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Islamic Law for ‘Primitive’ Societies?

One argument frequently touted against Islām and Muslims is the assertion that Islamic Law was conceived for a primitive era and applying it to our advanced society is incompatible. Advances in technology, communication and scientific discovery have rendered those laws null. This argument does not take into account Divine Revelation and the element of submission of a Muslim. The word “Muslim” translates as “one who has submitted.” Indeed, when you submit to God you trust that although there are some things that you do not understand and may struggle to resolve in your own mind, you accept them whole-heartedly because the One who has decided is the most superior in knowledge and nothing is above Him in wisdom.

However, convincing someone that Divine Law is not up for debate is not in the hands of either of those debating. Rather Allāh is the one who controls the hearts and minds.

Indeed, those who disbelieve – it is all the same for them whether you warn them or do not warn them – they will not believe. Allah has set a seal upon their hearts and upon their hearing, and over their vision is a veil. And for them is a great punishment.[1]

If Allah has sealed a heart towards hidāya then that heart will remain sealed unless Allāh opens it. However, the topic of discussion here is not the validity of Divine Law, rather it is the assumption that the societies before us were primitive; specifically speaking, the society of the Prophet (sall Allāhu ʿalayhi wa sallam) and the Sahāba (raḍiy Allāhu ʿanhum).

The legal and justice system as we know it today is hailed as a fair and generally advantageous system. Indeed, anyone coming from countries with Muslim majorities may testify that it does have its merits. However, those who have access to better resources, such as experienced and decorated solicitors and barristers, are more likely to get favourable results in a court of law. Does this speak of freedom and justice? Or is this perhaps something primitive where the more powerful in society are above the law? A society that entertains a concept of diplomatic immunity, when someone of status is nearly unaccountable in breaking the law, emits a pungent smell to advocators of equal justice.

Compare this with numerous stories of the Saḥāba in the Khilāfa period, where the Khalīfa, i.e. the ruler of the Muslim nation, would be held to account in even the most trivial of matters. In one such instance, ʿUmar b. Al-Khaṭṭāb, when addressing the Muslims in a speech, began his delivery with “Listen and Obey”. A man then stood up and, in no uncertain terms, said to him “we will neither listen nor obey, you have distributed to us a single item of clothing whilst giving yourself two.” This man, who is not an Oxford-educated debater openly criticised the Khalīfa in a public gathering. Did the people ridicule him? Did the people tell him that this was a trivial issue? Did the people tell him that, as Khalīfa, ʿUmar (raḍiy Allāhu ʿanhu) was entitled to a few extra perks? No, instead, the people waited to see what ʿUmar had to say for himself. This is indicative of a society in which the leader is held accountable to the layman. ʿUmar proceeded to explain himself, informing them that he had received the same share as everyone else but his son had given him his own share as the single item of clothing was not sufficient in covering his large physique.[2]

Similarly, ʿAlī b. Abī Ṭālib, who was not only the Khalīfa but the nephew of the Prophet (sall Allāhu ʿalayhi wa sallam), was taken before a judge by a non-Muslim merchant. ‘Alī b. Abī Ṭālib had lost a shield that was dear to him and later found it in the hands of a non-Muslim citizen who was selling it in one of Kūfa’s markets. When he saw it, ʿAlī said: “This is my shield that fell off my camel on so and so night at such and such time.” The man answered: “No, this is my shield in my hand.” ʿAlī replied: “No, it is mine since I never sold or gave it to anyone.”

The man agreed to let a judge decide, which ʿAlī accepted. They went to Shurayh who asked ʿAlī for his side of the story. ʿAlī said that the shield was his and that he had found it with that man, that it had fallen off his camel and that he had never sold it or given it to anyone. The judge turned to the other man asking his story. The man said that he did not accuse ʿAlī (raḍiy Allāhu ʿanhu) of lying, but the shield was his as it was in his hands.

Shurayh turned to ʿAlī saying: “I believe you, but we need the statement of two witnesses to support your story.” ʿAlī  said that there was his aide, Qanbar, and his son Al-Ḥassan  to which the man replied that a son could not testify for the benefit of his father. ʿAlī said: “O God, a man who is promised Paradise cannot act as a witness! Have you not heard what the Prophet (sall Allāhu ʿalayhi wa sallam) said that Al-Ḥassan and Al-Ḥussayn were the masters of the youths of Paradise? Shurayh said: “Yes I have, but a son cannot bear witness for his father.” Then ʿAlī turned to the man and said: “Take the shield, as I have no other witnesses.”

The man, who was a non-Muslim, then said: “O ‘Alī, the shield is yours. What a great religion! I can sue ʿAlī and get a judge to pass a decision for my benefit! I declare myself a Muslim.” He told the judge that he was following the army and had seen the shield fall down and picked it up. ʿAlī then told him to keep the shield and gave him a horse, besides.

ʿAmr b. Al-Ās was also held to account by a non-Muslim despite having done nothing wrong. His son had lost to a man in a race and he then hit his overcomer with a stick and announced his status and father’s name. The man, though not a Muslim, was so sure of getting justice that he travelled hundreds of miles to Madīna to complain to ʿUmar b. Al-Khaṭṭāb.

In our modern society, who has access to the loftier positions? Is it indeed a meritocracy? Look towards the House of Commons. There was a brief period in the middle of the 20th century when people from working class backgrounds formed part of the ruling workforce, however, it has since resorted to type. In an article from 2011, a journalist from the Guardian states:

“In 1979, almost 40% of Labour MPs had done manual or clerical work. In 2010, it was only 9%. Over the same period, the number of Labour MPs who were journalists and broadcasters more than doubled, and 11% of all MPs now have a background in PR and marketing (this was close to zero in 1979). Sixty per cent of government ministers, 54% of Conservative MPs and 40% of Liberal Democrat MPs attended fee-paying schools, compared with only 7% of the population.”[3]

Similarly, allegations are rife on peerage and the effects of “donations” on political parties.[4]

Compare this with the assignment of positions during the golden era of the Saḥāba. Status was not part of the equation when choosing positions for rule. When the most decorated Muslim general, Khālid b. Al-Walīd, accepted Islām, the Prophet Muḥammed (sall Allāhu ʿalayhi wa sallam) waited until such a time where he could be trusted before appointing him as general  despite his knowledge that this was a man very learned in the art of war. He had to prove his credentials. Also, when ʿUmar b. Al-Khaṭṭāb was appointed as the new head of state, he took command away from him for strategic reasons despite his popularity and record. Merit was the order of the day, not status. This was in a society and during a time when lineage and status was what had traditionally drawn loyalty and command. Where, then, does the notion that they were a primitive society come from?

Let us now look at the Islamic welfare system whereby a divine mandate categorically states the conditions for people to receive Sadaqah. Contrast this to our current time with governments deciding which households and individuals are entitled to state benefits on a whim. In an illustration of the failure of this system a recent expense scandal saw wealthy MPs taking advantage of a benefits system only available to themselves. During the period of ʿUmar b. Al-Khaṭṭāb’s Khilāfa, his daughter, Hafsah (raḍiy Allāhu ʿanha) entered upon her father and observed the state of poverty that he was living in. She (raḍiy Allāhu ʿanha) said: “Verily, Allāh has given us an abundant supply, and He has provided you with a more than adequate amount of sustenance. Would, therefore, that you ate food that was softer than this and would that you wore an outfit that was softer than the one you now wear!” He replied as follows: “I will make you a judge against yourself.” He then proceeded to remind her about the Messenger of Allāh’s life, and about the many hardships the Messenger endured while she was with him. He continued to remind her about the days until she remembered and broke down in tears. ʿUmar then said “Verily I had two companions (The Messenger (sall Allāhu ʿalayhi wa sallam) and Abū Bakr) who followed the same path, and I hope that if I follow the path of difficulty, perhaps I will join them in the easy and comfortable like that they now enjoy.” This was during a period of abundant wealth for the Muslim Ummah. The world and some of its major empires had been opened up for the Muslims and riches were flowing into the Ummah.[5] And yet, such was the attitude of its leader.

As for the Muslim tax system, Zakāh is a divine tax system which makes obligatory the giving of charity by every individual who fulfils its criteria. There are no legal loopholes which result in the very wealthy avoiding tax through means only they can access. Recent news in the media with regards to Tax havens, such as those in Panama, came as no surprise to anyone. We have always suspected the elite in society to operate in a different world to the rest of us and the recent released documents gave us ample proof of that.[6] No one was particularly surprised to find many heads of state from all around the world, including the UK, linked to this company. Compare this with Abū Bakr Al-Sidīq. When whole communities refused to pay the annual Zakah, he initiated a war effort. The UK government’s “achievement” in making Google pay £130m in tax, after generating profits in the billions, sounds rather paltry in comparison.

At this point, we are usually accosted by “evidence” of Islamic barbarity with regards to the penal laws specified in our Sharīʿah. The typical (Muslim) counter-narrative is to state when the penal punishments under the Sharīʿah are not applied. But the gravity of these crimes, or their normalisation (such as virtually public adultery) is not debated.

Along with this, there are a number of noteworthy issues surrounding the Islamic Penal Code:

Penal punishments are not debated on theological grounds but on grounds of what we perceive to be ‘harsh’ which is subjective, in the least. This is because instances of the application of the adulterer’s punishment, for example, (and here we are referring to established Muslim States, not self-acclaimed ring lords) historically occurred after the insistence of the individual that they be punished. This was reported by Shaykh al Islām Ibn Taymiyyah and further confirmed by the late Shaykh Ibn ‘Uthaymīn.

The penal punishments of Islām lend perpetrators the benefit of the doubt to an almost prohibitive extent. ‘Treason’, for instance, described under an Islamic System as a form of ‘Apostasy’ is never applied unless it is known, and an environment conducive of apostasy or one that encourages it cannot be considered an Islamic System in the first place.[7]

Muslims in the West are not reprimanded for the application of the penal aspects of Islām as they live under another system and therefore don’t apply them. Instead, they are scolded day in and day out for their mere belief that it is from God. Therefore, if those who scorn the code want to convince Muslims that they are right, the challenge to Muslims should be an ideological one i.e. is Islām truly the word of God? Arguing as per the dynamic standards of ‘Human Rights’ does not hold so long as the notion that the message of Islām is divine stands firm. No one has been able, or will ever be able to challenge this. As an example, you cannot convince someone that it has not rained simply because you do not like getting wet.

In conclusion, those who insist on ‘modernising’ or changing Islām to suit the status quo, whether Muslim or non-Muslim, should perhaps clarify in their own mind first and foremost what it means for laws to be specified by God. Aside from this, if one does not perceive the benefits of the Islamic Sharīʿah (with no real examples but history), then take comfort in the fact that human perception, much like eyesight, is limited to a short horizon. We can only rationalise what we comprehend and most of the time, this is very little.

Source: www.islam21c.com

Notes:

[1] Al-Qur’ān, 2:6-7

[2] Uyoon Al-Akhbaar (1/55) and Mahd As-Sawaab (2/579)

[3] http://www.theguardian.com/commentisfree/2011/dec/29/working-class-leaders-politicians

[4] http://www.theguardian.com/politics/2015/mar/21/revealed-link-life-peerages-party-donations

[5] Az-Zuhd, by Imaam Ahmad (pg 125)

[6] http://www.bbc.com/news/business-35979313

[7] https://www.islam21c.com/islamic-law/doubt-in-islamic-law-a-history-of-avoiding-punishment/

About AbdulRahman El-Nounu

AbdulRahman El-Nounu is a Mechanical Engineer by profession having completed a MEng and is currently pursuing his doctorate (EngD) as a Manufacturing Research Engineer. He is actively involved in arranging Islamic structured courses with international Dawah institutes and delivers basic study circles in his locality while attending regular Tafseer classes. AbdulRahman’s research and political activism focuses on international affairs and he is an author to Islam21c on current Middle-Eastern issues.

3 comments

  1. an ‘advanced society’ in lieu with ‘diplomatic immunity’….interesting indeed!!….a society based on impunity; quite the pre primative society.

    ‘primative society’, we’re quite accostomed to the name calling;nobody bats an eyelid.
    our Lord tabaarak wa ta’aalaa has already tols us in His revelation to the prophet Muhammad (peace and blessings be upon him)how you will even in hell, ask yourselves why you do not see the people you
    regarded as the ‘ashraar’ -sooratu saad verse62

  2. an ‘advanced society’ in lieu with’political impunity’
    quite a primitive combination?!!!

  3. Great article!!
    Examples given of the time of the companions remind us that truly the golden generation can never be replicated. People who really lived for the sake of Allah.
    Important point made about the heinous crimes committed that modernist want to defend or belittle the punishment for.
    Jzk Islam 21c

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