n the last decades of twentieth century many Muslim countries declared themselves as 'Islamic State' and as a proof thereof, enforced the hudud laws (the shari`ah laws of punishment for certain crimes) in their countries. It led to much discussion about two things: one, the concept of Islamic state and two, the nature of Islamic laws. The orthodox Muslims and the 'ulama' who absolutise these laws shorn from their context naturally celebrated creation of 'Islamic state' and also enforcement of hudud laws.
The very term 'Islamic state' is a modern term. It has nothing to do with the Qur'anic or hadith terminology. While the Qur'an does not mention any form of governance, hadith refers to what is called 'khilafa' or popularly known as khilafat. The loose governing structure which came into existence after the death of the Prophet (PBUH) was termed as 'Khilafat-i-Rashidah' in the history of Sunni Islam. The Shi`ah, on the other hand, while not accepting the concept of khilafah, developed the institute of imamah. While the Sunni doctrine of khilafah meant a successor to the Prophet (PBUH) had to be elected through the institution of bay'ah (i.e. pledge of loyalty) the Shi'ah doctrine upheld the institution of imamah through appointment (by the Holy Prophet), and not by election.
Thus the doctrine of khilafah became central to Sunni Islam, that of imamah became integral part of Shi`ah Islam. But nowhere we find the term 'Islamic state' which a modern political construction in the post-colonial world. To this world neither the concept of khilafah could be applied nor that of imamah. A modern concept was needed and that was provided by the 'Islamic State'.
There could be endless discussion on the nature and content of Islamic State. Would the Islamic State be run by Parliamentary system or through monarchy or through military establishment? Again it is important to note that these 'Islamic States' were confined to the territorial limits of a nation state unlike khilafah or imamah which knew no such territorial boundaries. The boundaries of Khilafat-i-Rashidah were in no sense the boundaries of any nation state.
However, what is known as Islamic State today has definite national boundaries and has no single concept or uniform doctrine despite the fact that it is post-colonial human construct. A monarchy, a military dictatorship or a parliamentary form of government, all can claim to an Islamic State. One sees no contradiction in this. Thus the Saudi Arabia, a monarchy, can as much claim to be an Islamic State as Iran or Malaysia, which also claim, with equal validity, to be Islamic States. No one is concerned about the form of government as long as it applies to itself the appellate of 'Islamic State'.
These states generally proclaim Islamic State by proclaiming enforcement of hudud laws i.e. the shari`ah laws of punishment for theft, fornication or adultery etc. Besides these hudud laws some other shari`ah laws pertaining to personal matters like marriage, divorce, inheritance etc. are also applied. However, other civil laws like the law of contract etc. are hardly applied. Some countries also try to apply laws pertaining to what is known as 'Islamic Banking' though there are many problems in this sphere due to universally accepted practice of interest banking. But rulers in the Islamic State try to enforce hudud laws.
As pointed out above the Islamic State is a post-colonial construct. The medieval ruling establishments also did not describe themselves as such. Only the Turkish ruler styled himself as the 'caliph' or Khalifah. Others described themselves as 'sultans' as sultan in Arabic means one who controls or one who has hegemony. The Umayyads and the Abbasids - the rulers of first two dynasties of early Islamic period - had styled themselves as Khalifah. But the succeeding rulers to these two dynasties often described themselves as 'sultans'. However, the only Shi`ah Ismaili Fatimid rulers of the early classical period of Islam called themselves as imams according to the Shi`ah doctrine of imamah.
It is also important to note that none of these medieval states were nation state as nation state themselves are modern day product. Peoples of different religions, cultures and languages lived in these 'sultanates'. Though Islam was the religion of overwhelming majority of the peoples the Islamic laws applied to them but they were not described as 'Islamic States'.
The post-colonial states in Muslim countries, be they in the Middle East, or West or North Africa or in South and South East Asia, could not describe themselves as kihlafah or imamah anymore. The world had changed so drastically ever since that this was not possible nor could any ruler in the Muslim country could claim the exalted status of a Khalifah or an Imam. Among all Shi`ah sects like the Ithna Asharis and Isma`ilis (the Musta`lian sect) the Imam is supposedly in seclusion (though Agakhanis and Zaidis earlier did believe in imam very much in the midst of their followers). Earlier the Zaidi Imam ruled the Yemen but has since been overthrown after a long drawn civil war during the seventies of the last century.
But after colonial humiliation, the Muslim countries wanted to retrieve not only political sovereignty but also religious identity as both were denied to them during the colonial rule. They got political sovereignty through democratic or armed struggle but tried to re-establish religious sovereignty through proclamation of 'Islamic State'. That gave them not only sense of pride but also political legitimisation in the eyes of Muslim masses.
However, the situation differed from countries to countries. For some it was age old historical tradition which was interrupted during colonial rule but for others it was a new invention. In newly created Muslim countries like Pakistan and Bangla Desh it was not the popular will, or historical tradition but creation of Islamic State was an act of military rulers to legitimise their rule. The South Asia never had the tradition of enforcing hudud laws and it was long after partition that the military ruler Zia-ul-Haq enforced hudud laws in eighties of last century.
In Bangla Desh too it was General Irshad, a military ruler who declared Bangla Desh an Islamic State for purposes of establishing his political hegemony. Bangla Desh had won its liberation from Pakistan through people's struggle and had no such historical tradition of being an Islamic State too. Neither in case of Pakistan nor in case of Bangla Desh there was any popular demand for establishing Islamic State. Nor was there any historical tradition as in countries like Egypt or Saudi Arabia.
Thus there is fundamental difference between the historically existing Muslim states with their own tradition of Islamic laws and those countries which, in post-colonial period, tried to create an 'Islamic State' under certain political compulsions. Here the case of Malaysia is quite unique.
Malaysia is a multi-religious and multi-ethnic country, which came under the British colonial rule. Also, there are several states ruled by kings and sultans, which form a federal structure. The Malay Muslims are in majority. Malays are also the sons of soil - Bumi Putras. Under democracy in the post-colonial period, they became conscious of their rights. The Malays were mostly of rural origin, much less educated and much less privileged. All Malays are also Muslims. Thus the Malay movement or the Bumi Putra movement put pressure on the rulers to make Islam a privileged religion in Malaysia.
Islam became a state religion but due to substantial presence of non-Muslim minorities like the Chinese it was not possible to enforce hudud laws. But other states in Malaysia like Kalantan are enforcing hudud laws. This worries many liberal and modern Muslims. Also, ulama and orthodox Muslims feel encouraged to practice polygamy and accord women traditional position in society.
Since all 'Islamic States' try to enforce hudud laws, it is important to throw some light on these laws and their position in Islam. It is very important to understand that Islam is basically a religion, a spiritual movement for self-control, for moral life and for purification of self. Its essence also lies in asserting values like equality, human dignity, justice, peace, freedom of conscience, compassion, benevolence, truth, wisdom and sensitivity to others suffering. These are the fines human values.
The tribal chiefs in Mecca in pre-Islamic period did practice some kind of morality known as muru'ah (though difficult to translate in English it roughly meant manly qualities). Muru'ah, which was widely held concept, included, among other things, hospitality, bravery, tribal solidarity, generosity and independence. These were the highest virtues for the Arabs in pre-Islamic days.
However, they hardly exercised self-control, had no sense of universal morality and spiritual values. Tribal solidarity was highest form of virtue. Their universe did not transcend tribal boundaries. Their values meant nothing outside these boundaries. Islam, on the other hand, was a universal religion, a universal code of conduct. It knew no such narrow limits. It transcended all boundaries - tribal, ethnic, racial and national. It also gave a notion of higher morality, much higher than embraced by the concept of muru'ah. We have already indicated the values stressed by Islam above. Islam laid great emphasis on equality and justice on one hand, and human dignity and freedom of conscience, on the other. These values effectively countered the concept of narrow tribalism. But to concretise these values in practice was very difficult and complicated task. So many factors, particularly pertaining to tribal and other existing practices mattered and could not be easily ignored. The Prophet of Islam (PBUH) was not only a preacher but also a great role model of Islamic teachings for his followers. He was often faced with complicated questions of Islamic teachings on one hand, and of existing practices, on the other. Also, he operated in environs where no state institutions for execution of laws existed. It was basically a tribal society wherein he had to apply higher Islamic morality.
Islam's basic objective was to produce a new human being, fashioned by higher values stressed by the Qur'an. The Prophet's main objective was to transform this world entirely. As a supreme teacher and a source of law (the Qur'an describes him as sirajan munirah i.e. a lighted lamp showing light) Prophet did two things: he blended certain tribal or other existing practices with higher Qur'anic morality so that his guidance could become useful for the immediate society he was living in.
Secondly, he also showed, through the Qur'anic revelations, the body of higher and transcendent morality. It is this morality and these values which have permanence and all our actions should be guided by this higher morality. The punishments prescribed by the Qur'an are not the essence of its teachings. Its essence lay in its higher morality. The Prophet gave enough indications of this through his Sunnah also.
The Holy Prophet very well indicated that compassion is far more superior to the punishment. When one person came to him and said that I was sick and a lady came to see me and I could not resist the temptation and did what is strictly forbidden (i.e. had sexual intercourse with the lady). Please punish me. He was quite weak due to his illness and could not have borne the 100 blows. The Prophet took mercy on him specially because he had confessed to his crime and he took 100 branches of palm date tree and gave him one gentle blow (thus fulfilling the need of the Qur'anic punishment of 100 lashes). This show of compassion had much greater impact on him than the100 blows.
There is another equally important story in the hadith literature. A child labour that was underpaid by his employer stole fruit from the employer's garden and ate. He was caught in the act and was brought to the Prophet by the employer demanding punishment of cutting off his hand. The Prophet made thorough inquiry and came to conclusion that the child was underpaid and suffered pangs of hunger, which led him to steal fruit.
Instead of punishing the child he admonished the employer for underpayment and made it obligatory to him to educate the child and provide proper food to him until he grows up. There are many such examples, which make it clear that punishment per se is not the final objective but the reformation of the offender.
There were certain tribal practices and traditions, which could not be ignored altogether by the Prophet (PBUH) if he were to successfully transform that society morally and spiritually. Also, mere acceptance of Islam by the Arabs did not mean they would automatically or easily leave behind all their acts of omission and commission. Certain acts of crime were rampant - murder, theft, rape and robbery. The society had to be cleaned of these crimes and for that the Prophet used certain institutions of tribal practices like cutting of hands for theft or stoning to death for adultery (there is no such punishment for adultery in the Qur'an at all.
Unfortunately these days enforcing these punishments have become very fundamental to any Muslim country declaring itself to be an Islamic state as if it is main criteria of being an Islamic country. In fact equality and justice are far more important criteria for the purpose. Equality of all human beings, protection of human dignity and ensuring socio-economic justice should be much more fundamental to setting up a state on the principles of Islam. But unfortunately hardly anyone pays any attention to such fundamental teachings of Islam and rulers generally rush to the press to announce that henceforth cutting off of hands for theft and stoning to death for adultery will be enforced.
Punishment of stoning to death for adultery has not been prescribed in the holy Qur'an at all. The Prophet is reported to have prescribed this punishment in some cases but there is debate whether he did so before revelation of the verse of 100 lashes for zina (rape, fornication and adultery) or after that. There is no conclusive proof that he enforced any such punishment after the revelation of the verse 24:2
In fact stoning to death was prescribed by the Jewish law and the Prophet (PBUH) enforced it in case of a Jew and a Jewess in one case (see Bukhari 23:61), and others apparently occurred before the revelation of the Surah Nur (i.e. chapter 24). Also, stoning to death is in contradiction to the verse 4:25 wherein punishment for adultery is half for the slave-girls. Stoning to death cannot be made half whereas 100 lashes, as prescribed in 24:2 can be reduced to 50 in case of slave-girls.
It is unfortunate that in many Muslim countries this law (of stoning to death) is being used more against women than men. This punishment can be enforced only either through self-confession or by producing four witnesses. Since no one ever commits adultery in presence of four witnesses, man goes scot free and woman gets punished as in her case her pregnancy becomes proof. However, no one inquires whether she submitted herself willingly to man's lust or she was raped.
In Pakistan a blind girl was raped by her uncle and she became pregnant and was sentenced to death. In case of her uncle it could not be proved by producing four witnesses. In Nigeria too a woman has been sentenced to death similarly and it has become international issue. This totally discriminatory application of law (about whose authenticity also there is doubt) brings bad name to Islam. If Allah desired to prescribe any such punishment He would have prescribed it clearly in the Qur'an. It is not true that the verse on stoning to death was revealed and that it was written on a leaf which was eaten away by a goat. Such statement would enable non-Muslims to raise many questions about the correctness of the Qur'an. When Allah Himself says 'We are protectors of the Qur'an", how a goat can eat away one of its verses.
In fact any law should not be understood mechanically. It is also important to understand the philosophy of law, causes of its genesis and intention behind enforcing it. Any law applied mechanically can result in grave injustice.
The philosophy of law is to establish a crime-free society by framing laws which will combine elements of punishment and reformation. Punishment can take various forms: by imposing physical pain or through physical confinement. Similarly reforming the criminal can also take various forms - through persuasion, making him undergo certain training or making him see the gravity of his offence, which causes pain to others. Or, one can combine elements of all this along with physical confinement. It will depend on gravity of the offence and individual criminal and extent of his/her crimes. It is for this reason that laws generally provide minimum and maximum punishments. The judge also often takes personal circumstances into account before prescribing the punishment.
Two of the Prophet's instances given above i.e. a child stealing fruit and a sick man submitting to sexual temptation and confessing to the Prophet clearly prove the wisdom with which the Prophet dealt with these cases. The Prophet did not order cutting off hands of the child who was rather compelled to steal. Our Qadis impose these sentences without exercising such discretion and going into circumstances of the crime.
We should not mechanically imitate the Holy Prophet's reported sayings or doings without understanding the reasons for which he did something. We also have to take the period, tribal practices, geographical circumstances and available institutions. As long as the purpose of the preventing crime is met the nature of punishment does not matter. Prevention of crime is more fundamental than the nature of punishment. In the enforcement of law in Islamic countries punishment becomes more fundamental than prevention of crime. It is not kept in mind what is the purpose of law, what are the circumstances in which a crime was committed and whether it deserves minimum or maximum punishment.
Today more Muslims live in minority situation in non-Muslim countries than in Muslim countries. They commit all sorts of crimes in non-Muslim countries. They cannot be given hudud punishments. They are dealt with according to the law of the country they live in. That does not mean ends of justice cannot be met in their case. In India very large number of Muslims live, larger than in many Muslim countries. The British rulers had imposed their own secular criminal code in 19th century itself and the `ulama had accepted it without any protest. In fact a very prominent 'alim even translated it into Urdu. Since then Indian Criminal Procedure Code is applicable to Muslims as well as non-Muslims in India, all those Muslim who commit crime are punished according to this code.
The Muslim countries should re-think these laws and modify criminal laws wherever necessary so as to ensure the ends of justice are met and crime does not flourish. Even laws of contract and other civil laws prescribed by Shari`ah have already been given up long ago without causing any problem. Our 'ulama should be given thorough training in modern legal system also along with training in Islamic laws. This will enable them to work out a creative synthesis between Islam laws and modern laws within framework of Islamic shari'ah.
Unfortunately our 'ulama' do not undergo any such training and are trained only in Islamic jurisprudence, its methods and its philosophy evolved by early Muslim jurists. Earlier our Qadis are trained in modern legal philosophy better it is. It will be a great service to the Islamic world.