النقطة الأولى: تأسيس دولة تراعي شؤون الناس حسب ما انزل الله
Point #1: Establishing a state that looks after the affairs of the people in accordance with what Allah has revealed:
This is obligatory - أي واجبا - as Allah said:
وان احكم بينهم بما انزل الله ولا تتبع اهواءهم
But I think the method you have simply gives no credit to intuition or experience. In the United States, for example, we see that most people who are punished by the death penalty in certain cases, are minorities (non-whites). This might be because the jury and the judge here are biased against non-white people (in certain cases, we are *sure* about this). Therefore, many states here have put an end to the death penalty until it can be fixed in a way that such racial biases don't occur.
Now, in the classical model of how the khilafah used to be run, one judge presided over the case (i.e. no jury). Now, this one judge may also be racist. In fact, if you look through - for example - al-Qadhi 'Iyad's Shifa', you will see some very racist tendencies in the book, especially when he says the one who calls the Prophet (sallallahu `alayhi wasallam) black is a murtadd and he must be killed without repentance! Now, there is no doubt that the qadhi that Qadhi 'Iyad quoted from - I don't know if Qadi Iyad felt this way personally or not - said this because he felt that blackness was a defect.
Now, if the judge were to rule over a black person accused of something that is punishable by death, and he sentenced him to death, and then we found that this is a trend, shouldn't we be suspicious of this, because it might not be in the interests of justice? Now, this is not to say that the death penalty is wrong, or that murderers shouldn't suffer the death penalty: I'm saying that sometimes the verse in the Qur'an assumes certain conditions to be met, and we apply these rules regardless of whether these conditions are met or not. I hope what I said is understandable, even if I went off sometimes
.
Point #2: You said:
ثم هو يرى أن الأحكام مثل الحدود وغيرها مما يعتبر مفروضا من قبل الله سبحانه إنما هو عنده لضرورة وقت التنزيل الذي نزلت فيه تلك الأحكام ولأنها كانت هي أفضل خيار يخدم العدالة في ذلك الوقت
Now, the above seems to sound like I think the hudood should be thrown out, and I don't think this way. I meant to say that *some* laws were intended for a particular time and place. No Muslim disagrees about this: wasn't alcohol drinking permissible early in Islam? Wasn't Mut'a as well?
There are certain laws that all agree no longer apply. Now, I feel that some laws are also like that as well: with, for example, the fact that a woman's testimony is half that of a man's. Now, there is no disagreement that the reason for this is because women were not in public life then, and therefore it would be difficult for them to have seen something related to crime and business transaction. Some also felt that this was because women are deficient in intelligence and religion, but that is non-sense, and I hope I don't have to explain why. Nowadays, women are available in public life, and sometimes they are the only witnesses. Now, are you willing to let a murderer or rapist go free, whereas a woman is readily available to testify against the criminal?
Now, sidi, you are a Maliki. In al-Qawanin al-Fiqhiyya, it states:
Reference: al-Qawanin al-Fiqhiyya, volume 1: page 179: line(s) 19-22: {book 11; chapter 5; section 1; explanation of seven preconditions of relational breast-feeding}
Now, the Maliki jurists state that in the case of witnessing breast-feeding, a woman's testimony is equal to that of a man, because women, obviously, are available at a breast-feeding, whereas not too many men are (as it is usually haram for them to look at light 'awra, except in this case). Now, if we apply this same logic to every case, then I think we can establish the equality of women's testimony to men's in all cases.
Point #3: You said:
وهو يضرب على ذلك مثالا فيقول : ألا يمكن الآن أن يقيس أحدهم قياس المقاصد ليخرج بنتيجة مفادها أن الناس لا يجب عليهم بالضرورة أن يقطعوا يد السارق وإنما يمكن ان يكتفى بالحبس في حقه كعقاب كاف ورادع !!
Obviously, my deficiency in language has been exposed, and therefore I must apologize again for misleading you. What I meant is that: if the people in a democracy choose to make the punishment for theft, for example, something other than the amputation of hands, wouldn't that be ok as long as the punishment they choose bears the same effectiveness as the amputation of hands? This is only an example: I personally don't see myself stealing anything, therefore I don't care how a thief is punished: I won't be affected either way. This is merely an example of how constitutional democracy may be supported in Islam
I will continue in the next post, insha'allah. Wasallam.
Point #1: Establishing a state that looks after the affairs of the people in accordance with what Allah has revealed:
This is obligatory - أي واجبا - as Allah said:
وان احكم بينهم بما انزل الله ولا تتبع اهواءهم
But I think the method you have simply gives no credit to intuition or experience. In the United States, for example, we see that most people who are punished by the death penalty in certain cases, are minorities (non-whites). This might be because the jury and the judge here are biased against non-white people (in certain cases, we are *sure* about this). Therefore, many states here have put an end to the death penalty until it can be fixed in a way that such racial biases don't occur.
Now, in the classical model of how the khilafah used to be run, one judge presided over the case (i.e. no jury). Now, this one judge may also be racist. In fact, if you look through - for example - al-Qadhi 'Iyad's Shifa', you will see some very racist tendencies in the book, especially when he says the one who calls the Prophet (sallallahu `alayhi wasallam) black is a murtadd and he must be killed without repentance! Now, there is no doubt that the qadhi that Qadhi 'Iyad quoted from - I don't know if Qadi Iyad felt this way personally or not - said this because he felt that blackness was a defect.
Now, if the judge were to rule over a black person accused of something that is punishable by death, and he sentenced him to death, and then we found that this is a trend, shouldn't we be suspicious of this, because it might not be in the interests of justice? Now, this is not to say that the death penalty is wrong, or that murderers shouldn't suffer the death penalty: I'm saying that sometimes the verse in the Qur'an assumes certain conditions to be met, and we apply these rules regardless of whether these conditions are met or not. I hope what I said is understandable, even if I went off sometimes
. Point #2: You said:
ثم هو يرى أن الأحكام مثل الحدود وغيرها مما يعتبر مفروضا من قبل الله سبحانه إنما هو عنده لضرورة وقت التنزيل الذي نزلت فيه تلك الأحكام ولأنها كانت هي أفضل خيار يخدم العدالة في ذلك الوقت
Now, the above seems to sound like I think the hudood should be thrown out, and I don't think this way. I meant to say that *some* laws were intended for a particular time and place. No Muslim disagrees about this: wasn't alcohol drinking permissible early in Islam? Wasn't Mut'a as well?
There are certain laws that all agree no longer apply. Now, I feel that some laws are also like that as well: with, for example, the fact that a woman's testimony is half that of a man's. Now, there is no disagreement that the reason for this is because women were not in public life then, and therefore it would be difficult for them to have seen something related to crime and business transaction. Some also felt that this was because women are deficient in intelligence and religion, but that is non-sense, and I hope I don't have to explain why. Nowadays, women are available in public life, and sometimes they are the only witnesses. Now, are you willing to let a murderer or rapist go free, whereas a woman is readily available to testify against the criminal?
Now, sidi, you are a Maliki. In al-Qawanin al-Fiqhiyya, it states:
The seventh precondition is that the breast-feeding be witnessed. It is agreed in the Maliki school that if two upright men witness this affair, then it is enough to establish the relational bond. And the witnessing of only two women is also enough if their statement is widespread [and accepted].
Now, the Maliki jurists state that in the case of witnessing breast-feeding, a woman's testimony is equal to that of a man, because women, obviously, are available at a breast-feeding, whereas not too many men are (as it is usually haram for them to look at light 'awra, except in this case). Now, if we apply this same logic to every case, then I think we can establish the equality of women's testimony to men's in all cases.
Point #3: You said:
وهو يضرب على ذلك مثالا فيقول : ألا يمكن الآن أن يقيس أحدهم قياس المقاصد ليخرج بنتيجة مفادها أن الناس لا يجب عليهم بالضرورة أن يقطعوا يد السارق وإنما يمكن ان يكتفى بالحبس في حقه كعقاب كاف ورادع !!
Obviously, my deficiency in language has been exposed, and therefore I must apologize again for misleading you. What I meant is that: if the people in a democracy choose to make the punishment for theft, for example, something other than the amputation of hands, wouldn't that be ok as long as the punishment they choose bears the same effectiveness as the amputation of hands? This is only an example: I personally don't see myself stealing anything, therefore I don't care how a thief is punished: I won't be affected either way. This is merely an example of how constitutional democracy may be supported in Islam
I will continue in the next post, insha'allah. Wasallam.
تعليق