Thursday 29 December 2011

Islamic Law

IN THE NAME OF ALLAH – THE SOURCE OF MERCY – THE MOST MERCIFUL

THEORY AND THE PRACTICE OF ISLAMIC LAW.

THE TEXTUAL SOURCES OF ISLAMIC LAW ARE TWO, THE NOBLE QURAN AND THE SUNNAH. THE VERSES OF THE NOBLE QURAN THAT HAVE A LEGAL CONTENT ARE CALLED AYAT AL-AHKAM, THAT IS, THE VERSES THAT FORM THE BASIS OF LEGAL RULES. THE SUNAN (PL. OF SUNNAH) ARE PRECEDENTS LAYED DOWN BY THE PROPHET (P.B.U.H.) THROUGH HIS SAYINGS, ACTS AND APPROVALS (TACIT). THESE HAVE BEEN RECORDED IN TRADITIONS COMPILED IN AUTHENTIC AND WELL-KNOWN REPORTERS. A TRADITION MAY CONTAIN ONE SUNNAH OR MORE THAN ONE SUNAN. AGAIN, A NUMBER OF TRADITIONS MAY BE TAKEN TOGETHER TO SUPPORT A SINGLE MEANING GIVING RISE TO A SINGLE RULE.

THE PURPOSE HERE IS NOT TO PROVIDE ENGLISH TRANSLATIONS OF THE NOBLE QURAN OR TRANSLATIONS OF THE WELL-KNOWN COMPILATIONS OF THE TRADITIONS. THESE ARE ALREADY AVAILABLE. I INTEND TO PROVIDE A CLASSIFICATION OF THE VERSES DEALING WITH THE LAW SO THAT THE READER MAY BE ABLE TO VIEW ALL THE VERSES RELEVANT TO A SINGLE LEGAL TOPIC. A SIMILAR CLASSIFICATION FOR THE TRADITIONS WILL ALSO BE PROVIDED.

THE MAIN EMPHASIS OF THIS SECTION, HOWEVER, IS ON THE DISCIPLINE KNOWN AS AHKAM AL- QURAN OR THE DISCIPLINE THAT TEACHES ONE HOW THE LAWS ARE DERIVED FROM THE VERSES OF THE NOBLE QURAN. TRADITIONALLY, THIS DISCIPLINE INCLUDES THE STUDY OF THE TRADITIONS WITH THE VERSES OF THE NOBLE QURAN, THAT IS, WE CONSIDER TOGETHER THE VERSES AND THE TRADITIONS ON A LEGAL ISSUE AND MEASURE THE COMBINED IMPACT OF BOTH FOR THE DERIVATION OF THE LEGAL RULE. IN LATER TIMES AND ESPECIALLY IN MODERN TIMES, THE PART DEALING WITH THE LEGAL INTERPRETATION OF THE TRADITIONS HAS BEEN SEPARATED AND IS CALLED FIQH AL-SUNNAH OR THE JURISPRUDENCE OF THE SUNNAH. FOLLOWING THE EARLIER TRADITIONAL METHOD, I FEEL THAT DIVIDING THE DISCIPLINE INTO TWO MAY NOT BE A VERY GOOD IDEA. I WOULD, THEREFORE, LIKE TO MAINTAIN THE ESSENTIAL BOND BETWEEN THE NOBLE QURAN AND THE SUNNAH AND TREAT THE DISCIPLINE OF AHKAM AL-QURAN AS INCLUDING BOTH FIQH AL-KITAB AND FIQH AL-SUNNAH. THE MAIN PURPOSE OF THIS SECTION, THEN, IS TO DEVELOP THE DISCIPLINE OF AHKAM AL-QURAN IN ENGLISH. THIS CAN NEVER BE A SUBSTITUTE FOR THE STUDY OF THE SUBJECT IN ARABIC, BUT THERE IS NO HARM IN TRYING AND DOING OUR BEST.

I HOPE THAT THE SUBJECT WILL GROW GRADUALLY IN THE MEANTIME, I HAVE KEPT LEGAL REASONING AND INTERPRETATION THAT FORMS THE BASIS OF THIS DISCIPLINE SEPARATE FROM THE MAIN FIELD. THIS IS INCLUDED IN WHAT I HAVE TERMED EXERCISES IN INTERPRETATION. WHEN MATERIAL ON THE EXERCISES ACCUMULATES AND REACHES A LEVEL OF SOPHISTICATION, IT WILL BE CONVERTED INTO A TEXT ON AHKAM AL-QURAN.

THE DISCIPLINE OF USUL AL-FIQH HAS RECEIVED GREAT ATTENTION FROM SCHOLARS IN EVERY CENTURY AND RIGHTLY SO. TODAY, OUR EXPECTATIONS FROM THIS DISCIPLINE HAVE INCREASED MANIFOLD DUE TO THE CONTACT OF MUSLIM SOCIETIES WITH OTHER CIVILISATIONS. THE DISCIPLINE DEALS WITH INTERPRETATION AND LEGAL REASONING. IT DEALS WITH A LARGE BODY OF RULES THAT GUIDE INTERPRETATION. IN SHORT, IT IS NOT ONE BUT MANY DISCIPLINES. ACCORDINGLY, 

THERE ARE CERTAIN FUNDAMENTAL QUESTIONS THAT HAVE NOT BEEN ANSWERED CONVINCINGLY AS YET. THE FIRST ISSUE IS THAT OF THE NATURE OF THE STATE IN ISLAMIC LAW. WHAT I MEAN HERE IS THAT AS COMPARED TO THE PERSONALITY OF KHALIFAH AND HIS PERSONAL RESPONSIBILITY AND POWER, WE ARE DEALING TODAY WITH A LEGAL ENTITY CALLED THE STATE, WHICH HAS A PERSONALITY AND RIGHTS OF ITS OWN. IF IT REPRESENTS THE ENTIRE COMMUNITY, THEN IS EACH COMMUNAL OBLIGATION (FARD KIFAYAH) TRANSFERRED TO THE STATE AND BECOMES A DUTY OF THE STATE. IF THE CONTRACT OF BAY`AH WAS A CONTRACT OF AGENCY (WAKALAH) BY WHICH EACH CITIZEN TRANSFERRED OR DELEGATED HIS AUTHORITY TO THE KHALIFAH TO MANAGE THE AFFAIRS OF THE COMMUNITY, THEN, WHAT IS THE NATURE OF THE CONTRACT TODAY WHEN THE STATE STEPS IN. AND, NOT ONLY THE STATE, WHAT IS THE NATURE OF THE CONTRACT WHEN THE PRESIDENT, PRIME MINISTER, OR MONARCH, IF YOU LIKE, STEP IN WITH FICTITIOUS LEGAL (OFFICIAL) PERSONALITIES OF THEIR OWN AND THE ACCOMPANYING IMMUNITIES.

ANOTHER ISSUE DEALS WITH THE DISTINCTION BETWEEN THE KHALIFAH AS THE ALL-POWERFUL LEADER DELEGATING AUTHORITY TO ALL THE SULTANS IN ORDER TO VALIDATE THEIR RULE AND BETWEEN THE EXISTENCE OF MULTIPLE STATES AND NO KHALIFAH. WHAT IS THE FUNDAMENTAL NORM IN ALL THESE SITUATIONS, A NORM THAT VALIDATES ALL LAWS. SUCH A NORM SHOULD STAY IN PLACE EVEN WHEN A MILITARY COMMANDER TAKES OVER POWER AND ABROGATES THE CONSTITUTION.

THERE ARE NUMEROUS OTHER ISSUES, AND WE ARE JUST QUOTING THESE AS EXAMPLES. THE PROLEM OF LEGAL PERSONALITY HAS BEEN ANALYSED UNDER THE DISCUSSION OF CORPORATIONS IN THE ISLAMIC LAW OF BUSINESS ORGANISATION. THE SAME ARGUMENTS CAN BE APPLIED TO THE PERSONALITY OF THE STATE.

PROPERTY.

THE TOPICS OF OWNERSHIP, POSSESSION AND PROPERTY ARE CONSIDERED VERY IMPORTANT IN EVERY LEGAL SYSTEM. VERY LITTLE SYSTEMATIC WORK HAS BEEN DONE IN THIS AREA BY SCHOLARS. THOSE WHO WRITE ABOUT THESE TOPICS INVARIABLY BECOME INVOLVED WITH BROADER ISSUES LIKE "OWNERSHIP BELONGS TO ALLAH AND IS HELD AS TRUST BY MAN". THE IMPORTANCE OF THIS QUESTION NOTWITHSTANDING, IT IS NECESSARY THAT SCHOLARS TACKLE THE ISSUES LIKE THE NATURE OF OWNERSHIP AS IT IS FOUND IN THE ISLAMIC LEGAL SYSTEM, THE MEANING OF POSSESSION AND ITS SIGNIFICANCE, AND FINALLY THE MEANING OF PROPERTY ITSELF. THE LAST POINT HAS EMERGED IN MODERN TIMES IN THE SHAPE OF INTELLECTUAL PROPERTY.

THE OIC HAS ALREADY ISSUED A RULING THAT SUCH RIGHTS ARE RECOGNISED IN ISLAMIC LAW AND HAVE A MONETARY VALUE. THE SHARI`AT COURT HAS ALSO CONSIDERED THIS QUESTION. A BRIEF INTRODUCTION TO THIS TOPIC HAS BEEN INCLUDED IN OUTLINES OF ISLAMIC JURISPRUDENCE AND THE BASIC ISSUES THAT NEED TO BE TACKLED FROM THE LEGAL POINT OF VIEW ARE:

THE NATURE OF OWNERSHIP (MILKIYYAH) IN ISLAMIC LAW. 
THE NATURE AND MEANING OF POSSESSION (MILK AL-YAD) IN ISLAMIC LAW. 
THE MEANING OF THE TERM MAL (WEALTH OR PROPERTY) IN ISLAMIC LAW.
THE LEGAL VALIDITY OF INTELLECTUAL PROPERTY RIGHTS IN ISLAMIC LAW.

COMMERCE.

I WOULD LIKE TO DEVOTE THIS SECTION TO A BRIEF DISCUSSION OF THE GENERAL PRINCIPLES OF THE ISLAMIC LAW OF CONTRACTS. THE MAIN FOCUS WILL BE ON A DETAILED STUDY OF INDIVIDUAL CONTRACTS. MANY OF THESE CONTRACTS ARE BEING UTILISED BY ISLAMIC BANKS. SOME OF THE CONTRACTS USED BY BANKS HAVE BEEN PLACED IN THE SECTION OF CREDIT AND INSOLVENCY.

GENERAL PRINCIPLES OF CONTRACT. THE GENERAL PRINCIPLES HAVE BEEN DISCUSSED BRIEFLY IN OUTLINES OF ISLAMIC JURISPRUDENCE. 
THE CONTRACT OF SALE IN GENERAL.
SALE OF GOODS FOR CASH:
THE SPOT SALE
THE CREDIT-SALE (BAY` AL-NASI'AH OR BAY` MU'AJJAL)
SALE WITH ADVANCE PAYMENT (SALAM)
GOODS MADE TO ORDER (ISTISNA`)
SALE WITH EARNEST-MONEY (`URBUN ALSO `ARBUN)
CONTRACT FOR SUPPLIES (TAWRID)
SALE WITH A STATED PROFIT (MURABAHAH)
SALE AT COST PRICE (TAWLIYAH)
SALE AT LESS THAN COST PRICE (WADI`AH)
THE LOAN TRANSACTION: EXCHANGE OF MONEY FOR MONEY
THE CONTRACT OF HIRE (IJARAH)
GENERAL OFFERS (JI`ALAH)

CREDIT.

CONTRACTS FOR THE SECURITY OF DEBTS
THE MEANING OF DEBT: `AYN, DAYN AND ISTIQRAD
HAWALAH AND MUQASSAH: NEGOTIABLE INSTRUMENTS AND CLAIM-SWAPPING
KAFALAH (SURETY)
RAHN (PLEDGE, MORTGAGE, COLLATERAL)
BAY` AL-WAFA' (SALE WITH THE CONDITION OF REDEMPTION)
IBRA' (EXTINCTION OF RIGHTS)
INSOLVENCY AND INTERDICTION:
TAFLIS (INSOLVENCY, BANKRUPTCY)
HAJR (INTERDCITION)

BUSINESS ORGANISATION.

ISLAMIC LAW OF BUSINESS ORGANISATION COVERS THE TRADITIONAL FORMS OF PARTNERSHIPS AND AN ANALYSIS OF THE MODERN COMPANIES (CORPORATIONS). THE SUBJECT HAS BEEN BROKEN UP INTO SEVERAL INDIVIDUAL TOPICS SO THAT THE VIEWERS CAN FOCUS ON THE VARIOUS ISSUES INVOLVED. ONE MAJOR QUESTION IS WHETHER THE MODERN CORPORATION CAN ACCOMMODATE THE ISLAMIC FORMS OF FINANCING. IT HAS BEEN ASSUMED BY MANY SCHOLARS THAT IT DOES MAKING THIS ASSUMPTION IS VALID, BUT THE PROBLEMS START ARISING WHEN CERTAIN UNDERLYING FEATURES OF CORPORATIONS START CLASHING WITH THE ISLAMIC RULES AND PRINCIPLES. 

PARTNERSHIPS IN ISLAMIC LAW

1. TYPES OF PARTNERSHIPS IN ISLAMIC LAW
2. CONTRACTS UNDERLYING PARTNERSHIPS AND THEIR SIGNIFICANCE
3. PARTNERSHIPS, THE NOTION OF THE FIRM AND LEGAL PERSONALITY
4. THE BASES FOR ENTITLEMENT TO PROFIT IN COMMERCE
5. LIABILITY OF PARTNERS FOR DEBTS
6. THE HANAFI SCHOOL ON PARTNERSHIP LAW
7. THE MALIKI SCHOOL ON PARTNERSHIP LAW
8. THE SHAFI`I SCHOOL ON PARTNERSHIP LAW 
9. THE HANBALI SCHOOL ON PARTNERSHIP LAW
10. COMPARISON BETWEEN THE DIFFERENT SCHOOLS
11. THE LAW OF MUDARABAH OR QIRAD
12. THE LAW OF MUSAQAH AND MUZARA`AH
13. A PROPOSAL FOR THE MODERN FORM OF ISLAMIC PARTNERSHIP

THE MODERN CORPORATION AND ISLAMIC LAW

1. LEGAL PERSONALITY IN ISLAMIC LAW: THE PROBLEM
2. LEGAL PERSONALITY AND USUL AL-FIQH
3. LEGAL PERSONALITY AND FIQH
4. JUSTIFYING LEGAL PERSONALITY IN ISLAMIC LAW
5. ANALYSIS OF THE ORDINARY SHARE OF THE CORPORATION IN ISLAMIC LAW
6. LIMITED LIABILITY AND ISLAMIC LAW
7. THE ISLAMIC CORPORATION

PERSONAL.

1. MARRIAGE (NIKAH) INCLUDING MARRIAGES PROHIBITED BY LAW
2. DIVORCE (TALAQ), KHUL`, AND SEPARATION. RIGHT OF DIVORCE FOR WOMEN: TAFWID, TAKHYIR AND TAMLIK
3. MAINTENANCE
4. CHILD CUSTODY (HADANAH)
5. RESTITUTION OF CONJUGAL RIGHTS
6. MOURNING (IHDAD)
7. VOW OF CONTINENCE (ILA')
8. ZIHAR (INJURIOUS ASSIMILATION)
9. LIA`AN (IMPRECATION)
10. GIFT (HIBAH)
11. WAQF (CHARITABLE ENDOWMENT)
12. INHERITANCE (FARA'ID)
13. WASIYAH (BEQUEST)
14. QARD (INTEREST-FREE LOAN): A CHARITABLE ACT AND NOT A BUSINESS TRANSACTION.

COURTS.

THE LAW OF PROCEDURE IN ISLAM, AS IN OTHER LEGAL SYSTEMS, DEPENDS ON THE TYPE OF RIGHTS INVOLVED, THAT IS, THE PROCEDURE AND STANDARDS OF EVIDENCE CHANGE WHEN THE RIGHT OF ALLAH IS INVOLVED AS COMAPRED TO THE RIGHTS OF THE INDIVIDUALS. THE PROCEDURE MAY BE COMPELTELY DIFFERENT WHEN THE RIGHT OF THE STATE IS AFFECTED. WHILE STUDYING THESE TOPICS, IT IS IMPORTANT TO NOTE THAT THE EARLIER JURISTS WERE USUALLY DISCUSSING THE PROCEDURE THAT WAS INVOKED IN THE FIRST TWO TYPES OF RIGHTS. THE DETERMINATION OF THE PROCEDURE WHEN THE RIGHT OF THE STATE WAS INVOLVED WAS LEFT TO THE STATE. 

THE INSTITUTE PLANS TO PROVIDE TRANSLATIONS FROM THE WORKS OF THE CLASSICAL JURISTS FOR THE FOLLOWING TOPICS:

1. THE QADI AND HIS QUALIFICATIONS
2. THE OFFICE OF THE MUHTASIB AND THE INSPECTOR OF THE MARKETS
3. CIVIL PROCEDURE
4. EVIDENCE
5. CRIMINAL PROCEDURE

THE ISSUES PERTAINING TO MINORITIES HAVE BEEN CLASSIFIED INTO TWO SECTIONS AS FOLLOWS.

1. JEWS: THEIR LAW AND CULTURE UNDER ISLAMIC LAW
2. KARAITES AND THEIR LAW UNDER ISLAMIC LAW
3. THE INFLUENCE OF ISLAMIC LAW ON JEWISH LAW AND LEGAL TEXTS (BABYLON AND SPAIN) 
4. CHRISTIANS UNDER ISLAMIC LAW

MINORITIES IN THE MODERN WORLD.

1. NON-MUSLIM MINORITIES IN MUSLIM COUNTRIES
2. MUSLIM MINORITIES IN NON-MUSLIM OR SECULAR COUNTRIES
3. MUSLIM FAMILY LAW IN NON-MUSLIM COUNTRIES
4. ISLAMIC LAW OF INHERITANCE IN NON-MUSLIM COUNTRIES
5. THE CREATION OF WAQFS IN NON-MUSLIM COUNTRIES

THE GENERAL PUBLIC AND MANY ACADEMICS HAVE SEVERAL PRECONCEIVED NOTIONS ABOUT ISLAMIC LAW. ONE SUCH NOTION IS THAT ISLAMIC JUDGES ARE BOUND BY ANCIENT AND OUTDATED RULES OF FIXED PUNISHMENTS FOR ALL CRIMES. THIS PAPER EXPLORES THAT IDEA AND LOOKS AT OTHER MYTHS IN AN ATTEMPT TO PRESENT ISLAMIC LAW FROM A NON-BIASED VIEW OF SHARIAH LAW. 

SOME CONTEMPORARY SCHOLARS FAIL TO RECOGNISE ISLAMIC LAW AS AN EQUAL TO ENGLISH COMMON LAW, EUROPEAN CIVIL LAW AND SOCIALIST LAW. A FEW ACADEMICS HAVE EVEN ATTEMPTED TO PLACE ISLAMIC LAW INTO THE CIVIL LAW TRADITION. OTHER WRITERS HAVE SIMPLY ADDED A FOOTNOTE TO THEIR WORKS ON COMPARATIVE JUSTICE ON THE RELIGIOUS LAW CATEGORIES OF ISLAMIC LAW, HINDU LAW, WHICH IS STILL USED IN SOME PARTS OF INDIA, AND THE LAW OF MOSES FROM THE OLD TESTAMENT WHICH STILL GUIDES THE CURRENT THOUGHT OF THE ISRAELI KNESSET (PARLIAMENT) TODAY. THIS SURVEY WILL ATTEMPT TO ALTER SOME OF THESE INACCURATE PERCEPTIONS AND TREATMENTS IN BOTH THE CONTEMPORARY LITERATURE AND ACADEMIC WRITINGS. 

THE THEORETICAL ASSUMPTIONS OF ISLAMIC LAW.

IN ORDER TO PROTECT THE FIVE IMPORTANT INDISPENSABLES IN ISLAM (RELIGION, LIFE, INTELLECT, OFFSPRING AND PROPERTY), ISLAMIC LAW HAS PROVIDED A WORLDLY PUNISHMENT IN ADDITION TO THAT IN THE HEREAFTER. ISLAM HAS, IN FACT, ADOPTED TWO COURSES FOR THE PRESERVATION OF THESE FIVE INDISPENSABLES. THE FIRST IS THROUGH CULTIVATING RELIGIOUS CONSCIOUSNESS IN THE HUMAN SOUL AND THE AWAKENING OF HUMAN AWARENESS THROUGH MORAL EDUCATION. THE SECOND IS BY INFLICTING DETERRENT PUNISHMENT, WHICH IS THE BASIS OF THE ISLAMIC CRIMINAL SYSTEM. THEREFORE "HUDUD," RETALIATION (QISAAS) AND DISCRETIONARY (TAZIR) PUNISHMENTS HAVE BEEN PRESCRIBED ACCORDING TO THE TYPE OF THE CRIME COMMITTED. 

ISLAMIC LAW AND JURISPRUDENCE IS NOT ALWAYS UNDERSTOOD BY THE WESTERN PRESS. ALTHOUGH IT IS THE RESPONSIBILITY OF THE MASS MEDIA TO BRING TO THE WORLD'S ATTENTION VIOLATIONS OF HUMAN RIGHTS AND ACTS OF TERROR, MANY BELIEVE THAT MEDIA STEREOTYPING OF ALL MUSLIMS IS A MAJOR PROBLEM. THE RECENT BOMBING AT THE WORLD TRADE CENTRE IN NEW YORK CITY IS A PRIME EXAMPLE. THE MEDIA OFTEN USED THE TERM "ISLAMIC FUNDAMENTALISTS" WHEN REFERRING TO THE ACCUSED IN THE CASE. IT ALSO REFERRED TO THE EGYPTIAN CONNECTIONS IN THAT CASE AS "ISLAMIC FUNDAMENTALISTS." THE MEDIA HAS USED THE LABEL OF "ISLAMIC FUNDAMENTALIST" TO IMPLY ALL KINDS OF POSSIBLE NEGATIVE CONNOTATIONS: TERRORISTS, KIDNAPPERS AND HOSTAGE TAKERS. SINCE THE MEDIA DOES NOT USE THE TERM "FUNDAMENTALIST CHRISTIAN" EACH TIME A CHRISTIAN DOES SOMETHING WRONG, THE USE OF SUCH LABELS IS WRONG FOR ANY GROUP, CHRISTIANS, MUSLIMS, OR ORTHODOX JEWS. 

A MUSLIM WHO IS TRYING TO LIVE HIS RELIGION IS INDEED A TRUE BELIEVER IN ALLAH. THIS PERSON TRIES TO LIVE ALL OF THE TENETS OF HIS RELIGION IN A FUNDAMENTAL WAY. THUS, A TRUE MUSLIM IS A FUNDAMENTALIST IN THE PRACTICE OF THAT RELIGION, BUT A TRUE MUSLIM IS NOT RADICAL, BECAUSE THE NOBLE QURAN TEACHES TOLERANCE AND MODERATION IN ALL THINGS. WHEN THE POPULAR MEDIA GENERALISES FROM THE FUNDAMENTALIST BELIEVER TO THE "RADICAL FUNDAMENTALIST" LABEL THEY DO A DISSERVICE TO ALL MUSLIMS AND OTHERS. 

NO SEPARATION OF CHURCH AND STATE.

TO UNDERSTAND ISLAMIC LAW ONE MUST FIRST UNDERSTAND THE ASSUMPTIONS OF ISLAM AND THE BASIC TENETS OF THE RELIGION. THE MEANING OF THE WORD 'ISLAM' IS "SUBMISSION OR SURRENDER TO ALLAH'S WILL." THEREFORE, MUSLIMS MUST FIRST AND FOREMOST OBEY AND SUBMIT TO ALLAH'S WILL. MUHAMMED THE PROPHET OF ALLAH WAS GIVEN THE MOST IMPORTANT BOOK IN ISLAM, THE NOBLE QURAN, WHICH THE MUSLIMS BELIEVE. 

THERE ARE OVER 1.4 BILLION MUSLIMS TODAY WORLDWIDE, OVER 20% OF THE WORLD'S POPULATION. "BY THE YEAR 2015, ONE OUT OF EVERY FOUR PERSONS ON THE PLANET WILL BE A MUSLIM." THERE ARE 35 NATIONS WITH POPULATION OVER 50% MUSLIM AND THERE ARE ANOTHER 21 NATIONS THAT HAVE SIGNIFICANT MUSLIM POPULATIONS. THERE ARE 19 NATIONS WHICH HAVE DECLARED ISLAM IN THEIR RESPECTIVE CONSTITUTIONS. THE MUSLIM RELIGION IS A GLOBAL ONE AND IS RAPIDLY EXPANDING. 

THE MOST DIFFICULT PART OF ISLAMIC LAW FOR MOST WESTERNERS TO GRASP IS THAT THERE IS NO SEPARATION OF CHURCH AND STATE. THE RELIGION OF ISLAM AND THE GOVERNMENT ARE ONE. ISLAMIC LAW IS CONTROLLED, RULED AND REGULATED BY THE ISLAMIC RELIGION. THE THEOCRACY CONTROLS ALL PUBLIC AND PRIVATE MATTERS. GOVERNMENT, LAW AND RELIGION ARE ONE. THERE ARE VARYING DEGREES OF THIS CONCEPT IN MANY NATIONS, BUT ALL LAW, GOVERNMENT AND CIVIL AUTHORITY RESTS UPON IT AND IT IS A PART OF ISLAMIC RELIGION. THERE ARE CIVIL LAWS IN MUSLIM NATIONS FOR MUSLIM AND NON-MUSLIM PEOPLE. SHARIAH IS ONLY APPLICABLE TO MUSLIMS. MOST AMERICANS AND OTHERS SCHOOLED IN COMMON LAW HAVE GREAT DIFFICULTY WITH THAT CONCEPT. THE U.S. CONSTITUTION (BILL OF RIGHTS) PROHIBITS THE GOVERNMENT FROM "ESTABLISHING A RELIGION." THE U.S. SUPREME COURT HAS CONCLUDED IN NUMEROUS CASES THAT THE U.S. GOVERNMENT CAN'T FAVOUR ONE RELIGION OVER ANOTHER. THAT CONCEPT IS IMPLICIT FOR MOST U.S. LEGAL SCHOLARS AND MANY U.S. ACADEMICIANS BELIEVE THAT ANY MIXTURE OF "CHURCH AND STATE" IS INHERENTLY EVIL AND FILLED WITH MANY PROBLEMS. THEY REJECT ALL NOTIONS OF A MIXTURE OF RELIGION AND GOVERNMENT. 

TO START WITH SUCH PRECONCEIVED NOTIONS LIMITS THE KNOWLEDGE BASE AND INFORMATION AVAILABLE TO TRY AND SOLVE MANY SOCIAL AND CRIMINAL PROBLEMS. TO USE AN ANALOGY FROM CHRISTIANITY MAY BE HELPFUL. TO IGNORE WHAT ALL CHRISTIAN RELIGIONS EXCEPT YOUR OWN SAY ABOUT GOD WOULD LIMIT YOUR KNOWLEDGE BASE AND YOU WOULD NOT BE INFORMED OR HAVE THE ABILITY TO APPRECIATE YOUR OWN RELIGION. THE SAME IS TRUE FOR ISLAMIC LAW AND ISLAMIC RELIGION. YOU MUST OPEN YOUR MIND TO FURTHER EXPAND YOUR KNOWLEDGE BASE. ISLAMIC LAW HAS MANY IDEAS, CONCEPTS AND INFORMATION THAT CAN SOLVE CONTEMPORARY CRIME PROBLEMS IN MANY AREAS OF THE WORLD. TO DO THIS YOU MUST FIRST PUT ON HOLD THE PRECONCEIVED NOTION OF "SEPARATION OF CHURCH AND STATE." 

JUDGE (QAZI) 

ANOTHER MYTH CONCERNING ISLAMIC LAW IS THAT THERE ARE NO JUDGES. HISTORICALLY THE ISLAMIC JUDGE (QAZI) WAS A LEGAL SECRETARY APPOINTED BY THE PROVINCIAL GOVERNORS. EACH ISLAMIC NATION MAY DIFFER SLIGHTLY IN HOW THE JUDGES ARE SELECTED. SOME NATIONS WILL USE A FORMAL PROCESS OF LEGAL EDUCATION AND INTERNSHIP IN A LOWER COURT. FOR EXAMPLE, IN SAUDI ARABIA THERE ARE TWO LEVELS OF COURTS. THE FORMAL SHARIAH COURTS WHICH WERE ESTABLISHED IN 1928 HEAR TRADITIONAL CASES. THE SAUDI GOVERNMENT ESTABLISHED A MINISTRY OF JUSTICE IN 1970, AND THEY ADDED ADMINISTRATIVE TRIBUNALS FOR TRAFFIC LAWS, BUSINESS AND COMMERCE. "ALL JUDGES ARE ACCOUNTABLE TO GOD IN THEIR DECISIONS AND PRACTICES." 

ONE COMMON MYTH ASSOCIATED WITH ISLAMIC LAW IS THAT JUDGES MUST ALWAYS IMPOSE A FIXED AND PREDETERMINED PUNISHMENT FOR EACH CRIME. WESTERN WRITERS OFTEN POINT TO THE INFLEXIBLE NATURE OF ISLAMIC LAW. JUDGES UNDER ISLAMIC LAW ARE BOUND TO ADMINISTER SEVERAL PUNISHMENTS FOR A FEW VERY SERIOUS CRIMES FOUND IN THE NOBLE QURAN, BUT THEY POSSESS MUCH GREATER FREEDOM IN PUNISHMENT FOR LESS SERIOUS (NON-HADD) CRIMES. COMMON LAW IS FILLED WITH PRECEDENTS, RULES AND LIMITATIONS WHICH INHIBIT CREATIVE JUSTICE. JUDGES UNDER ISLAMIC LAW ARE FREE TO CREATE NEW OPTIONS AND IDEAS TO SOLVE NEW PROBLEMS ASSOCIATED WITH CRIME.

SHARIAH

THE ISLAMIC LAW SENT DOWN BY ALLAH FOR ALL OF MANKIND IS KNOWN AS SACRED LAW TO SOME, BUT MUSLIMS IN ARABIC CALL IT THE SHARIAH. THE WORD, SHARIAH IN ARABIC MEANS ‘THE SOURCE’ OR SOMETIMES LINGUISTICALLY IT WAS REFERED TO A SOURCE OF WATER OR AN OASIS. THE SOURCE OF LAW IN ISLAM IS THEREFORE, SHARIAH. 

THE SHARIAH BASICALLY IS BEING DEMONISED IN THE WORLD TODAY AND THIS IS GREATLY DUE TO IGNORANCE AND WHAT THE MEDIA HAS DONE TO TAINT THE IMAGE OF MUSLIMS ALL AROUND. 

ALLAH SENT DOWN MANY MESSENGERS OVER TIME TO REMIND PEOPLE OF THE TRUE AND STRAIGHT PATH AND TO GUIDE MANKIND. PROPHETS SUCH AS ABRAHAM, MOSES, NOAH, JESUS AND MUHAMMED PEACE AND BLESSINGS OF ALLAH BE UPON THEM. THE PURPOSE OF MESSENGERS WAS TO WARN US AND TO SHOW US THE TRUTH AND TO BRING TO US REVELATION FROM ALLAH. ALLAH ALSO REVEALED LAWS THAT MAN SHOULD ABIDE BY AND FOLLOW. EVERYTHING FROM MARITAL AND SEXUAL RELATIONSHIPS TO RULING AND TRADE WERE DISCUSSED. ISLAMIC LAW IS COMPREHENSIVE AND COMPLETE AND COVERS ALL ASPECTS OF MAN’S LIFE. 

WOMEN IN SHARIAH

WOMEN IN ISLAM ARE TREATED WITH DIGNITY AND RESPECT AND ARE NOT TO BE OBJECTS OF SEX IN SOCIETY. WOMEN ARE CONSIDERED EQUAL IN THE SIGHT OF ALLAH, BUT ARE GIVEN SLIGHTLY DIFFERENT AND COMPLEMENTARY ROLES TO MEN. WOMEN HISTORICALLY HAVE CONTRIBUTED MUCH TO ISLAMIC CIVILISATION AND SOCIETY.

PUNISHMENTS HAVE ALWAYS BEEN CONSIDERED AN INTEGRAL PART OF THE CONCEPT OF JUSTICE. INDEED, A COMMON MAN WOULD FIND IT HARD TO THINK OF JUSTICE AS SOMETHING VERY DIFFERENT OR SEPARATE FROM REWARDING OR PUNISHING PEOPLE ACCORDING TO HOW WELL OR BADLY THEY OBSERVE THE BODY OF THE MUTUAL RIGHTS AND OBLIGATIONS IN THEIR SOCIETY. BUT IF THE CONCEPT OF PUNISHMENT IS UNIVERSAL, THE CONTROVERSIES SURROUNDING IT ARE NONETHELESS INTENSE. WE SHALL NOW LOOK AT SOME BASIC ISLAMIC PRINCIPLES CONCERNING PUNISHMENTS.

BASIC PRINCIPLES

EACH HUMAN BEING IS RESPONSIBLE FOR HIS OR HER ACTIONS. THIS SIMPLE TRUTH PROVIDES THE WHOLE BASIS FOR THE JUSTIFICATION OF PUNISHMENT FOR TO FULFILL THE PURPOSE OF THIS CREATION, MANKIND HAS BEEN GRANTED THE FREEDOM TO CHOOSE AND ACT AND THE MORAL SENSE TO DISTINGUISH BETWEEN RIGHT AND WRONG. RESPONSIBILITY GOES WITH KNOWLEDGE AND FREEDOM. PUNISHMENT CANNOT, THEREFORE, BE METED OUT TO ONE PERSON FOR ANOTHER PERSON’S ACTIONS, FOR ACTS INTENDED BUT NOT PERFORMED, OR FOR ACTS DONE UNDER DURESS OR WHILE NOT OF SOUND MIND. EVERYONE MUST BE EQUAL BEFORE THE LAW AND THEIR GUILT MUST BE ESTABLISHED BY THE DUE PROCESS OF JUSTICE.

PROPORTIONAL JUSTICE.

IT IS IMPORTANT TO NOTE THAT THERE IS NO CONCEPT IN ISLAM OF THE PUNISHMENT BEING EXACTLY AND JUSTLY PROPORTIONAL TO THE CRIME. ABSOLUTE AND TRULY PROPORTIONAL JUSTICE WOULD REQUIRE THE EXACT AND COMPLETE EVALUATION OF SUCH COMPLEX FACTORS AS INTENTIONS AND MOTIVES. THE SURROUNDING CIRCUMSTANCES, AND THE CAUSES AND REPERCUSSIONS FACTORS WHICH HUMAN JUDGES MUST CONSIDER BUT CANNOT EVALUATE FULLY AND WHICH ONLY ALLAJ, IN THE NEW MORAL ORDER TO BE SET UP IN THE LIFE AFTER DEATH CAN MEASURE. ISLAMIC PUNISHMENTS ARE NOT, THEREFORE, TO BE JUDGED ON THE SCALES OF PROPORTIONAL AND FULL RETRIBUTION. THEY ARE, HOWEVER, LAYED DOWN BY THE ONE WHO IS INFINITELY MERCIFUL AND WISE, AND ARE, THEREFORE, MORE SUITABLE FOR THE PARTICULAR CRIMES THAN ANYTHING THAT CAN BE PRESCRIBED BY ANY HUMAN LEGISLATURE OR JUDGE.

PART OF A WHOLE

MOST IMPORTANTLY, PUNISHMENTS ARE ONLY A PART OF A VASTLY LARGER, INTEGRATED WHOLE. THEY CAN NEITHER BE PROPERLY UNDERSTOOD NOR SUCCESSFULLY OR JUSTIFIABLY IMPLEMENTED IN ISOLATION. FIRST, LAW IS NOT THE MAIN, OR EVEN MAJOR, VEHICLE IN THE TOTAL FRAMEWORK FOR THE REINFORCEMENT OF MORALITY; IT IS THE INDIVIDUALS BELIEF, THE INDIVIDUALS GOD-CONSCIOUSNESS AND TAQWA THAT INHERENT AND INNATE QUALITY WHICH MAKES ONE WANT TO REFRAIN FROM WHAT DISPLEASES ALLAH AND DO WHAT PLEASES HIM. SECOND, JUSTICE IS A POSITIVE IDEAL WHICH PERMEATES AND DOMINATES THE ENTIRE LIFE OF THE COMMUNITY IT IS NOT MERELY AN INSTITUTIONALISED MEANS OF INFLICTING PUNISHMENT. THIRD, AND CONSEQUENTLY, A WHOLE ENVIRONMENT IS ESTABLISHED WHERE TO DO RIGHT IS ENCOURAGED, FACILITATED, AND FOUND EASY, WHILE TO DO WRONG IS DISCOURAGED, INHIBITED, AND FOUND DIFFICULT. ALL MEN AND WOMEN ARE ENJOINED, AS THEIR FOREMOST DUTY, TO AID, EXHORT, AND COMMEND EACH OTHER TO DO GOOD AND TO AVOID EVIL.

FUNCTIONAL NATURE

PENALTIES IN ISLAM ARE MORE OF A FUNCTIONAL NATURE, TO REGULATE AND DETER. ALLAH HAS LAYED DOWN A BODY OF MUTUAL RIGHTS AND OBLIGATIONS THAT ARE THE TRUE EMBODIMENT OF JUSTICE. HE HAS ALSO LAYED DOWN CERTAIN BOUNDARIES AND LIMITS TO BE OBSERVED AND MAINTAINED FOR THIS VERY PURPOSE. IF PEOPLE AND NATIONS DESIRE TO MOVE IN PEACE AND SAFETY ON THE HIGHWAYS OF LIFE, THEY MUST STICK TO THE TRAFFIC LANES DEMARCATED FOR THEM AND OBSERVE ALL THE SIGNPOSTS ERECTED ALONG THEIR ROUTES. IF THEY DO NOT, THEY NOT ONLY PUT THEMSELVES IN DANGER, BUT ENDANGER OTHERS. THEY, THEREFORE, NATURALLY MAKE THEMSELVES LIABLE TO PENALTIES NOT IN VENGEFUL RETRIBUTION, BUT TO REGULATE THE ORDERLY EXCHANGES IN A PERSONS LIFE IN ACCORDANCE WITH JUSTICE.

IT IS A SIGNIFICANT CONTRIBUTION OF ISLAM THAT THESE PENALTIES ARE CALLED HUDUD (BOUNDARIES) AND NOT PUNISHMENTS. THEY ARE LIABILITIES INCURRED AS A RESULT OF CROSSING THE BOUNDARIES SET BY ALLAH. AN IMPORTANT CONSEQUENCE OF THESE HUDUD HAVING BEEN LAYED DOWN BY ALLAH AND NOT BY MAN, IS THAT IT IS BEYOND HUMAN AUTHORITY TO REDUCE OR SUPERSEDE THEM OUT OF A SENSE OF MERCY GREATER THAN THAT OF ALLAH; NOR CAN A TYRANT OR AUTOCRAT ADD TO THEM OUT OF A GREATER SENSE OF STRICT JUSTICE. FOR NO ONE CAN BE MORE MERCIFUL OR WISER OR MORE JUST THAN ALLAH HIMSELF.

ANOTHER IMPORTANT FUNCTION THAT THESE PUNISHMENTS SERVE IS EDUCATIVE, THUS PREVENTIVE AND DETERRENT. THE NOBLE QURAN ALLUDES TO THIS ASPECT WHEN IT DESCRIBES THEM AS EXEMPLARY PUNISHMENT FROM ALLAH (AL-MAIDAH 5:38). PUNISHMENTS ARE THUS DESIGNED TO KEEP THE SENSE OF JUSTICE ALIVE IN THE COMMUNITY BY A PUBLIC REPUDIATION OF THE ACTS VIOLATING THE LIMITS SET BY ALLAH. THEY ARE EXPECTED TO BUILD UP IN THE SOCIETY A DEEP FEELING OF ABHORRENCE FOR TRANSGRESSION AGAINST FELLOW HUMAN BEINGS, AND THEREFORE AGAINST ALLAH, A TRANSGRESSION WHICH, ACCORDING TO THE NOBLE QURAN, IS THE ROOT CAUSE OF ALL DISORDERS AND CORRUPTION IN HUMAN LIFE.

MERCY AND LENIENCY

HAVING PRESCRIBED PUNISHMENTS AND IMPOSED STRICT AND METICULOUS, THOUGH NOT IMPOSSIBLE, CONDITIONS OF EVIDENCE, ISLAM HAS BUILT IN A WHOLE RANGE OF PRINCIPLES AND PRECEPTS WHICH REFLECT NOT A FRENZIED DESIRE TO FLOG AND STONE BUT A COMPASSIONATE URGE TO AVOID AND ESCHEW. ISLAM DOES NOT ALLOW EITHER THE STATE OR INDIVIDUALS TO SPY UPON PEOPLE UNLESS WELL FOUNDED SUSPICION EXISTS THAT A CRIME IS BEING COMMITTED OR A FELLOW HUMAN BEINGS RIGHTS OR INTERESTS ARE IN JEOPARDY. NOR IS IT OBLIGATORY TO REPORT EVERY CRIME. WHERE POSSIBLE, SETTLEMENTS OUTSIDE COURT ARE PREFERRED. THE PUNISHMENT IS SWIFTLY OVER. THE GUILTY PERSON AND HIS OR HER FAMILY DO NOT HAVE TO LIVE WITH THE KIND OF LENGTHY PUBLIC STIGMA THAT THEY WOULD HAVE HAD TO ENDURE IN THE CASE OF A PRISON SENTENCE AT THE END OF A TRIAL. THE IMPOSITION OF DIVINELY PRESCRIBED HUDUD ENHANCES, NOT DIMINISHES, THE INDIVIDUALS DIGNITY AND STATURE IN SOCIETY AND BEFORE ALLAH.

ALLEGED CRUELTY

AS TO THE ALLEGED CRUELTY OF PHYSICAL PENALTIES, ONE WONDERS IF TO DEPRIVE A PERSON OF HIS OR HER FREEDOM (THE MOST PRECIOUS AND VALUABLE POSSESSION), THE RIGHT TO ACT AND CONTINUE TO MAKE MORAL CHOICES, THE RIGHT TO LIVE WITH A FAMILY (TO WORK FOR AND SUPPORT THEM) IS NOT MORE CRUEL. INDEED, A PRISON TERM CAN INFLICT UNTOLD MISERY ON INNOCENT PEOPLE WHOSE LIVES ARE INTERTWINED WITH THE LIFE OF THE PRISONER. PRISON BECOMES A SCHOOL FOR HARDENING CRIMINAL BEHAVIOR AND A BREEDING GROUND FOR RECIDIVISM. WHY SHOULD IT BE CONSIDERED MORE CRUEL FOR A PERSON FOUND DRUG TRAFFICKING TO BE GIVEN TEN LASHES THAN TO BE SENT TO LANGUISH IN PRISON FOR, SAY, TEN YEARS.

REFORM SYNDROME

WHY DOES ISLAM WANT TO PUNISH AND NOT REFORM? THE QUESTION IS FALLACIOUS, FOR IN ISLAM, EVERY INSTITUTION OF SOCIETY IS VALUE-ORIENTED AND OWES A RESPONSIBILITY TOWARDS THE MORAL DEVELOPMENT OF EVERY PERSON FROM THE CRADLE TO THE GRAVE. REFORM IS, THEREFORE, A PRE-CRIME RESPONSIBILITY AND NOT A POST-CRIME SYNDROME AND NIGHTMARE. ISLAM MAKES EVERY EFFORT TO ENSURE THAT INDUCEMENT TO COMMIT CRIME IS MINIMAL. ONCE THE CRIME IS COMMITTED, THE BEST PLACE FOR REFORM IS IN THE FAMILY AND IN THE SOCIETY WHERE A CRIMINAL IS TO LIVE AFTER PUNISHMENT, NOT IN A PRISON WHERE EVERY INMATE IS A CRIMINAL; UNLESS, OF COURSE, A SOCIETY CONSIDERS ITSELF TO BE MORE CORRUPT AND LESS COMPETENT TO EFFECT REFORM THAN A JAIL! AGAINST THIS, THE MODERN, ENLIGHTENED APPROACH IS TO PROVIDE EVERY INDUCEMENT TO CRIME BY BUILDING A SOCIETY BASED ON CONSPICUOUS CONSUMPTION. TO MAKE SOCIETY, EDUCATION, AND EVERY OTHER INSTITUTION VALUE FREE AND THEN TO TRY TO REFORM A CRIMINAL BY SEGREGATING THE PERSON AND KEEPING HIM OR HER IN A PRISON.

PROCEDURAL JUSTICE

SENTENCES IN ISLAM ARE CERTAINLY HARSH, BUT STILL MORE STRICT AND SEVERE ARE THE PROCEDURES LAYED DOWN TO BE OBSERVED BEFORE A PERSON MAY BE CONVICTED. THESE PROCEDURES ARE MODELED ON THE PARADIGM OF THE DAY OF JUDGMENT, WHEN EVEN ALLAH, THOUGH HE IS ALL-KNOWING, AND JUST, WILL NOT PUNISH A PERSON UNLESS HE ESTABLISHES THAT PERSONS GUILT. TO LET NINE CRIMINALS GO FREE IS PREFERABLE TO CONVICTING ONE INNOCENT MAN SAID THE PROPHET.

ELEMENTS OF SHARIAH LAW.

ISLAMIC LAW IS KNOWN AS SHARIAH AND SHARIAH MEANS THE PATH TO FOLLOW ALLAH'S LAW. SHARIAH LAW IS HOLISTIC OR ECLECTIC IN ITS APPROACH TO GUIDE THE INDIVIDUAL IN MOST DAILY MATTERS. SHARIAH LAW CONTROLS, RULES AND REGULATES ALL PUBLIC AND PRIVATE BEHAVIOUR. IT HAS REGULATIONS FOR PERSONAL HYGIENE, DIET, SEXUAL CONDUCT AND ELEMENTS OF CHILD REARING. IT ALSO PRESCRIBES SPECIFIC RULES FOR PRAYERS, FASTING, GIVING TO THE POOR AND MANY OTHER RELIGIOUS MATTERS. CIVIL LAW AND COMMON LAW PRIMARILY FOCUS ON PUBLIC BEHAVIOUR, BUT BOTH DO REGULATE SOME PRIVATE MATTERS. 

THE SHARIAH LAW CAN ALSO BE USED IN LARGER SITUATIONS THAN GUIDING AN INDIVIDUAL'S BEHAVIOUR. IT CAN BE USED AS GUIDE FOR HOW AN INDIVIDUAL ACTS IN SOCIETY AND HOW ONE GROUP INTERACTS WITH ANOTHER. THE SHARIAH LAW CAN BE USED TO SETTLE BORDER DISPUTES BETWEEN NATIONS OR WITHIN NATIONS. IT CAN ALSO BE USED TO SETTLE INTERNATIONAL DISPUTES, CONFLICTS AND WARS. THIS LAW DOES NOT EXCLUDE ANY KNOWLEDGE FROM OTHER SOURCES AND IS VIEWED BY THE MUSLIM WORLD AS A VEHICLE TO SOLVE ALL PROBLEMS CIVIL, CRIMINAL AND INTERNATIONAL. SHARIAH LAW HAS SEVERAL SOURCES FROM WHICH TO DRAW ITS GUIDING PRINCIPLES. IT DOES NOT RELY UPON ONE SOURCE FOR ITS BROAD KNOWLEDGE BASE. 

THE FIRST AND PRIMARY ELEMENT OF SHARIAH LAW IS THE NOBLE QURAN. IT IS THE FINAL ARBITRATOR AND THERE IS NO OTHER APPEAL. 

THE SECOND ELEMENT OF SHARIAH LAW IS KNOWN AS THE SUNNAH, THE TEACHINGS OF THE PROPHET MUHAMMED (PBUH) NOT EXPLICITLY FOUND IN THE NOBLE QURAN. THE SUNNAH ARE A COMPOSITE OF THE TEACHINGS OF THE PROPHET AND HIS WORKS. THE SUNNAH CONTAIN STORIES AND ANECDOTES, CALLED HADITH, TO ILLUSTRATE A CONCEPT. THE NOBLE QURAN MAY NOT HAVE ALL THE INFORMATION ABOUT BEHAVIOUR AND HUMAN INTERACTION IN DETAIL; THE SUNNAH GIVES MORE DETAILED INFORMATION THAN THE NOBLE QURAN. 

THE THIRD ELEMENT OF SHARIAH LAW IS KNOWN AS THE IJMA. THE MUSLIM RELIGION USES THE TERM ULAMA AS A LABEL FOR ITS RELIGIOUS SCHOLARS. THESE ULAMA'S ARE CONSULTED ON MANY MATTERS BOTH PERSONAL AND POLITICAL. WHEN THE ULAMA'S REACH A CONSENSUS ON AN ISSUE, IT IS INTERPRETED AS IJMA. THE CONCEPTS AND IDEAS FOUND IN THE IJMA ARE NOT FOUND EXPLICITLY IN THE NOBLE QURAN OR THE TEACHINGS OF THE PROPHET (SUNNAH). ISLAMIC JUDGES ARE ABLE TO EXAMINE THE IJMA FOR MANY POSSIBLE SOLUTIONS WHICH CAN BE APPLIED IN A MODERN TECHNICAL SOCIETY. THEY ARE FREE TO CREATE NEW AND INNOVATIVE METHODS TO SOLVE CRIME AND SOCIAL PROBLEMS BASED UPON THE CONCEPTS FOUND IN THE IJMA.THESE JUDGES HAVE GREAT DISCRETION IN APPLYING THE CONCEPTS TO A SPECIFIC PROBLEM. 

THE QIYAS ARE A FOURTH ELEMENT OF SHARIAH LAW. THE QIYAS ARE NOT EXPLICITLY FOUND IN THE NOBLE QURAN, SUNNAH, OR GIVEN IN THE IJMA. THE QIYAS ARE NEW CASES OR CASE LAW, WHICH MAY HAVE ALREADY BEEN DECIDED BY A HIGHER JUDGE. THE SHARIAH JUDGE CAN USE THE LEGAL PRECEDENT TO DECIDE NEW CASE LAW AND ITS APPLICATION TO A SPECIFIC PROBLEM. THE JUDGE CAN USE A BROAD LEGAL CONSTRUCT TO RESOLVE A VERY SPECIFIC ISSUE. FOR EXAMPLE, A COMPUTER CRIME OR THEFT OF COMPUTER TIME IS NOT FOUND IN THE NOBLE QURAN OR SUNNAH. THE ACT OF THEFT AS A GENERIC TERM IS PROHIBITED SO THE JUDGE MUST RELY ON LOGIC AND REASON TO CREATE NEW CASE LAW OR QIYAS. 

THE FIFTH ELEMENT OF SHARIAH LAW IS VERY BROAD AND "ALL ENCOMPASSING." THIS SECONDARY BODY OF KNOWLEDGE MAY BE IDEAS CONTAINED IN THE OTHER WRITTEN WORKS. THE NEW TESTAMENT IS AN EXAMPLE OF THIS AREA OF INFORMATION AND LEGAL DISCOURSES BASED UPON CIVIL LAW OR COMMON LAW MAY BE ANOTHER EXAMPLE. ALL INFORMATION CAN BE EXAMINED FOR LOGIC AND REASON TO SEE IF IT APPLIES TO THE CURRENT CASE. IT ALSO MAY BE A LOCAL CUSTOM OR NORM THAT JUDGE MAY FIND HELPFUL IN APPLYING TO THE ISSUE BEFORE HIM. THE JUDGE MAY ALSO WEIGH THE IMPACT OF HIS DECISION UPON HOW IT WILL EFFECT A PERSON'S STANDING IN THE COMMUNITY. 

CRIMES IN ISLAM.

CRIMES UNDER ISLAMIC LAW CAN BE BROKEN DOWN INTO THREE MAJOR CATEGORIES. EACH WILL BE DISCUSSED IN GREATER DETAIL WITH SOME COMMON LAW ANALOGIES. THE THREE MAJOR CRIME CATEGORIES IN ISLAMIC LAW ARE: 

1. HADD [PLURAL HUDUD] CRIMES (MOST SERIOUS). 
2. TAZIR CRIMES (LEAST SERIOUS). 
3. QISAAS CRIMES (REVENGE CRIMES RESTITUTION). 

HADD CRIMES ARE THE MOST SERIOUS UNDER ISLAMIC LAW AND TAZIR CRIMES ARE THE LEAST SERIOUS. SOME WESTERN WRITERS USE THE FELONY ANALOGY FOR HADD CRIMES AND MISDEMEANOR LABEL FOR TAZIR CRIMES. THE ANALOGY IS PARTIALLY ACCURATE, BUT NOT ENTIRELY TRUE. COMMON LAW HAS NO COMPARABLE FORM OF QISAAS CRIMES. 

ON COMPARATIVE JUSTICE, THE FOLLOWING OBSERVATION OF ISLAMIC LAW AND PUNISHMENT COULD BE MADE. PUNISHMENTS ARE PRESCRIBED IN THE NOBLE QURAN AND ARE OFTEN HARSH WITH THE EMPHASIS ON CORPORAL AND CAPITAL PUNISHMENT. THEFT IS PUNISHED BY IMPRISONMENT OR AMPUTATION OF HANDS OR FEET, DEPENDING ON THE NUMBER OF TIMES IT IS COMMITTED.

HADD CRIMES.

HADD CRIMES ARE THOSE, WHICH ARE PUNISHABLE BY A PRE-ESTABLISHED PUNISHMENT FOUND IN THE NOBLE QURAN. THESE MOST SERIOUS OF ALL CRIMES ARE FOUND BY AN EXACT REFERENCE IN THE NOBLE QURAN TO A SPECIFIC ACT AND A SPECIFIC PUNISHMENT FOR THAT ACT. THERE IS NO PLEA-BARGAINING OR REDUCING THE PUNISHMENT FOR A HADD CRIME. HADD CRIMES HAVE NO MINIMUM OR MAXIMUM PUNISHMENTS ATTACHED TO THEM. THE PUNISHMENT SYSTEM IS COMPARABLE TO THE DETERMINATE SENTENCE IMPOSED BY SOME JUDGES IN THE UNITED STATES. IF YOU COMMIT A CRIME, YOU KNOW WHAT YOUR PUNISHMENT WILL BE. THERE IS NO FLEXIBILITY IN THE U.S. DETERMINATE MODEL OR IN THE PUNISHMENT FOR HADD CRIMES OF ISLAMIC LAW. 

NO JUDGE CAN CHANGE OR REDUCE THE PUNISHMENT FOR THESE SERIOUS CRIMES. THE HADD CRIMES ARE: 

MURDER
APOSTASY FROM ISLAM (MAKING WAR UPON ALLAH AND HIS MESSENGERS) 
THEFT 
ADULTERY 
DEFAMATION (FALSE ACCUSATION OF ADULTERY OR FORNICATION) 
ROBBERY 
ALCOHOL-DRINKING [ANY INTOXICANTS]

THE FIRST FOUR HADD CRIMES HAVE A SPECIFIC PUNISHMENT IN THE NOBLE QURAN. THE LAST THREE CRIMES ARE MENTIONED BUT NO SPECIFIC PUNISHMENT IS FOUND.

SOME MORE LIBERAL ISLAMIC JUDGES DO NOT CONSIDER APOSTASY FROM ISLAM OR WINE DRINKING AS HADD CRIMES. THE MORE LIBERAL ISLAMIC NATIONS TREAT THESE CRIMES AS TAZIR OR A LESSER CRIME. 

HADD CRIMES HAVE FIXED PUNISHMENTS BECAUSE THEY ARE SET BY ALLAH AND ARE FOUND IN THE NOBLE QURAN. HADD CRIMES ARE CRIMES AGAINST ALLAH’S LAW AND TAZIR CRIMES ARE CRIMES AGAINST SOCIETY. THERE ARE SOME SAFEGUARDS FOR HADD CRIMES THAT MANY IN THE MEDIA FAIL TO MENTION. SOME IN THE MEDIA ONLY MENTION THAT IF YOU STEAL, YOUR HAND IS CUT OFF. THE ISLAMIC JUDGE MUST LOOK AT A HIGHER LEVEL OF PROOF AND REASONS WHY THE PERSON COMMITTED THE CRIME. A JUDGE CAN ONLY IMPOSE THE HADD PUNISHMENT WHEN A PERSON CONFESSES TO THE CRIME OR THERE ARE ENOUGH WITNESSES TO THE CRIME. THE USUAL NUMBER OF WITNESSES IS TWO, BUT IN THE CASE OF ADULTERY FOUR WITNESSES ARE REQUIRED. THE MEDIA OFTEN LEAVES THE PUBLIC WITH THE IMPRESSION THAT ALL ARE PUNISHED WITH FLIMSY EVIDENCE OR LIMITED PROOF. ISLAMIC LAW HAS A VERY HIGH LEVEL OF PROOF FOR THE MOST SERIOUS CRIMES AND PUNISHMENTS. WHEN THERE IS DOUBT ABOUT THE GUILT OF A HADD CRIME, THE JUDGE MUST TREAT THE CRIME AS A LESSER TAZIR CRIME. IF THERE IS NO CONFESSION TO A CRIME OR NOT ENOUGH WITNESSES TO THE CRIME, ISLAMIC LAW REQUIRES THE HADD CRIME TO BE PUNISHED AS A TAZIR CRIME. 

TAZIR CRIMES.

MODERN ISLAMIC SOCIETY HAS CHANGED GREATLY FROM THE TIME OF THE PROPHET. CONTEMPORARY SHARIAH LAW IS NOW IN WRITTEN FORM AND IS STATUTORY IN NATURE. ISLAMIC CONCEPTS OF JUSTICE ARGUE THAT A PERSON SHOULD KNOW WHAT THE CRIME IS AND ITS POSSIBLE PUNISHMENT. FOR EXAMPLE, EGYPT HAS A PARLIAMENTARY PROCESS WHICH HAS A FORMAL PENAL CODE WRITTEN AND BASED UPON THE PRINCIPLES OF ISLAMIC LAW, BUT SAUDI ARABIA ALLOWS THE JUDGE TO SET THE TAZIR CRIMES AND PUNISHMENTS. MODERN ISLAMIC LAW RECOGNISES MANY DIFFERENCES BETWEEN THESE TWO NATIONS. IT ALSO ALLOWS FOR MUCH GREATER FLEXIBILITY IN HOW IT PUNISHES AN OFFENDER. THE MAJOR MYTH OF MANY PEOPLE IS THAT JUDGES IN ISLAMIC NATIONS HAVE FIXED PUNISHMENTS FOR ALL CRIMES. IN REALITY THE JUDGES HAVE MUCH GREATER FLEXIBILITY THAN JUDGES UNDER COMMON LAW. 

TAZIR CRIMES ARE LESS SERIOUS THAN THE HADD CRIMES FOUND IN THE NOBLE QURAN. SOME COMMON LAW WRITERS USE THE ANALOGY OF MISDEMEANORS, WHICH IS THE LESSER OF THE TWO CATEGORIES (FELONY AND MISDEMEANOR) OF COMMON LAW CRIMES. TAZIR CRIMES CAN AND DO HAVE COMPARABLE "MINOR FELONY EQUIVALENTS." THESE "MINOR FELONIES" ARE NOT FOUND IN THE NOBLE QURAN SO THE ISLAMIC JUDGES ARE FREE TO PUNISH THE OFFENDER IN ALMOST ANY FASHION. TAZIR PUNISHMENTS VARY ACCORDING TO THE CIRCUMSTANCES. THEY CHANGE FROM TIME TO TIME AND FROM PLACE TO PLACE. THEY VARY ACCORDING TO THE GRAVITY OF THE CRIME AND THE EXTENT OF THE CRIMINAL DISPOSITION OF THE CRIMINAL HIMSELF. 

TAZIR CRIMES ARE ACTS WHICH ARE PUNISHED BECAUSE THE OFFENDER DISOBEYS ALLAH'S LAW AND WORD. TAZIR CRIMES CAN BE PUNISHED IF THEY HARM THE SOCIETAL INTEREST. SHARIAH LAW PLACES AN EMPHASIS ON THE SOCIETAL OR PUBLIC INTEREST. THE ASSUMPTION OF THE PUNISHMENT IS THAT A GREATER "EVIL " WILL BE PREVENTED IN THE FUTURE IF YOU PUNISH THIS OFFENDER NOW. 

HISTORICALLY TAZIR CRIMES WERE NOT WRITTEN DOWN OR CODIFIED. THIS GAVE EACH RULER GREAT FLEXIBILITY IN WHAT PUNISHMENTS THE JUDGE WAS ABLE TO DISPENSE. THE JUDGE UNDER ISLAMIC LAW IS NOT BOUND BY PRECEDENTS, RULES, OR PRIOR DECISIONS AS IN COMMON LAW. JUDGES ARE TOTALLY FREE TO CHOOSE FROM ANY NUMBER OF PUNISHMENTS THAT THEY THINK WILL HELP AN INDIVIDUAL OFFENDER. THE ONLY GUIDING PRINCIPLE FOR JUDGES UNDER SHARIAH LAW IS THAT THEY MUST ANSWER TO ALLAH AND TO THE GREATER COMMUNITY OF MUSLIMS. SOME OF THE MORE COMMON PUNISHMENTS FOR TAZIR CRIMES ARE COUNSELLING, FINES, PUBLIC OR PRIVATE CENSURE, FAMILY AND CLAN PRESSURE AND SUPPORT, SEIZURE OF PROPERTY, CONFINEMENT IN THE HOME OR PLACE OF DETENTION AND FLOGGING. 

IN SOME ISLAMIC NATIONS, TAZIR CRIMES ARE SET BY LEGISLATIVE PARLIAMENT. EACH NATION IS FREE TO ESTABLISH ITS OWN CRIMINAL CODE AND THERE IS A GREAT DISPARITY IN PUNISHMENT OF SOME OF THESE CRIMES. SOME OF THE MORE COMMON TAZIR CRIMES ARE BRIBERY, SELLING TAINTED OR DEFECTIVE PRODUCTS, TREASON, USURY AND SELLING OBSCENE PICTURES. THE CONSUMPTION OF ALCOHOL IN EGYPT IS PUNISHED MUCH DIFFERENTLY THAN IN IRAN OR SAUDI ARABIA BECAUSE THEY HAVE FAR DIFFERENT CIVIL LAWS. ISLAMIC LAW HAS MUCH GREATER FLEXIBILITY THAN THE WESTERN MEDIA PORTRAYS. EACH JUDGE IS FREE TO PUNISH BASED UPON LOCAL NORMS, CUSTOMS AND INFORMAL RULES. EACH JUDGE IS FREE TO FIX THE PUNISHMENT THAT WILL DETER OTHERS FROM CRIME AND WILL HELP TO REHABILITATE AN OFFENDER. 

QISAAS CRIMES AND DIYA.

RETRIBUTION QISAAS

APART FROM PUNISHMENTS FOR TRANSGRESSIONS LIKE EXTRAMARITAL SEX, THEFT, LIBEL, AND DRINKING, THE NOBLE QURAN ALSO PROVIDES FOR THE PRINCIPLE OF QISAAS OR RETRIBUTION. WHEN A PERSON CAUSES PHYSICAL INJURY OR HARM TO A FELLOW HUMAN BEING, ISLAM GIVES THE INJURED PARTY THE RIGHT OF EQUAL REQUITAL. THE WELL KNOWN PRINCIPLE OF AN EYE FOR AN EYE, A TOOTH FOR A TOOTH. THIS PROCEDURE IS PERSISTENTLY LABELED BY CRITICS AS PRIMITIVE AND UNCIVILISED. IN THE ISLAMIC VIEW OF HISTORY, IT IS WORTH POINTING OUT, WHAT IS PRIMITIVE HAS NEVER BEEN NECESSARILY UNCIVILISED. THE FIRST MAN WAS GIVEN ALL NECESSARY KNOWLEDGE AND GUIDANCE, AND THOUGH HE MAY HAVE BEEN TECHNOLOGICALLY BACKWARD COMPARED TO THE TWENTIETH CENTURY, HE DEFINITELY WAS NOT HUMANLY BACKWARD. UNCIVILISED IS WHAT A PERSON THINKS AND DOES BY DEVIATING FROM THE DIVINE ORDER.

IN THE EYES OF THE NOBLE QURAN, (IN RETRIBUTION (QISAAS) LIES LIFE FOR YOU.) (AL-BAQARAH 2:179) THE REASONS ARE OBVIOUS. FIRST, THE RIGHT OF RETRIBUTION BELONGS TO INDIVIDUALS, NOT SOCIETY OR THE STATE. THIS SIMPLE SHIFT IN RESPONSIBILITY RESULTS IN A PROFOUND AND FAR-REACHING CHANGE IN THE WHOLE SYSTEM OF IMPLEMENTING JUSTICE. THE STATE DOES NOT HAVE TO INTERVENE EVERY TIME TWO HUMAN BEINGS ARE INVOLVED IN A DISPUTE. THUS, INSTEAD OF STARTING AN IRREVERSIBLE PROCESS OF TRIAL AND PUNISHMENT, IT LEAVES THE GROUND OPEN FOR SETTLEMENT BETWEEN INDIVIDUALS, WITHOUT INTERFERENCE BY IMPERSONAL BUREAUCRATIC MACHINERY, THOUGH UNDER NO CIRCUMSTANCES CAN THE INDIVIDUAL TAKE THE LAW INTO HIS OR HER OWN HANDS.

THE INJURED PERSON, IN TURN, MAY FORGO THE RIGHT TO RETRIBUTION BY FORGIVING, OR MAY AGREE TO ACCEPT A MONETARY OR TOKEN RECOMPENSE INSTEAD. THE NOBLE QURAN, IN FACT HIGHLY RECOMMENDS THE ACT OF FORGIVING. THUS, UNDER QISAAS, PUNISHMENT IS AVOIDABLE WITHOUT BURDENING THE EXECUTIVE OR JUDICIARY WITH THE DILEMMA OF WHETHER TO EXERCISE MERCY. AS AGAINST A COURT, WHICH MUST ACT ACCORDING TO LAW ONCE A CASE IS BROUGHT BEFORE IT, AN INDIVIDUAL IS FREE TO ACT AS HE OR SHE WISHES. JUSTICE HAS TO BE BLIND, BUT AN INDIVIDUAL MAY TAKE CIRCUMSTANCES INTO ACCOUNT, AND SUSPEND JUDGMENT IN THE HOPE OF BEING FORGIVEN BY ALLAH IN THE HEREAFTER. VERY FEW REALISE THAT THE PRINCIPLE OF QISAAS EVEN ALLOWS CAPITAL PUNISHMENT TO BE AVOIDED.

ISLAMIC LAW HAS AN ADDITIONAL CATEGORY OF CRIMES THAT COMMON LAW NATIONS DO NOT HAVE. A QISAAS CRIME IS ONE OF RETALIATION. IF YOU COMMIT A QISAAS CRIME, THE VICTIM HAS A RIGHT TO SEEK RETRIBUTION AND RETALIATION. THE EXACT PUNISHMENT FOR EACH QISAAS CRIME IS SET FORTH IN THE NOBLE QURAN. IF YOU ARE KILLED, THEN YOUR FAMILY HAS A RIGHT TO SEEK QISAAS PUNISHMENT FROM THE MURDERER. PUNISHMENT CAN COME IN SEVERAL FORMS AND ALSO MAY INCLUDE "DIYA." DIYA IS PAID TO THE VICTIM'S FAMILY AS PART OF PUNISHMENT. DIYA IS AN ANCIENT FORM OF RESTITUTION FOR THE VICTIM OR HIS FAMILY. THE FAMILY ALSO MAY SEEK TO HAVE A PUBLIC EXECUTION OF THE OFFENDER OR THE FAMILY MAY SEEK TO PARDON THE OFFENDER. TRADITIONAL QISAAS CRIMES INCLUDE: 

1. MURDER (PREMEDITATED AND NON-PREMEDITATED). 
2. PREMEDITATED OFFENCES AGAINST HUMAN LIFE, SHORT OF MURDER. 
3. MURDER BY ERROR. 
4. OFFENCES BY ERROR AGAINST HUMANITY, SHORT OF MURDER. 

SOME REPORTERS IN THE MASS MEDIA HAVE CRITICISED THE THOUGHT OF "BLOOD MONEY" AS BARBARIC. THEY LABELLED THE PRACTICE AS UNDEMOCRATIC AND INHUMANE. QISAAS CRIMES ARE BASED UPON THE CRIMINOLOGICAL ASSUMPTION OF RETRIBUTION. THE CONCEPT OF RETRIBUTION WAS FOUND IN THE FIRST STATUTORY "CODE OF HAMMURABI" AND IN THE LAW OF MOSES IN THE FORM OF "AN EYE FOR AN EYE." MUSLIMS ADD TO THAT SAYING "BUT IT IS BETTER TO FORGIVE." CONTEMPORARY COMMON LAW TODAY STILL IS FILLED WITH THE ASSUMPTIONS OF RETRIBUTION. THE UNITED STATES FEDERAL CODE CONTAINS "MANDATORY MINIMUM" SENTENCES FOR DRUG DEALING, AND MANY STATES HAVE FIXED PUNISHMENT FOR DRUGS AND VIOLENCE AND USING WEAPONS. THE UNITED STATES JUSTICE SYSTEM HAS ADOPTED A RETRIBUTION MODEL, WHICH SETS FIXED PUNISHMENTS FOR EACH CRIME. THE IDEA OF RETRIBUTION IS FIXED IN THE U.S. SYSTEM OF JUSTICE. QISAAS CRIME IS SIMPLE RETRIBUTION: IF ONE COMMITS A CRIME HE KNOWS WHAT THE PUNISHMENT WILL BE. 

DIYA HAS ITS ROOTS IN ISLAMIC LAW AND DATES TO THE TIME OF THE PROPHET MUHAMMED (PBUH) WHEN THERE WERE MANY LOCAL FAMILIES, TRIBES AND CLANS. THEY WERE NOMADIC AND TRAVELLED EXTENSIVELY. THE PROPHET WAS ABLE TO CONVINCE SEVERAL TRIBES TO TAKE A MONETARY PAYMENT FOR DAMAGE TO THE CLAN OR TRIBE. THIS PRACTICE GREW AND NOW IS AN ACCEPTABLE SOLUTION TO SOME QISAAS CRIMES. 

TODAY, THE DIYA IS PAID BY THE OFFENDER TO THE VICTIM IF HE IS ALIVE. IF THE VICTIM IS DEAD, THE MONEY IS PAID TO THE VICTIM'S FAMILY OR TO THE VICTIM'S TRIBE OR CLAN. THE ASSUMPTION IS THAT VICTIMS WILL BE COMPENSATED FOR THEIR LOSS. UNDER COMMON LAW, THE VICTIM OR FAMILY MUST SUE THE OFFENDER IN A CIVIL TORT ACTION FOR DAMAGES. QISAAS LAW COMBINES THE PROCESS OF CRIMINAL AND CIVIL HEARINGS INTO ONE, JUST AS THE "CIVIL LAW" IS APPLIED IN MANY NATIONS OF THE WORLD. QISAAS CRIMES ARE COMPENSATED AS RESTITUTION UNDER COMMON LAW AND CIVIL LAW. 

THE QISAAS CRIMES REQUIRE COMPENSATION FOR EACH CRIME COMMITTED. EACH NATION SETS THE DAMAGE BEFORE THE OFFENCE AND THE JUDGE THEN FIXES THE PROPER DIYA. IF AN OFFENDER IS TOO POOR TO PAY THE DIYA, THE FAMILY OF THE OFFENDER IS CALLED UPON FIRST TO MAKE GOOD THE DIYA FOR THEIR KIN. IF THE FAMILY IS UNABLE TO PAY, THE COMMUNITY, CLAN OR TRIBE MAY BE REQUIRED TO PAY. THIS CONCEPT IS NOT FOUND IN COMMON LAW OR THE CIVIL LAW OF MOST NATIONS. IT ACTS AS A GREAT INCENTIVE FOR FAMILY AND COMMUNITY TO TEACH RESPONSIBLE BEHAVIOUR. WHAT HAPPENS TO THE DEBT IF THE OFFENDER DIES AND HAS NOT PAID IT? HISTORICALLY, IT WAS PASSED ON TO THE OFFENDER'S HEIRS. TODAY, MOST NATIONS TERMINATE THE DEBT IF THE OFFENDER LEFT NO INHERITANCE. 

ONE QUESTION THAT IS OFTEN RAISED IS "WHAT HAPPENS IF A VICTIM TAKES THE DIYA WITHOUT GOVERNMENT APPROVAL?" THE VICTIM OR FAMILY HAS COMMITTED A TAZIR CRIME BY ACCEPTING MONEY, WHICH WAS NOT MANDATED BY A JUDGE: TAKING DIYA MUST BE CARRIED OUT THROUGH PROPER GOVERNMENTAL AND JUDICIAL AUTHORITY. 

ANOTHER CONCEPT OF QISAAS CRIMES IS THE AREA OF PUNISHMENT. EACH VICTIM HAS THE RIGHT TO ASK FOR RETALIATION AND HISTORICALLY, THE PERSON'S FAMILY WOULD CARRY OUT THAT PUNISHMENT. MODERN ISLAMIC LAW NOW REQUIRES THE GOVERNMENT TO CARRY OUT THE QISAAS PUNISHMENT. HISTORICALLY, SOME GRIEVING FAMILY MEMBER MAY HAVE TORTURED THE OFFENDER IN THE PROCESS OF PUNISHMENT. NOW THE GOVERNMENT IS THE INDEPENDENT PARTY THAT ADMINISTERS THE PUNISHMENT, BECAUSE TORTURE AND EXTENDED PAIN IS CONTRARY TO ISLAMIC TEACHINGS AND SHARIAH LAW. 

CONCLUSIONS.

CONTEMPORARY TREATMENT OF ISLAMIC LAW AND "RADICAL MUSLIMS" IS FILLED WITH STEREOTYPICAL CHARACTERISATIONS. SOME IN THE WESTERN MEDIA HAVE USED THE "NEW YORK CITY BOMBINGS" AS A WAY TO INCREASE HATE AND PREJUDICE. THEY HAVE TAKEN THE VIEWS OF A FEW RADICALS AND PROJECTED THEM ONTO ALL MUSLIMS. THIS ACTION HAS DONE A GREAT DISSERVICE TO THE MUSLIM WORLD. SOME ACADEMIC WRITINGS ALSO HAVE BEEN DISTORTED AND NOT ALWAYS COMPLETELY ACCURATE AND SOME RESEARCHERS HAVE CONCLUDED THAT ISLAMIC LAW REQUIRES A FIXED PUNISHMENT FOR ALL CRIMES. THESE WRITERS ALSO HAVE CONCLUDED THAT ISLAMIC JUDGES LACK DISCRETION IN THEIR SENTENCES OF DEFENDANTS IN THE SHARIAH COURT SYSTEM. THERE ARE FOUR HADD CRIMES THAT DO HAVE FIXED PUNISHMENTS SET FORTH IN THE NOBLE QURAN, BUT NOT ALL THE HADD CRIMES ARE BOUND BY MANDATORY PUNISHMENT. 

ISLAMIC LAW IS VERY DIFFERENT FROM ENGLISH COMMON LAW OR THE EUROPEAN CIVIL LAW TRADITIONS. MUSLIMS ARE BOUND TO THE TEACHINGS OF THE PROPHET MUHAMMED (PBUH) WHOSE TRANSLATION OF ALLAH'S WILL IS FOUND IN THE NOBLE QURAN. MUSLIMS ARE HELD ACCOUNTABLE TO THE SHARIAH LAW, BUT NON-MUSLIMS ARE NOT BOUND BY THE SAME STANDARD (APOSTASY FROM ALLAH). MUSLIMS AND NON-MUSLIMS ARE BOTH REQUIRED TO LIVE BY LAWS ENACTED BY THE VARIOUS FORMS OF GOVERNMENT SUCH AS TAX LAWS, TRAFFIC LAWS, WHITE COLLAR CRIMES OF BUSINESS, AND THEFT. THESE AND MANY OTHER CRIMES SIMILAR TO COMMON LAW CRIMES ARE TRIED IN THE MODERN COURTS. THE MODERN COURTS CAN ALSO HEAR CIVIL LAW, FAMILY LAW AND ALL OTHER CASES. ISLAMIC LAW DOES HAVE SEPARATE COURTS FOR MUSLIMS FOR "RELIGIOUS CRIMES" AND CONTEMPORARY NON-RELIGIOUS COURTS FOR OTHER CRIMINAL AND CIVIL MATTERS. 

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I WOULD STRONGLY RECOMMEND THAT IF YOU ONLY READ ONE PERSONAL DEVELOPMENT BOOK THIS YEAR, IT SHOULD BE MIND CONTROL SYSTEM. ‘THE BASIC HYPOTHESIS IS PROFOUND. THE APPLICATION OF PROVEN RESEARCH IS MASTERFUL. THE EXPLANATIONS AND SUPPORTING STORIES ARE COMPELLING AND LUCID. THE TRANSLATION OF THE RESEARCH AND STORIES INTO PRACTICAL IDEAS AND SOUND ADVICE IS NOTHING SHORT OF BREATHTAKING.’

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