In the April 2005 issue of The American Muslim we published an article “Tariq Ramadan Calls for a Moratorium on Capital Punishment”
There were reactions to this call for a moratorium throughout the world with many scholars commenting on Prof. Ramadan’s statement.
Professor Ramadan has made responses to these individual Muslim scholars ad leaders comments and ........
Response to Dr Ahmad ar-Rawi’s comments
Dear Dr Ahmad ar-Raw
Salam alaykum wa rahmatulLahi wa barakatuHu
I read your commentary on the Call and I must say I was surprised and disappointed by the tone and, at times, the content of the remarks you made in your capacity as president of the Federation of Islamic Organisations in Europe.
You are reported to have rejected my ?justifying? the ?call as a means of combating the vile campaigns that aim at distorting Islam in the West?; such rejection is unnecessary since no where in the call or in my public or private discussion have ever made the claims attributed to me. So how did you reach such a conclusion? This Call is a reflection from within and has nothing to do with the West or the desire to beautify Islam in the Westerners? sight. Instead of supposing my having bad intentions it would have been better, perhaps, to read the text carefully and to respond clearly to my questions and proposals. Is not ?husn an-dhan? (to suppose good intention to one?s brother or sister) a sine qua non condition to start a dialogue among Muslims?
To associate this Call with what happened recently in the States or in Holland - as to the question related to the relationship between women and the mosque or the im⭡ - is unfair and unacceptable. What is the link? Are they all bida? (innovations)? Should this Call be considered as a bid?a? It would have been better if you came back to the meaning and the fields within which the ulama use this concept (bid?a) and explain how you justify describing this Call in such a way.
You add: “Where on earth are such hudud applicable?? and further ?They are not implemented in all Muslim countries and there are some reservations on the application of these hudud in Saudi Arabia.? I do not know if we are looking at the same world but to minimize the facts in such a way is once again intellectually not acceptable: the corporal punishments, the death penalty (directly or indirectly justified by Islam) are daily practices throughout the Islamic world. A woman was stoned two days ago in Afghanistan. Are these details?
You say: ?I respect Tariq Ramadan as a Muslim thinker and caller, but I deem him far above tackling thorny issues of this kind? and so I ?should have consulted specialized scholars and jurists before launching his call through the media.?
I am not going to respond on the personal level as I assume that you have no idea as to my Islamic education for the last 20 years, its content and my professors and teachers. The essential point here remains, if you come back to the Call you will find it addressing the ulam⒠and in it I request that they engage in a debate at every levels and in a profound way. This is consistent with what I have saying for the last five years.
Finally, I want to add three remarks:
I have been asked four times to be a member of the European Council for Fatwa and Research as I was invited to attend the first constitutive meeting of the International Association of Muslim Scholars. I have chosen not to be directly involved but I have followed and always respected the work done. In 2000, during a two months lectures trip in the United States, I proposed to the leaders of MAS (in Washington), to think about having three or four scholars based in America involved in the already set European Council as the topics discussed are similar : I am happy to see that this is the case today. I have written the foreword and the commentaries of the first volume of Fatawa published in French. This is to say that I respect the work done even though I have some reservations about the notion of ?fiqh of minorities?. On the question of hud?he Council?s position is that, since Muslim monitories do not have to apply the hud?hen this matter should not concern us. So why do you want me to direct this question especially to the European Council as the Council itself sees it as beyond its competence (even though I deeply disagree with this understanding)? It is an international question and it concerns in priority the Muslim world: this is the meaning of my approach.
The ?fiqh of minorities? constantly refers to the two notions of ?h⪡? (need) and ?dar?(necessity). One can understand why, even though, humbly, I think that we are reaching some excesses. Nevertheless, I pose this question: how can we evaluate the attitude of the Turkish government which, to be able to integrate the European Union, has accepted to abolish the death penalty. Here is a majority Muslim country… is this an acceptable ?political dar? Is it a decision against the ?will of Allah?? Is it a bid?a? How is it that the ulam⒠and the leaders have been so silent on that question?
Necessity (dar?is very often put forward in order to ease the way for the Muslims living in difficult environment. Is it not possible to refer to the state of dar?o avoid people being treated or killed unfairly? Should we not, in the name of dar?and because the basic conditions of justice are not gathered, suspend the application of punishments and irreversible sanctions as we all know that today they are a plain betrayal of the Islamic teachings. Is the notion of dar?nly referred to help the Muslims to adapt themselves to the requirements of an unjust world but not to allow them to stop the injustices perpetrated in the name of Islam?
These are the questions, in addition to those of the Call, that I hope one day our ulam⒠are going to tackle in sh⒠Allah. It is not because I live in Switzerland that what is going on in the Islamic world is not of my concern: one cannot refer to the glorious ?ummah? to inspire the Muslims with the greatness of Islam and hide behind one?s national preoccupations in order to avoid facing up to the injustices done in our name at the international level. After September, 11 we all have strongly and clearly condemned terrorism under the pressure of the circumstances and the media: today, we must condemn the betrayals of our message under the only pressure of our faith and conscience. Even though nobody (or no media) speaks about it… in fact especially if nobody speaks bout it!
Wa Allahu a?lam wa a?l⠷a ahkam
Response to Dr Taha Jabir al-?Alawani’s comments
Dear respected Dr Taha Jabir al-?Alawani,
Salam ?alaykum wa rahmatulLahi wa barakatuHu
First I want to thank you for commenting on The Call for a Moratorium.
I must say I was surprised, if not shocked, by the title ?Unacceptable Allegations? and the leading paragraph of your commentary ?Fabricating lies against the Muslim nation is unacceptable…? Where in my Call did you find ?allegations?, these ?lies against the Muslim nation?? You neither cite examples of these allegations nor present refutation.
You add: ?So, any trial to separate us and Shari`ah means that there is a plot to efface our identity, culture, and tradition. There is not a believer, believing in Allah, His Messenger and the Last Day, who can support such a plot or claim that we Muslims are in no longer need of Shari`ah.? Once again, where in this paper did you see statements that led to your assertion? In fact, and quite the opposite, this Call clearly argues that it is urgent to reconcile ourselves with the true meaning of the shar by reforming our practices. This is the message in the Call, and in all my books and papers.
You go on to say: ?There is a common misconception among some people as regards the comprehensive meaning of Shari`ah -that includes acts of worship, dealings, and morals, and penalties. This made some people, due to their ignorance, refer to Shari`ah as penalties or penal law. This is, in fact, a very limited perception that shows their lack of understanding of both fiqh and Shari`ah.? Reading your words I am stunned by the implication that I lack understanding of the basic definition of Shar?ia and I am left wondering if you really took the time to read carefully the text of this Call which explicitly points to the problem of reducing the Shar?ia to penal code. Your remarks seem unrelated to the text.
I can not but disagree with your argument that ?Today, we live in a world where Shari`ah is almost not applied. Even those few states and governments that declare their application and adoption of Shari`ah neither apply nor execute any of its penalties. Shari`ah is a whole, unique entity that cannot be divided.? The few known (many less known) cases of stoning, the corporal punishments inflicted on the poor Pakistani and Filipino workers in the petromonarchies without legal recourse, and the unjust executions (those directly applied in the name of Islam and others tacitly accepted as sanctioned by Islam because death penalty is understood not to be against the Islamic references), are they not applications that betray the Islamic principles of justice? Can your formula ?almost not applied? justify their suffering and our silence?
Your reference to the controversy of women?s imama does not pertain to this Call?s objective or the arguments it presents and I do not see the link you are attempting to make between these two subjects, except possibly one that evoking an emotional reaction.
You argue that I should have directed my questions to the ?ulam⒠and the scholars, I have done exactly that for the past five years and it is precisely what I am doing by this Call. You contend that I do not have the credentials to respond to the questions, fine, but you should at least recognize my right to ask and the humble legitimacy of the following questions posed by the Call:
What are the texts (and what is their respective degrees of recognized authenticity), that make reference to corporal punishment, stoning and to the death penalty in the corpus of the Islamic scriptural sources circumscribed to what the specialists call the hud?Where are the margins of possible interpretations and on which points are there clear divergences (al ikhtil⦩ in the history of the Islamic law and in the contemporary era?
What are the conditions (shur?tipulated for each of the penalties by the sources themselves, the consensus of the scholars (al ijm⒩ or by individual scholars through Islamic law history and jurisprudence (fiqh) ? Where are the divergences on the stipulations and what ?extenuating circumstances? were sometimes elaborated by religious authorities throughout history or within the different schools of thought ?
The socio-political context (al wⱩ?) was always considered by the ulam⒠as one of the conditions needed for the application of hud?he importance of this question is such that it demands special treatment (and participation within the debate from intellectuals, notably those who are specialized in the social sciences). In which context today is it possible to apply hud?What would be the required conditions in terms of political systems and the application of the general legislation: freedom of expression, equality before the law, public education, eradication of poverty and social exclusion ? Which are, in this domain, the areas of divergence between the legal schools and the ulam⒠and on what are these disagreements based?
So far, except two or three comments from ulam⒬ I do not see any serious response to these questions. Some have dismissed The Call by misinterpreting its meaning or responded by avoiding the subject all together or simply made broad and emotional statements. My intention is to initiate a debate. So, is there anyone among the ulam⒠who is ready to stand up, to speak up, and to seriously commit to engaging in a critical and honest debate instead of dismissing this entire matter because this call is ?coming from the West? or is an attempt to ?destroy Islam??
Finally, you advise me to ?study the current state of the Muslim nation side by side with Shari`ah, to point out the deficiencies that should be worked on to apply Shari`ah?. I have done and continue to do that. My assessment is detailed in many of my writings and my book Islam, The West and The Challenges of Modernity (1995) is an in-depth study and analysis of the contemporary Muslim majority societies and their socio-political dynamics. One of the important deficiencies I brought to the fore is this reduction of shar to the penal code and the necessity to reform our understanding and to condemn the implementations that betray our message. It is this on going reflection that has driven me to formulate the content of the present Call.
I remain hopeful that, in sh⒡ ar-Rahm⮬ we can debate its exact content. These are serious and essential questions for the one who, as you wrote, does not want to destroy Islam.
May Allah love us and guide us.
Response to Dr Muzzamil Siddiqi’s comments
Salam ?alaykum wa rahmatulLahi wa barakatuhu.
I thank you for taking the time to comment on ?The Call for a moratorium?
I, of course, find nothing objectionable in the first section of your response where you outline the classical principles that constitute the Shar?ia. In my book, Western Muslims and The Future of Islam, I recall these elements as well and define ?ash-Shar? as ?The Path towards faithfulness? within the scope of which comes the entire legal thought extracted from the Islamic scriptural sources.
As you mention, the penal code is but a small, yet important, field within ?ash-Shar? whose global objectives are the protection of religion (d, of the person?s integrity (nafs), of the intellect (?aql), of the global family ties (nasl), of property (amw⬩ and of the person?s dignity and honor (al-?ird). At the collective level, the implementation of a well understood Shar can only lead to the respect of justice, of the rights of the individuals and the people. You recalled it and we agree.
You recall as well how, today, the global message of Islam is misunderstood and wrongly implemented and that very often the hud?e applied before taking care of the people?s rights (huq?We agree on that as well.
Having said that, how do we move forward? Is it sufficient to recall and to repeat that what we witness is not the right application of Islam? Should we be satisfied with just frequent pronouncement that the implementation ?should be fairer?? Is it not time to say and to do more?
To this end, the call for a moratorium has at least three virtues:
To stop immediately the unjust acts perpetrated in the name of Islam. It is not acceptable to claim that these acts are rare or marginal. Be it directly in the name of Islam or because it is thought not to be against Islam, women and men, as well as political opponents, are chastised and executed within the Islamic world. It is not acceptable to denounce such practices only when the media is covering them. It is our responsibility as Muslims, inspired by the right understanding of the application of ash-Shar, to ask for suspension of these punishments and for a vast debate regarding the meaning and the content of our faithfulness to the Islamic message in our contemporary world.
To open an in-depth debate that is no longer a reaction to individual events that happen in the Islamic world as we have witnessed it recently with the two stoning cases in Nigeria.
To dare to discuss the implementation of the hud?at deal with borderline cases helps us to touch on a field revealing the very nature of the common intellectual attitude among the contemporary Muslims. Ulam⒠and scholars affirm and repeat that ? Islam is not that…?, ?Islam is misunderstood…? , ?Islam is a global message…? At the same time we have become very timid in our condemnations of the instrumentalisation of our religion and we minimize the injustices done in our name.
Is it not time to condemn the injustices and to call for a suspension of theses formalistic applications that undermine the dignity of so many women and men and/or are irreversible? Is it not time to propose a reform project for the Muslim majority societies that is more coherent and consonant with our dignified Islamic message?
Our thought is broken down and we believe that we prove our faithfulness to the Islamic message by hanging on to slogans that maintain an evasive, reactive and uncreative mentality.
Yes indeed ash-Shar is a Path to the global faithfulness within which we find the Laws and among which the penal code is an integral part. Yes indeed, we witness grave and unacceptable injustices every day and far from the media cameras…
I have been speaking about all that with ulam⒠and scholars for the last five years. The great majority, if not all, agree that our message is being betrayed and that things should move… but as there is no ?media noise? every one keeps silent and the injustices continue…
This seems to be our current intellectual state…this maybe our current spiritual and intellectual disease. This is not the way our Prophet (Peace be upon him) was acting and reforming…
In the name of these established facts, I humbly think that we should suspend these implementations and ask the ulam⒠to provide us with a just, realistic and coherent vision of how we should deal with the hud? order to remain faithful to the universal message of Islam.
Wa Allahu a?lam, wa a?l⬠wa ahkam
In Answer to Al Azhar and Shaykh Dr. Ali Jum?a, Mufti of Egypt’s Comments (the Shaikh’s individual comments are included below)
Most respected Dr. Ali Jum?a,
Salam ?alaykum wa ramatulLahi wa barakatuHu
I would like to begin this letter with an expression of my highest respect for both your position and your knowledge. Many years ago, before you became Mufti of Egypt, you received me privately in your home in Cairo in the hours following fajr prayer two to three times a week over an eight-month period for an intensive course of study in Islamic law and jurisprudence (fiqh). Then you were my professor, as attentive as you were demanding ; today I welcome with even greater gratitude your meticulous, insightful and closely argued response to my Call for a Moratorium on Corporal Punishments, Stoning and the Death Penalty in the Muslim World.
Your commentary raises fundamental points that strike at very core of understanding the shar itself, to the conditions under which it is applied, to the times we live in, and to the deeply universal spirit of the message of Islam. I would like to begin by taking up these four points, then move on to discuss your seventh point, as well as the last paragraph of your text, which deals with the appropriateness of such a Call.
2. The global dimension of the shar
You define the shar in broad terms, and remind us that it subsumes the fields of faith and of our relations with the Creator, as well as the moral dimension of human actions, and the conviction that there exists not only a life after death, but also final judgement. You note that, in an even broader sense, the shar provides a vision, as well as orientations and paths to be followed in matters of applied ethics, education, and in all that flows, ultimately, from the interaction between the texts (the Qur?an and the Prophetic tradition) and social reality.
This reminder is as imperative as it is salutary : not only does it redirect our attention to the classical tradition, but it restores to its proper place the debate on the criminal code (hud?which must be integrated into a much broader vision of the understanding of fidelity to the message of Islam. I could not agree with you more fully : in my books and articles I have made constant efforts to define the ?shar? as the ?Path towards faithfulness to the message? that demands a coherent, all-embracing vision.
2. Texts, law and conditions
You divide the discussion of hud?n its strictest definition, into two aspects. The first centers on faith and conviction : a Muslim must be capable of knowing and recognizing that there exist revealed texts, and that the punishments contained in them concern such acts as are considered reprehensible by Islam. In terms of the message itself, you assert that Muslims may not consider ?this system of sanctions as unjust or violent in and of itself.?
The second aspect extends and sharpens the first. You assert that the ?Islamic legal system has provided conditions for the application of hud?s it has foreseen the states and situations in which they may be suspended (ta?lha) or stopped (iqafiha).? You conclude with forceful insistence : ?When the conditions are not fulfilled, or when these situations or states are not established, all application of hud? their absence is considered as a transgression of the shar.?
The two points you raise are precisely those to which I wished to draw attention in the Call. For Muslims, there exist a Revelation and texts whose authenticity is beyond dispute ; but there also exist conditions and requirements whose existence cannot be denied except at risk, as you write, of transgressing the message of Islam itself (in the name of a blindly literal application that does not take into account social, cultural and political contexts). Where the explicit nature of the texts and the complexity of social situations interact, you remind us of the celebrated words of the Prophet (PBUH) : ?Avoid (application) of hud?ere there is doubt [have to rely on the doubts]?
3. History and the modern era
Having described the situation of Egypt, over a one-thousand year continuum, and having based your argument upon the findings of the leading scholars of Islamic civilization, you go on to note that the absence of the required conditions (ash-shur?necessity (ad-dar? doubt (ash-shubhat) and the public interest (al-maslaha) have always been invoked to suspend practices or to establish exemptions with regard to a literal application of Islamic regulations. This has been a classic practice among the fuqah⠨scholars of law and jurisprudence) and there can be said to exist, in the fundamentals of Islamic jurisprudence (us?-fiqh), a general rule that stipulates, ?imperatives make permissible that which is forbidden? (a rule universally recognized in the principle that ?necessity knows no law?).
In place of the formulation of scholars of the science of the ?fundamentals of fiqh? (us? who, like al-R⺩ in al-Mahs?rote of ?rational abrogation,? you prefer the more appropriate expression, ?the consequence of the absence of conditions in [the application] of judgement? which stipulates that it is impermissible for reason to abolish established and definitive rules, but it is possible for human rationality not to apply a law or a rule if the conditions of its application are absent.
This is precisely the position I have chosen to defend in the Call. You have taken up the example of Umar Ibn al-Khatt⢠to whom I refer, and you have lent your support to this position by other examples in other fields. I can do no more than take note of the coherence of your argument and of the conclusions that flow from it. Indeed, we must have thorough knowledge of the texts and of their essential requirements, but fidelity to the message cannot be obtained unless the believer, as we are reminded by the authentic had of Ibn Hibban as quoted by you, is ?aware of his affairs and knowledgeable about his times?, and unless he knows that situations change both according to space and time.
4. The spirit of the message of Islam
In several passages of your text, you remind us of the meaning of the message of Islam, of its spirit and of its finalities. You emphasize that hud?re instituted not as instruments of revenge but as preventive mechanisms. Whoever, you write, meditates on the texts will understand that ?the Islamic legal system is much more interested in forgiveness, in clemency, and in the overlooking of faults than in the applications of penalties and punishments.?
You cite several cases throughout history, beginning with the multiple examples of the Prophet (PBUH) with M⒩z or with the Companions who, as Ibn Shayba reminds us, explored all circumstances to avoid having to apply the hud?
This fundamental teaching of goodness, pardon and respect for the secrets of private life (Islamic juridical tradition rejects the practice of surveillance and investigation that would mean scrutinizing the lives of individuals in order to be able to apply a given penalty) requires painstaking examination of the forces that shape Islamic societies. Education must be provided for, along with a just and healthy social context that respects the dignity of human beings and provides them with the means to assume full responsibility for their lives and to act in accordance with an ethical outlook that they may make their own in full knowledge, and not under threat of imposition and repression. The example of Umar ibn Abdul-Azis eloquent : he unceasingly sought to eradicate poverty in the lands under his authority (and did so successfully), and clearly stated : ?Better that I should err a thousand times in pardon rather than err once in the application of a penalty.?
Once again, your commentary directly reflects the meaning of my own considerations and proposals. For this is, indeed, the very heart of the matter. I therefore conclude that, taken together, the points you raise are commensurate with the reasoning upon which the Call is based and that, in the absence of the required conditions, you affirm that it is legitimate-as has always been the case in the history of Islamic law-to suspend application of the prescriptions.
In your ?point 7? you set out an inventory of predominantly Muslim countries (with respect to the application of hud?arriving at the conclusion that such application concerns only a minority among them, including, principally, Saudi Arabia, a country about which, you write, ?there exists no demands nor influential trends calling for the annulation, cessation or suspension of such application? except perhaps ?the appeals of certain opponents of the political structure who call for a tighter control of procedures and who describe the current regime as unjust and violator of human rights.?
With regard to your analysis, I would like to make two main points :
1. It is true that if one examines the strict application of hud? the Muslim world, only a small minority of countries would seem to be concerned. In terms of fidelity to the message, however, I am by no means certain that the quantitative argument is a convincing one. Whether on large scale or small, the conscience of Muslims must reject and condemn any betrayal of Islam?s message of justice.
Facts, nonetheless, do not support the perception that we are dealing only with ?marginal practices?, as some Muslims claim, when we consider both the strict application of hud?d the direct consequences of the conflicting scholarly opinions on the issue. If the practice of stoning is indeed a marginal one, the same cannot be said of corporal punishments, which are practiced in numerous Muslim countries and if, on occasion, they are not applied as ?hud?he silence or lack of clarity of the opinions of the ulam⒠on the question of their application in the contemporary era opens the door to violation of the physical integrity of individuals or of prisoners by national or local authorities since the relevant Islamic texts speak of ?corporal punishments.?
This dangerous slippage becomes all too clear when we deal with the death penalty. It is mentioned, and applied, in the majority of predominantly Islamic societies. However, in these very societies, the legal or judicial systems in force show little or no respect for the rights of the accused (criminals or political opponents). Executions are by no means always carried out in the name of ?hud?but they encounter little resistance among Muslims, who tend to believe that ?the death penalty? is an Islamic prescription and to oppose it is to oppose an established Islamic principle. Thus, as noted above, if the absence of conditions for the application of a penalty is to be considered ?as a transgression of the shar?, it must be accepted that this same principle applies to the death penalty in Muslim countries, whether or not such penalties are instituted, directly or indirectly, in the name of Islam. The death penalty is today applied in more than fifty of the fifty-six predominantly Muslim countries : flagrant injustice, corrupt judicial systems, the absence of defence worthy of the term, questionable witness procedures are more the rule than the exception. It would be useful if scholars were to take up this question as they broaden the debate over hud?
I would further add that the stance of Muslims in societies where they are not in the majority should be identical. In the United States, where an African-American is six or seven times more ?likely? to be executed than a White, opposition to the death penalty appears to me to be the only position in conformity with the message of Islam.
2. The contemporary Muslim conscience knows well that what is happening today in Saudi Arabia represents a superficial fidelity to the message of Islam. For political, economic or financial reasons, criticism by Muslims as well as by the West, is timid, hyper-sensitive or absent altogether. Yet we are well aware how unpleasant it is to be a Pakistani or Philippino worker in certain petromonarchies. Such criticism cannot be left to the political opponents of the regimes alone ; we must also be able to deplore-and in this sense those Muslims who live in countries where freedom of expression is protected have a greater responsibility-the betrayal perpetrated in the name of Islam in the heartland of the Muslim world.
Our intention here is not to demonize any particular state or government, but to inaugurate a constructive critical process that will make it possible to move forward and to bring about the reform of society in the interests of greater justice. This is both an individual and a collective responsibility, and we must bring the duty of justice and vigilance to bear everywhere, in all circumstances, and without selectivity based on geostrategic or economic factors. In late April, a woman was stoned to death in Afghanistan, an event in which the media showed almost no interest : to make it public would only have confirmed that the American intervention in the region has changed nothing, and that a well-considered silence has ruled out the necessary denunciation, now become politically incorrect, of an execution…
I have often been asked ?Why now ? Why a subject that is secondary, marginal ?? I would like to conclude this letter by taking up these issues directly, since you have implicitly raised them in your final paragraph.
I have been speaking for years about hud?nd about the need to reform our understanding of them and their application. For the last five years, I have been calling for a ?moratorium? as a way of presenting my position first on the death penalty, then on stoning and corporal punishment. I have discussed the matter with numerous ulam⒠and intellectuals, many of whom felt challenged and directly engaged by the initiative but nothing was done or proposed afterward. What is the proper moment to take up such matters ? The Muslim world is in such a state, and each day brings us news of so many new problems, that we might well conclude that there is never a proper moment… Some have even undertaken a ?strategic? analysis, claiming that it is no accident that this initiative had been taken after the controversy surrounding Dr. Amina Wad?hese are but shallow considerations, which only turn us away from the crux of the question.
Hardly a day goes by but we witness acts undertaken in the name of Islam, acts that betray its true message. Scholars in the Muslim world and the West have spoken out against terrorism and extremism. These are the kind of positive indications that enable Muslims and non-Muslims alike, to understand what Islam is not, and to realize to what it must not be likened.
Within the domain of Muslim thought we must go farther still. We must envision a thoroughgoing reform that will allow us to state precisely what Islam is, and to create a project that speaks to what Muslims must do to transform gradually the societies in which they live. We need a vision, and we need the dedication and commitment of every individual Muslim, man or woman.
To enter into this debate through the window of hud? simultaneously revelatory, fundamental and of the highest priority. It is revelatory because it enables us to grasp immediately where, within the Muslim world, obstacles exist. The crisis of the Muslim world is quite exactly visible in the yawning gap that lies between the breadth, the depth and the wisdom of your words as Mufti, and the formalistic and/or narrowness found amongst many ulam⒠and Muslim leaders : we cannot pretend that this state of affairs does not exist (responses to this Call constitute in themselves a proof). In our troubled times, which, as you remind us, have been described as an era ?of doubt?, ?of necessity?, ?of ignorance? or even ?of trial,? reactions have been contradictory in the extreme. Some have called for justice and clemency in the name of the universal message, others have seized on the most formalistic aspects in order to protect themselves ?from perdition? even though such an attitude may well lead to ?marginal or collateral? injustice. It is for this reason that debate and discussion are fundamental. The formalist response which we see emerging and gaining strength in both the Muslim world and in the West, with the emergence of trends known as ?salafare fed both by fear of ?losing ourselves? in the vicissitudes of the modern era, and by the failure of contemporary Muslim thought to assume its responsibilities. Merely applying and imposing forms, frameworks and structures of Islam- including hud?re needed to reform our societies and respond to their social, political and economic problems. This manner of thinking is dangerous, but in the absence of clear answers to questions dealing with the fundamentals of the Islamic message and of fidelity to it, we become a part of the problem, and actually encourage Muslims to abdicate their responsibilities. In this sense, the issue of hud? one of the highest priority (it has already become so by virtue of the fact that today human lives can be saved, irrespective of the number) in that it requires us to convey, in the clearest terms possible, our understanding of Islam, what fidelity to the message means in the contemporary era, and what is required of each of us, at the personal ethical level and in our participation in the life of the community. There exist yet other reasons, internal as well as external, that lend the debate its high priority, but we lack the necessary space to deal with them here ; they touch upon strictly religious matters, but also upon political and geostrategic considerations of primary importance in analyzing issues at the international level. Finally, the debate is also a fundamental one, not only in and of itself, but also by virtue of that which it calls upon us to study if we wish to arrive at concrete solutions.
Your text is a vital contribution to the debate, and I sincerely thank you for it. Those who read your text will understand, through what you say (and through the conclusions you draw from Islamic history) that above and beyond the question of hud?ou have presented the heart of Islam and its universal message. I remain convince that a claim and a constructive criticism coming from within and rooted in self-confidence and the belief in the universality of our message strengthen us and fortify us… except if we indulge in the temptation to consider it as ?a plot? from the Other, from ?the West?, and by reacting in such a way - by refusing the intracommunity debate - to prove the depth of our fears and doubts that inhabit some of our fellow Muslims and which are badly hidden behind repeated and deceptive slogans. The Call for a Moratorium is born out of this hope : that the ulama, the intellectuals and the Muslims of the world will engage, in full conscience, to reconcile their societies and their daily lives, with the depth, the magnanimity, the intellectual rigor and the love of Man and Creation that constitute the essence of Islam and the example of its Messenger (PHUH).
Wa allahu a?lam wa a?la wa ahkam
Response by Dr. Ali Jumu?a, Mufti of Egypt, to Tariq Ramadan?s Appeal
The matter of the application of Sharia must be understood in a broad prospective that goes beyond simply implementing the punitive injunctions (hudud) concerning major crimes, as is commonly accepted in contemporary discourse among Muslims or others. This is so because there are different aspects to and varying degrees of the application of sharia. One cannot justifiably affirm that the shari?a is not being applied in a given environment merely because the lived daily reality does not conform to some of its prescriptive. Such differences, after all, have been observed in varying degrees and types throughout Islamic history and in all Muslim lands and countries without a single Muslim scholar ever arguing that these lands are outside the purview of Islam as a result, or that they do not apply the shari?a. Indeed it would not be an exaggeration to argue that the expression ?application of Shari?a? is a recent coinage.
Realities that must be understood
The shari?a comprises all that relates to creedal beliefs and to the global vision under which the universe has been brought into being by a Creator, that humans are commanded to conform to the legal prescriptions that define their actions, and that this commandment has been established by the Revelation which God has transmitted through His messengers and His books, that the Last Day is when judgment is rendered and reward and punishment are meted out. Likewise, the shari?a subsumes a legal structure and a system of jurisprudence (fiqh) that regulate individual, group, and social behaviour, as well as an ethical system, educational orientations, methodologies of intellectual inquiry and for the apprehension of the Qur?anic revelation and the Prophetic tradition, and the lived reality as it is constantly being modified, transformed, and becoming more ramified.
There are two dimensions to the matter of hudud : the first is the certainty that this system of punishments functions as a deterrent against crimes and substantiates their sinful and ignominious character and their harmful effects on human society and they are rejected in all their manifestations by the human psyche. This system of penalties is neither inherently unjust nor violent in and of itself. The second dimension rests upon the fact that Islamic law has provided conditions for the application of hudud, just as it has provided for situations and states of affairs in which they can be deferred or suspended. When these conditions are not fulfilled, when these situations or states cannot be established, the application of hudud, in the absence of these elements, is considered a transgression of the shari?a.
Whoever delves deeply into the legal texts will realize that the shari?a does not make hudud instruments of revenge, but as deterrents preventing crime before it can be committed. In like manner, he will perceive that the Islamic legal system is far more concerned with forgiveness, with clemency and with overlooking faults than with the application of penalties and punishments. The texts illustrating this are both numerous and incontrovertible.
For more than one thousand years, hudud were not applied in a country like Egypt this being due to the absence of the legal conditions set forth in the shari?a, which provide specific dispositions for the presentation of evidence as well as for the possibility of reconsidering the decision. This is well understood by virtue of the words of the Prophet (PBUH) : ?Avoid (the application) of hudud in situations of doubt [when you must rely upon doubt]? and the dictum of Umar ibn Abdul-Aziz, ?far better that I should err one thousand times in forgiving than once in the application of a sanction.?
It is possible to describe this historical era as one in which exception could be applied in a general manner, whereas an exception by its very nature necessitates its application in a restrictive manner. It is for this reason that this era could be described as one of necessity (darurah), of doubt/ambiguity (shubha), of social disruption and sedition (fitna) and of ignorance (jahala), all of which must necessarily affect the legal decision-making process. Thus a situation of necessity (darurah) permits that which is forbidden (mahdhur) even when that which is forbidden may be generalized and long term. This is the reason for permitting burial in receptacles located above ground (fisaqi) despite their prohibition by the shari?a. Doubt/ambiguity (shubha) allows for the suspension of sanctions, as practised by Umar ibn Al-Khattab during the year of drought and famine : doubt/ambiguity had become so widespread that the conditions necessary for the application of judgements were absent. The same was true of Imam Ja?far As-Sadiq, of Al-Karkhi from among the Hanbalites, and of others who overruled the prohibition of looking upon scantily clad women in [Central Asian] lands beyond the Oxus River (ma wara? al-nahr) [corresponding to today?s Uzbekistan and Afghanistan] who did not wear headscarves, making it difficult if not impossible to avert one?s gaze. Moreover, Imam Al-Juwayni in his book Al-Ghiyyath stipulates the circumstances prevailing in times of ignorance of the law and in details determines : in the absence of authoritative scholar (mujtahid), or the interpreters of the shari?a, or when the very sources of shari?a can be said to be absent : what are people to do then ? Related to this is what scholarly specialists in the fundamentals of law and jurisprudence (al-usuliyyun), such as Al-Razi in Al-Mahsul, have termed in their diverse works ?rational abrogation,? which is the consequence of the ?absence of conditions for [the application] judgement? - this last expression is more precise since, according to scholarly consensus, reason can not abrogate definitive and established rules. However, a rule is inapplicable if its necessary conditions are absent. For example, the injunction to wash one?s hands to the elbows is integral for ritual ablution?s validity, but if the hand is amputated, the application of this requirement is obviated or simply made impossible. The same applies to those injunctions that relate to the existence of slavery, to the Great Caliphate or rulings concerning the traditionally accepted monetary exchange units of gold and silver coins. Examples of this kind are numerous.
For the sake of arriving at proper implementation of a legal ruling and at what God Most High intended from it and an attainment to faithful obedience of God Most High and His Messenger, it is imperative that we apprehend reality (al-waqi?), and conform to the tradition narrated by Ibn Hibban in his compilation of authentic traditions relating the exhortation of family of David that it is necessary for a believer to be cognizant of his state of affairs and to be knowledgeable about the time in which he lives. Henceforth, jurists have concluded that judicial rulings change with the times, particularly when a ruling is grounded in customary practice of a people (urf) [see article 90 from the Majallat al-Ahkam al-A?dliyya]. It is in this sense that the Hanafi School of Juristic Methodology has made permissible contracts in the arena of social interactions in non-Muslims lands that would be considered unsound [in the lands of Islam], thus an instance of changing legal decision relative to place. The rule that stipulates that ?necessities permit that which is forbidden? and which is derived from the Divine statement ?... but if one is driven by necessity -neither coveting it nor exceeding his immediate need-...? establishes that the judgement in question changes in response to the situation in which it is made. The same applies to decisions that have been changed due to the changed circumstances of individuals. Thus, rules applicable to a living person are different from those applicable to a moral person that is not a living being. These four criteria (time, space, persons and situations) are those described by Al-Qarafi as being the causes of changes to be taken into account when applying judgements in the real environment. It is common knowledge that in the contemporary world, yesterday?s reality is not lived today and today?s will not be tomorrow?s. Numerous reasons account for this among them : the social interconnectedness through communication, transportation, and technological advancements that bring people together as though they were living in one [global] village ; the constant increase in world population which began in 1830 and continues today ; the diverse disciplines that have arisen to grasp human reality as an individual, as member of human society, or as one living in the aforementioned contemporary state. These features, and others, of our time have lead to changes in the understandings of such concepts as contract, liability, law of surrender (tasleem) and legal punishments as well as in the understandings of social benefit/good and legislative policy. It is absolutely necessary to have a comprehension of all this so as not too loose sight of the general goals and objectives of the exalted Islamic Law.
In surveying the experiences of contemporary Muslim states with the application of hudud :
We find in Saudi Arabia the application of hudud directly through a sharia legal structure which does not draw on codified legislation in the form of a criminal code. The Saudi application is well established, particularly in that there exists no calls for its abolition, cessation or suspension, though there are some proclamations from some opponents of the existing political power structure who call for procedures to be tightened and who describe the current regime as unjust and as a violation of human rights.
As for Pakistan, Sudan, one province of Nigeria, a province of Malaysia, and Iran, the laws there refer explicitly to hudud. There has been a practical stay in application of these laws in Pakistan ; they are suspended in Sudan after Numeiri and similarly in Malaysia and in Iran. The laws are applied in a province of Nigeria but in an extremely partial manner. Instead of the application of a hadd (singular of hudud), it is quite common in these countries to practice ta?zir , with the exception of crimes punishable by the death penalty.
The remaining Muslim states, 56 of the world?s 196 countries, make no reference in their legislation to hudud ; their policy is grounded in the opinion that our era is a period of generalized doubt (shubha?ama) and on remembering the words of the Prophet (PBUH) : ?Avoid (the application) of hudud in situations of doubt/ambiguity [when you must rely upon doubt].? Moreover, even the legally qualified witnesses required by shair?a law, to establish a criminal act as one where a hadd is applicable, have long since been lost. To this effect At-Tanukhi relates in his volume Mishuar al-muhadara that, a judge would once have been able to enter a village and find there as many as forty witnesses whose testimony could be considered satisfactory, in that they possessed the two qualities required of a legal witness : moral rectitude (al-adala) and farsightedness (ath-thabt). Today, however-that is, in the days of At-Tanukhi-a judge arriving in a locality is able to find one or two witnesses [possessing the required qualities]. Insofar as our era is concerned, and in a general sense, it may well also be described as one in which a (legally qualified) witness cannot be found at all.
Furthermore, investigation to establish truth that would cause a hadd to be applied is not one of the methods accepted by the shari?a. Ma?iz accused himself, yet the Prophet (PBUH) turned away from him four times. He then sent him back to his family so they might testify to his lack of intellect or insanity, then sought for him other ways out for [of receiving the penalty] (makharij). When, finally, he (Ma?iz) withdrew his confession as the hadd was about to be applied, the Prophet (PBUH) said to Umar : ?Could you not have let him go [without applying the punishment] ?? Scholars understand from this the permissibility of recanting a confession with regard to matters that concern a right among the rights of God, but not in cases involving the rights of human beings. In like manner, the Prophet (PBUH) did not question Ma?iz on the other party involved in the illicit act, that is, the woman, and did not make an attempt to identify her, even to complete the judicial inquiry. Ibn Sheiba reports that, according to Abu Bakr, Umar and Uthman, when a thief was brought before them, the Imam said to him : ?Have you stolen ? Say : no !?
Thus, as we have already noted, the (legal) text concerning hudud is used fundamentally as an indicator of the gravity of the sinful act committed, which is thus considered as a reprehensible act and one of the great sins (kaba?ir) that merit a correspondingly great punishment. This has the deterrent effect that dissuades people from committing such crimes, as stated in the Qur?an : ?In this way does God imbue His servants with fear. O, you servants of mine ! Be, then, conscious of me.? In this regard, the hadd stands to buttress social control, itself a product of the surrounding culture, to reinforce the gravity of such sins, relegating to the margins [of society] him or her who commits them in public or boasts of having committed them. In like manner, the shari?a has thrown open the gates of repentance and enjoined protection [of private life] in several texts of the Book and in the Sunna.
We have raised the above points by way of responsing to the initiative [The Appeal for a Moratorium] and we consider that this matter, in its current form, is not an urgent one, and that it does not rank first among our priorities today. On the contrary, raising it at this time is more harmful than profitable.
And God is all knowing and knows best.
Unlike a hadd that cannot, once guilt has been established, be remitted by the executive power, ta?zir is left to the latter?s discretion : it may or may not apply the penalty after evaluation of its individual or social interest (al-maslaha).
Originally published on Professor Ramadan’s website at http://www.tariqramadan.com and reprinted in TAM with the permission of the author.
Other articles on this topic:
Anwar Ibrahim Is Proof That Tariq Ramadan Has A Point, Irfan Yusuf http://www.altmuslim.com/perm.php?id=1425_0_25_0_C
Muslim Thinker Fights Death Penalty http://news.bbc.co.uk/2/hi/middle_east/4394863.stm
Ramadan Calls for a Moratorium on Capital Punishment http://www.muslimnews.co.uk/news/news.php?article=8965
Reconsideration Required, Salah Sultan http://www.islamonline.net/English/In_Depth/ShariahAndHumanity/Articles/2005-04/10.shtml#1
Rethinking the Use of Muslim Law, Tariq Ramadan http://www.boston.com/news/globe/editorial_opinion/oped/articles/2005/03/31/rethinking_the_use_of_muslim_law/
Shining A Light on the ‘White Elephant’ of Hudud Punishments http://www.altmuslim.com/perm.php?id=1424_0_26_0_C
Stop in the Name of Humanity, Tariq Ramadan http://www.theglobeandmail.com/servlet/ArticleNews/TPStory/LAC/20050330/CORAMADAN30/TPComment/TopStories
Storm in a Teacup, Dina Abdel Magid http://www.islamonline.org/English/Views/2005/04/article01.SHTML#*
Tariq Ramadan Appeals for Abolition of Death Penalty http://www.asianews.it/view.php?l=en&art=2911
Tariq Ramadan Calls for Hudud Freeze http://www.islamonline.org/English/News/2005-03/30/article07.shtml
Tariq Ramadan appeals to Muslim countries to abolish death penalty and corporal punishment http://www.asianews.it/view.php?l=en&art=2911
Tariq Ramadan?s Call: Pros and Cons, Sheikh Muhammad ibn Al-Mukhtar Al-Shinqiti http://www.islamonline.net/English/In_Depth/ShariahAndHumanity/Articles/2005-04/13.shtml#1