Any legal system constitutes an integration of principles and regulations. The principles are manifested in the regulations, and the regulations are guided by the principles. The Shari’ah is not different. There is what can be referred to as ‘the letter of the law’, and what can be referred to as the ‘spirit of the law’.More than any system I know of, the Shari’ah aims to preserve the presumption of innocence, and to, in fact, restore innocence even where it may have been violated.
The Shari’ah is everywhere famous, or perhaps infamous, for imposing harsh punishments, but what is less known is the tremendous degree to which the Shari’ah seeks to protect suspects from facing those punishments. Unfortunately, I think we ourselves are dangerously ignorant of this principle in Islamic Law. We are all aware of how the Hudood serve as a deterrent for criminal behaviour, but we may be less aware of just how much the principles of Shari’ah themselves deter the imposition of Hudood.
Rasulullah ﷺ said: “Avoid the Hudood for the Muslims as much as you can. If you find a Muslim errant, leave him to his way. It is better for the Imam to err in granting leniency and forgiveness than for him to err in punishing someone.” Because, yes, the punishments are harsh, and should not, therefore, be treated lightly. This is where, I think, some of us have fallen into a kind of trap.
Because the West today is controlling the narrative in nearly every matter, and not a single one of us is immune from their influence; this has affected our own understanding of, and relationship to the Shari’ah.
Some of us have internalized Western ideas so thoroughly that we have adopted their revulsion of the Shari’ah because, as they say, it is too severe. We therefore perform all sorts of intellectual acrobatics to excuse the harshness as having been appropriate for the era of the Prophet ﷺ, but inapplicable today; pretending that the Law revealed in the Qur’an are subject to revision, or even suspension. Religiously, of course, this approach is unacceptable. But it is unacceptable logically as well. Criminality in the era of Rasulullah ﷺ was minuscule as compared to today. The morals, ethics, and upright behavior of the Sahabah and early generations were incomparably superior to those prevalent in society today. How, then, could such harsh punishments be more appropriate for people whose moral behavior was so much more refined than our own, but inappropriate for us, while crime and depravity are rampant in our societies on an unprecedented scale? The argument is based on an unquestioning acceptance of the West’s self-proclaimed wonderfulness as a moral civilization; a claim that is, at a glance, observably false.
There are then others among us who embrace the harshness of the Hudood, celebrate it, giving each other high-fives with accompanying takbirs whenever we see videos of Da’esh beheadings; and this is done, more than anything else, as an expression of defiance of the West; a rebellious glee from shocking them and defining ourselves by embracing wholeheartedly what appalls them. They have told us that we are bloody and merciless, and we are saying, “so what?”
You cannot remove the element of mental colonization from the way we are understanding our religion. Either it makes us reject the religion, or it makes us embrace the religion as they have defined it for us. Both approaches are, obviously, wrong.
The Hudood is harsh, yes; but not disproportionately. The crimes with the harshest punishments, are crimes of the utmost severity and destructiveness to society. That being said, no crime that carries a Hadd punishment can be dealt with frivolously. The remedial effect of the Hudood depends upon its judicious implementation. Every effort must be made to avoid it, otherwise, its implementation will likely have the opposite effect.
Umar bin al-Khattab said, “if I can cancel the Hudood due to doubts, I prefer that to going through with the punishment in the face of doubt.” And the standard of evidence in the Shari’ah leaves enormous room for doubt, particularly in crimes that carry the harshest punishments. What adulterer, for instance, would be so indiscreet as to commit the act in the presence of four witnesses?
Even in the cases of murder, the Shari’ah provides a way out of the Hadd, a way out of Qisas. This is a humane provision completely lacking in the West. Western law contains no concept of forgiveness. There was no case ever brought before Rasulullah ﷺ in which a Muslim was accused of murder except that he ﷺ ordered the bereaved to pardon the killer. The pro- and anti-death penalty debate in the West has yet to discover the civilized solution of Diya.
The bulk of the Shari’ah deals with public behavior, and the sanctity of privacy in Islam;, the rigid prohibition of spying, eavesdropping, and searching for or exposing the faults of others; offers the citizenry a massive protection against the Hudood. Allah, Subhanahu wa Ta’ala, commanded us to have taqwa of Him as much as we can, in public and in private, but the Hudood is essentially concerned with the enforcement of that command in the public sphere. Lapses committed privately are not to be exposed, not to be suspected, and certainly not to be confessed by coercion or abuse.
The Shari’ah is concerned with promoting righteousness, even if that means preserving the public image of righteousness for the privately sinful (who among us, after all, does not fall into that category?); breaches that are concealed are not to be dug up, and we are not supposed to search for opportunities to impose the Hadd on someone.
Furthermore, once the Hadd is imposed on someone, they are not supposed to continue to face vilification after that. The Hadd has expunged them of their crime, and they are to be welcomed back into the community unhesitatingly.
It is not as the West claims. The Shari’ah is not harsh, even if it contains harsh punishments; the Shari’ah itself prevents these punishments as much as possible, it is a merciful and benevolent legal system unparalleled by any man-made construct, if only we can approach it as it actually is, and not as we have been led to believe it is.