Saturday, September 4, 2010

Islamic Law & Jurisprudence is Not Always Understood by the Press

Denis J. Wiechman, Jerry D. Kendall, and Mohammad K. Azarian                                                                          

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 One such notion is that Islamic judges are bound by ancient and outdated rules of fixed punishments for all crimes.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 Shar'iah Law. 

Some contemporary scholars fail to recognize 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. 

Mohammed Salam Madkoar explains 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 (Kisas) 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. 

A Muslim who is trying to live his religion is indeed a true believer in God. 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 Qur’an teaches tolerance and moderation in all things. When the popular media generalizes 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 (God's) will." Therefore, Muslims must first and foremost obey and submit to Allah's will. Mohammad the Prophet was called by God to translate verses from the Angel Gabriel to form the most important book in Islam, the Qur’an, Muslims believe. 

There are over 1.2 billion Muslims today world-wide, over 20% of the world's population. 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 sheer number of Muslims living today makes the idea of putting Islamic Law into a footnote in contemporary writings inappropriate. 

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. Shar'iah 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"(Lippman, p.66-68). 

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 Qur’an, 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. 

Reproduced with permission from the Office of International Criminal Justice at the University of Illinois

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