An International call for Moratorium on corporal punishment, stoning and the death penalty in the Islamic World
Muslim majority societies and Muslims around the world are constantly confronted with the fundamental question of how to implement the penalties prescribed in the Islamic penal code.
Evoking the notion of shari'a, or more precisely hudud 1, the terms of the debate are defined by central questions emerging from thought provoking discussions taking place between ulama' (scholars) and/or Muslim masses: How to be faithful to the message of Islam in the contemporary era? How can a society truly define itself as
"Islamic" beyond what is required in the daily practices of individual private life? But a critical and fruitful debate has not yet materialized.
Several currents of thought exist in the Islamic world today and disagreements are numerous, deep and recurring. Among these, a small minority demands the immediate and strict application of hudud, assessing this as an essential prerequisite to truly defining a
"Muslim majority society" as "Islamic". Others, while accepting the fact that the hudud are indeed found in the textual references
Qur'an and the Sunna 2], consider the application of hudud to be conditional upon the state of the society which must be just and, for some, has to be
"ideal" before these injunctions could be applied. Thus, the priority is the promotion of social justice, fighting against poverty and illiteracy etc. Finally, there are others, also a minority, who consider the texts relating to hudud as obsolete and argue that these references have no place in contemporary Muslim societies.
One can see the opinions on this subject are so divergent and entrenched that it becomes difficult to discern what the respective arguments are. At the very moment we are writing these lines- while serious debate is virtually non-existent, while positions remain vague and even nebulous, and consensus among Muslims is lacking- women and men are being subjected to the application of these penalties.
For Muslims, Islam is a message of equality and justice. It is our faithfulness to the message of Islam that leads us to recognize that it impossible to remain silent in the face of unjust applications of our religious references. The debate must liberate itself and refuse to be satisfied by general, timid and convoluted responses. These silences and intellectual contortions are unworthy of the clarity and just message of Islam.
In the name of the scriptural sources, the Islamic teachings, and the contemporary Muslim conscience, statements must be made and decisions need to be taken.
What does the majority of the ulama' say?
All the ulama' (scholars) of the Muslim world, of yesterday and of today and in all the currents of thought, recognize the existence of scriptural sources that refer to corporal punishment (Qur'an and Sunna), stoning of adulterous men and women (Sunna) and the penal code (Qur'an and Sunna). The divergences between the ulama' and the various trends of thought (literalist, reformist, rationalist, etc.) are primarily rooted in the interpretation of a certain number of these texts, the conditions of application of the Islamic penal code, as well as its degree of relevance to the contemporary era (nature of the committed infractions, testimonials, social and political contexts, etc.).
The majority of the ulama', historically and today, are of the opinion that these penalties are on the whole Islamic but that the conditions under which they should be implemented are nearly impossible to reestablish. These penalties, therefore, are
"almost never applicable". The hudud would, therefore, serve as a "deterrent," the objective of which would be to stir the conscience of the believer to the gravity of an action warranting such a punishment.
Anyone who reads the books of the ulama', listens to their lectures and sermons, travels inside the Islamic world or interacts with the Muslim communities of the West will inevitably and invariably hear the following pronouncement from religious authorities:
"almost never applicable". Such pronouncements give the majority of ulama and Muslim masses a way out of dealing with the fundamental issues and questions without risking appearing to be have betrayed the Islamic scriptural sources. The alternative posture is to avoid the issue of hudud altogether and/or to remain silent.
What is happening on the ground?
One would have hoped that this pronouncement, "almost never," would be understood as a assurance that women and men would be protected from repressive and unjust treatment; one would have wished that the stipulated conditions would be seen, by legislators and government who claim Islam, as an imperative to promote equality before the law and justice among humans. Nothing could be further from the reality.
Behind an Islamic discourse that minimizes the reality and rounds off the angles, and within the shadows of this
"almost never", lurks a somber reality where women and men are punished, beaten, stoned and executed in the name of hudud while Muslim conscience the world over remains untouched.
It is as if one does not know, as though a minor violation is being done to the Islamic teachings. A still more grave injustice is that these penalties are applied almost exclusively to women and the poor, the doubly victimized, never to the wealthy, the powerful, or the oppressors. Furthermore, hundreds of prisoners have no access to anything that could even remotely be called defense counsel. Death sentences are decided and carried out against women, men and even minors (political prisoners, traffickers, delinquents, etc.) without ever given a chance to obtain legal counsel. In resigning ourselves to having a superficial relationship to the scriptural sources, we betray the message of justice of Islam.
The international community has an equally major and obvious responsibility to be involved in addressing the question of hudud in the Muslim world. Thus far, the denunciations have been selective and calculated for the protection of geostrategic and economic interests. A poor country, in Africa or Asia, trying to apply the hudud or the shari'a will face the mobilization of international campaigns as we have seen recently. This is not the case with rich countries, the petromonarchies and those considered
"allies". Towards the latter, denunciations are made reluctantly, or not at all, despite ongoing and acknowledged applications of these penalties typically carried out against the poorest or weakest segments of society. The intensity of the denouncements is inversely proportional to the interests at stake. A further injustice!
The passion of the people, the fear of the ulama'
For those who travel within the Islamic world and interact with Muslims, an analysis imposes itself: everywhere, populations are demonstrating an increasing devotion to Islam and its teachings. This reality, although interesting in itself, could be troubling, and even dangerous when the nature of this devotion is so fervent, where there is no real knowledge or comprehension of the texts, where there is so little if any critical distance
vis-a-vis the different scholarly interpretations, the necessary contextualization, the nature of the required conditions or, indeed the protection of the rights of the individual and the promotion of justice.
On the question of hudud, one sometimes sees popular support hoping or exacting a literal and immediate application because the latter would guarantee henceforth the
"Islamic" character of a society. In fact, it is not rare to hear Muslim women and men (educated or not, and more often of modest means) calling for a formal and strict application of the penal code (in their mind, the shari'a) of which they themselves will often be the first victims. When one studies this phenomenon, two types of reasoning generally motivate these claims:
The literal and immediate application of the hudud legally and socially provides a visible reference to Islam. The legislation, by its harshness, gives the feeling of fidelity to the
Qur'anic injunctions that demands rigorous respect of the text. At the popular level, one can infer in the African, Arabic, Asian as well as Western countries, that the very nature of this harshness and intransigence of the application, gives an Islamic dimension to the popular psyche.
The opposition and condemnations by the West supplies, paradoxically, the popular feeling of fidelity to the Islamic teachings; a reasoning that is antithetical, simple and simplistic. The intense opposition of the West is sufficient proof of the authentic Islamic character of the literal application of hudud. Some will persuade themselves by asserting that the West has long since lost its moral references and became so permissive that the harshness of the Islamic penal code which punishes behaviors judged immoral, is by antithesis, the true and only alternative
"to Western decadence".
These formalistic and binary reasoning are fundamentally dangerous for they claim and grant an Islamic quality to a legislation, not in what it promotes, protects and applies justice to, but more so because it sanctions harsh and visible punishment to certain behaviors and in stark contrast and opposition to the Western laws, which are perceived as morally permissive and without a reference to
religion 3. One sees today that communities or Muslim people satisfy themselves with this type of legitimacy to back a government or a party that calls for an application of the shari'a narrowly understood as a literal and immediate application of corporal punishment, stoning and the death penalty.
When this type of popular passion takes hold, it is the first sign of a will to respond to various forms of frustration and humiliation by asserting an identity that perceives itself as Islamic (and anti-Western). Such an identity is not based on the comprehension of the objectives of the Islamic teachings (al maqasid) or the different interpretations and conditions relating to the application of the hudud.
Faced with this passion, many ulama' remain prudent for the fear of losing their credibility with the masses. One can observe a psychological pressure exercised by this popular sentiment towards the judicial process of the ulama', which normally should be independent so as to educate the population and propose alternatives. Today, an inverse phenomenon is revealing itself. The majority of the ulama' are afraid to confront these popular and simplistic claims which lack knowledge, are passionate and binary, for fear of losing their status and being defined as having compromised too much, not been strict enough, too westernized or not Islamic enough.
The ulama', who should be the guarantors of a deep reading of the texts, the guardians of fidelity to the objectives of justice and equality and of the critical analysis of conditions and social contexts, find themselves having to accept either a formalistic application (an immediate non-contextualized application), or a binary reasoning (less West is more Islam), or hide behind
"almost never applicable" pronouncements which protects them but which does not provide real solutions to the daily injustices experienced by women and the poor.
An impossible status quo: our responsibility
The Islamic world is experiencing a very deep crisis the causes of which are multiple and sometimes contradictory. The political system of the Arab world is becoming more and more entrenched, references to Islam frequently instrumentalized, and public opinion is often muzzled or blindly passionate (to such a point as to accept, indeed even to call for, the most repressive interpretations and least just application of the
"Islamic shari'a" and hudud).
In terms of the more circumscribed religious question, we can observe a crisis of authority accompanied by an absence of internal debate among the ulama' in the diverse schools of thought and within Muslim societies. It becomes apparent that a variety of opinions, accepted in Islam, are whirling today within a chaotic framework leading to the coexistence of disparate and contradictory Islamic legal opinions each claiming to have more
"Islamic character" than the other.
Faced with this legal chaos, the ordinary Muslim public is more appeased by "an appearance of
fidelity", then it is persuaded by opinions based on real knowledge and understanding of the governing Islamic principles and rules (ahkam).
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