SHARIAH LAW is a favorite topic for the press, isn’t it? Reports of the “strict, barbaric law” spread faster than wildfires. Such a not-to-miss story that recently made headlines world over was that of a Saudi judge who wanted to paralyze a man as punishment for attacking and paralyzing another man during a fight. The case had been going on for two years as the paralyzed victim demanded revenge for the harm he suffered and rejected material compensation.
But before we get on with the case and take a look at what the Shariah law is, it would behoove to decry the torture allegations that come from pompous and self-righteous circles that refuse to look at their own backyard.
“Torture in American prisons” query in whatever search engine you use will tell you a shocking story. No, we need not look toward Guantanamo Bay, Bagram base or Abu Ghraib. A Channel 4 documentary reveals how torture, a result of insane laws, is a daily occurrence in America. Justice in courtrooms largely depends on which party has deeper pockets to hire the smartest lawyers to make the law bend in your favor. While innocent people are sentenced for decades in prison based on mere allegations, rich criminals are acquitted without punishment. It’s a whole different story when it comes to the corporate level. Rich conglomerates are let scot free, if not awarded, for crimes. The financial crisis is an example of how crooks akin to highway robbers (banks and insurance companies) who stole people’s money were rewarded with more money (bailouts).
I do not mean by this that all Muslim societies are perfect and honest in applying the Shariah. I also acknowledge that there are good aspects in western societies (not so corrupt, for instance). But the reason I say this is because the assault has been on the Shariah law itself (and not on corruption) by a people who are ruled by a law they have nothing to be proud of. Shariah law has been unjustly slandered and demonized.
Coming back to our case at hand, doesn’t the judge’s “judgment” to paralyze the man seem extreme, or is it? The first thing we need to know is that it was not the judge’s demand, but the victim’s. It was the victim’s relentless stand of exacting revenge that put the case in limbo for two years. It was finally put to rest when hospitals said it wasn’t medically possible to inflict the exact same paralytic condition through surgery, so the judge ruled that the victim had to settle for compensation.
What we’re dealing with here is an area of Islamic law called Qisas (fair retribution). Allah explains it in the Qur’an:
And We ordained therein for them: “Life for life, eye for eye, nose for nose, ear for ear, tooth for tooth, and wounds equal for equal.” But if anyone remits the retaliation by way of charity (i.e. forgives), it is an expiation for him. And whosoever does not judge by that which Allah has revealed, such are the wrong-doers. (Qur’an, 5:45)
Qisas is inflicted only for deliberate killing or wounding of a person. The penalty could be waived by the victim or his heir for blood-money (diya). As for unintentional homicide or wounding, there is no retribution, only compensation (blood-money) is paid to the victim.
Though there is provision for equal revenge, what is recommended for the victim to do is pardon and forgive, as Allah says, “But if anyone remits the retaliation by way of charity (i.e. forgives), it is an expiation for him,” and in Surah Baqarah, “But if the killer is forgiven by the brother of the killed against blood money, then adhering to it with fairness and payment of the blood money, to the heir should be made in fairness. This is an alleviation and a mercy from your Lord.”
This is what the original status quo is i.e. to pardon the assailant. And this is no doubt whatsoever what the Judge will have begged the claimant’s family to do (I know some Sharī‘ah Court Judges personally, have seen Qadhā’ in action, and this is exactly what happens). And folks, I really do mean beg — with everything possible exhorting to forgiveness and mercy found in the Qur’ān and Sunnah. To witness this happening in a court can actually be quite an emotionally overwhelming experience.
This is of course the Sunnah of the Prophet (sallallāhu ‘alayhi wa sallam) as narrated by Anas b. Mālik (radhy Allāhu ‘anhu) who said, “Never was a case of retaliation ever raised to the Prophet except that he would order the claimants to pardon (the assailant).” (Abū Dāwūd)
Moreover, Qisas is very specific about being exact. If it is not possible to recreate the exact injury, then, “Qisas is not an option anymore and blood money is insisted upon instead.”
“In fact it would be fair to say that the majority of the scholars hold that if someone suffers any internal injury in an attack, the judge cannot offer Qisas to the claimant’s family because of the uncertainty and risk involved of further and greater injury than that incurred in the first place,”
“I would contend that it is rather unfortunate not to say this judge in question actually receive more praise for taking his job so seriously. It would have been far easier for him to just say, ‘This is a seriously complicated internal injury in which there’s no way of having exact fair retribution for so I rule for blood money!’
“Said statement would have been the norm from the scholars a thousand years ago but what the judge is investigating is whether our current medical advancements allow for an exact replication of the injury in question, which is in essence the exact letter of the law – a law which is to be found still today in the Old Testament and has been maintained for the Muslims to follow until the Final Day. And what must be remembered is that the judge has gone to all this effort solely in pursuit of justice for the injured party for it is his right to forgo blood money and choose the exact same horrific injury that has ruined his life upon the assailant despite the fact that to pardon would be better.”
It is quite sad that such a superior law has been mocked at for no reason while not a moment is taken to reflect if the man-made law in western courts has had any positive effect at all. Prison sentences have hardly had any effect on the ever-growing crime rate in western countries. Most criminals usually get re-convicted within a very short period of their release.
Qisas provides the victim with justice – a rarity in today’s protect-the-criminal obsessed “international” laws. Criminals do have rights, yes, but not at the cost of justice. Moreover, taking one life in retaliation of another (the murdered) reduces crime, protects the society and restores the high-regard and value for human life. This is the objective of the law, as Allah says:
“In Qisas (the Law of Equality) there is (saving of) Life to you, o you men of understanding; that you may become pious.” (Qur’an, 2:179)
The Shariah law is not a mere set of punishments. The penal system is just one part of the Shariah and Qisas too is just one part of the penal system. The topic is definitely intriguing. In the next part, we’ll have a look at what the Shariah is and clarify other touchy parts of the penal code – lashing, execution, cutting off the hands, and of course the infamous stoning to death.