Quranic Foundations And Structure Of Muslim Society
Chapter 4
PENAL ETHICS
As in the case of every organised society, it is the function of the Islamic Social Order to ensure the preservation of the values that it upholds through a Criminal Code which, though built up on spiritual and moral foundations, is to be enforced by the state-authority. Indeed, the Holy Qur’an does not confine itself to mere sermonising on morals and does not want the upholders of its message and mission to be mere passive spectators or imbecile critics with respect to evil and evil-doers. Rather, it commissions them to control the incentives to crime and to combat the forces of moral evil and social ill-health actively and with masculine grace.[1]
Among the Western thinkers who, in modern times, have devoted their attention to a philosophical assessment of the problem of punishment, two stand out prominent, viz., Kant and Bentham. The former, who is famous for his categorical imperative and moral purism, holds to the retributive character of punishment, while the latter, who is famous for his utilitarianism, has projected utility as the basic consideration in respect of punishing criminals. But neither the absolute standard of Kant nor the utilitarian view of Bentham have satisfied the later legal thinkers when they have found themselves confronted with complicated legal situations. As a consequence, different other theories, which are ‘dubious mixtures’[2] of the above mentioned two, have come into existence—of course, with the Benthamian bias, making confusion worse confounded, because crime, which it is the aim of all these theorists to control, has continued to increase in the Western society and in those others that are its camp-followers.
Coming to the Holy Qur’an, there the obligation of punishment is, besides being legal, also moral and even spiritual, whereas it is only a legal obligation in the secular systems. It being so, the Qur’anic outlook on the nature of punishment is that the values, which form the life-blood of the social order, should be preserved, if need be, even at the cost of mutilating, or taking the life of, the criminal, and no softness should be observed because that would degenerate finally into the adoption of expediency, the condoning of crimes, and the consequent deterioration of the moral standards.[3]
The ultimate end is the spiritual
purification of the criminal through subjection to an ordeal and of the society
through the establishment of the correct moral and spiritual tone
by means of creating genuine fear of evil consequences of crimes among the
would-be criminals and thus restraining them from deviating from the right
path—the path of virtue. This end is contained in the principle of
comprehensive spiritual purification, which has been declared by the Holy Qur’an
to be the mission of the Holy Prophet (Peace be on him!) (62:5).
As regards the gradation of punishment, the Qur’anic principle that emerges is that the higher the value that is violated, the severer the punishment, and the lower in grade the violated value, the lighter—comparatively speaking—the punishment. Thus the Qur’anic evaluatory scale of crimes stands, from above downwards in the following order : Fornication, Theft, Murder.
Now: Fornication is a crime against honour, as also against the healthy existence of family life, and thus against the very foundations of human society—because, as the Holy Qur’an teaches (4:1), it is the family and not the individual which forms the basic unit of human society; theft is a crime against property; and murder is a crime against life.
The outlook of the Holy Qur’an in respect of the punishment of these crimes is not the same in each case. It is the most severe in the case of fornication, because it has been commanded that Muslims should not show the slightest compassion in inflicting the punishment, or else they will land nothing less than their Faith itself in jeopardy (24:2). As for theft, robbery and treason, once they fall in the punishable category and have been detected, there remains absolutely no possibility of condonement.
Coming to murder: although the Holy Qur’an prescribes retribution, it also permits payment of ransom if the aggrieved party agrees. This seems to be due to the fact that the inducement to commit murder is mostly rooted in the crimes against honour and property. Hence, once the crimes against honour and property have been dealt with more severely, as the Holy Qur’an does, the crime of murder can be dealt with less severely, provided there exists a genuine ground for it, without damaging the social health.
Viewing the Qur’anic punishments in the light of ethics, the punishments relating to fornication, adultery and homosexuality are reformative in the sense that they imply the spiritual purification of the offenders; the punishments prescribed for theft, robbery and treason are of deterrent character; and the punishment in respect of murder is based on retribution which is tempered with mercy (2:178). The guiding light in all cases, however, is the procurement of spiritual good [4] of the individuals concerned and of the society.
As for the principle of severity in respect of punishments, it is grounded in the following facts:
a. The Qur’anic view of the human being is that he is essentially a spiritual being and the Vicegerent of God, and not just an animal among animals. In consequence, the crimes in question acquire extraordinary gravity as forming fundamental violations of the human status.
b. Like every criminal code which emerges on the basis of an over-all philosophy and code of life and is rationally enforceable in that perspective alone, the Qur’anic penal code is meant to be enforced in a specific form of society—the Islamic society.
c. The Islamic society, i.e., the society based positively in both theory and practice on the Qur’anic Guidance and constituted of morally-struggling and spiritually-orientated individuals, is, in its turn, a society which is dedicated to the ever-active realisation of moral, legal, economic and political justice, which functions positively and devotedly for the eradication of the incentives to crime, and whose ultimate goal is through and through spiritual.[5]
Considered in terms of efficiency in respect of the eradication of crime, the success of the Qur’anic penal code stands at the highest in human history.
Coming to the modern Western outlook, it is radically opposed to the Qur’anic gradation of values. There, the highest in the scale is the crime against life, and after that comes the crime against property. As regards crimes relating to sex, chastity is not considered to be a value worthy of being protected with the arm of law! Rather, it is the sex-crimes that receive legal and, in some quarters, even ecclessiastical protection. How horrifying is the situation in this respect can be seen in the published proceedings of the legislative bodies in certain Western countries and in the facts and reports broadcast in the respectable journals of Europe and America. And, as already stated, it is not only the laity but also the clergy (!) of the Christian Church who have fallen victim to an absolutely immoral point of view in respect of sex-crimes.
In evidence thereof, we may quote from a book entitled “God speaks out on New Morality”[6] (pp. 104, 105). Giving the heading: “Shocking Homosexuality in the Ministry”, the authors of the book have reported:
“Here is a London newspaper report: ‘The archbishop of Canterbury, Dr. Geoffrey Fisher, spoke in the House of Lords in support of a change in British Law to the make homosexual acts between consenting adults in private no longer a criminal offence. The Archbishop said: the right to decide one’s own moral code and obey it, even to a man’s hurt, was a ‘fundamental right of man given to him by God, and to be strictly respected by society and by a criminal code.’ That from the head Minister of the Church of England! …
“A Congregationalist minister, Pastor Robert W. Wood, wrote a book, Christ and the Homosexual. A newspaper review of his book in a Pasadena paper said: Mr. Wood seems … interested in proving that ‘homosexuality is the creation of God (since God is to the Creator of everything); and as such it is just as good and as any other creation of God’. He says further that homosexual love’—he means lust—‘can be truly sacramental, or holy, in the eyes of God. He has seriously discussed the desirability of performing marriages between two persons of the same sex.”
“ ‘A homosexual’, he says, ‘can be a successful clergyman’ … Mr. Wood maintains that the rate of homosexuality in the clergy is higher than in most other professions. The author even suggests that this perversion may one day be useful in solving the problem of over-population.’ (It certainly did solve the ‘over-population’ of Sodom and Gomorrah!!!). ‘He says that homosexuality is not a sin, and that under certain conditions in certain ways it may even be morally right.’
“I have much, much more evidence … many more such reports. Theological seminaries—several of them—are known to have, as students being trained to become pastors of churches, a high percentage of homosexuals. I have reports that homosexuals are organised—and that there is a determined campaign to seek out, seduce, and ‘convert’ to this loathsome perversion child ‘converts’ …
“Some men who profess to be the ministers of Jesus Christ argue that the Bible nowhere condemns fornication or homosexuality.”
If ministers of the Christian Church, like the Archbishop of Canterbury and Pastor Robert W. Wood and many others, regard the unnatural crime of homosexuality as ‘holy in the eyes of God’, very naturally the Western civilisation of today accepts the natural crime of fornication much holier, and consequently the Western societies have gone forward to an unimaginable extent in that respect. This fact is so well known that it hardly requires any documentation.
Viewing the situation in respect of crimes in general, it seems as if the Western society [7] finds itself helpless in facing the challenge of crime. And this helplessness has reached a point where what was once regarded with utmost seriousness of conviction as an offence is now being legalised only because that offence is being widely committed, having received licence from a wrong philosophy of punishment for a long period of time.
It should not be too much to emphasise here that the whole fault lies with the West’s legal philosophy, which in its turn is based on certain perverted concepts in the realm of moral philosophy.
The following observations of a
former Chief Justice of Pakistan, Mr. A. R. Cornelius (a Christian), in respect
of the consequences for morality of the legal procedures and punishments
awarded under the present-day westernised Criminal Law, are worthy of note by
those who object to the severity of punishments prescribed by the Holy Qur’an. He says:[8]
“… As for criminal cases, it is probably correct to say that under the present system every decision has the quality of breeding more cases of the same kind … cases in which guilty persons are acquitted probably form the majority. On the other hand, there are a number of cases in which innocent persons are convicted on the basis of oral evidence, and even suffer death.
“Cases are common enough where 10 or 15 persons have jointly slaughtered 3 or 4 of their enemies, and carried their heads in triumph aloft on spears through the village. One supposes that when they are acquitted, as they often are, the village lives in a state of terror from these persons when they return and the whole balance of life is upset once again, as it was when the murder took place and during the ensuing Police Investigation. By the inscrutable working of the judicial system, a situation has been created, to which under the necessities of life the people have to adapt themselves, and, at the cost of a part of their true character, they do so. Unfortunately, what is damaged in the process is that part of their character which is the distinguishing feature of the strong and noble human being. Belief in truth diminishes. Denial of the strength of evil becomes impossible …”
Elsewhere, Mr. Cornelius observes:[9]
“I may appropriately end this paper by stating my doubts regarding the utility of imprisonment [10] in all cases as a mode of punishment for a crime. At a time when the common person all over the world is finding it increasingly difficult to provide subsistence for himself, there is something of an absurdity involved in the consideration that he can procure such subsistence and a good many amenities and facilities besides (such as medical care) by simply committing a crime … the ever-increasing burden of maintaining prisons and highly-paid staff to provide accommodation, care, proper food and other amenities for persons of proved anti-social quality is one from which an intelligent citizenry may justifiably seek to be relieved if alternative methods, cheaper and not less effective, can be found to create the desired effects of punishment, retribution and reformation.”
g
[1] 3:110; 22:41.
[2] Professor K.O. Shatwell, Dean of the Faculty of Law at the University of Sydney, Australia, names them as “unproven theories” and deplores “that crime like the ever rolling stream with which we are all familiar is today not only in danger of over-flowing its banks but to some extent has already done so”. (See, his paper on “Crime and the Punishment of Crime” read at the Third Commonwealth and Empire Law Conference held at Sydney, and reported in the Pakistan Legal Decisions, Lahore, 1966, p. 103).
[3] This is what is happening in the West today, as we shall shortly see.
[4] Note the observations of Rashdall: “… the moment we insist upon the effect produced on the sufferer’s soul by his punishment, the retributive theory is deserted by the reformatory or the deterrent … If it be urged that avenging of the Moral Law (in the infliction of physical punishment) is right because it is the expression of the avenger’s indignation (—as Kant would have it—) that is an intelligible answer; … though this can be hardly regarded as an ultimate end but rather a means to further end—the spiritual good of the man himself and of society at large.” (Theory of Good and Evil, pp. 285,301).
In contrast stands the defective and rigid view of Kant, who is one of the greatest of modern philosophers: “Juridical punishment can never be administered merely as a means for promoting another good, either with regard to the criminal himself or to civil society, but must in all cases be imposed only because the individual on whom it is inflicted has committed a crime … The penal law is a Categorical Imperative (Kant’s Philosophy of Law, E.T. by Hastie, 1887, p. 195).
[5] Ref : Discussion on the nature of Islamic society in chapter 9 of Part 4 (vol. 1, Book 1).
[6] Compiled by Faculty Members and published by the Graduate School of Theology, Ambassador College, Pasadena, California, U.S.A. (1964).
[7] and so, too, its camp-followers in Asia and Africa!
[8] Pakistan Legal Decisions, Lahore, 1965, pp. 157-158.
[9] Pakistan Legal Decisions, 1956, p. 149.
[10] Italics, present writer’s .
to be continued . . . . .
Quranic Foundation & Structure Of Muslim Society In The End Times
No comments:
Post a Comment