islam-and-law-articleSaleh Speaks:

BISMILLAH AR-RAHMAN AR-RAHIM

Interestingly, what often comes to the minds of many immediately Islamic Law is mentioned is inflicting severe strokes of canes on people, or cutting off their hands, or possibly stoning them to death. But Islamic Law, like many other laws aims specifically at preventing us from evil, promoting the common good, resolving disputes over limited resources, encouraging us to do the right thing and generally ensuring social control. To achieve these aims, the Qur’an like security institutions, adopt three methods; education, persuasion and sanction. As indicated by Thomas Fuller in his Gromologia, sanction is adopted because “Law cannot persuade where it cannot punish”. It is for this reason that the Qur’anic penal codes could only be appreciated if “measured” in tandem with the socio/politico setting of pre-Islamic Arabia, described by the Qur’an as an “era of ignorant” (al-‘Asr al-Jāhiliy)

ARABIA BEFORE ISLAM

This description is as result of the barbaric behaviors that were prevailing in the then Arabian peninsular, and the total lack of proper institutional social control to check abuses, excessive and odious behaviors. Although the root cause of these nefarious acts was economic, its ravenous repercussions on the political and social setting of Arabs were very debilitating. The desert nature of the Arabian peninsular did not only affect their very survival, but also unleashed its toll on their nomadic life. Water, food and grass will therefore have to be searched for by any means possible. And in doing this on the desert, wars always broke up whenever two or more tribes stumble upon it. The need to survive in such a perilous environment, driven by “a winner-take-all” system demanded not only for an individual to show utmost braveness, but to constantly exhibit sheer bravado within the tribal embryo which remains his final sanctuary. These tribal juggernaut led by the tribal lord (Sheikh) beset the Arabian peninsular with inferno of violence, rancor, felony and homicide. Aside showing a greater propensity of violence, tribes lived on the principle; you have to assist your fellow tribal person where/whenever he is committing a crime or it is being committed against him. (Unsur Akhāka Ẑāliman Aw Maẑlūman).

This dogmatic precept did not only relish the opportunity for individuals within tribes to become malefactors and malevolent, but buffeted the society with endemic rows and disputes leading to cauldron of chaos. These marauding tribal groups constantly waged war and miasma of attack on each other, leading to a social situation which I am convinced was the reason behind the “appointment” of a Prophet for the first( and of course the last) time among Arabs. For surely [It is He who has sent amongst the unlettered a messenger from among themselves to rehearse to them His signs, to sanctify them and to instruct them in scripture and wisdom, although they had been before in manifest error] Q62:2.

Because of this volatile situation, female babies were not only despised, but were also buried alive immediately they were given birth to (al-Maw’uda in Arabic).  For apart from the fact, that they least contribute to the military might of their tribes, they easily become captives in times of war, bringing shame and dishonor to the fiefdom. Other horrendous situations akin to Arabs at that time are the swift and catastrophic way of retaliating to homicide cases. Because some tribes considered themselves as ̄superior to others, in responding to the murder of their tribe member, they either kill someone with a higher social status in the “culprit’s” tribe, or if that is not possible, kill five or more of them in his stead. This clandestine reprisal attacks led to animosity among tribes and perennial incursions. The Arabian peninsular was also mired in other callous acts. It was grappled with morass of alcoholism, blight of gambling, looting, rapes, defilements and other terrible social menace.

To ensure law and order in Arabia in the early stages of Islam, where there was no well-organized police service and other security institutions, no structures to serve as Police Stations and Prisons, etc, there was an immediate need for alternative measures that could deter people from committing crime. Reason therefore for the strict Islamic penal codes.

INTENT OF THE LAW

Nonetheless, there are two things that need to be noted here. First, the Qur’anic penal codes as indicated above came in response to particular challenges facing the Muslim Community in the early stages of Islam. The particular and specific rules set out in the Qur’an are not objectives in themselves. Theses rulings are contingent on particular historical circumstances that might or might not exist in the modern age. At the time these rulings were revealed, they were meant to achieve particular objectives. Therefore, it is imperative that Muslims study the moral objectives of the Qur’an and treat the specific rulings as demonstrative examples of how to realize and achieve the intent of the law (al-Maqāsid as-Shar’iyya). And if the above vices could be checked and dealt with effectively by other means possible, then the intent of the Qur’anic penal codes is achieved. So in a Sovereign State like Ghana where the law enforcement agencies are seriously and assiduously executing and adjudicating the laws without fear or favor, then Islam enjoins all Muslims to submit to the dictate of the State. For the intent of the law should be the target and not the law in itself.

In line with this, although majority of the Arab countries proclaim itself as Islamic States, most of these countries have rigorously reformed their legal codes to fall in line (to a larger extent) with the current international standard of legal practices. Egypt in 1884 dropped the strict Islamic law and adopted the code Napoleon, leaving only matters of marriage, divorce and inheritance to the jurisdiction of the Islamic legal system. And whiles Syria since 1939 has been implementing the Civil Law, Tunisia started the codification of personal law in 1956. For Morocco, they have been enforcing the code of personal status since 1958. Iraq in 1959 adopted a legal system that is completely a “photo-copy” of the Egyptian Napoleon Law.

Second, it is important to state, that the Qur’anic “Laws” are not restricted to penal codes, but also cut across all aspect of life. Apart from the general “religious laws”, there are other categories of the Qur’anic “laws” which I refer to as the “laws” of “good deeds”.

LAWS OF GOOD DEEDS

Rules governing marriage, right of the partners, dowry, divorce, nursing, family expenditure and inheritance are called “laws” of private affairs. Rules of buying, selling, usury, loan, collateral, guarantor, proxy, business partnership, farming, rent, constraints and pre-emption are called “laws” of transaction. Rules dealing with governance, powers and the limitations of the ruler and the ruled, rights and obligations of the ruler and the ruled, neutrality of the executive and the judiciary, proper and unbiased handling of cases, appointment and removal of state functionaries are called “laws” of legal policies. Rules governing the relation between States in times of peace, war, security, truce, booty and captives are called “laws” of universal rights. Rules dealing with food, clothing, shelter, the forbidden and the unforbidden therein are called “laws” of permissible. Rules governing confidentiality, sitting place, visiting, greeting, asking for permission, apology, eating, drinking, humbleness, patience, endurance, truth, pudency, cooperation, faithfulness, right of the neighbor, honoring the visitor, cleanliness and respect for the elderly, the pregnant women, the sick and the disabled are called “laws” of ethics  and manners.

These “laws” of “good deeds” constitute more than ninety percent of the Qur’anic legal purview. And to show the sacredness of these “laws”, the Qur’an meticulously and sagaciously made it the first condition (or if you like the second only to the shahada) one needs to meet in order to qualify for Heaven. The shahada is the belief in the one God, and that Muhammad is His Messenger. Qur’an chapter 18: 110 stipulates, that [whoever is desirous of meeting his lord (and be rewarded with heaven) should do good deeds, and should worship none but only (the one) God]. In other words, no matter how much one observes the religious rituals, if one does not adhere to these “laws” of “good deeds”, that person will never enter the kingdom of God. And so anytime the Qur’an addresses the faithful ones (al-muminūn), the Qur’an is not interested in those who have clung to the five pillars of Islam (i.e. profess the shahada, observe the five daily prayers, fast during the month of Ramadan, give the compulsory charity and go on pilgrimage to Mecca), but rather the faithful ones who tenaciously obey the “laws” of “good deeds” in their daily lives. Readers should see Qur’an chapter(s) 18:108, 19:96, 85:11, 98:8, 108:3, etc.

It is therefore sad, that many Muslims all over the world seem to be focusing only on the “religious laws” to the neglect of these “good deeds”. And it is against this backdrop that Rifa’ al-Tahtawi, the famous Egyptian Muslim Cleric who led a group of students on a study mission to France purposely to be guiding them on matters relating to Islam, made his distinct and controversial statement when he returned; that in France I saw Islam but I did not see Muslims, and in Egypt I see Muslims but I do not see Islam.

Saleh Mohammed Salis

saleh2g2@yahoo.com

Graduate Student

Let us know what you think about this article in the comment box below and please don’t forget to share…