his trial (usually by cutting off his head with a sword). If someone lost the sight of an eye in an attack, he could retaliate by putting a red-hot needle into the eye of his attacker who had been found guilty by the law. But a rule of exactitude required that a retaliator must give the same amount of damage he received. If, even by accident, he injured the person too much, he had broken the law and was subject to punishment. The rule of exactitude discouraged retaliation. Usually, the injured person or his kinsman would agree to accept money or something of value (“blood money”) instead of retaliating.

In a third category of less serious offenses such as gambling and bribery, the judge used his discretion in deciding on a penalty. Punishments would often require the criminal to pay a reparation to the victim, receive a certain number of lashes, or be locked up.

Criminal Procedure

The victim of a criminal act or his kinsman (“the avenger of the blood”) was personally responsible for presenting a claim against the accused criminal before the court. The case then went on much like a private lawsuit. No government prosecutor participated although certain officials brought some cases to court.

The classic Sharia provided for due process of law. This included notice of the claim made by the injured person, the right to remain silent, and a presumption of innocence in a fair and public trial before an impartial judge. There were no juries. Both parties in the case had the right to have a lawyer present, but the individual bringing the claim and the defendant usually presented their own cases.

At trial, the judge questioned the defendant about the claim made against him. If the defendant denied the claim, the judge then asked the accuser, who had the burden of proof, to present his evidence. Evidence almost always took the form of the direct testimony of two male witnesses of good character (four in adultery cases). Circumstantial evidence and documents were usually inadmissible. Female witnesses were not allowed except in cases where they held special knowledge, such as childbirth. In such cases, two female witnesses were needed for every male witness. After the accuser finished with his witnesses, the defendant could present his own.

If the accuser could not produce witnesses, he could demand that the defendant take an oath before Allah that he was innocent. “Your evidence or his oath,” the Prophet Muhammad taught. If the defendant swore he was innocent, the judge dismissed the case. If he refused to take the oath, the accuser won. The defendant could also confess to a crime, but this could only be done orally in open court.

In all criminal cases, the evidence had to be “conclusive” before a judge could reach a guilty verdict. An appellate system allowed persons to appeal verdicts to higher government officials and to the ruler himself.

Islamic Law Today

In the 19th century, many Muslim countries came under the control or influence of Western colonial powers. As a result, Western-style laws, courts, and punishments began to appear within the Sharia. Some countries like Turkey totally abandoned the Sharia and adopted new law codes based on European systems. Most Muslim countries put the government in charge of prosecuting and punishing criminal acts. In the area of family law, many countries prohibited polygamy and divorce by the husband’s repudiation of his wife.

Modern legislation along with Muslim legal scholars who are attempting to relate the will of Allah to the 20th century have reopened the door to interpreting the Sharia. This has happened even in highly traditional Saudi Arabia, where Islam began.

Since 1980, some countries with fundamentalist Islamic regimes like Iran have attempted to reverse the trend of westernization and return to the classic Sharia. But most Muslim legal scholars today believe that the Sharia can be adapted to modern conditions without abandoning the spirit of Islamic law or its religious foundations. Even in countries like Iran and Saudi Arabia, the Sharia is creatively adapted to new circumstances.