Salaams. Sadness brews in the air in
Shari’ah is a good thing, no doubt. However, where are the social mechanisms and civic society that must exist before we can even talk about Shari’ah? We need to eradicate social disorder, poverty, unemployment and so on before we should even think about Shari’ah. Of course it is difficult to eradicate poverty overnight, but at the very least we must remove the genuine reasons for people to steal (e.g. poverty, unemployment, etc) before we even talk about Shari’ah.
Even then, Shari’ah in itself means different things to different people. Academics and clerics have debated on this subject for ages. There are differences of opinions from the secularists, traditionalists, Salafis, Islamists, etc. We have the Wahhabis interpreting Shari’ah in one way, and we have others like Prof Sherman Jackson, Prof Khaled Abou Fadl and Dr Muqtedar Khan interpreting Shari’ah in several other ways.
Prof Khaled Abou Fadl said,
“We can debate God's will as much as we like. I encourage Muslims to do so in order to discover God's will,” says Abou el Fadl. “If, however, we adopt a law and the state implements it, we cannot assume that it represents God's will. If, on the other hand, we give the state the power to represent God, that is not a democracy, but a form of ideology. This contradicts Islamic theology, because God does not have an equal partner.”
Muqtedar Khan said,
The maqasid (objectives) of the Shari’ah is to establish social justice, equality, tolerance, and freedom of religion in societies. The hudud laws are a tiny part of the Shari’ah. Some of these laws are not even Qur'anic; they are taken from the Old Testament, such as stoning the adulterer (Deuteronomy 22:24). Yes, I believe that when the Shari’ah is interpreted and implemented by educated, enlightened, and compassionate people it will establish social justice and coexist harmoniously with a democratic polity. But if uneducated, angry, and bigoted people take the law in their hands and presume to speak on behalf of God, then tyranny is the most likely outcome.
Interesting. My personal opinion is that whatever term we may call it, Shari’ah or constitutional law, et cetera, bottom line is that in Islam we must seek for social justice, equality, freedom and so on. So whatever that we implement its objectives must be as those. The penal code must also take into consideration the general acceptance of stipulated punishments. If the community in general abhors the cutting of hands as punishment of theft, or the community despises capital punishments, then lawmakers must take that into consideration. Afterall, we can never be sure that we are representing God’s will. But at the least, we must be just and fair to the community.