First, one of the major objectives of the Shari'ah, among others, is protection of religion (din). This includes Muslims as well as non-Muslims. Based on this principle, the Qur’an recognizes non- Muslims as a legitimate religious group within an Islamic polity. Allah the Most High Himself takes dhimmah (responsibility) for their protection. Inspired by the obvious and literal meaning of the term, even the sect of Khawarij, who did not hesitate to kill Muslims for disagreeing with their theological views, upheld strongly the doctrine of peace and security for the dhimmi; (non-Muslim in an Islamic state and society). burglars, child and woman abusers, and those involved in defamation. While all major religious and moral traditions look down upon these unethical and inhuman actions, secular cultures show their concern for the criminal, to the neglect of the devastation suffered by victims of crime. They think a strict legal approach toward the offender should be avoided, for it will cause injury and suffering to him.
But this concern for criminals should not make one forget the socio-psychological and physical harms, faced by the victims of their crimes and the society in general.
The philosophy of hudood could also be summarized in three vital aspects: ethical, human, and social. An act calling for hadd, in view of the Islamic Shari'ah, is essentially unethical and leads to an immoral culture at individual and social levels. Adultery and fornication, in the Shari'ah, are not a matter of individual consent or agreement of a husband to let another male have sex with his wife. Nor is sexual indulgence viewed an act of personal freedom, or a free ride without responsibility. It is a rebellion against the established moral norms in a society. Needless to say ethics, morality and law in Islam are not separated from each other. While in other legal traditions the realm of ethics and morality may not overlap, in Islam ethics provide foundation for law. All that is ethical is also lawful.
Consequently, unethical conduct calls for correction and penalization. Adultery, rape and fornication are called fahsha (lewdness) in the Qur’an carrying serious legal implications. Gender exploitation, whether of a Muslim or a non-Muslim, is not allowed in Islam for it considers it a zulrn (exploitation), a human rights issue. Sex ethics is to be observed irrespective of gender and religious affiliation.
The second major concern of the Shari'ah is to make sure that a minimum level of humanity is observed, and people do not act in a subhuman manner — the Qur’an calls it a conduct not worthy of even a lower level of animality. Crimes against life and one’s property are regarded as basic violations. Further, these violations involve social and environmental consequences for the community, which the Shari'ah would not allow to be breached. Social good, in other words, is a major concern of the Shari'ah.
That the Shari'ah’s implementation will be a backward movement also needs an objective examination. Perhaps the root of confusion lies in the assumption that the Shari'ah is a sum total of the pre-Islamic social mores which have been assigned normativeness by the Qur’an and the Sunnah. The Qur’an on the contrary maintains that it has come from on high and is not a human composition. It is the eternal word of Allah and not a product of history and social development, nor a reflection of the Arab-Semitic consciousness. It transcends the Arab mind and its finite narrow ethnic-tribal approach, and substitutes it with a universal ethical and purpose-oriented worldview. The Arab customs, taboos, and myths were declared void by the Qur’an in one single statement by calling them as tabarruj al-jahiliyyah (the traditions and customs of the age of ignorance).
It is important to note that though Arabs were its first addressees, the Qur’an was not meant for them alone. Consequently, it would not have imposed Arab customs on others by assigning them “normativeness.” If Allah the Exalted is ‘Adil (just), His ‘adl requires a universal, and not a bedouin or tribalistic, Shari'ah.
In fact, the Qur’an and the Sunnah were essentially a profound departure from the known Arab tradition, a movement from an age of oral to a literate tradition, a departure from an age of mythology to a culture of reason, and a passing from a narrow ethnocentric tribal approach to a global brotherhood (ukhuunvah) and an international community (ummah). In brief, the norms of the Qur’an and the Sunnah brought a profound social change and a paradigm shift.
This new paradigm was founded on an ethical world order, a new equation in interpersonal relations and a new set of values. The worldview of Islam rejected the blind following of the past traditions. A rational analysis of the system was encouraged. An ethical code in personal and social life was provided by the divine revelation (wahy), in the form of the Qur’an and the Sunnah.
These two nonvariables set the measure for an ethical transformation of social, economic, political and legal institutions. The new human being, thus produced, translated the norms and teachings of the Qur’an and the Sunnah in his personal and social behavior. This human and social transformation allowed only those aspects of human behavior and conduct to continue which served the purposes of the new ethical paradigm. The transformation of law, to be more specific, was profound, substantial, and revolutionary. The new philosophical principles, the maqais al-shari'ah, and the new sources of law, the masadir al- shari'ah, led to a new approach in the philosophy, methodology and application of law in the society.
Source: Islamization of Laws and Economy: Case Studies on Pakistan, Charles Kennedy. Republished with permission.