Published 18 Jan 2017
Table of content
Every country or nation has its rules and regulations to keep order in society. The United States laws are form through the common and basic laws of the British in 1776 after it gained its independence. Let me not forget to mention that those laws are in some variations are based on mosaic laws from the Judaic culture. However, the Middle East including Arab nations has the majority of their ruling through the Sharia’h law or Islamic Law. Most Arab countries have the system of combining both the religious and the basic law incorporated into their system of government. Through the course of the paper, first I will introduce a brief history of the Islamic Law in the Middle East and Muslim countries, and then a comparison of the punishments in the United States and then the same case in an Arab country.
History of Islamic Jurisprudence:
During the lifetime of Prophet Muhammad religion and politics were not apart, the political development was what encourage the spread of Islam. The forming of politics went alongside with the formation of the Ummah (Muslim Community). After the death of the prophet the separation is unthinkable and most Muslim states have their legitimacy through the law of Allah (God in Arabic). Religion is the foundation of the state and therefore, the state is a religious institution, so there cannot be a separation between the state and religion. The Qur’an has few legislative regulations against unfair business practices, and punishments for theft, murder and adultery but the passages are mostly for the inpidual in specific cases (Nasr, 1997).
Islamic jurisprudence is assumed to have began in the circles of discussions. Where court decisions of early Islamic times were analyzed and discussed the regulations of the Qur’an and the Hadith to solve new problems. These discussions by scholars were the beginnings of the first schools of law. Under the rule of the Umayyads (661-750), the first Muslim Dynasty, studied the Hadith and considered it to also be of pine origin.
This is why the Hadith has the same level of the Qur’an to be pine. Therefore, their beliefs is that if Muhammad really is the role model of the Muslim Community, than not only is his revelation but his behavior must be binding for all of the believers. The regulations of the Qur’an were interpreted together with Muhammad’s behavior as the local customary law. This had to be binding regulations to be found in the interest of unity for the growing Islamic empire (Tahir, 1999).
Interpretation of Islamic Law:
For Westerners, Islamic law may seem to be strict, but the main purpose is to guide people in a direction to live their lives in a pure and clean fashion. In the perspective of Westerners they may seem the punishments of those violating Islamic law to be brutal and cruel. But for many Muslims, these punishments are just and minor compared to the ultimate punishment that is in the hands of God in the Day of Judgment. As a result, Islamic law has a positive impact on the society by helping others through required charitable donations known as the Zakat. The law extends itself to every aspect of life from the usage of water from how to do banking (Seestani, 1994).
Sharia’h Law or Islamic law is based on the holy scriptures of Islam, the Qur’an (Koran). The Qur’an is the primary source for Islamic law and is the foundation for Muslim scholars to achieved guidelines for different interpretations. Muslims believed that the Qur’an is the word of Allah (God) and what is written is considered to be sacred and it must be obeyed. However, the Qur’an is elastic giving people guidelines as to how to live their lives without any specifics (Surayya, 2000).
For the clearance of confusion of the Holy Scripture, scholars began using the Hadith (narrations of the actions and sayings of the prophet Muhammad) to make specifics in Islamic law. Another source for Islamic law is the lijitihad meaning reasonable deduction, these allows for Islamic law to be adapt progressively and applicable in modern times. For instance, the Qur’an forbids the consumption of alcohol but did not include the usage of illegal substances such as heroine. The Lijitihad suggests that the reason that alcohol is forbidden is due to its negative effect on the human senses and society, therefore, heroine has the same effect and is also forbidden (Hathout, 1998).
Considered to be one of the strictest codes of law ever written Islamic law touches on every aspect of life. The law dictates how to conduct business transactions, how to kill animals and marriage. The reason why this law is so tough is because it is a guideline of how people should live without being disrespectful, harmful or immortal. It clearly differentiates the line between right and wrong and has laws for the prevention of the person not to place themselves in wrongful situations (Mithani, 1994).
Islamic laws are not made in vain and have good reasoning for their issuance, there just and for this it might seem strict (Crane, 1999). Those who are not part of the religion of Islam may perceive the punishments of offenders as medieval and to be cruel and barbaric. This view is due to the news reports about people in countries such as Nigeria and Afghanistan being stoned and having their hands amputated for committing crimes for theft or consuming alcohol. In Islamic law, punishments acts as deterrents to discourage people from breaking the laws, however, since most people who follow the law fear Allah (God) and these punishments are just and minor compared to the ultimate punishment sent to them by Allah (God in Arabic) on the Day of Judgment (Nizami, 1999).
Compare and Contrast Islamic Law VS U.S. Criminal Law:
Since the United States is considered to be a secular country which is the separation of state and religion. However, the criminal laws of the U.S are somewhat based on the Hebrew laws of Moses named Mosaic laws. One thing is certain considering both styles of laws that the systems in western countries have higher crime rates than those of the Muslim world.
In the United States, since the culture of society is based on the inpidual, human rights, and the spread of democracy, it allows for the justice system to have laws that can slow down the procedures of courts. Judges have to be concern with no violating the right of the inpidual. However, because of this it allows for offenders to repeat the same crimes continuing to fill the correction facilities (English, 2006) .
The difference in both systems is where does the legal codes reflects, the western society it is based on the human rights and in dignity of the inpidual, however, there are some judges who are going back through time to use punishments of public shame having an effect and lowering the rates of return (Taboo, 2004).
Cultural and Social structures are the guide of the legal system in the United States, since there is no official religion it allows for the law to be less cruel because it is frown up in the western society. However, that is not the same in all cultures, the community is more valuable than the inpidual. Not all societies, believe in our same values and their laws are stricter preserving more their values, this is the reasoning for the Islamic Law in the Muslim world.
On the other hand, the values of the Muslim world are different than those is the United States, their values are more towards the unity of society and the inpidual’s behavior is a reflection of the ummah. The punishments are done to stop the inpidual from embarrassing the family and society as a whole. The purpose of their legal system is the preservation of moral and social codes that unifies the community. The community is the reflection of the inpidual and vice versa. Human rights and inpiduality are not important, as it is the status of the entire community. Islamic law enforces these values that are so important for the existence of their culture and values. (Nasr, 1997).
Comparing both of the systems of laws, it comes to the realization that lower crime rate are shown in countries who have used Islamic law as a way to rule. The negative images we associate with the punishments of Islamic law make this countries less civilize and cruel but in reality these countries end up being safer than many places in the United States. On thing that Islamic law allows for compassion, unity and to help the less fortunate. This in some way makes the society responsible for everyone and not just those who have the money or the goods. Under Islamic law everyone must give a 2.5% of your earnings to charities and social services.
The United States difference is culture and social structures values the inpidual instead of the groups and so its laws tend to be less cruel and more tolerant to the offenders. However, the laws become soft in controlling the behavior of the inpidual making it irresponsible towards the society. The monies it receives from tax prayers to maintain inpiduals in prisons should be place for recreation centers and for the improvement of education. This would allowed for preventative measures to control the inpiduals behavior among society. If the United States would try to create harder laws in it system people would stop coming crimes and respecting the state more. Our justice system could learn a lot from Islam and its law for the better of the government system in general.
What it is clear is that Islamic law does have much of a compassionate aspect to it and has concern for those less fortunate, something that is not attributed to Western society. It is apparent that the negative feelings towards Islamic law by the West is due to ignorance and a fear for anything associated with the religion of Islam. The reasoning supporting these punishments under Islamic law is rational and collectively thought to be just by the Muslim Community.
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