Question

Should we modernize the Shari`ah?

Shouldn’t we as Muslims strive to use the latest technology in an ideal Shari`ah e.g. If we accused a women of adultery, shouldn’t we use science to answer the accusation. Wouldn’t it be totally wrong in Islam to ignore these means and carry out the Islamic punishment on little evidence.

In some ‘Islamic countries’ they have a justice system where they just punish you until you confess that you committed a crime!

Also, shouldn’t we have some sort of international scholar qualification?

Answer

Let us first try to understand and appreciate the philosophical underpinnings of Islamic law (Shari’ah), for any efforts to realize and implement the Shari’ah without proper groundwork and ancillary mechanisms can – or one might say, ought to – produce results cannibalizing the very end Islamic Shari’ah seeks to achieve. As would be evident, the objective of Shari’ah is dispensing justice to the wronged, protecting the lives and honor of a people and clogging, if not completely crushing, the stimuli for criminal activity. Thus the Islamic Shari’ah, if implemented in letter and spirit, holds together the social structure and moral fiber of a collectivity.

The Islamic intellectual and academic minds of the last few centuries have not remained alive to the value of intellect and reason and this apathy continues largely to this day. Admittedly, human intellect can falter and flounder if unrestrained, but one cannot downplay its significance in showing man the right way. Coupled with innate guidance, intellect and reason are generally enough to guide man in the affairs of life. However, there are certain crossroads at which the need for divine guidance becomes inevitable. Even so, for such instances of direction, the divine guidance does not get down too minutely to the details or nitty-gritty of things. Thus we have been furnished with a broad outline – a set of rules and regulations – called the Islamic Shari’ah (Islamic law or Islamic penal code). Islamic Shari’ah is absolute and immutable but the system that would be based on it and, therefore, serve to aid its implementation would keep evolving with the tide of time.

Islamic Shari’ah is independent of the time and place constraint and is not tied or wedded to the customs, traditions, procedures and mechanisms of a particular place and time. Systems, in conjunction with the requirements of a particular time and place, would keep evolving and changing and might even vary from one piece of land to another. Reflecting over this arrangement, one can appreciate the universality and timelessness of Islamic Shari’ah, which is divine and eternal, while the system evolved upon this Shari’ah, deduced and inferred by humans, is flexible and transient.In addition to that, Islam does not forbid Muslims to accept legislations other than those contained in the Qur’an and the Sunnah. Islam only requires that no such legislation be promulgated, which is clearly against any stipulation of the Qur’an and the Sunnah.

Now for your specific questions, Islamic Shari’ah is as modern as it was when initially revealed and would remain modern, for all practical purposes, till the end of time. Thus if, by modernizing the Shari’ah, you imply changing the directives of Allah, it should be clear that no one has the authority to do so and it would tantamount to rejecting the   wisdom and all encompassing knowledge of the Creator. If, on the other hand, you imply benefiting from the modern and advanced means of proving a crime then yes they should ideally be made use of.

You write:

Shouldn’t we as Muslims strive to use the latest technology in an ideal Shari`ah?

The Shari`ah is already ideal; to make its implementation ideal in today’s world, there is nothing barring us from using the latest technology.

You further ask:

Wouldn’t it be totally wrong in Islam to ignore these means and carry out the Islamic punishment on little evidence?

Islamic punishments are only carried out if the crime is proven beyond doubt.Any method can be adopted to prove a crime which is universally acceptable.

However, there are two exceptions to this:

Firstly, if a person accuses a chaste and righteous man or woman, having a sound reputation, of fornication. In this case, the Qur’an stresses that the accuser shall have to produce four eye-witnesses. Anything less than this will not prove his accusation. Circumstantial evidence or medical examinations in this case are absolutely of no importance. If a person is of lewd character, such things have a very important role, but if he has a morally sound reputation, Islam wants that even if he has faltered, his crime should be concealed and he should not be disgraced in the society. Consequently, in this case, it wants four eye-witnesses to testify and if the accuser fails to produce them, it regards him as guilty of qadhaf. The Qur’an says:

Upon those who accuse honorable women [of fornication] and bring not four witnesses as evidence [for their accusation], inflict eighty stripes, and never accept their testimony in future. They indeed are transgressors. But those who repent and mend their ways, Allah is Oft-Forgiving and Most-Merciful. (24:4-5)

Secondly, to purge an Islamic state from prostitutes who, in spite of being Muslims, do not give up their life of sin, the only thing required, according to the Qur’an, is that four witnesses should be called forth who are in a position to testify that a particular woman is a prostitute by profession. In this case, it is not necessary at all that they be eye-witnesses. If they testify with full responsibility that she is known as a prostitute in the society and the court is satisfied with their testimony, then they can be given any of the punishments fixed by the Qur’an for habitual criminals. The Qur’an says:

And upon those of your women¹ who habitually commit fornication, call in four people from among yourselves² to testify over them; if they testify [to their ill-ways], confine them to their homes till death overtakes them or God finds another way for them. (4:15).As is well known that this was a temporary punishment and was replaced by the punishment described in surah Nur(24:2) or in extreme situations in surah Maidah(5:33).

You write:

In some ‘Islamic countries’ they have a justice system where they just punish you until you confess that you committed a crime!

The onus of responsibility of the malpractices of some ‘Islamic countries’ cannot be placed on Islam. The justice system of Islam is not draconian, making innocent people confess forcibly to crimes they never committed or where only the poor get punished and the rich and influential go scot-free even in face of the most heinous of crimes. Such may be the case in some ‘Islamic countries’ but it should not be allowed to tarnish the image of Islam, which stands as the embodiment of just and fair dealing with every individual in a society.

Lastly, you query:

Also, shouldn’t we have some sort of international scholar qualification?

By ‘international scholar’ if you mean a scholar who is internationally recognized as an authority in Islamic disciplines, then there could be one such qualification. It should, however, be noted that the criterion for accepting or rejecting a scholar’s opinions should be the strength or weakness of his/her arguments, and mere ‘qualification’ – although it is of utmost importance – should not unnecessarily becloud our judgment. Having said that, I do believe that there is a dire need to revamp and restructure the curricula followed in our institutions and seminaries of religious (Islamic) learning; making them more didactic can bring positive changes.

Regards,

UIUK

March 3, 2003

1. i.e., Muslim women.
2. i.e., from the Muslims.