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Dr. Tariq Ramadan |
Introduction
Continually and on an ongoing basis, majority Muslim societies and Muslims around the world are confronted with a fundamental question: the application of the penalties linked to the Islamic penal code.
Referring to the notion of sharî'a or, in stricter terms, to hudûd, the nature of the debate is being constructed today with thought provoking questions between the ulamâ' (scholars) and/or between Muslims: how to be faithful to the message of Islam in the contemporary era? How can a society truly define itself as being “Islamic” beyond what is required of each individual in his daily life?
Several currents in the Islamic world exist today about this question and the disagreements are numerous, deep and recurring. Among them, a small minority demand the immediate and strict application of hudûd, assessing this as an essential prerequisite to truly defining a majority Muslim society as being “Islamic”. Others, relying on the notion of hudûd as indeed located in the reference texts (the Qur’an and the Sunna), consider that the application of hudûd is regulated by the state and must be just and “ideal”. The priority, therefore, is the promotion of social justice, fighting against poverty and illiteracy. Finally, there are others, also a minority, who reject the texts relating to hudûd and consider that these references do not have a place in contemporary Muslim societies.
One can see the opinions on this subject are so divided and entrenched that it becomes difficult to understand explicitly what the respective arguments are. At a time when this is being written - where positions remain vague, debate is virtually non-existent and there is lack of consensus among Muslims - women and men are undergoing the application of these penalties.
For Muslims, Islam is a message of equality and justice. By remaining true to the message, it becomes impossible to keep silent towards an unfair application 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 not worthy of the transparent and just message of Islam.
In the name of the scriptural sources, the Islamic teachings, and the contemporary Muslim conscience, there are decisions that need to be taken.
What do the majority of the ulamâ' say?
All the ulamâ' of the Muslim world, of yesterday and of today and in all the currents of thought, recognize the existence of scriptural sources that mention corporal punishment (Qur’an and Sunna), stoning of adulterous women and men (Sunna) and the penal code (Qur’an and Sunna). This objective content of the texts has never been disputed by the ‘ulamâ’.
The divergences between the ulamâ' and the various tendencies (literalist, reformist, rationalist, etc.) hold on essentially to the interpretation of a certain number of these texts, the conditions of application of the sentences relating to the Islamic penal code, as well as their degree of relevance to the contemporary era (nature of the committed infractions, testimonials, social and political contexts, etc.).
The majority of the ulamâ', through history and until today, are of the opinion that these penalties are on the whole, Islamic but that ‘the conditions required’ for their application are practically impossible to recreate (notably in regards to stoning). They are therefore “almost never applicable”. The hudûd would serve therefore as a “deterrent,” the objective of which would be to stir the conscience of the believer to the seriousness of an action that could induce such a punishment.
Whoever reads the books of the ulamâ', listens to their lectures and sermons, travels inside the Islamic world or mixes with the Muslim communities of the West will invariably hear the following formula from religious authorities: “almost never applicable”. It allows the majority of the ulamâ' and Muslims to escape the fundamental question without giving the impression of having sold out to the Islamic scriptural sources. The other attitude is to avoid the issue altogether or to keep silent.
What is happening on the ground?
One would have hoped that this formula “almost never” would be understood as a guarantee to protect women and the men from repressive and unfair treatment; one would have wished that the stipulated conditions would be seen as an imperative to promote equality before the law and justice between humans by their respective governments and the legislators that speak in the name of the Islam. Nothing could be further from the truth.
Behind an Islamic discourse that minimizes the reality and rounds off the angles, and within the shade of this “almost never”, lurks a sombre reality where women and men are punished, hit, stoned and executed in the name of hudûd. This is occurring in the absence of the slightest emotion shown by the Muslim conscience throughout the entire world.
It is as if one does not know, as if a minor treason were being done to the Islamic teachings. The height of these injustices is that these penalties apply mainly to women and the poor, doubly victimized - never to the rich, the governing or to the oppressors. Besides, hundreds of prisoners have no dignified legal means to defend themselves. Death sentences are decided and executed on women, men and minors (political prisoners, traffickers, delinquents, etc.) without the accused having the least bit of contact with a lawyer. After accepting the grey zones in our relationship to the scriptural sources, we resign ourselves to the treason being done to the message of Islam, which promotes justice.
The international community has an equally major and obvious responsibility to be involved on the question of hudûd in the Muslim world. Denouncements are selective and operate to calculate and protect geostrategic and economic interests. A poor country, such as in Africa or in Asia, trying to apply the hudûd or the sharî'a will face international campaigns of mobilization as we have seen recently. The same does not apply to rich countries, the petromonarchies and those considered ”allies”. Towards the latter, denouncements are made reluctantly, or not at all, despite ongoing protests and awareness of these penalties being applied to the poorest or weakest segments of society. The intensity of the denouncements is inversely proportional to the interests at stake. This only adds to the existing injustices.
The passion of the people, the fear of the ulamâ'
For those who travel within the Islamic world and mix 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 passionate, where there is no real knowledge or comprehension of the texts, where there is so little if any critical distance vis-à-vis the different scholarly interpretations, to the necessary contextualization, to the nature of the required conditions or, indeed to the protection of the rights of the individual and the promotion of justice.
On the question of hudûd, 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 Muslims (educated or not, and more often of modest means) calling for a formal and strict application of the penal code (in their mind, the sharî'a) of which they themselves will often be the first victims. When one studies this phenomenon, two types of reasoning generally motivate these claims:
1. The literal and immediate application of the hudûd legally and socially provides a visible reference to Islam. The legislation, by its harshness, gives the feeling of a fidelity to the Qur’anic injunction 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.
2. 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 wild opposition of the West is sufficient proof of the authentic Islamic character of the literal application of hudûd. Some will persuade themselves by asserting that the West has since long lost its moral references and became so permissive that the harshness of the Islamic penal code that punishes the judged immoral behaviors, is by antithesis, the true and only alternative “to Western decadence”.
These formalist 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. This is in stark contrast and opposition to the Western laws, which are perceived as morally permissive and without a reference to religion. 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 understood sharî'a 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 affirming an identity that perceives itself as Islamic (and anti-Western). It is not based on the comprehension of the objectives of the Islamic teachings (al maqâsid) or different interpretations and conditions relating to the application of the hudûd.
Faced with this passion, many ulamâ' remain prudent for the fear of losing their credibility with the masses. One can observe a psychological pressure exercised by this popular feeling towards the lawful judicial construct of the ulamâ', 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 ulamâ' 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 ulamâ', who should be the guarantors of a deep reading of the texts, who should remain faithful to the objectives of justice and equality and, who should provide a critical analysis of conditions and social contexts, are induced themselves to accept either a formalistic application (an immediate non-contextualized application), or a binary reasoning (less West is more Islam). This without bringing solutions to the daily injustices that women and the poor undergo under the so-called premise: “almost never applicable”.
An impossible status quo: our responsibility
The Islamic world is in the process of undergoing a very deep crisis, of which the causes are multiple and sometimes contradictory. The political system of the Arab world is becoming more and more entrenched, references to Islam frequently used and public opinion is often muzzled and blindly passionate (to such a point as to adhere, indeed even to claim, the most repressive and least just application of the “Islamic sharî'a” and hudûd).
In terms of the more circumscribed religious question, we can observe a crisis of authority accompanied by an internal absence of debate among the ulamâ', the diverse schools of thought, and within the Muslim societies and communities. It becomes apparent that a variety of opinions, accepted in Islam, are whirling today within a chaotic framework and coexisting with the most opposed and contradictory legal Islamic opinions of which each claims has a more “Islamic character” than the other. Faced with this legal chaos, populations and ordinary Muslims are more satisfied by “an impression of fidelity” than by opinions based on real knowledge and understanding of the governing Islamic principles and rules (ahkâm).
Let us look at the reality, as it exists. There is a today a quadruple crisis of closed and repressive political systems, religious authorities promoting contradictory requirements and uneducated populations swept up in remaining integral to the teachings of Islam with more a feeling of religious fervor and passion than true reflection. These facts cannot legitimize our silence. We are accomplices and guilty when women and men are punished, stoned or executed in the name of a formalist application of the scriptural sources.
It leaves the responsibility to the Muslims of the entire world. It is for them to rise up to the challenge of remaining just to the message of Islam in the contemporary era; it is for them to denounce the failures and the treasons which are being carried out by whichever authorities or Muslim individuals that are out there. A prophetic tradition reports: “Help your brother, whether he be unjust or victim of an injustice.” One of the Companions asked: “Messenger of God, I understand how to help someone that is a victim of an injustice, but how can I help if he is unjust himself?” The Prophet (peace be upon him) responded: “Prevent him from being unjust, this is how you will help him.”
It thus becomes the responsibility of each ‘âlim (scholar), of every conscience, every woman and man, wherever they may be to speak up. Western Muslims sometimes hide behind the argument that the application of the sharî'a or hudûd relieves them of their responsibility as they are
“in a minority position”. What remains is a heavy and troubling silence on the question. Or they express condemnation from afar without trying to evolve the mentalities. These Muslims that live in spaces of political freedom, who have access to education and knowledge, have – in the very name of the Islamic teachings – a major responsibility to attempt to reform the situation, open a relevant debate, condemn and put a stop to perpetrated injustices in their name.
A call, some questions
Taking into account all these considerations, we are launching today a call for an immediate international moratorium on corporal punishment, stoning and the death penalty in all majority Muslim countries. Once again, this call for a moratorium is being made considering that the opinions of most scholars are neither explicit nor unanimous (indeed there is no clear majority) as far as the comprehension of the texts and to the application of the hudûd are concerned. Moreover, the 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 therefore our moral and religious responsibility to ask for the immediate conditions to the application of the hudûd that is so falsely assimilated into the “Islamic sharî'a”.
This call doubles itself with a series of fundamental questions addressed to the body of Islamic religious authorities of the world, whatever their tradition (sunnî or shî'î), their school of thought (hanâfî, mâlikî, ja'farî, etc.) or their tendencies (literalist, salafî, reformist, etc.) :
1. Which are the texts (as well as 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 hudûd? Where are the margins of possible interpretations and on which points are there clear divergences (al ikhtilâf) in the history of the Islamic law until the contemporary era?
2. What are the conditions (shurût) stipulated for each of the penalties by the sources themselves, the consensus of the scholars (al ijmâ') or by isolated scholars through history of the Islamic law and jurisprudence (fiqh)? Where are the divergences as far as the stipulation of these conditions are concerned and which type of “extenuating circumstances” were sometimes elaborated by religious authorities throughout history or within the different schools of thought?
3. The socio-political context (al wâqi') was always considered by the ulamâ' as one of the conditions needed for the application of hudûd. 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 is it possible today to apply hudûd? Which would be the required conditions in terms of political systems and the application of the general legislation: freedom of expression, equality in front of the law, popular education, state of poverty and social exclusion, etc.? Which are, in this domain, the areas of divergence between the legal schools and the ulamâ' and on what are these disagreements based on?
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 the 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 reply on the question of what is applicable (and according to which methods) and what is no longer applicable (considering the required conditions are impossible to reunite 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 ulamâ', Muslim intellectuals and inside the Islamic communities since it is not only about a relationship with the texts, but equally, to the context. In the interval, there is no question of applying penalties that ratify legal approximations and injustices such as is the case today. 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 definitive texts of the Qu`ran and Sunna. Precisely the opposite is true: all the legal texts demand to be read in light of the purposes which were used to justify them (Al-maqâsid). Among the essential, 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 application of hudûd non-contextualized and without respect for strict and numerous enunciated terms, and which would present itself as being integral to the teachings of Islam can in fact be a betrayal if according to the context, it produces an injustice.
The caliph ‘Umar ibn al-Khattab established a moratorium towards thieves when he suspended the application of the punishment during the famine. Despite the Qur’anic text being very explicit on this, the state of the society meant it would have been an unfair 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 this 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 texts. The moratorium finds here a precedent of the utmost importance.
Reflection and necessary reform within predominantly Muslim societies will not occur but from within. It is for Muslims to take their responsibilities in hand and set in motion a debate which opens an intra-community dialogue, while refusing the continued legalized injustices in the name of Islam, meaning in their name. An endogenous dynamic is imperative.
This does not mean that the questions put forward by intellectuals or by non-Muslim citizens must be disqualified. On the contrary, all parties must learn to decentre themselves and move towards listening to the other, of their points of reference, their logic and their hopes. For Muslims, all queries, from their fellow believers or women and men who do not necessarily share their firm belief, are welcome. It is for them to make use of these questions as the seed and dynamism of their thoughts. This is how we can remain faithful to the justice required by Islam while taking into account 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 predominantly Islamic societies, in the center of collusive silence and chaotic judicial opinions on the ground. This realization implies:
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A mobilization of ordinary Muslims throughout the world to call on their governments to place an immediate moratorium on the application of hudûd and for the opening of a vast intra-community debate (critical, reasonable and reasoned) between the ulamâ ’, the intellectuals, the leaders and the general population.
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Taking the ulamâ to account so that they finally dare to report the injustices and instrumentalization of Islam in the field of hudûd and to put out a call, in the name of remaining true to the Islamic texts, of an immediate moratorium according to the example of ‘Umar ibn al-Khattab.
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Promoting education of Muslim populations so that they surpass the mirages of the formalism and appearances. The application of the repressive measures and punishment does not make a society more faithful to the Islamic teachings. It is more so the capacity to promote social justice and the integral protection of every individual, woman or man, poor or rich, that determines a truly authentic fidelity. The norm in Islam is that it is the law that protects ones rights, not the punishment that is inflicted (that can only be a strongly conditioned exception).
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This reformation movement 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 interrogations that Islam raises in non-Muslim minds. Not to bend over 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 adhere to this call to join us and make their voices heard for the immediate cessation of the application of hudûd 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 the depth of a 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 the rule of law, a 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.
Geneva 18 March, 2005
Tariq Ramadan
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