Rafed English

Validity of the offence under Islamic law

Adopted from the book: "The rights of prisoners according to Islamic teachings" by: "Sayyid Muhammad Sadiq al-Shirazi"

The third aspect, which must be taken into account if the Islamic penal code were to be carried out, is that the committed act must be regarded as an offence under Islamic law. As mentioned previously, Islam does not consider as an offence, most of what is defined an offence under-man made law.

Anyone who would take an inquisitive look into the courts-of- law and prisons in the democratic countries reveals this truth. Tens of thousands of people who are convicted in the courts-of-law and therefore imprisoned would neither be tried nor imprisoned under an Islamic system.

And if, one day, an Islamic system of government is established, there will be no trace of those courts of law, prisons or the prisoners. We shall mention 100 aspects (of man-made laws) the violation of which results in prosecution, whereas Islam considers all of them to be legal and the human right of the individual whether a Muslim or not.

This is of course in relation to the so-called free and democratic countries. As for the so-called third world countries, which include the Muslim countries, the situation is worse.

These issues, which we shall mention here, are free in Islam but restricted (to various degrees) under man-made laws in that if one violates those restrictions, they will be prosecuted. These issues are freedom 60:

of buying 61,
of selling,
of loan security,
of surety,
to make a deposit (of any kind) for safekeeping,
to make any new kind of contract not prohibited by Islamic jurisdiction,
of bail,
of arbitration or settlement,
of insurance,
of forming a partnership,

The rights of prisoners according to Islamic teachings of investment (Mudahrabah) 62,

of farming investment 63,

of irrigation investment 64,

to procure the land (for any kind of development) 65,

to procure anything permissible 66,

of borrowing,
of letting,
to make a power of attorney,
to make an endowment,
benevolent or trust fund,
to give alms to charity,
to make a gift,
to make a conditional or unconditional donation,
of abode,
of time-limited abode,
of racing,
of archery,
to make a will,
for men and women to marry either long term or temporarily,
to divorce,
to exercise Khol'a 67 divorce,
of breast-feeding,
to travel,
to settle in a place,
to open a shop,
of admission (of guilt),
to give prizes etc. to the winner of a competition,
of publishing,

in the amount of dowry and other particulars of marriage, to practise any desired vocation, to pursue useful knowledge with the result of becoming a doctor, engineer, lawyer, or political or economic expert or otherwise or to become a religious scholar or lecturer or writer etc, of responsibility or promise of oath, of vows,

to exercise the right of pre-emption, to partake of permitted food in any way desired, to revive the barren land 68,

of inheritance (in that the legacy belongs to the inheritor according to the rules explained by the emissary of Allah - according to Islamic law. The Prophet (S) said: "Whoever dies leaving a family with no guardian then it (their welfare) is my responsibility, and whoever dies leaving wealth behind then it belongs to the heir". 69

This is in contrast to the man-made laws, which can make up to ninety per cent of the legacy to go to the government, as it is well known), to consult any legal judge 70, to testify (in front of a particular judge) and seek the testimony of others, to demand blood money, or punishment or to forgive, to practise agriculture,

to manufacture, of construction, for a person to be without nationality or identity or other formalities that are commonplace now, to publish a newspaper,

to publish a magazine, to own a radio broadcasting station, to own a television broadcasting station, of action,

to express an opinion, of meeting or gathering, to form a trade union, to form associations, to form organisations,

to form a political party, to elect 71, of governorship, of guardianship or of religious leadership, to make or accept an envoy or representation or ambassador to choose any occupation in the civil service,

from being monitored by the government using spying or phone tapping equipment or by a secret police, to give birth to any number of children,

for a man to marry up to the limit of four on a permanent basis or more on a temporary basis,

of beliefs; Allah Almighty has said: 'There is no compulsion in religion', of type of food and drink consumed and clothes worn etc, to come and go from one's house at any time of day or night,

to build mosques,
to build schools,
to build religious centres,
to build hospitals,
to build clinics,
to build publishing houses,
to build cultural establishments,
to build hostels and hotels,
to build maternity units,
to build old peoples houses,
to set up banks,
to join a students' union,

for a person to leave any institution or position of employment, to furnish a house or shop in any way, to select any type of vehicle required, of (any deal or contract) interaction with others, to make or accept a loan,

to grant the custody of any endowment or entailed estate to anyone, to choose a name for himself or for a place associated with him, to set up poultry farms, to follow the rulings of any competent religious authority desired, to choose any lecturer or preacher desired, to record any contract with any religious scholar.

There is no age limit for individuals to vote or take part in any election, i.e. children have the right to take part in elections too.

We have referred to some of them in details in the book "The New Order for the World of Faith, Freedom, Prosperity and Peace".

The one hundred issues mentioned above are free in the Islamic framework but are restricted under man-made law, and violation of these restrictions would result in prosecution and imprisonment. If these one hundred issues are multiplied by the number of violations that could be committed, as an example we shall mention only ten possible violations here, then there would be one thousand cases in which one would be liable to prosecution and imprisonment. The ten possible violations of the imposed restrictions may be due to the individual's

ignorance; forgetfulness; mistake by not applying for a permit, say in time; temptation and encouragement, by a person, to counterfeit it; not thinking it being necessary, from the religious view point, to comply with the restriction;

not getting the chance to do it; not setting high priority for it; not being possible for him to do it;

being prevented from doing it by government (for any reason); or due to exceptional circumstances e.g. his life being in danger.

So as can be seen from the above, these are one thousand violations in not applying for a permit. Assuming that each of these violations were committed by, say 10 individuals, then there would be ten thousand individuals who would be taken to the courts of law and either imprisoned or fined. All of this is clearly accompanied by wastage of time and money as well as insult to the dignity of the individual. This is in addition to the swelling of bureaucracies and the personnel recruited to administer them, which are in turn a great burden on the public purse (to say the least).

When can prescribed punishments be carried out? Islam only permits the execution of punishment after achieving and securing the health and safety of the society, as seen from Qur'anic verses and Prophetic traditions; for example Allah states:

{and do no mischief on the earth after it has been set in order} 72 In a hadith 73, it is reported, "Government and Hodud are for the Imam of the Muslims" 74 which means that during the circumstances and time of the presence of the (infallible) Imam of the Muslims the rules of Islam may be executed, and the significance of the presence of the Imam of the Muslims means he is authorised to establish the rule of Islam. It is clear the rule of Islam is only established when all freedoms are made available to the masses and everyone is able to achieve whatever s/he wants in terms of knowledge, wealth, position, etc.

according to their ability and expertise, in order to attain a prosperous life befitting their life and dignity. For if the atmosphere and political/social/economic environment is not Islamic, and if one is not able to obtain enough income to lead a decent life, how can his hand be cut off for stealing? If he cannot find enough money to get married, how can he be lashed (for committing adultery)? If alcohol and decadence is freely available in the country, how can he who indulges in them face the Hadd? Needless to say if one admits to stealing, and gives back the good, his hand would not be cut off.

Henceforth, we have in hadith "(embracing) Islam annuls all previous practices (of the new Muslim)" 75 and "Iman annuls previous practices" 76. It is also applicable, as it can be concluded from other hadith, that "the assumption of the office of government by a just ruler annuls all previous practices (of illegal acts committed by individuals.)".

This is in addition to the invalidity of coercion that, as the author has mentioned in his works on Islamic jurisprudence, includes to the social/environmental coercion, as well as to coercion on the individual personally. There are also the exceptional circumstances of 'desperation', 'not knowing', and 'not being able' 77. Furthermore we have the principle decreed by the Prophet (S),

"The Hudood (punishments) are waived by uncertainties." 78


60. The freedom of the individual in engaging in any of the above are restricted in western democracies in one form or another, for example by the imposition of taxes, charges, stamp duties, or the need to seek permission form the authorities, etc. whereas no such restrictions are permissible under Islam. needless to say, there are few activities that are classified as illegal such as production or sale of alcohol, and gambling.

61. i.e. no value added tax (VAT) or any other form of taxation is levied on goods in Islam.

62. Mudahrabah is a business scheme where one party contributes the capital, and the other the labour or expertise, and the profit or loss of the venture is divided between them according to a previously agreed ratio.

63. This scheme is similar to that above with difference that one party provides the farmland and the other the workforce. Similarly the profit or loss of the venture is divided between them according to a previously agreed ratio.

64. This scheme is similar to that above with difference that one party provides the farm and the other agrees to irrigate it. The profit or loss of the venture is divided between them according to a previously agreed ratio.

65. ... without the need for any permission from any authority.

66. ... e.g. fishing, mining, etc. without the need for any permission from any authority.

67. This kind of divorce is initiated by the wife.

68. Without the need for any permission to do so from any authority or for any payment in exchange for the use or possession of that land.

69. al-Kafi, vol. 1, p 406.

70. For example to have his case dealt with a particular judge rather than other judges.

72. The Holy Qur'an: The Heights (7): 85.

73. A hadith is a statement of the prophet Muhammad or one of the Imams of the Ahl-ul-Bayt.

74. Wasa'el al-Shi'a, vol. 18, section 13, p 7.

75. Bihar al-Anwar, vol. 40, p. 235. The words in brackets are included for clarity. Translator

76. Here Iman means adhering to the teachings of the Ahl-ul-Bayt peace be upon them.

77.This is in reference to hadith "(in) nine cases my people would be excused." given earlier.

78. These uncertainties could be associated with either the judge or the defender.

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