Hamid al-Ghazali
Secular jurisprudence is almost entirely absent in Muslim countries; Islamic Law, the Shari’a rules!  This legal code is essentially based on Muhammad’s revelations, as set forth in the Koran, as well as “hadiths”, collectively known as the Hadith, or Tradition.  The Hadith is the collection of Muhammad’s sayings, as for example, how to conduct certain rituals of the faith.  The Hadith contains tens of thousands of binding precedents, which extend to such varied subjects as to how to trim one’s hair, put on slippers, and  entertain guests.  Since Muhammad was Allah’s prophet, these details must have come directly from Him.  There are six collections of “hadiths” which are regarded as being authoritative by most Muslims.  “Sunnah” is the body of law conveyed through the Koran and hadiths, and one hadith may form precedent for various parts of the Sunnah.  Over more than 1,300 years, some have become binding and supply the base for a large part of Muslim Law.  Others are non-obligatory, but can be, and are, extensively used in Muslim jurisprudence.  Early legal doctrines and practices were codified by the theologian, Ahmad ibn Hanbal, (780 – 855) and well over a thousand years later the penalties, for different crimes remain much the same.  

Under the Shari’a a private citizen or judge can put forth a case, or inquiry.  Then, a religious leader, a “mufti” will render and issue a legal opinion, or “fatwa”, which is considered as a final judgment.  There is no judicial review; the “fatwa” is final, and cannot be rescinded or reversed.  A fatwa can be issued regarding practically any issue, from issuing a death sentence and offering a compensatory reward for its execution, as in the case of Salman Rushdie, or for authorizing genocide in the Sudan, or to serve more mundane purposes, such as severing a marriage between a Muslim and non-Muslim. All that Osama ‘bin Laden needed, in order to obtain a fatwa for the destruction of the United States, was a single mufti sympathetic to his cause.  This fatwa, in the mind of all true Muslims, is now an obligation, or at least a justification, for its execution!

The Shari’a applies to both Muslims and infidels, but in practice infidels are judged more harshly since they have no rights under Islamic law.  A non-Muslim’s testimony is not accepted or allowed in a Muslim court, against Muslims or even non-Muslims.  Listed below are several crimes, and how they are handled under the Shari’a.   

RAPE:  Rape is supposedly punishable by death, but in most circumstances, only if the woman is Muslim.  But few rapes are prosecuted in the Muslim world, even when the victim is Muslim.  Under the Shari’a, the testimony of the victim is not admissible; instead that of four Muslim men is necessary.  Additionally, their testimony must be to have seen the rape, with actual penetration!  Naturally, if four men were to see the rape, and not intervene, they would be considered, at least in practically any other society, as accomplices!  On the other hand, a Muslim woman who complains of rape may find herself executed because she had relations with a man other than her husband.  Many women of my previous society have suffered this penalty.  
 
This corruption of justice was evidently due to an incident relating to Muhammad’s problems with his child bride, Aisha, when she was suspected of adultery.  When some suspicions concerning her conduct were revealed to the Prophet, Allah fortunately stepped in with a revelation to save her, and which thereafter dictated the requisite of the four male witnesses.  Allah (Muhammad) asked of his wife’s accusers: “Why did they not provide four witnesses to prove it?  When they have not brought the witnesses, such men, in the sight of Allah stand forth themselves as liars!” (24:13)  Though we have no way of knowing if Aisha was guilty of any indiscretion; what we do know is that, due to Allah’s (Muhammad’s) revelation, thousands of Muslim women, for over 1,300 years, have paid with their lives after being raped!  In some Muslim countries, a sizeable percentage of the inmates of women’s prisons, are actually being held for their own protection.  If released, they could be killed by male relatives, who consider that a woman has dishonored the family name, by having suffered the rape.  

Since Islam was established and even today, non-Muslim women are raped as normal practice.  After rape, unless a woman is acceptably attractive, or circumstances permit her enslavement, her throat is cut!   During the recent Balkan conflict, when Muslim forces took few slaves, some Christian women escaped with their lives after being raped.  

KILLING / MURDER:  One of the Ten Commandments is, "Thou shalt not kill (do murder)."  For Muslims, a similar prohibition applies only to those of their own faith.  Towards infidels, the Koran says:  "Kill, kill the unbelievers wherever you find them."  However, if a Muslim kills a fellow believer, the sentence is normally death.  But a killer may escape punishment by paying a “death duty” to the victim’s family, if acceptable to the family.  This option is not normally extended to an infidel killing a Muslim.  And, killing an infidel or “dhimmi” is not normally considered murder!  In some Islamic societies, and depending on the individual circumstances, such as the social or political importance of the victim, some action may be taken, but rarely any long imprisonment, and almost never a death sentence.  

SLAVERY:  There are no prohibitions, sanctions, or penalties concerning slavery, and  slavery has been a cornerstone of Muslim society since the religion emerged.  Indeed, the Koran dedicates several passages regarding, and justifying the practice. 
 
APOSTASY:  The worst crime is for a Muslim to renounce Islam, of which I am guilty, upon embracing Christianity.  Allah (Muhammed) ordered the death sentence for apostates, and it is the Law of the Land of all Muslim countries.  His (Muhammad’s / Allah’s) words were:  "One who changes his faith is to be killed."  A Muslim renouncing the religion may first be examined for insanity since, for Muslims, it is incomprehensible that a believer would renounce his or her religion.  This attitude is reminiscent of Communism in the former Soviet Union, when many dissidents were considered to be mental cases, and sometimes interned in mental hospitals, instead of the “gulogs.  Once the sentence has been pronounced, the execution is generally accomplished by beheading, often as a public spectacle.  Though rarely enforced, a Muslim who consistently misses prayers might also be considered to be an apostate, leading to a death sentence.    

BLASPHEMY:  It is doubtful that any person of Western Civilization has been put to death for blasphemy in over 200 years.  But in Muslim countries, arrests, imprisonment, trials, torture, and frequent executions are a daily occurrence for this crime.   In many instances, those accused are Christians or Jews.  Since any non-Muslim is completely devoid of rights in a Shari’a court, a Muslim can denounce an infidel with impunity.  This has led to false charges, against which a non-Muslim can offer no defense.   

Soon after the establishment of Islam, blasphemy covered any lack of respect of Allah, Muhammad, the Koran, the Muslim faith or the Shari’a, by even suggesting that any of these concepts or entities may be in any way defective.  It was, and still is, also considered blasphemy to demonstrate any lack of respect for the “umma”, the Muslim community.  This, of course, in my previous society, can mean practically anything!    

Under the present day blasphemy laws of Pakistan, a person “Whoever by words, either spoken or written, or by visible representation, or by imputation, innuendo, or insinuation, directly or indirectly defiles the sacred name of the Holy Prophet Muhammad…shall be punished by death and shall be liable to a fine.”  The vague wording of this Law, can and does, lead to gross injustices, especially if directed against an infidel unable to offer a defense or even to appear in a Shari’a court. 

ADULTERY: This is also an offense, punishable by death.  One choice manner of punishment is to sew the adulterers into a sack and throw them from the highest building in the area, often the minaret of a local mosque.  But other forms of carrying out the death sentence are acceptable. 

In a news story of the New York Times (May 17, 2002), a young woman of Pakistan, who had been raped by her husband's brother, was sentenced to death, and executed, by stoning, for adultery.  The brother who raped his sister-in-law was not punished.  The judge's ruling was based on the woman's own testimony, that is, that she had had intercourse, by the rape, outside of marriage!  In the Muslim world, few husbands are convicted of adultery. 

SPOUSAL ABUSE / CHILD ABUSE:  Spousal abuse is sanctioned in the Koran so this crime, per se, is not recognized as a crime!  And, regardless of the circumstances or gravity of any child abuse, it would not be considered as a crime in a Shari’a court! 

THEFT:  Penalties for theft in Muslim countries are specific; for a first offense, the thief's right hand would be amputated.  For a second offense, the left foot is amputated.  In Muhammad’s day, he ordered that the severed hand be worn around a thief’s neck.  Interestingly, the looting of public property or embezzlement of a treasury, do not carry those sentences.  And, theft from an infidel is never considered a crime!    
   
MAIMING OR DISFIGUREMENT:  The Code of Hammurabi comes into play in Muslim Jurisprudence; "an eye for an eye" can be invoked.  A Muslim deliberately gouging out the eye of another Muslim might also lose one of his own eyes as punishment.  Or, a person who is responsible for the loss of a limb might have his own limb removed.  In some countries, such as Egypt, my country of origin, the appropriate body part will be surgically removed in a hospital.  But in more backward Muslim countries, amputations are performed publicly in sports stadiums, sometimes as preliminary entertainment for spectators before the main event of public executions.      

HOMOSEXUALITY:  The Koran, and the Shari’a are specific; death is ordained for the homosexual, and penal codes of several Muslim states reflect this.  The execution of homosexuals is common in Saudi Arabia as it was in Afghanistan, until the fall of the Taliban regime.  In Iran, since the 1979 revolution, estimates by Amnesty International, as to the number of homosexuals executed in that Country range up to 4,000.  The more accepted method of execution is, as the case with adultery, to throw the condemned from the highest building of a town or city, or by toppling a wall on top of him, but both methods are used.  Notwithstanding the mandated punishments for homosexuality, Muslim societies have the highest incidence of homosexual abuse of male children in the world, especially by older siblings or other male family members.  Though considered an abomination on earth, the Koran alludes to the righteous being served in Heaven by young boys, "pure as pearls" dressed in green garments of silk and brocade, and adorned with silver jewelry, and used to drinking wine.”  It might be supposed that homosexuality occurs with the same percentage in Muslim societies as in others.  However, in Islam, the "sin" for Muslims is not that a man commits homosexual acts with other men; the sin would be if there were to be any emotional attachment involved.  In Muslim society, the presence of any measure of equality or romantic love in a sexual union, heterosexual or homosexual, is deemed abhorrent and intolerable.     

End Note:  We wish to express our appreciation to Dr. Hamid al-Ghazali for sending us this brief, but incisive article on jurisprudence.  In his communication with us, he claims to be one of the few ex-Muslims with a law degree from a Western university, who is also conversant with the Shari’a.  We understand that he now resides in Switzerland under an assumed identity.


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