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IslamiCity > Articles > Moratorium on Death Penalty
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The opinions on this subject are so divergent and entrenched that it becomes difficult to discern what the respective arguments are ..
Audio Moratorium on Death Penalty

Moratorium on Death Penalty
3/24/2006 - Religious Social - Article Ref: IC0603-2952
Number of comments: 18
Opinion Summary: Agree:12  Disagree:6  Neutral:0
By: Tariq Ramadan
IslamiCity* -

Let us look at the reality, as it exists. There is a today a quadruple crisis of closed and repressive political systems, religious authorities upholding contradictory juristic positions and unknowledgeable populations swept up in remaining faithful to the teachings of Islam through religious fervor than through true reflection. The crisis cannot legitimize our silence. We are accomplices and guilty when women and men are punished, stoned or executed in the name of a formal application of the scriptural sources. 

It leaves the responsibility to the Muslims of the entire world. It is for them to rise to the challenge of remaining faithful to the message of Islam in the contemporary era; it is for them to denounce the failures and the betrayals being carried out by whatever authorities or any Muslim individual. A prophetic tradition reports: "Support your brother, whether he be unjust or victim of an injustice." One of the Companions asked: "Messenger of God, I understand how to support someone that is a victim of injustice, but how can I support him who is unjust?" The Prophet (peace be upon him) responded: "Prevent him from being unjust, that is you support to him." 4

It thus becomes the responsibility of each 'alim (scholar), of each conscience, every woman and man, wherever they may be to speak up. Western Muslims either hide behind the argument that they are exempt from the application of the shari'a or hudud since they are "in a minority position" 5. Their avoidance of the questions leaves a heavy and troubling silence. Or they express condemnation from afar without attempting to change the situation and influence the mentalities. These Muslim women and men who live in spaces of political freedom, who have access to education and knowledge, shoulder - in the very name of the Islamic teachings - have a major responsibility to attempt to reform the situation, open a relevant debate, condemn and put a end to injustices perpetrated in their name. 

A call, some questions: 

Taking into account all these considerations, we launch today a call for an immediate international moratorium on corporal punishment, stoning and the death penalty in all Muslim majority countries. Considering that the opinions of most scholars, regarding the comprehension of the texts and the application of hudud, are neither explicit nor unanimous (indeed there is not even a clear majority), and bearing in mind that political systems and the state of the majority Muslim societies do not guarantee a just and equal treatment of individuals before the law, it is our moral obligation and religious responsibility to demand for the immediate suspension of the application of the hudud which is inaccurately accepted as an application of "Islamic shari'a". 

This call doubles itself with a series of basic questions addressed to the body of Islamic religious authorities of the world, whatever their tradition (sunni or shi'i), their school of thought (hanafi, maliki, ja'fari, etc.) or their tendencies (literalist, salafi, reformist, etc.) :

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 hudud? Where are the margins of possible interpretations and on which points are there clear divergences (al ikhtilaf) in the history of the Islamic law and in the contemporary era? 

What are the conditions (shurut) stipulated for each of the penalties by the sources themselves, the consensus of the scholars (al ijma') 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 waqi') was always considered by the ulama' as one of the conditions needed for the application of hudud. The 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 hudud? 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 ulama' and on what are these disagreements based? 

Studying these questions are meant to clarify the terms of the debate with regards to the interpretative latitudes offered by the texts, while simultaneously taking into account the determining state of contemporary societies and their evolution. This intra-community reflection requires from the start a double understanding of the texts and contexts, in keeping solemnly with the objectives of the Islamic message. On the whole, this must allow us to respond to the questions of what is applicable (and according to which methods) and what is no longer applicable (considering the required conditions are impossible to reestablish as well as the fact that societal evolution is clearly moving away from the required ideal). 

This undertaking requires, from within, rigour, time and establishing spaces of dialogue and debate, nationally and internationally, between the ulama', Muslim intellectuals and inside the Muslim communities since this matter is not only about a relationship to the texts, but equally, to the context. In the interval, there can be no justification for applying penalties that sanction legal approximations and injustices such as is the case today 6. A moratorium would impose and allow a basic debate to unfold in serenity, without using it as an excuse to manipulate Islam. All injustices made legal in the name of Islam must stop immediately. 

Between the letter and objectives: fidelity 

Some will understand this call as an instigation to disrespect the scriptural sources of Islam, thinking that to ask for a moratorium goes against the explicit texts of the Qu`ran and Sunna. Precisely the opposite is true: all the legal texts demand to be read in light of the objective intended to justify them (Al-maqasid). Foremost among these objectives, we find stipulated that the protection of the integrity of the person (an- nafs) and the promotion of justice (al-'adl) are primordial. Therefore, a literal and non-contextualized application of hudud, with no regard for strict and numerous stipulated conditions, and one which would present itself as being faithful to the teachings of Islam, is in fact a betrayal if according to the context, for it produces an injustice. 

The caliph 'Umar ibn al-Khattab established a moratorium towards thieves when he suspended the application of the punishment during a famine. Despite the Qur'anic text being very explicit on this, the state of the society meant it would have been an unjust literal application: they would have castigated poor people whose potential theft would have been for the sole purpose of surviving in a state of absolute poverty. Therefore, in the name of absolute justice demanded by the global message of Islam, 'Umar ibn al-Khattab decided to suspend the application of a text: keeping with the literalist interpretation would have meant disloyalty and betrayal of the superior value of Islam that is justice. It is in the name of Islam and in the understanding of texts that he suspended the application of one of these injunctions. The moratorium finds here a precedent of the utmost importance. 


Reflection and necessary reform within Muslim majority societies will not occur but from within. It is for Muslims to take up their responsibilities and set in motion a debate that opens an intra-community dialogue, while refusing the continued legalized injustices in the name of Islam, i.e. in their name. An endogenous dynamic is imperative 

This does not mean that the questions put forward by non-Muslim intellectuals or citizens should be dismissed. On the contrary, all parties must learn to decentre themselves and move towards listening to the other, to the other's points of reference, logic and their aspiration. For Muslims, all queries, from their co-religionists or women and men who do share their religious conviction, are welcome. It is for us to make use of these questions as a spark of dynamism to our thoughts. This is how we can remain faithful to the justice demanded by Islam while taking into account also the demands of the contemporary era. 

Conclusion 

This call for an immediate moratorium on corporal punishment, stoning and the death penalty is demanding on many fronts. We are defining it as a call to consciousness of each individual so that she/he realizes that Islam is being used to degrade and subjugate women and men in certain Muslim majority societies in the midst of collusive silence and chaotic judicial opinions on the ground. This realization implies:

- A mobilization of ordinary Muslims throughout the world to call on their governments to place an immediate moratorium on the application of hudud and for the opening of a vast intra-community debate (critical, reasonable and reasoned) between the ulama, the intellectuals, the leaders and the general population.

- Taking the ulama to account so that they at last dare to report the injustices and instrumentalization of Islam in the field of hudud and, in the name of fidelity to the Islamic texts, to put out a call for an immediate moratorium emulating the example of 'Umar ibn al-Khattab.

- Promoting education of Muslim populations so that they go beyond the mirage of the formalism and appearances. The application of the repressive interpretations, measures and punishment does not make a society more faithful to the Islamic teachings. It is more the capacity to promote social justice and the protection the integrity of every individual, woman or man, rich or poor, that determines a truly authentic fidelity. The priority, according to the norms of Islam, is given to the protection of rights not to administering punishments which are meant to be implemented under strict and conditioned exceptions.

- This movement for reform from within, by the Muslims and in the name of the message and reference texts of Islam, should never neglect listening to the surrounding world as well as to the inquiries that Islam raises in non-Muslim minds. Not to concede to responses from "the other", from "the West", but, in order to remain, in its mirror, more constructively faithful to oneself. 

We urge all of those that take heed to this call to join us and make their voices heard for the immediate suspension of the application of hudud in the Muslim world so that a real debate establishes itself on the question. We say that in the name of Islam, of its texts and of the message of justice, we can no longer accept that women and men undergo punishment and death while we remain utterly silent, as accomplices, through a process which is ultimately cowardly. 

It is urgent that Muslim throughout the world refuse the formalist legitimization of the teachings of their religion and reconcile themselves with the deep message that invites towards spirituality, demands education, justice and the respect of pluralism. Societies will never reform themselves by repressive measures and punishment but more so by the engagement of each to establish civil society and the respect of popular will as well as a just legislation guaranteeing the equality of women and men, poor and rich before the law. It is urgent to set in motion a democratization movement that moves populations from the obsession of what the law is sanctioning to the claim of what it should protect: their conscience, their integrity, their liberty and their rights.

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[1] A concept which literally means "limits". In the specialized language of Muslim jurists, (fuqaha'), this term is inclusive of the punishment which is revealed in the application of the Islamic Penal code. Shari'a, literally 'the way to the source" and a path to faithfulness, is a corpus of Islamic jurisprudence the in-depth definition of which is beyond the scope of this paper. Shari'a has sadly been reduced to legalistic formulae of a penal code in the minds of many, Muslims and non-Muslim alike 

[2] Prophetic tradition: texts which report what the Prophet of Islam (peace be upon him) did, said or approved of during his lifetime. 

[3] In Muslim countries, laws that we see as being " borrowed from the west " are often interpreted as tools by dictatorial governments to mislead and legitimize their autocratic character, and more importantly, to promote a westernized culture and morals. 

[4] Hadith reported by al-Bukhari and Muslim.

[5] The argument is weak and dangerous as it tacitly accepts the application of hudud within today's societal context as " Islamic "

[6] If ever in doubt, all circumstances require the benefit of the doubt towards the accused according to a legal universal principle (acknowledged from the start by the tradition of Islamic jurisprudence)

 

First published 30th March 2005 Tariq Ramadan

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