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Introduction
All praise is due to the Lord of the Worlds, and peace and
blessings be upon Allah's Messenger Muhammad and all those
loyal to him.
1
Researcher, Sheikh Ibraheem Bin Muhammad Awwal, who typed
this research paper.
2
Replying to the Allegation
3
testimony for example. In the case of fornication, the administration of
Islamic punishment required having four witnesses, provided they are
trustworthy and beyond accusation. This is to insure the proper
investigation of truth, certainty and taking precautions with that number
of witnesses peculiar to the crime of fornication.
5
stones, he cried: 'O people! Return me to the Messenger of Allah
(PBUH). My people killed me and deceived me; they told me that the
Messenger of Allah (PBUH) would not kill me.' We did not keep away
from him till we killed him. When we returned to the Messenger of Allah
and informed him of it, he said: 'Why did you not leave him alone and
bring him to me?' and he said this so that the Messenger of Allah (PBUH)
might ascertain it from him."5
6
over which any name other than God’s has been invoked. But if one is
driven by necessity – neither coveting it nor exceeding his immediate
need – then [know that], behold, your Lord is All-Forgiving, Most
Gracious." (The Qur'an, 6:145).
It was also said that it refers to those compelled and forced to eat
these unlawful items.
In an authentic Saying, Abu Waqid Al-Laithy said, "I said, 'O Allah's
Messenger! We are in a land where we are afflicted with makmasah, so
what dead meat is permissible for us (as food)?' He said, 'If you do not
Tastabihu, do not Taghtabiqu and do not cook pot herbs, or beans@
Tahtafi'u, then you may do whatever you want with it."8
7
do whatever you want with it.' means 'you are free to eat that food
without restrictions.' "9
Al-Hafez ibn Rajab said, " 'mistake' implies doing an act with the
intention of something but ending up, unintentionally, doing something
other than the intended one like intending to kill an infidel and ending
up, unintentionally, killing a Muslim.
This is just like the case of the one who forgot to perform ablution
and prayed thinking he performed it; by so doing, he is not a sinner, but
if it was found out that he prayed while in a state of ritual impurity, he
would have to repeat the prayer."11
Al-Hafez Ibn Rajab said, "The Ruling on the case of being forced to
do something: It is of two types:
First: One may have no choice at all and be unable to abstain from
sinning, like the one who is carried by force and compelled to enter a
8
place, having sworn not to enter it, or the one who is carried by force
and has his body used to beat some person to death, while one has no
ability to abstain from doing so… Such a person is not a sinner, as
unanimously agreed upon by scholars of religion. This case does not
imply breaking his oath, according to the majority of scholars.
Scholars also agree that if one is forced to kill a person who did
nothing religiously entailing his being killed, one is not allowed to kill
him/her; one will be killing him/her choosing to spare oneself@. This is
according to the consensus of reliable scholars.13
It also can be noticed that the German legal school and the French
Anglo-Saxon one are influenced by Islamic Jurisprudence when it comes
to the theory of legal necessity in Islamic Law; Dr. Az-Zuhaili said that the
theory of necessity in the general law is based on the same bases of the
right to legal defense in the criminal law, for a state's defending itself is
just like a person's defending himself/herself against the dangers
threatening him/her. That is why Orientalist Louis Yong said, "Still, there
are many things that Westerns should learn from the Islamic civilization,
such as their tolerance, anti-racism, colour, or religion."17
11
or if one gets choked and finds nothing but wine to drink to rid him/her
of the choke, he is not to accept death because in Islamic Law,
preserving life is more important than avoiding such prohibited acts.
12
An-Nawawy said, "The Prophet (PBUH) said, 'Are you mad?' to
make sure of the man's condition as usually, no one takes such a
decision entailing one's death without being asked about one's
condition, given that the man could have just repented to obliterate his
sin. In the other version, Prophet Muhammad (PBUH) asked the man's
people about him and they said they knew there was nothing wrong
with him. This is an extra check of the man's condition aiming at
preserving Muslim lives. This also shows that an insane person's
confession is invalid and so, such a person is not to be punished. All
these rules are agreed upon by scholars of religion. The Prophet's saying,
'Are you married?' indicates that the leader must observe the conditions
of stoning e.g., is the fornicator married or not and so forth, be this
through the fornicator's confession or a clear proof. This also shows that
one can be held accountable based on one's own confession.22
An-Nawawy said, "The Prophet (PBUH) said, 'You might have' and
Ma'iz answered in the negative. This implies that the Prophet (PBUH)
wanted to make him reconsider his confession to adultery trying to find
him an excuse to stone him not. Another version reads, 'You might have
kissed or caressed her or you might have looked at her with lust (and so
assumed that you committed adultery)'. In the first version, the Prophet
(PBUH) just said, 'You might have' as a shortened form of speech, or to
stress uncertainty or because these words and the whole situation
suffice to express the intended words unmentioned i.e., 'You might have
kissed…' This Saying indicates the desirability of informing the one
making such confession of the punishment for adultery or theft or any
other crime entailing punishment as prescribed by Allah Almighty. It also
shows that it is acceptable that the one making the confession goes back
13
on his/her confession because the legislation on punitive measures in
Islam pays heed to ease and prevention of punishment, so long as the
crime committed does not violate the rights of people or the financial
duties ordained by Allah such as Zakat (Obligatory Charity), Kaffarah
(compensatory act or payment) and others; in these latter cases, there is
no room for making one reconsider his/her confession and even if one
goes back on one's confession with regard to such cases, it cannot be
accepted. The notion of informing confessors to reconsider their
confessions to avoid punishment is a tradition of Prophet Muhammad
(PBUH), and his rightly-Guided Successors and scholars of religion
unanimously followed their lead.24
Some might wonder why Ma'iz and the Ghamidi woman were not
satisfied with repentance on its own, albeit serving their ultimate goal,
which is having their sins obliterated, which was insured by their
repentance anyway, given that the administration of the punishment
prescribed in Islam was conditional on the order of Prophet Muhammad
(PBUH). This is because it was dreaded that their repentance might not
be sincere and one of its conditions might not be met, which should
have kept their sins perpetually unforgiven. So, they wanted to insure
that they would get rid of their sins to make no room for doubt, and
Allah knows best!26
15
She explained that she had not woken up until he was done with her.
Thus, 'Umar did not punish her.28
Al-Khattaby said, " 'Umar did not order that a mad woman be
stoned as the mad are not to be stoned and it is not possible that he did
not know that rule and the same applies to those who were present
woth him, but that particular woman had fits of madness and she was
sometimes aware of her acts. So 'Umar was of the view that she should
not be excused for her fits of madness believing that she consciously
committed adultery. But Ali was of the view that madness makes room
for uncertainty and so, a mad person could be excused on sinning i.e.,
uncertainty makes no room for punishment. He dreaded that she might
have committed that sin in a fit of madness. So, both Ali and 'Umar
agreed on that view based on independent reasoning and spared her
punishment…"31
16
Scholars Al-'Ezz ibn 'Abdus-Salam who said that the cases of uncertainty
that require the non-administration of punishment are three: The first is
related to the one committing the sin as is the case of a man having
sexual intercourse with a woman whom he thinks to be his wife or slave
girl. The second is related to the woman whom one has sexual
intercourse with as is the case of more than one man sharing one slave
girl with each having sexual intercourse with her. The third is related to
the reason allowing one to have sexual intercourse with a woman as is
the case of a marriage whose validity is controversial.
Also, in many theft cases, thieves' hands are not to be cut off, as
indicated hereunder:
3. Also, if one steals money in public, not stealthily, one's hands are not
to be cut off as the Prophet (PBUH) said in an authentic Saying, "There is
no cutting off of a hand for him who loots.@ And he who loots
something known for public does not belong to us."
18
6.Also if some theft takes place during a travel, the thief's hand is not to
be cut off. In an authentic Saying, Junadah ibn Abu Umayyah said, "We
were with Busr ibn Arta'ah at sea when a stealer called Mesdar was
brought; he had stolen a Bukhteyyah. He said, "I heard Allah's
Messenger (PBUH) say, 'There is no cutting of hands during a travel, and
had it not been for that, I would have cut his hands off."36
7.Also a slave's hand would not be cut off if he stole from his master's
money.
8.A father's hand is not to be cut off if he steals from his son's money.
9.A partner's hand is not be cut off if he steals from his other partner's
money.
10. A creditor's hand is not to be cut off if he steals from his debtor's
money.38
All such cases fall into the previous category of cases in which
punishment is not administered and hands are not cut off out of caring
about the human body and reducing the cases of amputating the hands.
Reverend Sheikh Bin Beyyah said, "The pure Islamic Law, with its
major concern with social safety, provides individuals definite
guarantees, not only in terms of avoiding punishment due to
uncertainties, which is a rule that extends to include penalties,
particularly in morality-related crimes and the mere Divine rights, but
also in terms of judicial procedures and the methods for evidencing. It
prevents judges from judging people according to their own knowledge,
stipulating fairness and soundness, and a minimum of two persons in
certain morality-related cases. Islamic law has also allowed the people
accused to invalidate witnesses' testimonies during litigations, making it
imperative for litigants and witnesses to give solemn oaths, which is an
obligation, and abrogated forced confession, only recognizing confession
made voluntarily, optionally and freely, setting certain conditions for
those in charge of the judiciary such as knowledge, piety, integrity,
19
uprightness and the rest of the criteria cited in the books of rulings and
Jurisdiction."39
4. Prohibiting mockery as Allah says, "O ye who believe! Let not some
men among you laugh at others: It may be that the (latter) are better
than the (former): Nor let some women laugh at others: It may be that
the (latter are better than the (former): Nor defame nor be sarcastic to
each other, nor call each other by (offensive) nicknames: Ill-seeming is a
name connoting wickedness, (to be used of one) after he has believed:
And those who do not desist are (indeed) doing wrong." (The Qur'an,
49:11).
6. Enjoining forgiveness and pardon as Allah says, "…do you pardon and
be forgiving, till God brings His command…" (The Qur'an, 2:109).
14. Taking care of arms as Allah Almighty says, "But it shall not be wrong
for you to lay down your arms [while you pray] if you are troubled by
rain or if you are ill; but [always] be fully prepared against danger." (The
Qur'an, 4:102).
21
Comparative studies and accurate statistics prove that positive
penal codes, no matter how much they are amended and changed, are
trivial and useless as those who make such laws possess but little
knowledge as Allah Almighty says, "of knowledge it is only a little that is
communicated to you…" (The Qur'an, 17:85). Al-Khidr said to Moses,
peace be upon them both, "I have knowledge given to me by Allah which
you do not know, and you have other knowledge given to you by Allah
which I do not know…" Moreover, a bird once perched on the edge of
the ship on which Moses and Al-Khidr were travelling, and it dipped its
beak into the sea to sip some water. Al-Khidr said to Moses, "My
knowledge and your knowledge… in comparison to the Knowledge of
Allah, is like what this bird has removed from the sea!"47
Coversely, the Knowledge of Allah has encompassed all His
creatures. Hence, the Law made by the Creator suits His creatures best
simply because He knows them best, and knows the proprieties, rulings,
and the invitation and intimidation methods that fit in with them. These
Divine rules include the punitive measures prescribed in Islamic Law
concerning aggressors, adulterers, thieves, apostates, those who commit
Herabah, slanderers and drinking alcoholics.
Such rules are abandoned in the whole world, even in the Muslim
World, except for those to whom Allah has shown mercy. Comparing
those societies observing Allah's rulings and prescribed punishment to
those ones disregarding such wise deterrents that prevent crime, one
can realize Allah's great Wisdom.
Take for example the KSA's experience in the implementation of
Islamic Law and its unsurpassed success in the administration of Islamic
punishment! The KSA has achieved remarkable success in this field by
eradicating the forms of looting, robbery, murder and ignorance. This is
beside the establishment of security, and justice and enjoining good and
forbidding evil.
That is why one finds the ratio of crimes there is so small;
according to the 1416 A.H. statistics, that ratio was .32/1000 people. On
the other hand, in some other countries, the ratio of crimes is mani-fold
that number: (77.26) in Spain, (41.71) in Western Germany, (20.08) in
Italy, (60.52) in Denmark, (32.27) in France, (75.00) in Australia, (75.00)
in Canada, (12.42) in Korea, (10.72) in Ghana, (4.74) in Kenya and (1.47)
in Indonesia.48
This shows the big difference between those countries governed
by positive law on the one hand, and the KSA that is governed by Islamic
Law, which proves that the latter is the Truth and the KSA experience is
22
pioneering, especially if more attention is paid to preventive security
measures to be taken to prevent crime as this should further decrease
its ratio.
The Republic of Sudan tried to imitate that blessed experience,
since starting to implement the rulings of Islamic Law, the Sudan has
witnessed a tangible decline in the ratio of murders as it decreased
almost by one half. In 1402 A.H., the number of crimes there reached
(1155), in 1403 A.H., the number was (670), in 1404 A.H., it became
(663) according to a field study supported by accurate statistics.49
In Egypt, some laws are compatible with Islamic Law as is the
case of combating drug traffic, which had a major effect represented in
the big decrease in drug crimes. In this regard, law no. 21/1928 A.D. was
made to set a heavier penalty for drug possession, which led to a
decrease in the ratio of narcotics crimes; it kept decreasing year after
year: in 1926 A.D., the number of crimes was (21113) and in 1928-1929,
it became (11404) i.e., the number decreased by almost one half. It
further decreased to (8599) in 1929-1930, then to (1922) in 1936-1937
i.e. it decreased to the tenth. It also decreased to (1628) in 1942-1943.50
As for those countries plagued with the anarchy of positive laws,
the ratio of crimes is on the rise and even enters new phases. Hence,
paying heed to religion reduces such crimes. In "The Journal of Criminal
Law and Criminology" by Pierre Bouzat and Jean Pinatei, P.199-203, it is
mentioned that due to the spread of education and the betterment of
economic conditions for broad sections of society, homicides have
become characterized by trickery rather than violence. The authors cite
some other factors including the rural @ effect on the rising number of
homicides and the role of religion in reducing them. They also mention a
study conducted by legal Orientalist M. Th. Sllin on the relation
between activating capital punishment and cancelling it on the one
hand, and the level of crimes on the other. The authors also mention
'Ezzat 'Abdul-Fattah's study that revealed that the cases of homicides
in Canada since 1962 A.D. has escalated within a trend of general
escalation of violence crimes.51
Such statements by those French experts confirm the upward
trend in crimes with the passage of time and even recognize the role of
religion in decreasing them. So would the world nations understand the
words of these experts?!
An important proof of the rise in the rate of financial crimes is the
report of the Arab International Organization for Social Defence, which
was prepared by the Head of the Family Research Unit of the National
23
Center for Social and Criminal Research, Cairo, Egypt, Dr. Mahmud
'Abdul-Qadir. Page 43 and the following pages of the report read:
"The rate of monetary crimes is rising together with the process of
economic development; the chances of monetary crimes increase when
the society is more productive, complex, civilized and industrialized.
Thus, a high percentage of juveniles' and youths' crimes in most
countries has an economic nature e.g. theft, embezzlement… forgery of
official documents, currencies or coins, drug smuggling, kidnap for
ransom, bribe and black-market crimes…"52
In fact, juveniles have played a big role in such crimes; Dr.
Salahud-Deen 'Abdul-Met'al said, "Definite statistics in some Arab
countries (Syria, Lebanon, Iraq, Jordan and Egypt) reveal that crimes of
theft, assaults and sexual abuse as well as cases of homelessness,
particularly amid juveniles, are noticeable phenomena whose ratio is
constantly on the rise from one year to the other."53
All the previous statistics and data are based on cases of arrests
and filed reports. As for the unreported cases, they are many times
more than the previous cases. Professor 'Abdus-Sabour Shaheen said,
"Out of reading crime research papers, one notices that they always
confirm that the official statistics and criminals' records do not represent
the original size of criminals' community, for there are crimes committed
by anonymous people and others are unperceivable i.e., police and
arrest efforts do not detect them and their victims do not report them."
In his research on "The Relation between Crime and Social Changes", Dr.
Salahud-Deen 'Abdul-Met'al provides an example of such facts with
regard to theft crimes; the ratio of victims who were robbed before
finally reporting their being robbery victims is 75% of those frequently
robbed.54
Undoubtedly, the punishment stipulated in positive laws do not
intimidate or deter criminals, rather, they are more likely to tempt them
to commit crimes!
As for the crimes of homosexuality, in some US states, the result
of such crimes was contracting AIDS; the number of infected cases was
231 in 1981 A.D. The number annually increased to hit 17,050 in 1985
A.D.55 That increase came only in four years, not to mention the 20 years
that followed that date.
Dr. Muhammad Ali Al-Bar said, "Socialsit reformist revolutions, to
cap it all, further increased crime rates."56
In his research and expectations, Crime motives expert, Dr.
Abdullah Mu'aweyah, concluded the following: "It is taken for granted
24
that for example, the ratio of crimes in which guns are used will increase
while the ratio of crimes in which sharp tools and others are used will
decrease, so long as such state-of-the-art weapons continue to be
imported and spread among citizens. Also the rising ratio of crimes
committed by females in a number of Arab countries as a by-product,
yet inevitable outcome, of girls' and women's shouldering
responsibilities and playing new roles in the fields of education, work
and participation in public life; such crimes are expected to steadily
increase… it is also expected that there will be a development in crime
forms due to technological development; particularly in the field of
media and the news broadcast regarding various kinds of crime and the
cinema films in which crimes are well-planned. Despite the few number
of such in the samples surveyed, papers provide relevant news revealing
that some well-planned murder crimes such as stores robbery started to
be committed here and there in some areas in the Arab World."57
Given that escalation in crime rates and the defective remedies,
what consequences would one expect from those worthless positive
laws in the future?! Certainly, they will lead to a public humanitarian
catastrophe because of the evil plaguing societies and its rapid spread.
Indeed, such a plague heralds the destruction of humanity, good and the
evil people, because in an authentic Saying, infallible Prophet
Muhammad said that the increase in corruption would lead to nations'
destruction. Zainab bint Jahsh reported that one day Allah's Messenger
(PBUH) came out in a state of excitement with his face quite red. And he
was saying: "There is no god but Allah; woe betide Arabs because of the
turmoil which is near at hand as the barrier of Gog and Magog has been
opened like it." He (in order to explain it) made a ring with the help o his
thumb and forefinger. She said: "Allah's Messenger, would we be
destroyed despite the fact that there would be pious people amongst
us?" He said: "Yes, when the evil would predominate." 58
Therefore, a society's adhering to Islamic Law insures its survival;
the Muslim Nation will remain in a good condition, provided it observes
the sanctity of Islamic Law so that it can help all Muslims and non-
Muslims for them to escape the grave ramifications of abandoning
Allah's rulings and replacing them by fable human views. Allah says,
"Allah would make the burden light for you, for man was created weak."
(The Qur'an, 4:28). It is noteworthy that there are major differences
between the results of punishment in Islam and those of positive laws
25
punishment. Such differences were reviewed by Professor Rawyah
Ahmad Az-Zahhar as follows:
1. The criminal and penal code in Islamic Law aims at protecting the
morals of society from acts undermining them; Islam calls for sublime
morality. Verily, the call for morality is one of the greatest missions of
Prophets as Prophet Muhammad (PBUH) said, "Indeed, I have been sent
to perfect noble manners."59 So, morality is the very core of the Islamic
methodology which is to be perceived from a holistic point of view that
comprises individuals and the whole society.
The reason for such a narrow-minded view is the fact that the
makers of those positive moral laws are after all humans who are prone
to being driven by their caprice and whims, giving precedence to their
materialistic gain over all principles, thus manipulating their power and
authorities to impose such laws serving their personal interests. This
contradicts the moral codes set by the Great Creator Who knows all
human tendencies and whimsical desires, and knows how to tame them
to protect humans. So, the societies governed by Islamic Law are more
secure and stable and the crime ratio there is less than that in societies
implementing positive laws, where various kinds of crimes are
widespread, and spiritual and moral values are degraded and are
overwhelmed by materialistic values and utilitarian views.
2. The rulings of Islamic Law on crimes and penalties are viable at all
times and places. In other words, they are constant because their Maker
is Allah, Exalted be He, the Omniscient Lord Who knows all humans'
affairs and knows what is best for them in religion and life, and how to
insure for them a happy enjoyable life so long as humans exist.
26
As opposed to this, man-made laws are constantly vulnerable to
changes; their faults come to be noticed over time, simply because they
are the product of mortals' limited knowledge. Add to this, their change
is conditional on the change in the legislative authorities controlled by
caprice, ambitions, personal goals and individual interests.
The crystal-clear evidence of this fact is the status quo of humanity, even
though the above-mentioned rule has been endorsed since the French
revolution and adopted by the UN in the Universal Declaration of Human
Rights.
On the other hand, positive laws, mostly made by rulers, are set to
serve their own interests and gains. That is why people's respect for such
laws is much less than their respect for the Divine rules; the makers of
such laws lack the self-confidence qualifications such as absolute
knowledge, absolute justice, absolute integrity, and absolute
impartiality, for such attributes are not possessed by any mortal being,
rather they belong only to the Maker of the Universe.
4. The penal code in Islam suits the human nature because it has been
set by the One Who fashioned that nature, the One Who knows the
complexity of human souls, the One Who knows what best deters them
and prevent them from committing crimes; "Is it (imaginable) that He
Who has created (them) will not have (such) knowledge, while He is the
Knower of the finest things, the All-Aware?" (The Qur'an, 67:14).
29
As a matter of fact, Islamic Law best suits the human nature, since
this very nature is affected by all hasty and speedy matters, although
their effect might be of a value less than things occurring slowly or
taking a long time. In other words, human souls crave for sooner joys,
sacrificing worthier benefits in the long run. Such far-reaching benefits
yet to be achieved are more important than hasty ones and likewise, the
human soul dreads speedy pain that is to be inflicted upon it soon, even
though its effect or harm is much less than that pain the soul might
suffer later on, in the long run.
Now that punishment in Islamic Law best fits the human nature,
such a Law stipulates that the key penalties are mostly physical i.e.
involving physical pain, while some others are financial, as opposed to
positive laws in which punishment is based on ridding people of freedom
and other forms of penalties which are all far from the human nature.
So, they do not have an active effect on individuals and society.
30
i.e., preserving Faith, lives, progeny, money and property, and mind. To
preserve these five, two things are to be done:
The rules which have been set, and which must exist, to preserve
lives are related to originally allowing eating, drinking and settling in a
domicile, which are all prerequisites for survival. The preventive
measures stipulated by Allah to preserve lives are like the penalty of
paying blood money and taking revenge.
The rules which have been set, and which must exist, to preserve
minds are similar to those necessary for preserving lives e.g. eating food
as this is necessary to preserve lives and mental faculties, while the rules
set as preventive measures to preserve minds are related to the
prohibition of all that negatively affects one's mind (such as alcoholics
and narcotics) and punishing those who take them.
The rules which have been set, and which must exist, to preserve
money and property are related to the original forms of dealings among
31
people, while the preventive measures preserving them are related to
the prohibition of theft and punishing it.60
In Dt. 24, 25, 26 and 27, there are various rulings such as
instructing that the one who kidnaps an Israelite and treats him as a
slave is to be killed.
33
light, and confirming the Torah before it, as a guidance and an
admonition unto the God-fearing." (The Qur'an, 5:46). Dr. Ahmad
Shalabi also cited some points of agreement among these Books such as
the prohibition of murder, unlawful intercourse, theft and false
testimonies.67
34
Moses.", which refers to the points elaborated in earlier verses in this
Qur'anic Chapter. Also, in the Qur'an (53: 36-38), Allah says, "Or has he
never yet been told of what was [said] in the revelations of Moses, and
of Abraham, who to his trust was true: that no bearer of burdens shall
be made to bear another’s burden…"
As for children and mad people, the human conscience does not
always wrong them by making them vulnerable to penalties of various
degrees of seriousness, particularly in cases of murdering humans or
vendetta cases in which particular families are targeted. In the Twelve
Tablets Laws (the first written laws during the Roman era made by the
Decemviri (Ten Men) who made those laws in the 5th Century B.C. i.e.
450 B.C., and had them engraved on twelve tablets of bronze), one finds
a prepubescent child's accountability is light in some cases of felonies,
but they are not completely invalid. All prepubescent children were
treated in that law on equal footing. After the Twelve Tablets Laws,
there were developments that exempted young children from such
penalties, but such developments came late, maybe after the time of
Hadrian.
36
In 18th Century England, an eight-year-old boy was executed for
murder or making a fire.
In the oldest Roman laws i.e., the Twelve Tablets Laws, a victim
whose body part was cut off because of an unintentional felonious act
was allowed to take revenge if he did not accept blood money.
37
These similarities between Islamic Law and that of the People of
the Scripture, particularly those undistorted, denote that Divine Faiths
share the same rulings, for they all come from the same source; Allah,
Exalted be He. But the People of the Scripture interpolated some rulings.
The best example of such similarities is the ruling on stoning the one
who has unlawful sexual intercourse; this ruling is explicitly mentioned in
the Torah as stated by Abdullah ibn Salam, Allah be pleased with him.
This does not imply that Islam is influenced by earlier rules of the
Romans or the People of the Scripture. Rather, the Book of Islam, the
great Holy Qur'an, came to encompass and dominate all previous Books,
being the last or seal of all Divine Books , which explains why it is viable
at all times and places. So, Allah Almighty says, "To thee We sent the
Scripture in truth, confirming the Scripture that came before it, and
guarding it in safety…" (The Qur'an, 5:48).
38
will, and imagine the establishment of a law by which all peoples live,
stressing that Islam would contribute to the making of that law.73
40
References
42
- مختصر سنن أبً داوودby Al-Mundhiri (died in 656 A.H.), edited by
Muhammad Hamed Al-Feqi, Maktabat As-Sunnah Al-
Muhammadeyyah edition, Cairo.
- المستشرقونby Najeeb Al-'Oqiqi, Dar Al-Ma'arif, 4th edition, Cairo.
- المسندby Imam Ahmad ibn Hanbal, edited by Shu'ayb al-Arna'ut
and a group of scholars, supervised by professor Abdullah ibn
'Abdul-Mohsen At-Turki, Ar-Resalah Foundation, Beirut, 1st
edition, 1421 A.H.
- المصنف فً األحادٌث واآلثارby Imam Ibn Abu Shaybah, edited by
Mukhtar Ahmad An-Nadwi, Ad-Dar As-Salafeyyah Publications,
India, 1st edition, 1401 A.H.
- المقاصد الحسنةby As-Sakhawi, Dar Al-Kutub Al-'Elmeyyah, Lebanon.
- الموافقات فً أصول الشرٌعةby Abu Eshaq Ash-Shatebi, written by
Abdullah Deraz, the Great Commercial Library, Egypt, 2nd edition,
1395 A.H.
- موسوعة المستشرقٌنby Dr. 'Abdur-Rahman Badawi, Dar El- Ilm
Lilmalayin, Beirut, 1st edition, 1984 A.D.
- ً نظرٌة الضرورة الشرعٌة مقارنة مع القانون الوضعby Dr. Wahbah Az-
Zuhaili, Ar-Resalah Foundation, Beirut, 2nd edition, 1399 A.H.
- وسائل اإلثباتby Dr. Muhammad Mustafa Zuhaili, Al-Bayan Library,
Damascus, 1st edition, 1402 A.H.
43
End Notes
44
19.صحٌح البخاري, the Book of Blood money, the Chapter of Oaths,
Saying 6898.
20.Transmitted by Ibn Abu Shaibah and Al-Baihaqi accordiong to
an authentic chain of narrators, إرواء الغلٌل, 8/26.
21. صحٌح البخاري, the Book of Penalties, the Chapter titled, "No
Mad Man and Mad Woman Are to Be Stoned",
Saying 6815.
22.صحٌح مسلم بشرح النووي, 11/193.
23.Transmitted by Ahmad in his المسند, 1/338, and by Abu Dawoud
in his سنن, Saying 4427, and it was authenticated by Al-Albani,
إرواء الغلٌل, 7/355.
24.صحٌح مسلم بشرح النووي, 11/195.
25. صحٌح مسلم, the Book of Penalties, the Chapter entitled, "The
One Who Confesses to Having Had Unlawful Sexual Intercourse",
5/119.
26.صحٌح مسلم بشرح النووي, 11/195.
27.Transmitted by Al-Baihaqi in السنن الكبرى, 8/334-335. It was
authenticated by Al-Albani, إرواء الغلٌل, 8/29.
28.Transmitted by Al-Baihaqi in his السنن الكبرى, 8/235. It was
authenticated by Al-Albani, إرواء الغلٌل, 8/30.
29.As-Sakhawi said, "It was transmitted by Ibn Hazm in his اإلٌصال
with an authentic chain of narrators, المقاصد الحسنة, P.30.
30. السننby Abu Dawoud, the Book of Penalties, the Chapter
entitled, "A Mad Person Who Steals or Commits a Sin Entailing
Punishment", Saying 4399. It was authenticated by Al-Albani in
صحٌح سنن أبً داوود, Saying 3699, and by Al-Arna'ut in his جامع
األصول, 3/507.
31. مختصر سنن أبً داوودby Al-Mundhiri, 6/229.
32.قواعد األحكام فً مصالح اآلنام, 2/137.
33.السنن, the Book of Penalties, the Chapter entitled, "Cases That
Do not Entail Cutting Hands off", Saying 4388. It was
authenticated by Al-Albani in صحٌح سنن أبً داوود, Saying 3688.
34.These three versions were reported by Abu Dawoud in السنن,
the Book of Penalties, the Chapter entitled, "Cutting off Hands as
Punishment for Stealth and Betrayl", Saying 4391-4393,
45
authenticated by Al-Albani in صحٌح سنن أبً داوود, Saying 3690-
3692.
35.بذل المجهود, 17/339.
36. السننby Abu Dawoud, the Book of Penalties, the Chapter
entitled, "A Man Who Steals While Travelling…", Saying 4408. It
was authenticated by Al-Albani in صحٌح سنن أبً داوود, Saying 3708.
37.بذل المجهود, 17/357.
38. أحكام القرآنby Ibn 'Arabi, 2/609, and روائع البٌان فً تفسٌر آٌات
األحكام, 1/555.
39.حوار عن بعد
40.صحٌح البخاري
41.المسند, 16/68, Saying 10011.
42.صحٌح مسلم, 8/22, Saying 6767.
43.صحٌح البخاري, 6/2592, Saying 6660.
44.Ibid., 6/2592, Saying 6664.
45.Ibid., 6/2592, Saying 6661.
46. السننby Abu Dawoud, 2/664, Saying 4784.
47.An agreed-upon Saying, صحٌح البخاري, the Book of the Exegesis,
the Qur'an, 18, Saying 4725, and صحٌح مسلم, the Book of Virtues,
the Chapter on the Virtues of Al-Khidr, Saying 2380.
48.Statistics from حقوق اإلنسان فً اإلسالم وتطبٌقاتها فً المملكة العربٌة
السعودٌة, by Professor Sulayman 'Abdur-Rahman Al-Huqayl, P.131-
132.
49. ًالدوافع إلى ارتكاب جرٌمة القتل فً الوطن العرب, P.93-94.
50.ًالتشرٌع الجنائً اإلسالم, 1/715.
51.انظر الوافع الرتكاب جرٌمة القتل, P.60.
52.دستور األخالق فً القرآن, by Professor 'Abdus-Sabour Shaheen@ ص
.ل, abridged.
53. التغٌر االجتماعً فً البالد العربٌة وعالقته بالجرٌمة, P.55, quoted from
ibid.@صل ولط
54.Ibid., @صل ولط
55.Ibid. @ص ل و ل ط
56.األمراض الجنسٌة, P. 135.
57.ًالدافع إلى ارتكاب جرٌمة القتل فً الوطن العرب, P.268-269.
46
58.Transmitted by Muslim in his صحٌح, the Book Pertaining to the
Temptations and Portents of the Last Hour, the Chapter entitled,
"The Nearing of Temptations", Saying 2880.
59.سلسلة األحادٌث الصحٌحة, 1/75.
60.الموافقات, 2/118-120, and 4/27-29.
61.حوار عن بعد, P.91.
62. A Canaanite god; it was a Canaanite ritual to present their
children to be burnt as offerings to win its pleasure, Ibid.
63."have familiar spirits" means "to be in contact with Jinn"; the
Book of "Leviticus", Chapter 20, reads, "'A man or woman who is
a medium of spirits among you must be put to death. You are to
stone them; their blood will be on their own heads.'". Consider
) الٌهودٌة1( مقارنة األدٌان, P.297.
64. تارٌخ بنً إسرائٌل من أسفارهم, PP.72, 78, and ) الٌهودٌة1 ( مقارنة األدٌان,
P.296.
65.Ibid., P.104.
66.Ibid, P.106.
67.) المسٌحٌة2( مقارنة األدٌان, P.229-230.
68.المستصفى, 1/288.
69.ًالجرٌمة والعقوبة فً الفقه اإلسالم, 2/41.
70.دستور األخالق فً القرآن, P.222-226.
71.جامع البٌان, 8/486.
72.Transmitted by At-Tabarani, 8/488, and Ibn Abu Hatim,
4/1150, and Al-Baihaqi in األسماء والصفات, P.109; all narrations
relying on the version by Ali ibn Abu Talhah reported by Ibn
'Abbas.
73."L'Humanisme de l'Islam" by Marcel A. Boisard, a
Contemporary French Thinker and Man of Law who paid much
attention to the issue of international relations and human rights.
He wrote a number of research papers for conferences and
periodicals concerned with these two issues. (This text is quoted
from قالوا عن اإلسالم, P.53).
74.Graduated from the Department of Oriental Languages,
Leipzig University@, and specialized in modern Islam and
contemporary Arabic,1936@ت. Consider المستشرقون, 2/413.
47
@75.
, P.113-114.موسوعة المستشرقٌن76.
, 200.المقاصد الشرعٌة77.
48