A review of research in the criminal aspects of Islamic law is included in my book, “The Basic Principles of the Islamic Criminal System”, published in Arabic in 1983. In this review I pointed out that the present legislative trend in Arab countries is inclined to rely mainly on Islamic law. I also expressed my view that for such trend to be successful and gather momentum throughout the Muslim world, an important prerequisite is the exercise of new ijtihad, or scholarly efforts, in various areas.
Some people feel that modern ijtihad requires that clear and definitive texts in the Qur’an and the Sunnah should be discarded, so that human endeavor may be free to establish the rulings it feels suitable for our times. Most of those who advocate this view claim that this is the practical meaning of giving human reason its due respect vis-à-vis religious texts. Or they may claim that it is the practical effect of giving people’s “interest” its due status in formulating our legislations. A few of them declare openly that the Qur’an and the Sunnah were meant for a different period of time and catered for social, economic and political situations that are greatly different from ours. Hence, it is only natural, they claim, that we should not allow them to dictate the way we should organize our life.
A minority of these try to appear in a different light, citing some quotations from former scholars concerning the rule that discretionary rulings that are not based on definitive statements in the Qur’an and the Sunnah may change as the result of changing times. Thus, they misread this rule and quote earlier scholars, who made very precise and correct verdicts, but unfortunately, their quotations are often out of context.
Replying to all these views is beyond the scope of these articles. But what we need to make clear is that the method of ijtihad we advocate and try to implement, evaluating our own views and the views of others on its basis, aims to facilitate the implementation of Islamic law in our contemporary world. We simply want to present Islamic law, as understood by human beings, in a way that suits our time and society.
This we believe to be urgently needed. Islamic criminal law has been isolated from our practical life for more than one hundred years. It has become a stranger to us. Dr. Abd Al-Haleem Al-Guindi sums up the situation stating that some of the leading law figures in our time, legislators, judges and lawyers, “try to gulp Islamic law but they are hardly able to swallow it, as the Qur’an describes. Moreover, their understanding of this law is based on the principles of human law, which are at great variance with the principles of Islamic law which have proved to bring us great benefit every time we implemented them.”
Hence, it is part of our scholarly and religious duty that we should combine in-depth and specialized research with clarity of expression and explanation as well as appropriate selection that aims to remove, rather than compound, the barriers impeding implementation.
The system we are strongly advocating is based on the central principles that have been universally accepted in Islamic law ever since the revelation of Islam. These principles demarcate the way of Islamic scholarly effort, or ijtihad, making clear that: 1. All definitive statements in the Qur’an and Sunnah must be implemented in full; and 2. The aim of ijtihad is to implement these statements at the time when such ijtihad is made. Such scholarly effort may require that we come up with rulings that have not been made earlier, or that we give more weight to a ruling that had received little support in the past. Our policy, however, must be that we do not hesitate to resort to ijtihad for fear of making a mistake, and we do not mind being opposed by the majority when we try to select what ensures the proper implementation of Islamic law in our own time.
The only restriction that applies to such ijtihad when needed, or to giving preference to a less supported ruling, is that whatever ruling we may come up with must be well supported by clear Islamic texts and principles, or must at least be acceptable in the light of such texts and principles. It cannot be in conflict with either. Imam Al-Shafie rightly states that no scholar who is competent to exercise ijtihad may follow another similarly competent scholar when their views are in conflict. Each must follow his own judgment.
This is the line we have followed in all our juristic studies, believing that every generation must have its own scholarship that helps to understand Islamic texts and to the discharge of the duty of implementing them in practice. The earlier generations fulfilled this task to the best of their ability, thus discharging their duty. Our duty cannot be discharged by the mere copying of their views, without studying their methods of arriving at them and the interests they aimed to serve. Each generation must do the same as the early ones which exercised ijtihad. To do so, its scholars must have the necessary qualifications to pursue such diligent scholarship. Without such qualifications, no views or rulings may be considered. Indeed, their advocates are viewed as impostors by people of wisdom, and as sinners by scholars of merit.
New scholarly ijtihad in criminal law should cover a number of offenses to which hudood, or mandatory punishments, apply and the whole system of discretionary, or ta’zeer, punishments. It also covers many of the rules that apply to criminal proof as well as the basic rules governing the entire Islamic criminal system. These latter rules include the one that blocks punishment in the case of doubt, and the one that disallows retroactive application of legal provisions in criminal law. The basic framework for ijtihad concerning the hudood offenses is provided by the facts that they are limited in number, stated in clear texts in the Qur’an or the Sunnah, carrying specific punishments stated in either one of the two main sources. Hence, they may not be subject to any addition or omission. Nor can their punishment be amended or modified. Moreover, once an offense is proven, it cannot be subject to any reprieve or reduction of punishment.
The only exception is that a pardon may be granted in the case of a measure-for-measure punishment in the case of physical offenses against others. However, discerning legal opinion does not classify these offenses under hudood, even though they are often mentioned with the latter because the punishments applied to both are stated in either the Qur’an or the Sunnah. This latter type of offense may benefit by a pardon. It is beyond the scope of this study to go into the details of how such pardon may be exercised.
If careful and detailed study based on clear and authentic evidence concludes that some of the offenses classified under hudood do not meet the essential conditions for such classification, we may not insist on attaching the old, common label to them. We must state the facts as they appear to us on the basis of clear evidence.
This is indeed the basis of our view that the offense known as baghi, which is defined as “rebellion against a Muslim ruler based on a particular understanding, even though it may be questionable”, is not even an offense. Traditional Fiqh opinion classifies such action as a hudood offense carrying a mandatory death penalty. However, a correct understanding of the relevant texts in the Qur’an and the Sunnah, as well as the measures taken by the Prophet’s companions in such cases, reveal that such rebellion is an “infringement” that must be stopped and prevented, not a crime to be punished. The action taken to prevent such an infringement is not classified as a punishment inflicted on the rebel, but an appropriate counter action. We will explain our argument and its basis next week, God willing.