Death penalty and fiqh jurisprudence
Mu' meneen Brothers and Sisters,
As Salaam Aleikum wa Rahmatullahi wa Barakatuh. (May Allah's
Peace, Mercy and Blessings be upon all of you)
One of our brothers/sisters has asked this question:
Dear Burhan,
Just curious :
1) IF Final judgement will be done on judgement day, then what's
Islamic Jurisprudence (or any Jurisprudence for that matter) all about ?
Wouldn't this be classified as double jeopardy ?
OR
2) IF Judgement day will be a math on sufferings in this life
cancelling evils done and hence compensating with mercy granted in here-after,
why not stone to death for the smallest of errors to ensure a greater place in
here-after.
Here's more of my ignorance popping out :
How much / to what extent of Islamic Jurisprudence is ordained in
the Qura'an and how much / to what extent is it a creation (Prophet's close
followers and adaptations made over time through history)?
What I mean is - Do the Qura'an & Sunnah give principles / guides
on morality and ethics or do they spell out specific punishments ? I am asking
specifically on the death penalty in Shariah (either by stoning or any other
way).
Is Shariah also based on the premise of "beyond reasonable
doubt". So if God is the only one all knowing, then shouldn't there always
be a reasonable doubt ? Besides, since He will account in the end, why bother
passing a sentence.
The whole thing just doesn't fit.
(There
may be some grammatical and spelling errors in the above statement. The forum
does not change anything from questions, comments and statements received from
our readers for circulation in confidentiality.)
Answer:
Death
penalty and fiqh jurisprudence
In the
name of Allah, We praise Him, seek His help and ask for His forgiveness.
Whoever Allah guides none can misguide, and whoever He allows to fall astray,
none can guide them aright. We bear witness that there is no one (no idol, no
person, no grave, no prophet, no imam,
no dai, nobody!) worthy of
worship but Allah Alone, and we bear witness that Muhammad(saws) is His
slave-servant and the seal of His Messengers.
My
beloved and dear Brother in Islam, indeed the Final Judgment will be done by
the All-Knowing, All-Wise Lord Alone on the Inevitable Day of Resurrection. Islamic Jurisprudence (or Shariah) is
absolutely and fully based on the guidance and principles of the Divine Message
of Allah Subhanah in the Holy Quran, and from the authentic narrations of the
Messenger of Allah (saws).
But to
reach that Inevitable Day of Judgment in the Presence of the All-Mighty Lord,
the All-Wise Creator has Decreed that each person will have to live a
pre-determined time on this earth, and thus he will be tested in that short and
transitory period of one life.
Allah says in the Holy Quran in Chapter 67 Surah Al Mulk verse 2: He
(Allah) created death and life that He may test you, to see which of you is the best in deeds.
Allah
Subhanah gave mankind (and Jinns) two things which He did not bestow upon any
in His Creation:
Intelligence,
or the Power of Reasoning
A free
will to choose the path of life one wishes to follow.
The one
who uses his bestowed intelligence and power of reasoning to recognize his Lord
and Creator from amongst His innumerable Signs, and of his own free will, submits
to the Will of His Creator, accepts His Revealed Guidance, and lives his life
according to the Will of his Lord and Creator; he has been promised acceptance
to the Sublime and Infinite Mercy of the All-Mighty Lord.
But the
one who denies and rejects the Guidance revealed by his Creator, and chooses to
live his life according to his own will in disobedience of the Revealed
Guidance, or follows a path not endorsed by Allah and His Messenger (saws); he
will have a severe accounting indeed in the Presence of the All-Knowing,
All-Just Lord on that Inevitable Day.
For the
ones who choose of their own free will, to submit to their Lord and Creator and
live their lives in alignment with His Revealed Guidance, Allah Subhanah has
revealed a ‘mode of conduct’ or ‘way of life’ manual for His believing slaves
in the form of the Quran. In His Sublime
and Infinite Mercy, He also appointed His Messenger to live his life in
submission exactly according to this Revealed Guidance, so that he (saws) would
become a practical example for all those who wished to follow the Straight Path
approved by Him.
Allah
Subhanah, in His Absolute and Supreme Wisdom did not make this approved path
called ‘Islam’ a religion of only specific religious rites and rituals; but
made it a complete ‘way of life’; whereby no aspect of a believers life would
be without guidance from the Quran and the Sunnah. Regardless of whether it concerned communal
life or individual life, whether professional or business, whether family or
friends, whether government or subjects, whether crime or virtue, from one’s
birth to one’s death….every single minutest aspect of life was covered in the
Divine Principles of the Quran and Sunnah.
Every rule, every law, every principle which covers any facet of the
life of a believer must be aligned to these two sources of guidance, if one
truly wishes to submit his free will to the Will of His Lord and Creator.
And
Islamic Jurisprudence or Fiqh is nothing but a collection of these Divine Laws
and principles of the Quran and Sunnah, whereby social and personal laws and
rights of each party in a righteous society are identified and documented. Such is the quality of submission demanded by
the Creator, that if any amongst His creation chooses to make his own laws
after Allah and His Messenger (saws) have given their decision, they will be
included amongst the disbelievers, transgressors and evil-doers in His Majestic
Presence on the Day of Judgment! His
Alone is the Kingdom and Dominion of the Heavens and the Earth, and He Alone
deserves to establish His Laws that govern each aspect of the lives of His
Creation!
Allah Says in the Holy Quran Chapter 5 Surah Maidah verses 44, 45,
and 47 (part):
44 If any do fail to judge by what Allah hath Revealed, they are
the disbelievers.
45 And if any fail to judge by what Allah hath Revealed, they are
the wrong-doers.
47 If any do fail to judge by what Allah hath Revealed, they are
those who rebel.
Q-1:
IF Final judgement will be done on judgement day, then what's Islamic Jurisprudence
(or any Jurisprudence for that matter) all about ? Wouldn't this be classified
as double jeopardy ?
Lets say
two people committed fornication in a righteous believing society, and their
sin was proved in a
Allah Says in the Holy Quran Chapter 24 Surah Noor verse 2: The woman and the man guilty of fornication flog each of them with a
hundred stripes: let not compassion move you in their case in a matter
prescribed by Allah, if ye believe in Allah and the Last Day: and let a party
of the Believers witness their punishment.
The
hundred stripes is the prescribed punishment which Allah Subhanah has commanded
a righteous society to extract from the evildoers. If the two people, after their sin, seek
sincere repentance from Allah Subhanah, and amend their conduct; it is expected
that Allah Subhanah will forgive them of their sin and not hold them
accountable for their sin in the Hereafter.
But if
the two people who committed and were convicted of the sin of fornication, and
received the prescribed punishment of a hundred lashes in the life of this
world; but they did not seek sincere repentance from their Lord, indeed they
will have a case of ‘double jeopardy’ whereby they will have a severe
accounting in the Court of Allah Subhanah again on the Day of
Resurrection.
The
prescribed punishment of the world does not save oneself from the accounting of
the Hereafter, but that is only the just recompense a righteous society is
commanded to extract from the criminal in the life of this world! The only thing that saves one from the severe
accounting in the Presence of the All-Mighty Lord is if one believes, turns
back to his Lord in sincere repentance, and subsequently amends his
conduct.
Q-2:
IF Judgement day will be a math on sufferings in this life cancelling evils
done and hence compensating with mercy granted in here-after, why not stone to
death for the smallest of errors to ensure a greater place in here-after.
Beloved
brother in Islam, only Allah and His Messenger (saws) have a right to determine
what punishment should be prescribed for what sin! Allah Subhanah has not given this right of
prescribing punishments for sins committed in this world to anyone else!
Besides
logically, it is not the one who is ‘stoned to death’, nor the one who passes
this sentence, who will earn and ensure for themself a ‘greater place in
here-after’; but rather it is one’s constant fear of standing in the Court of
Allah in the Hereafter and his sincere repentance that will earn him that lofty
station.
If one
who is given power in the land decrees that all errors will carry the punishment
of being stoned to death, it is this person who will be brought forth as a
criminal in the Just Court of Allah Subhanah for transgressing all bounds and
taking upon himself to invent his own laws!
Q-3:
How much / to what extent of Islamic Jurisprudence is ordained in the Qura'an
and how much / to what extent is it a creation (Prophet's
close
followers and adaptations made over time through history)?
Every
single law in Islamic Fiqh, without exception, is based on the principles and
guidance of the Quran and Sunnah.
Neither is one allowed to increase the prescribed punishments of Allah
and His Messenger (saws), nor is one allowed to decrease it; whoever does so
will be a transgressor in the sight of Allah Subhanah.
Q-4:
What I mean is - Do the Qura'an & Sunnah give principles / guides on
morality and ethics or do they spell out specific punishments ? I am asking
specifically on the death penalty in Shariah (either by stoning or any other
way).
Allah and
His Messenger (saws) have absolutely and clearly spelt out the crimes for which
the maximum punishment of this world can be prescribed: the death penalty, and
especially the penalty of being ‘stoned to death’; to indicate how heinous and
grave the sin is in the sight of Allah Subhanah, the Lord of the Worlds!
Sunan of Abu-Dawood Hadith 4487 Narrated
by Uthman ibn Affan
I heard the Messenger of Allah (saws) say: ‘It is not lawful to
kill a man who is a believer except for one of the three reasons:
Kufr (disbelief) after accepting Islam; ie. apostate, ‘zina’
(adultery) after marriage, in ‘Qisas’ (retribution) for wrongfully killing
someone intentionally, for which he may be killed.’
The death
penalty or ‘capital punishment’ can only be prescribed by the Shariah Court
when one has been convicted by due process of law in ONLY the above three
cases, and amongst them the only crime that carries the ultimate penalty of
‘being stoned to death’ is for the abomination of ‘zina’ or adultery.
Your
Question: Is Shariah also based on the premise of "beyond reasonable
doubt". So if God is the only one all knowing, then shouldn't there always
be a reasonable doubt ? Besides, since He will account in the end, why bother
passing a sentence.
The
Sahih Al-Bukhari Hadith 3.638 Narrated
by Um Salamah, the wife of the Prophet (saws).
Allah's Messenger (saws) heard some people quarreling at the door
of his dwelling. He (saws) came out and
said, "I am only a human being, and opponents come to me (to settle their
problems); maybe someone amongst you can present his case more eloquently than
the other, whereby I may consider him true and give a verdict in his favor. So,
If I give the right of a Muslim to another by mistake, then it is really a
portion of (Hell) Fire, he has the option to take or give up (before the Day of
Resurrection)."
Your
Question: Besides, since He will account in the end, why bother passing a
sentence.
Allah Says in the Holy Quran Chapter 2 Surah Baqarah verses 178-179:
178 O ye who believe! The Law of
Retribution is prescribed to you in cases of murder; the free for the free, the
slave for the slave, the woman for the woman.
But if any remission is made by the brother (inheritors) of the slain,
then grant any reasonable demand and compensate him with handsome gratitude;
this is a concession and a Mercy from your Lord. After this whoever exceeds the limits shall
be in grave penalty.
179 In the Law of Retribution there is (saving of) life to you, O ye men
of understanding! that ye may restrain yourselves.
It is the
command of The All Wise, All Knowing Lord to a righteous believing society that
they should extract the prescribed retribution from the criminals in the life
of this world, so that it may serve as a deterrent to all in society.
Indeed,
the Final Judgment for each deed, good or bad, will be delivered by none other
than the All Mighty, All Just Lord on the Day of Resurrection! But for man to live a life and perform his
prescribed test in the life of this world, Allah Subhanah has revealed His Laws
and His Guidance.
If
mankind chooses not to ‘bother passing a sentence’ according to the prescribed
Laws of Allah and His Messenger (saws), or if the mighty in society choose to
make their own laws to control the elements of society, the strong, the mighty,
and the evil will create absolute chaos and oppression in society; and the
poor, and the helpless, and the weak will be subjugated and oppressed beyond
imagination….: as is unfortunately currently happening in the unrighteous and
un-Godly societies we live in today!!!
Indeed,
there is absolutely no doubt that the All Mighty, All Just Lord will gather all
mankind on that Inevitable and Pre-determined Day to take a full account of
every single deed of every single person; and no one will be wronged in the
least! Indeed, that is the Day True and
Supreme Justice will be served by the One Who is All Knowing, All Wise, and All
Aware of absolutely everything.
Allah Says in the Holy Quran Chapter 18 Surah Kahf verses 47-49:
47 One Day We shall remove the mountains and thou wilt see the earth as
a level stretch, and We shall gather them all together nor shall We leave out
any one of them.
48 And they will be marshalled before thy Lord in ranks (with the
announcement) "Now have ye come to Us (bare) as We created you first: aye
ye thought We shall not fulfil the appointment made to you to meet (Us)!":
49 And the Book (of Deeds) will be placed (before you); and thou wilt
see the sinful in great terror because of what is (recorded) therein; they will
say "Ah! Woe to us! What a book is this!
It leaves out nothing small or great but takes account thereof!" They will find all that they did placed
before them: and not one will thy Lord treat with injustice.
Allah Says in the Holy Quran Chapter 69 Surah Haaqqaah verses 15-31:
15 On that Day shall the (Great) Event come to pass
16 And the sky will be rent asunder for it will that Day be flimsy
17 And the angels will be on its sides and eight will that Day bear the
Throne of thy Lord above them.
18 That Day shall ye be brought to Judgment: not an act of yours that
ye hide will be hidden.
19 Then He that will be given his Record in his right hand will say:
"Ah here! read ye my Record!
20 "I did really understand that my Account would (one Day) reach
me!"
21 And he will be in a life of Bliss
22 In a Garden on high
23 The Fruits whereof (will hang in bunches) low and near.
24 "Eat ye and drink ye with full satisfaction; because of the
(good) that ye sent before you in the days that are gone!"
25 And he that will be given his Record in his left hand will say:
"Ah! would that my record had not been given to me!
26 "And that I had never realized how my account (stood)!
27 "Ah! would that (Death) had made an end of me!
28 "Of no profit to me has been my wealth!
29 "My power has perished from me!"...
30 (The stern command will say): "Seize ye him and bind ye him
31 "And burn ye him in the Blazing Fire.
Your
Statement: The whole thing just doesn't fit.
My
beloved and dear Brother in Islam, if one looks at and is satisfied with the
unrighteous and un-Godly society we unfortunately live in today, and tries to
determine or justify the current happenings with the Just and Wholesome Laws
Revealed by Allah Subhanah; it will obviously and naturally seem that ‘the
whole thing just doesn't fit!’.
But when
one believes, understands and comprehends the mission of his creation, realizes
that this life is only a short test prescribed by his Creator, and of his own
free will and choice submits his will to that of his All Mighty Lord and
Creator; the whole thing fits as perfectly as a hand fits into a glove!
Allah Says in the Holy Quran Chapter 6 Surah Anaam verses 125-127:
125 Those whom Allah Wills to guide He opens their breast to Islam. Those whom He Wills to leave straying He
makes their breast close and constricted as if they had to climb up to the
skies! Thus does Allah (heap) the
penalty on those who refuse to believe.
126 This (Al Islam) is the way of thy Lord leading straight: We have
detailed the Signs for those who receive admonition.
127 For them will be a Home of Peace in the Presence of their Lord: He
will be their Friend because they practiced (righteousness).
If one
trusts, obeys, and follows the guidance and commands of
Allah and His Messenger (saws), he can
be assured of never ever being misled;
but if one believes, obeys and
follows any other guidance, other than
that of Allah and His Messenger (saws),
he can be assured of being led astray.
Whatever
written of Truth and benefit is only due to Allah’s Assistance and Guidance,
and whatever of error is of me. Allah
Alone Knows Best and He is the Only Source of Strength.
Your Brother in Islam,
Burhan
Wister