Archive for December, 2013

Disjunctive Sequel.

December 4, 2013


<b>“Shariah” Most repulsed and reprehensible word on the minds of people.</b>

It is the synthesis of the binary source of injunctions (Book/Scrip and Prophetic practices and instructions) and presents a package of Devine Injunctions as an eclectic, epochal Posse Comitatus to the people.

<b>ShariasCorpus Juris</b>–of more than thousand Messengers, from Moses to Mohammad, including those of the Abrahamic lineage; having huge followings in our times (Peace be upon them all), is the topic of this discourse. Given the overwhelmingly rampant disenchantment from religions, across the board; stemmed mainly from thematically incongruous sermons of religious leaders. It is one of the reasons for this befuddlement. A canonical religious medium due to sacrilegiously odious but cogent discourses by the ingenuous leaders has becomes an anathema for votaries and non votaries alike. The skepticism about religious dogmas has also been ossified due to the inadvertent attitudes of people on the one hand and commoditization of the religions by the religious patriarch on the other. The outcome is that this world, which was already a place for testing and training, has become even more inimical. This Intellectual dogmatism, a gift from our most learned and revered religious leaders, has pushed this sacred sequel-ad infinitum into disrepute and rejection. This disturbing scenario impelled me to dwell on this arduous but quintessential subject. Though, it would be naïve to expect a revolutionary change in the understanding of people by this one piece. It may however be hoped that it would, at least, presents an opportunity to think about and rediscover <b>this sacred sequel-which does not belongs to Muslims exclusively.</b>

A brief history/background, appealing to the contumacy and intellectual dogmatism stemming from human disposition and cognitive sense perception, would be expounded upon. There would neither be a deliberate effectuation of the point of view of one religion over the other, nor an effort, even a feeblest one, to present any judgment as to who is right who is wrong. Human mind is evidently yet evolving to accommodate the comprehension of the sublime merits of synchronicity; to obviate the sequential differences which are causing havoc.  Another reason why a Judgment would be refrained from is, owing to the subliminal, thought that a complete harmonization in this matter may not even be the goal of the Creator; for the implementation of His travailing scheme of retribution.

Every Messenger is given specific injunctions to put into practice as a sample for his disciples to follow. That is Sharia–defined as:-  “Path to be followed” or in literal sense “The way to a watering place.” It is the Creator who, with His absolute sovereignty, knowledge and wisdom, may assign the most proper way to be followed. Since it deals with the right or wrong way to the Creator, It is beyond human capacities to undertake such a mammoth task.

It should be borne in mind that Sharia despite being an Arabic word is not Muslim exclusivity. It refers to all those messengers who were given the message to be delivered. Every one of them had his own sharia and was to be followed by the community/nation of that prophet/messenger.

It is also worth noticing that the message of all the prophets/ messengers, from Adam to Mohammad (peace be upon them) had remained the same whereas the Sharias have been subjected to change; according to the necessities of the time, locale and the psychological reflexes of the people. A renowned exegetist <b> Abdullah Bin Abbas</b> has proved this from Holy Quran’s surah Al Imran (3:7) which says that all religious systems have been in agreement and none of these was abrogated.  It has, however been the practice that with the descent of a new prophet/messenger sharia of the new Prophet/messenger took over with the required changes.  Several examples from the history of Judaism and Islam are manifest affirmation of this process; where certain things which were forbidden under Judaic law are allowed under Islamic Sharia. <b>The core message however remained the same and is immutable.</b>

 Adherents of Judaism rejected Jesus-Christ and his Sharia, so did the Christians those of Mohammad. Then both joined hands and became the sailors of the same boat, rejecting Mohammad and his Sharia. <b>This is at the very root of the disjunctive sequel.</b>

The system of Sharia, directly addresses to the very nature on which man has been created. It affords a package, which is explained by juxtaposing the merits and demerits of traversing the right path or straggling. It, on the one hand, lures those of the good nature towards good deeds and obedience and warns those of the other traits of the punishment.

<b>There are five established sources of Sharia.</b>

<b>First Source–Shariah</b> originates from the direct commandments of the Creator with the right to man to interpret and explain these commandments by means of analogical deductions and through other processes. Primary source had always been the Book or the Scrip of the Creator given to the prophet /messenger.

<b> Second source– Sunnah</b>– is the practices/traditions adopted and instructions given by the prophet/ messengers. (It includes what is said, done and approved by the prophet/messenger).

<b>Third source is Ijma</b>–the Consensus of the opinion of scholars/learned people of the religion, developed within the parameter set in the Book/Scrip and the practices of the prophet/messenger. This source plays an important role in the development of the law thereby providing a broad vehicle for progress and reconstruction. It provides detailed understanding derived from the book and practices of the prophet/messenger, covering the myriads of problems that arise in the course of man’s life. In fact, the ideal code of conduct or a pure way of life which is the Shariah, has much wider scope and purpose than an ordinary legal system in the western sense of the term. The Shariah through this process aims at regulating the relationship of man with the Creator and man with man.

<b>Fourth source– Qiyas</b>–is the analogical deductions by the learned men of the religion within the parameters of the given book/scrip and the practices adopted by the prophet/messenger of the time. It could precisely be defined in theological parlance as an analogy or analogical deduction, providing an instrument to cope with the growing needs and requirements of society, which ought to be agreed upon by the religious scholars termed as Ijma. In other words it is a legal process introduced in order to arrive at a logical conclusion of a certain law on a certain issue that has to do with the welfare of the people.

It was introduced by a prominent Muslim scholar from Iraq-<b>Abu Hanifa.</b>

<b>Fifth sourceIstihsan</b>–is Juristic-preference or equity of jurist. It affords elasticity and adaptability to the religious legal system. This particular source deals with the matters which are, though not specifically related to Sharia, but are of public interest at large. Developed by a prominent Muslim scholar,  Imam Malik.

Ijtihad — is yet another concept which means an effort or an exercise to arrive at one’s own judgment.In wider sense it means the use of human reason in the elaboration and explanation of the Sharia law.It covers a variety of mental processes, ranging from interpretation of text of the book/scrip and the assessment of the authenticity of the practices /instructions of the prophet/messenger. Qiyas or analogical reasoning, then, is a particular form of Ijtihad, the method by which the principles established by the book/scrip, practices of the prophet and the consensus are to be extended and applied to the solution of new problems not expressly regulated before. Ijtihad, therefore is an exercise of one’s reasoning to arrive at a logical conclusion on a legal issue done by the jurists to deduce a conclusion as to the effectiveness of a legal precept in the religion.

<b>A recent development is the induction of “syncretism “ in Sharia broadening its horizon even more.</b>(Syncretism represents the reconciliation of science, philosophy, religion, reason and prophecy though within the constraints of Qiyas).

For the understanding of the readers five major crimes and their punishments which fall under the purview of Islamic Sharia, widely considered to be grotesque and cruel, would be briefly expounded upon. Attention however, need be paid to the most stringent system employed in production of, flawless and an absolutely sound, proof of the crime committed, before awarding the commensurate punishment. The crux of these punishments is instilling the awe in the minds of the criminals to keep the society from chaos and anarchy. On the other hand the <b>stringency of the conditions</b> in production of the proof makes the dispensation of these punishments a rarity. <b>There is a very subtle difference in the man-made law and the Divine Law. Man made law always seeks out the proof to punish whereas Divine law always seeks out the doubt to forgo and forgive the prescribed punishment.</b>Image It is the most beautiful twofold expression of the Divine mercy. On the one hand it absolves the accused and on the other the societal milieu is shielded of the scars. It would now be left to the readers to decide in favor or against these punishments and for the hue and cry thus generated.

 Although the system of Sharia encompasses the whole life cycle the discussion however, be restricted to the core Issues of the crimes and punishments handled under Sharia. Though most crimes committed result in intermingling of the violations of the rights of the Creator and the created, but in some cases the predominance belongs to the rights of the Creator and in others to those of the created. The categorization is thus determined by the <b>predominance</b> of the rights of either. In the former case it is classed as Hud, whereas in the later as Qisas. The significance and implications of these are discussed in the proceeding paragraphs.

Before embarking on the explanation of these concepts it is imperative to understand few significant terminologies used by Islamic Sharia, for the conceptual clarity and understanding of the practical implications.

<b>1)  The rights of the Creator.</b> The crimes determined as the violations of the rights of the Creator are awarded pre-fixed punishments without any recourse, mitigation or intercession by any human being, regardless of his/her status. (That’s why it is called Hud—limit. Plural Hudud). In the Hud category no one has the right to reduce, increase or abolish the punishment meted out by The Creator, even the hearing or recommendation of any kind is impermissible. Should the holder of the right elects to forgive the offence, it would not be forgiven, and the Hud would still apply.

<b>2)  The rights of the fellow human beings</b> The crimes committed against fellow human being. Such as fraudulent acquisition of the property or killing, is dealt with by Qisas. (Even retaliation).

In the category of Qisas (Even retaliation i.e life for life, wound for wound) the aggrieved party or its legal heirs/guardians may forgive the culprit, after taking Qisas. The Hud punishment would still apply.

<b>3)  Tazirat:- (Penal-Law)</b> The crimes which are not categorized under the above two classes are dealt with in accordance with the penal code of the land or the discretion of the judge as the attending circumstances of the land may demand. Should the aggrieved party or the holders of the rights decide to forgo and forgive the criminal, the penal law of the land or the discretion of the judge; in the general interest of the public and society at large, would still be applied as deemed necessary.The essence is that the act of forgiveness on the part of the holder of the rights, though benevolent, should not be misused/misconstrued and let the criminal go unscathed since the state still has the, across the board, responsibility of the other residents of the land. This is a modus operandi of universal character in all situations. <b>The punishments in such circumstances are usually physical and lesson oriented—such as lashes.</b>

There is yet another concept of immense significance– <b>Muharbah</b>—derived from the word WAR–<b>(synonymous with terrorism-a currently popularized term),</b> used in the context of Hud punishment. The crimes of this category are cause of disturbance of public peace, and spreading disorder in the land. They are considered to be waging of a war against the Creator, His messenger and the State. This term is applied to the group or individual who use force of arms to commit crime. (Such as Highway robbery or Sea Piracy etc) This distinction is meant to distinguish between those who indulge in common crimes such as pick pocketing or thievery etc from those described above and are liable for the Hud punishment.

Islamic Sharia has declared only five crimes subject to the Law of Hud. These are:-

<b>1)  Robbery.   2) Theft   3) Adultery.   4) False accusation of adultery.   5) Drinking of wine.</b>

Let us see how the punishments are determined in these crimes.When it comes to establishing the crime committed and the proof thereof, most stringent conditions are employed. Should even a single condition, out of those prescribed, be found missing, the Hud punishment would stand dropped. In fact even a shred of doubt found in the proof will be enough to cause the Hud to be dropped. For example in the case of adultery there is a requirement of 4 eye witnesses. These witnesses, in the first instance have to be of impeccable integrity and practicing adherents of the religion who can be vouched for by other residents of the neighborhood. If all the conditions are not satisfied in the production of proof or there are less than four such witnesses, the Hud punishment would stand dropped. Similarly in the case of theft or robbery if there is any shortfall or doubt in the proof of crime the Hud punishment of cutting the hand and foot would stand dropped. Provision of suitable conditions for procurement of sustenance is one of the conditions on the part of the Government, in absence whereof the Hud punishment would not take effect.

There is a lucid display of practicality of this system in Saudi Arabia, where level of crimes is emblematically low. Shops are not locked or shuttered down during the customary timings of prayers and nothing gets stolen or goes missing. <b>It is, as claimed, the awe of the punishment in temporal world, instilled fear of the Creator and the consciousness of the damnation in the hereafter; which is the catalyst for this remarkable system of sharia.</b> 


December 4, 2013



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