Friday, 23 February 2018

The Church’s Doctrine of “Perpetual Servitude” and “Dhimmitude”

Claim: The idea that Jews fared better in Islamic lands than in Christian Europe is false.

Preface

Ahl al-Dhimma (dhimmi for short) translates to “the protected people” and was the historical word used to refer to non-Muslim peoples (such as Jews and Christians) living under Islamic rule.

Anti-Islam ideologues argue that not only did Muslims historically persecute dhimmis, but that nonbelievers in the Islamic Orient were treated much worse than their counterparts were in the contemporaneous Christian Europe of the Middle Ages. To bolster this claim, one anti-Islam “researcher” by the pseudonym of Bat Ye’or coined the concept of “dhimmitude.” A counter-myth is now propagated on various websites, blogs and forums, namely that Islamic rule over non-Muslims had been characterized by an unparalleled brutality and wickedness. The Oxford Handbook of Jewish Studies calls out Bat Ye’or by name:
[One must] explain acts of Islamic oppression that did occur, without exaggerating them selectively into a ‘countermyth of Islamic persecution,’ as recent revisionism has done (e.g. Bat Ye’or 1985).
The similarity of the words “dhimmitude” and “servitude” is no accident. Bat Ye’or, the anti-Islam ideologue who introduced the myth of dhimmitude to the West–and who is the god of “scholarship” for such demagogues –specifically uses the word “servitude” juxtaposed with “dhimmi”: “Dhimmitude,” as Ye’or makes clear, is a status that results in a profound psychosocial adjustment in some ways akin to servitude.
They, selectively quoting from various sources in order to “prove” their side. , the counter-myth is dishonest and fails to contextualize the situation of dhimmis in the Islamic Orient with that of their counterparts in Christian Europe. We are always reminded by anti-Islam ideologues of the dhimmitude, a catch-all phrase which has caught on very well in recent times; the term is used as a stick to beat Muslims over the head with, as well as one to incite feelings of paranoia and xenophobia. This article will however recount what they–perhaps in their ignorance and zeal–have neglected to mention: there was in fact a direct corollary to the dhimmitude in the Christian West. It too has a catchy name: the Christian belief in the Perpetual Servitude of infidels, a concept which was in fact much more oppressive than the so-called dhimmitude.

Mark R. Cohen, a professor of Near Eastern Studies at Princeton University, is arguably considered to be the world’s leading scholar of Jews living in the Middle Ages under Islamic rule. He decided to write a book that contrasted the treatment of Jews living in the Islamic Orient with their counterparts in the Christian West. This book, Under Crescent and Cross, is the first of its kind, as it analytically compares the treatment of Jewish dhimmis (pejoratively called dhimmitude by ideologues) with that of the Perpetua Servitudo (Perpetual Servitude) of Jewish infidels. Cohen’s magnum opus is remarkably balanced, neutral, and analytical: it concludes that while dhimmis were certainly not living under any sort of interfaith utopia, they did have better living conditions than nonbelievers in the Christian West. This article will use Professor Cohen’s book as a general template, but will cite other sources as well in order to cater to the online environment, taking into consideration the “internet chatter” and tailoring the arguments accordingly.

Introduction

In Arab lands, the “minority communities” (so to speak) consisted primarily of Jews and Christians. In Europe, it was Jews alone. Hence, the Jewish population is the common denominator and remains the best population to study; how then did their lot differ in the Christian West and the Islamic East?

Professor Cohen opens his book by saying:
When I began studying medieval Jewish history thirty years ago, conventional wisdom held that Jews living “under the crescent” enjoyed substantially greater security and a higher level of political and cultural integration than did Jews living “under the cross.” This was especially true of the persecuted Ashkenazic Jews of northern Europe. The fruitful Jewish-Muslim interfaith “symbiosis”… contrasted sharply with the sorrowful record of Jewish-Christian conflict in the Ashkenazic lands…[There was a] lachrymose conception of [European] Jewish history…

Recent decades have witnessed an effort to alter this picture. Toward the end of the 1960s–or, or more precisely, following the Six-Day War of June 1967–factors stemming from the Arab-Israeli conflict gave birth in some quarters to a radical revision of Jewish-Arab history. The new notion first appeared mainly in the writings of nonspecialists publishing in popular forums…[5]

I interject just to point out the keywords “nonspecialists” and “forums.” This drive to radically revise history is clearly an ideologically driven endeavor, devoid of academic integrity. Going on, Cohen says:
According to this [revised] view, the “Golden Age” was actually an era of hardship and oppression… [characterized by] discrimination and persecution. Some went so far as to suggest that the fate of Jews of Islam was at times as doleful as the lot of the Jews in Europe. I have chosen to call this view “the neo-lachrymose conception of Jewish-Arab history.”[6]

Notice that Professor Cohen considers it a stretch to say that the Jews of Islam were treated as poorly as they were in Europe (hence his usage of the phrase “some went so far as to suggest…”). Imagine his surprise if Cohen were to read the works of populist nonspecialists who go even farther and argue that not only was it equally bad, but far worse. Such is the profound degree of revisionism inherent in the writings of these two anti-Islam ideologues, and those with similar ideological bents.

Cohen concludes:
The polarization of views that has thus dominated discussion of medieval Islamic-Jewish relations in recent years has made it increasingly difficult to write on the subject without getting involved in apologetics and polemics. I remain convinced that the “myth of the Islamic-Jewish interfaith utopia” and the “countermyth of Islamic persecution of Jews” equally distort the past. How might we address the underlying historical question in a way that avoids both extremes and, at the same time, deepens understanding of why, as most reasonable observers will agree, the Islamic-Jewish relationship bred so much less violence and persecution than relations between Christians and Jews [in Europe]? The comparative approach has seemed the most useful one…


When all is said and done, however, the historical evidence indicates that the Jews of Islam, especially during the formative and classical centuries (up to the thirteenth century), experienced much less persecution than did the Jews of Christendom. [8]

Dhimmis

The word “dhimmi” refers to non-Muslim citizens of an Islamic state. Dhimmi means “protected,” which is based on the idea that a Muslim state must guarantee the safety of non-Muslim citizens within its borders. Dhimmis were required to pay Jizya but were exempt from Zakat [charity tax] which Muslims are required to pay [2.5% of their savings, each year] as well as from military service. However, if Dhimmis agreed to serve in the armed forces, they were not required to pay Jizya, since Jizya was only taken from able-bodied men who could serve in the military.

Statements of Prophet Muhammad on Dhimmis:

1. “He who hurts a dhimmi [a member of a minority living in a Muslim state] I am his adversary, and I shall be an adversary to him on the Day of Judgement.”
2. “He who hurts a dhimmi hurts me, and he who hurts me annoys God.”
3. “On the Day of Resurrection I shall dispute with anyone who oppresses a person from among the People of the Covenant [Jews and Christians], or infringes on his right, or puts a responsibility on him which is beyond his strength, or takes something from him against his will.”

The rights of Christian minorities are well established in Islamic theology.

Muslim jurist Saha al-Deen al-Qarafi has stated:

“The covenant of protection imposes upon us certain obligations towards the “ahl al-dhimmah,” [members of Christian and Jewish minority]. They are our neighbors, under our shelter and protection upon the guarantee of Allah, His Messenger (peace be upon him), and the religion of Islam. Whoever violates these obligations against any one of them by so much as an abusive word, by slandering his reputation, or by doing him some injury or assisting in it, has breached the guarantee of Allah, His Messenger (peace be upon him), and the religion of Islam.” (from the book Al-furuq” by al-Qarafi.)

Another Muslim jurist Ibn Hazm has stated:

“If one is a dhimmi, and the enemy comes with his forces to take him, it is our obligation to fight the enemy with our soldiers and weapons and to give our lives for him, thus honoring the guarantee of Allah and His Messenger (peace be upon him). To hand him over to the enemy would mean to dishonor this guarantee.” (From the book, “Maratib al-jima” by Ibn Hazam.


What was the amount of Jizya paid bu Dhimmis?


Imam Abu Hanifa ‘s pupil Imam Abu Yousuf in his book “Kitab al-Kharaj” clarified that Jizya is to be paid by males only, and women and children were exempt from it. [See also al-Mawardi’s al-Ahkam as-Sultaniyah]. That makes sense because only men could serve in the army and they could avoid military service by paying Jizya (See Tarikh by Tabari). Abu Yousuf also exempted the poor, sick, crippled, the insane, monks, the blind, and the very old people from paying Jizya. His reasoning was this Hadith: “Whoever oppresses a non-Muslim subject or taxes him beyond his capacity, then I shall be the opposite party to him in the litigation.” {See Kitab al-Kharaj, pp. 69-72.)

As far as the amount of Jizya is concerned, during the time of Prophet Muhammad it amounted to 10 dirhams per year (which represented the expenses of an average family for ten days). Caliph Uthman fixed the amount to an equivalent of about 20 cents per month for the rich, 10 cents for the middle class, and about 5 cents for the ordinary people. Destitutes were exempted from the tax. Imam Shafi’I suggests one dinar per year but “adds that it would differ according to the time of ease or difficulty and the capacity of those on whom it is imposed.” (See Non-Muslims Under Shari’ah Law by A. Rahman I. Doi).

How Much Tax Muslims Paid?

Normally, 2.5% on surplus property and savings at the end of the year. Unlike Jizya, Muslim women, children were not excluded and they too paid taxes. Muslims were also required to pay taxes on farm animals such as cows, camels, sheep and goats. Non-Muslims were excluded from paying those taxes. (for reference see al-Sarakhsi’s Sharh Siyar al-Kabir, Vol. IV, p. 293). In addition, Muslims are required to pay ‘fitrah’ for each individual family member. So, in a way, non Muslims were much better off.

Was the Jazia tax a voluntary tax?

Jizya can be waived whenever it is necessary. Prophet Muhammad (s.a.w) himself expressed a wish that he would have waived Jizya on Copts had his son Ibrahim survived, who was born to Maria, a Copt. That means that Jizya is not mandatory under all circumstances. Muslims also returned Jizya when they were unable to protect non-Muslims. Khalid bin Walid returned all the taxes collected to Christians of Homs when he was not able to repel the attack of the Christian Byzantine Emperor Heraclous on Homs. He said to them : “We accepted (the Jizyah) as a token of your good will and in return for defending you, but (in this), we have failed (you.)” {See Abd al-Rahman Azzam’s “The Eternal Message of Muhammad” ; ‘Mabsut, Vol. 10, pp. 78-79; Fath al-Qadir, Vol. 4; and A. Rahman I. Doi’s “Non-Muslims Under Shariah Law.”} Saladin also returned the Jizya when he was compelled to withdraw from Syria. {See A. Rahman I. Doi’s “Non-Muslims Under Shariah Law.”)

Did any Christians join Muslim armies?

As far as I know Christian tribe of Bani Taghlib, the Christians of Najran, and Armenian chief Shahbaraz decided to fight alongside Muslims.

Why and when was the Jezia tax abolished?

It was abolished in the Ottoman Empire under European pressure but the fact is that Europeans never understood the principles behind “jizya.” And as I have stated above, there were many occasions in history when Muslims exempted non-Muslims from paying Jizya anyway. Muslims, on the other hand, continued to pay Zakat.

https://controversialislam.wordpress.com/dhimmis/

The Perpetual Servitude of Infidels

Professor Cohen notes that whereas the Islamic Orient was pluralistic (with many different minority faiths, including a large proportion of Jews and Christians), Christian Europe was more monolithic, with only one significant minority group: the Jews. (The pagans had largely been converted to Christianity.) The rules that dictated the lives of Jews were then applied to the few remaining pagans (which included Muslims) and heretics; indeed, the Christians considered it to be the Jewish-pagan-heretic axis. We will thus study how the rules came about for Jews, and then see how they were extended to other groups.

The position of the Jews in Christian society was based on the Doctrine of the Witness. This belief stipulated that Jews ought not to be killed but allowed to live in a state of “Perpetual Servitude” to Christians; their continued existence as dejected serfs served as a continual proof of the triumph of Christianity over those who rejected the Messiah:
Augustine and the other Church Fathers wrestled with this question of why Judaism continued if it had apparently lost its purpose? Augustine’s answer lay in the “Doctrine of the Witness.” This Doctrine suggested that the continuing physical presence of the Jews was desirable because the Jews themselves provided testimony to the truth of Christianity in two ways: First, the Jews possessed Scriptures, thereby proving that Scriptures were no means invented retrospectively by Christians to predict the coming of Jesus…

Secondly, the physical status of the Jews provided testimony to the truth of Christianity. The Jews existed in a subjugated, second-class status as a defeated people…The perpetual servitude of the Jews reminded the world that the Jews are being punished for their rejection of Jesus. Therefore it was desirable that the Jew remain in Christian society. As long as Jews retained their second-class status, they would remind the world of their crime in rejecting Jesus and their validity of Jesus’s teachings…

Although the Jews’ status would always be second-class, the Church Fathers decreed that the Jews must be protected and not eliminated. In this context medieval Christian anti-Semitism provided a protective mechanism against the elimination of the Jews. Or, as Duns Scotus, a thirteenth century Christian theologian, put it, the Jews could be persecuted and virtually eliminated, but some of them would have to be kept alive on a deserted island until the Second Coming.
This attitude towards Jews–of not slaying them but subjugating them to Perpetual Servitude–prevailed in Europe from the seventh century up until “the modern period”:

The official church position on the Jews guaranteed their existence, but as a pariah people…The concept of a “witness people” received its clearest and most influential expression in the writings of Augustine, one of Christianity’s foremost theologians. He wrote that the Jews were dispersed over the world to bear witness through their Scriptures, as proof “that we have not fabricated the prophecies about Christ…the Jews are our attendant slaves, who carry, as it were, our satchels…” The Augustinian witness-people formula, which prevailed in Christendom up until the modern period, allowed the Jews to survive but never to thrive, since their misery was to serve as proof of the truth of Christianity. Like Cain, they were to carry a sign signifying their damnation, but they were not to be killed.

Over the centuries, the teaching of contempt of the Jews as a reprobate people knew no pause, and continued to be taught and preached in mainland Christendom, in Catholic as well as Protestant churches. Leading theologians continued to castigate the Jews…The principal Catholic theologian of the medieval period, Thomas Aquinas, wrote that it was permissible “to hold the Jews in perpetual servitude because of their crime…with the sole proviso that they do not deprive them of all that is necessary to sustain life.” …The French Catholic theologian Jacques Bossuet allowed the Jews to continue to exist, but denounced them as “stamped by their reprobation…slaves everywhere they are, without honor, without freedom…” [49]
The belief of Perpetual Servitude was not limited to the Catholic Church, but was adopted by the Protestant movement from the very beginning of its existence. Martin Luther, whose antisemitic work was touted by the Nazis centuries later, was an ardent believer in this degrading position for Jews; indeed, Lutheran Germany outdid their Catholic brethren in their institutionalized oppression of the Jews.

Jewry laws (discriminatory rules) were applied in such a way as to reduce Jews to a life of Perpetual Servitude in order that they may be a Witness People to the triumph of Christ:

The Jews, said the popes, were to live in a state of Perpetual Servitude (Perpetua servitudo), a term first enunciated in the bull Etsi iudaeos.[50]


The Jews were to be punished with a life of misery in order that they confess Christianity:
St. Jerome warned, “Jews are congenital liars who lure Christians to heresy. They should therefore be punished until they confess.” [51]


The concept of Perpetual Servitude led the state to claim ownership of the Jews, taking away their freedom and declaring them servi camerae nostrae (serfs of our royal chamber):
[The] monarchy took the final–in a sense, regressive–step. It declared Jews servi camerae nostrae, terminology which was inspired by the recently revived papal Doctrine of servitus Judeorum (servitude of the Jews). Kisch believes that this church-inspired idea marked the beginning of Jewish unfreedom. From then on, he says, Jews were no longer part of the organic legal structure…Henceforth, the legal status of Jews was governed by special legislation designed specifically for them, a jus singulare…The honor of the Jews fell to a new low…reflected in the large-scale persecution of the Jews…Jewish “serfdom of the chamber” constituted an abasement of the legal status of the Jews. [52]


Jews became the property of the Church and/or the state:
The Siete Partidas offers the best glimpse we have of consolidated Jewry law as it was envisioned by a learned Christian monarch at the height of the Middle Ages…Jews are permitted by church and state to live among Christians, but only “that they might live forever as in captivity and serve as a reminder to mankind that they are descended from those who Crucified Our Lord Jesus Christ.” [53]
In the words of the “influential abbot of the time, [the] Venerable Peter of Cluny,” the Jews should be punished but not killed:
They should not be killed, but “like Cain, the fratricide, they should be made to suffer fearful torments and prepared for greater ignominy, for an existence worse than death.”[54]


The Church and state competed with each other over ownership of the Jews:
This happened, for instance, when the papacy exerted its own “ownership” of the Jews, under the cover of the old church Doctrine of the “Perpetual servitude of the Jews” and in competition with secular rulers, who asserted that the Jews were “serfs of the royal chamber.”[55]


Jews were traded as chattel:
The crown laid claim to them as serfs of “the imperial chamber,” servi camerae…The attachment to the imperial chamber reduced Jews to the status of pieces of property that could be–and were–bought, loaned, and sold as any other merchandise. Kings paid off barons and barons paid off creditors with Jews. Kings would, for a consideration, transfer to nobles or townships the right to possess “his” Jews. [56]
The concept of the Perpetual Servitude of Jews was extended to other religious groups. Following the Crusades, the number of Muslims (called “Saracens”) under Christian rule increased, thereby prompting jurists to pass legislation specific to them. Despite being considered “worse than Jews,” the Saracens were placed in the same legal category:
The doctrine, therefore, was one of long standing: if Saracens living among us conform as do the Jews, they are to be treated in the same way…There were large numbers of Muslims in the West–in Sicily, for example, where despite mass emigration and slaughter there were many sunk in a life of servitude…In brief, the Muslim who accepted the position of the Jew, who gave no trouble, caused no scandal, and was “prepared to serve everywhere,” could enjoy the same legal protection. [57]
Muslims, as Jews, were subject to the same discriminatory legislation:
Accompanying the polemical association between Jews and Muslims was an increasing judicial association. There was indeed, from the thirteenth century onward, a growing volume of law restricting the legal status of Jews and Muslims and limiting the “polluting” contacts between Catholics and infidels. Over the course of the twelfth and thirteenth centuries, Church legislation and legal commentaries tended to confirm this trend: for judicial purposes, Muslims were treated as Jews (rather than as pagans or heretics). The principle aim of this legislation was to prevent “contamination” of Christendom through contact with the infidel: sexual contact, social ties, religious contamination…and so on. The Muslim or Jew, like the leper, needed to be marked, isolated, quarantined, in order to protect the Christian. [58]
David Abulafia’s The Servitude of Jews and Muslims in the Medieval Mediterranean: Origins and Diffusion describes how the Muslims, like the Jews, became “serfs of the royal chamber,” owned as chattel by the Christian monarchs.

Muslims, like Jews, were royal property:

The [Muslim] Lucerine colonists, like other Muslims and Jews living in Christendom, had a protected status under canon laws long as they did not pose a threat to Christians, they were to be allowed to live in peace. Defining them as servi camerae [serfs of the royal chamber], [Christian] rulers considered the Muslims of Lucera to be royal property. [59]

And:

The Muslims were in certain important respects in a similar position [to the Jews]. Their status as royal servi [serfs] was ruthlessly exploited by a government anxious to possess their goods. Islam was suppressed, in the sense that those who survived in southern Italy were denied the use of mosques; but forcible conversion seems not to have occurred. The crown sought the conversion of the Muslim leaders, and generally did not release from slavery those who converted after their capture…Enslavement was a punishment for generations of obstinate commitment to Islam, just as expulsion and the threat of massacre was a punishment against Jews who for centuries had supposedly maligned Christ…The royal court harnessed Roman law to argue the state had the power and right to enslave its Muslim subjects. Indeed, they were already slaves before they were sent into slavery. The importance of the literal interpretation of the term servus, in servus camere regie, to mean “slave” in the sense understood by Roman law, cannot be underestimated. [60]

in 1452, the Pope gave a carte blanche to Christians to conquer the infidels of the world and reduce them to Perpetual Servitude:

The papal grants of the fifteenth century…bestow[ed] upon the named Christian monarchs the right to conquer non-Christian lands…[as] is reflected in the language of the Bull of Nicholas V, issued in 1452…which accorded to Alphonse of Portugal the right to ‘invade, conquer, storm, attack and subjugate’ and ‘reduce into perpetual servitude [perpetuam servitute] the Saracens [Muslims], pagans, and other enemies of Christ.’ [61]

This infallible papal bull gave the King

the full and free capacity to invade, conquer, take by storm, defeat, and subjugate any Saracens and other Pagans as well as whatever dominions, possessions, movable and immovable property are detained or possessed by them: and to seize and appropriate for himself and for his successors their own persons in perpetual servitude, as well as their kingdoms, dukedoms, counties, principalities, dominions, possessions, and property, and to convert these to his own use and utility and to that of his successors. [62]

In contrast to the unfree Perpetual Servitude operative in the Christian West, the dhimmis were considered free citizens. According to Islamic law, it was forbidden to enslave them or to reduce them to servitude of any kind. Professor Cohen cites a hadith from the Prophet Muhammad, who said:

If you take the poll tax from them, you have no claim on them or rights over them…[D]o not enslave them and do not let the Muslims oppress them or harm them or devour their property except as permitted [kharaj, i.e. land tax], but faithfully observe the conditions which you have accorded to them and all that you have allowed to them. 


Forced Ghettoization and Freedom of Movement

Another fundamental difference between Christendom and the Islamic realm was the residential status of the infidels. In Europe, the Jews of Europe were forced to live in ghettos, with laws emerging that forbade Jews from living in certain towns and cities, or placing quotas on the number of Jews allowed.

Meanwhile, Jews of Islam (and dhimmis in general) were free to live wherever they wished. They lived in the same apartment buildings as Muslims and in Muslim dominated areas. Admittedly, there were distinctly Jewish, Christian, and Muslim dominated neighborhoods (key word here being “dominated” and not “exclusive”), but this were based on the normal tendency for people of similar backgrounds to congregate, not unlike the preponderance of Jews in New York, of Afghans in Fremont (”Little Kabul”), of Arabs in Detroit, etc. Indeed, this self-segregation in medieval Islamic lands was not only upon religious grounds, but on ethnic and tribal divisions, as well as occupational vocations.

Naturally, the forced ghettoization of the Jews of Europe–and the freedom to live anywhere in the realm of Islam–created a dramatic difference between the two respective sets of infidels:

By and large, Jews in European cities lived separate from Christians, usually in a street or section called a “Jewry,” “Judengasse,” or “rue des Juifs.” …Residential seclusion began to impinge on Christian-Jewish relations, when the church, wishing to prevent contact between Christians and Jews, especially after the thirteenth century, legislated restrictions on where Jews were allowed to live. Especially during the later Middle Ages, when popular fear and hatred of the Jews grew in intensity and popular antisemitic stereotypes proliferated, the Jewish quarter became a mysterious, frightful place, increasingly the target of terrified, antisemitic Christian mobs. As a sign of the estrangement of Jews from Christian burghers, some towns in the High and later Middle Ages sought from their overlords–and were granted–the privilege of not tolerating Jews. In short, Christian townspeople were allowed to exclude or expel Jews…

[In contrast, there was a] relatively more comfortable pattern of Muslim-Jewish relations…Quite the antithesis of the northern European city, the topography of residence in a Muslim town lent the Jew an aura of inclusion, of normalcy. As a matter of course, residential patterns in a Muslim town set religious and ethnic groups apart. This had already begun with the garrison towns, in which tribal constituents of the Arab armies lived in separate quarters…

Almost universally, Muslim cities contained socially homogeneous quarters. Such quarters were found in cities created by a coalescence of villagers, by the settlement of different tribes, or by the founding of new ethnic or governmental districts. Quarters based on the clienteles of important political or religious leaders, religious sects, Muslim and non-Muslim ethnic minorities, and specialized crafts, were also found in cities throughout the Muslim world.

It was no aberration then, if a town in the Arab world of the Middle Ages had a separate street or quarter inhabited primarily by Jews. In that world, residential separation of ethnic and religious groups was normal–voluntary and generalized throughout society. Thus, no stigma attached to to neighborhoods housing predominantly Jews. This contrasts with the Christian town of the north. There, segregation of Jews into separate streets, or “Jewries,” accorded with theological and social concerns expressed with renewed vigor during the thirteenth century by instilling suspicion and dread in the popular imagination.

The Geniza provides an even more impressive indicator of Jewish inclusion in Islamic society. In most cities of the Islamic Mediterranean represented in the Geniza, Jewish quarters, in the sense of exclusive Jewish districts, hardly existed. Rather, as Goitein has discovered, most Jews lived in their towns in noncontiguous clusters, such that “there were many neighborhoods predominantly Jewish, but hardly any that were exclusively so.” Christians or Muslims often dwelled in apartments in the same compound as Jews, and Jews, Muslims, and Christians sometimes held properties in partnership. Islamic law, for its part, permits dhimmis to dwell among Muslims, the rationale being that the latter might thereby reveal the beauties of Islam to their non-Muslim neighbors. [135]

Along with the forced ghettoization, Europeans enacted strict travel restrictions upon Jews, lest the latter try to evade apartheid. Jews found guilty of “illegal movement” were heavily punished. It was argued that their status as perpetual serfs made them the property of the royals; hence, they could not simply up and walk away. This too contrasted with the Islamic world, where Jews were free to travel wherever they wished:

The liberal Jewish privileges of the Carolingian era began to give way in the twelfth century to restriction on movement, to tightening of control over the Jews (the beginnings of “Jewish serfdom”), to unprecedented violence, and to incipient expulsions. The Christian polemical theme of divine rejection and Jewish inferiority assumed new momentum…[leading to] the deterioration in Jewish status, [and] the restriction on movement…

The Jews of Islam in the classical period seem not to have felt the need to protest oppression in the same way…After all, they mingled more freely than their Ashkenazic brethren with merchants, courtiers, scholars, and physicians from the dominant religious group. They did not suffer restrictions on their freedom of movement. And they did not experience a degradation in legal status similar to the Jewish serfdom of Latin Europe. [136]

Although this forced ghettoization took place throughout much of Europe, we see particularly harsh implementations in Central Europe and Russia. In Russia, for example, Jews were expelled and forced to live in “the Pale”:

The government apparently took steps to maintain Jewish (target) visibility–that is, enabling them to maintain a certain autonomy in practing their religion while systematically pauperizing them by discriminatory laws and severely limiting their freedom fo movement within the country.

This was crystallized in a series of “Jewish statutes” under Tsar Alexander I and the establishment of the Pale of Settlement, a region of 286,000 square miles and twenty-five provinces which encompassed the western flank of European Russia…During th ereigns of subsequent tsars, the Pale became a significant means of dealing with the “Jewish problem,” a term which has reverbated with chilling significance to the present day. However, it should be noted that tsars, church, and aristocracy attempted to solve this so-called problem by the triune method of progressive assimilation of the Jews into Russian culture, expulsion, and blaming them for almost every conceivable problem…Jewish freedom of movement became even more restricted and was strictly limited to the Pale, although there was a slight relaxation of these laws toward the end fo the nineteenth century under Nicholas II.

The Russian census of 1897…shows that there were almost 5,000,000 Jews living in the Pale, comprising approximately 94 percent of the total Jewish population of the Russian Empire. [137]

Expulsion, Forced Conversions, and Massacres

Professor Cohen makes an important differentiation between discrimination and persecution. Although it could be argued that discrimination leads to persecution and there is overlap, it suffices for our understanding here. Christian realm was affected by not only a higher degree of discrimination but outright persecution. The persecution of the infidels under Christendom–in terms of expulsions, forced conversions, and massacres–far outsurpassed that of those under the Islamic sphere.

This is not to say that such persecution was alien to the Islamic world; anti-Islam ideologues point to a handful of instances in which this indeed did happen, but it must be understood that this was the exception, not the rule–unlike in Christendom where persecution was widespread in scale. Professor Cohen writes:

Finally, it is important to state what is meant by persecution. As employed in the following discussion, the word means unwarranted violence against persons or property, including individual and mass murder. It means unlawful compulsion in matters of religion, such as forced conversion, and it includes physical expulsion. Other forms of mistreatment–what we would call discrimination, be it bias, sumptuary laws, negative attitudes, or false statements–may and do lead to persecution. In and of itself, however, such intolerance was considered “normal” by medieval socities in which Jews lived.

Not even Salo Baron’s anti-lachrymose revision of Jewish history in the Middle Ages managed to gloss over the fact that the Jews in Christendom suffered greatly, especially from the twelfth century on. Well known are instances of large-scale massacre that began during the Cursades. Jews charged with killing Christian children were tortured and, in many cases, executed. Others were persecuted for allegedly poisoning wells or stealing and “torturing” the eucharist wafer (the “host desecration libel”). Jews experienced economic persecution (for instance, through official limitation of occupational opportunities and assaults on their property). The Talmud was burned, and Jews were forced to attend conversionary sermons–measures intended to weaken the hold of Judaism on its adherents. And Jews were expelled from towns, counties, and kingdoms…

Whether their persecution is measured in terms of expulsion, murder, assault on property, or forced conversion, the Jews of Islam did not experience physical violence on a scale remotely approaching Jewish suffering in Western Christendom. By and large, even when dhimmis as a group experienced growing oppression and persecution in the postclassical period, the grim conditions found in Europe were not matched…”Compared with the contemporary massacres in Christian Europe,” Baron writes of the Mamluk empire in the period 1250-1517, “anti-Jewish riots were both less frequent and less bloody. As a rule they were limited to certain localities and did not assume the epidemic proportions of the assaults by Crusaders or by the frenzied European mobs of 1348-1349 or 1391.” His pinpointing a distinction that applies even more sharply to earlier centuries, the period that is the focus of my book.

How can one explain this difference? The historian R. I. Moore has called medieval Christianity, especially as of the twelfth century, a “persecuting society.” The characteristics and historical circumstances that this scholar evidences in support of his conclusion help explain the relatively better condition of the Jews of Islam. According to Moore, beginning in the twelfth century, European Christendom showed increasing hostility to three groups–Jews, heretics, and lepers. The assumed connection between the Devil and both Jews and heretics (linkage between Jews and heretics, of course, went back to early Christian times), and the ascription to Jews and lepers alike of filth, stench, and putrefaction and of menace to Christian wives and children numbered among the factors that led to the deadly interchangeability of the three groups, particularly in popular thinking. “The assimilation of Jews, heretics and lepers into a single rhetoric … depicted them as a single though many-headed threat to the security of the Christian order…”

Nothing comparable to the invective and hatred characteristic of the Ashkenazic literary treatment of Christianity exists in the writings of the Jews of Islam…The dissimilarity between East and West was even greater during the classical period. Seen from the perspective presented in this book, the embeddedness of the Jews of Islam, the product of intertwining religious, legal, economic, and social factors, constitutes the most important reason for the relative freedom from violent persecution, and hence for a collective historical memory that was fundamentally different from that of the Jews of Christendom. [138]

During the Crusades alone, it is estimated that over a 100,000 European Jews were slaughtered. [139]

Summary

One recalls the infallible Papal Bull that gave permission to Christians to “invade, conquer, storm, attack, and subjugate” to “reduce into perpetual servitude [perpetuam servitute] the Saracens [Muslims], pagans, and other enemies of Christ.” It is a truism that bigots often–in their haste to hate–end up throwing stones from glass houses. The sheer irony–of the self-proclaimed defenders of the Judeo-Christian tradition using the term “perpetual servitude” to beat the Muslims over the head with–should not be lost on the perceptive reader.

Dhimmis were not reduced to perpetual servitude, and it is thus incorrect to use this neologism of dhimmitude, which is a purposeful amalgamation of the two words. Infidels in Islamic lands were free men; in fact, it was considered illegal by law–both secular and religious–to take away their freedom or to enslave them. Neither were they serfs owned by monarchs, barons, and other royals–nor of the the church–as they were in Christendom. Under the iron fist of Christian rule, infidels were traded as chattel by the Church and state, rented out and even mortgaged as if property.

Dhimmis on the other hand were not unfree serfs but free citizens, second class though they were. As discriminatory as it was to be a second class citizen, it was certainly worlds better than being an unfree serf or slave. Bernard Lewis commented on the status of the second-class dhimmi vis-a-vis the perpetual serf:

Second-class citizenship, though second-class, is a kind of citizenship. [140]

Professor Cohen opines:

According to the Islamic “law of the land,” the shari’a [holy law], the dhimmi enjoyed a kind of citizenship, second class and unequal though it was…[in contrast to] Jews living in Latin Christian lands, where competing legal systems complicated their status and where the “law of utility” inexorably led to arbitrariness and eventually to isolation of the Jews into a special category of persons, legally possessed by this or that ruling authority. [141]

Dhimmis were to pay the jizya once yearly; the rate was usually reasonable. On the other hand, the Christian authorities taxed infidels in their realm multiple times throughout the year, burdening them with hefty tallages beyond their abilities. The jizya guaranteed the state’s protection. On the other hand, Christendom forced the infidels to engage in shohad (bribery) in order to obtain protection, which was much more arbitrary than the jizya, oftentimes not enough to save them from persecution. After their economic capacity had been subsequently diminished, the Jews of Europe were expelled due to their insolvency and lack of utility. Their remaining property was seized by the state.

The concept of Perpetual Servitude established the idea that infidels were the property of the church or state; hence, all what they owned did not belong to them, but to the Christian authorities. Church leaders argued that all Jewish property could be seized except the absolute bare minimum necessary for their survival (as it was argued that they ought not to be allowed to die for fear that they would then not serve as Witness to the triumph of Christianity). Meanwhile, infidels in Islamic lands owned all their wealth and property–with the only requirement being that they pay a tax on it.

Islamic authorities allowed dhimmis to practice their religion freely in private, without interference. Meanwhile, Christian laws impeded even the personal religious practices of the Jews. The Church attacked the Talmud, censoring it, banning it and even burning tens of thousands of copies. The Jews perceived this as an unprecedented “catastrophe.” Both Islamic and Christian authorities forbade infidels from proselytism, but the Church went even further by forcing infidels to attend compulsory Christian sermons, where intimidating Christian mobs would seek to force Jews to see the light of Christianity.

The Islamic and Christian worlds alike punished those infidels guilty of abusing the Prophet Muhammad and Jesus Christ respectively. Here too, however, major differences existed; the Christians resorted to collective punishment whereas the Muslims generally did not as a matter of law. Also distinctive to the Christian world were the irrational ritual murder libel, Black Death accusation, and the eucharist wafer scare. These witch hunts led to masscres of tens of thousands of Jews, and elimination of entire communities.

The Jews of Europe were barred from most professions, and thereby restricted to the hated and hateful occupation of money-lending–something which only increased their vulnerability to angry Christian mobs. Even this singular means of survival often came under attack by the Church, further reducing the Jews to a state of unemployment and abject poverty. Meanwhile, Jews of the Islamic Orient were permitted to–and did–join virtually any profession. This gave them great occupational diversification which made them much more financially secure than their counterparts in Europe.

Infidels in the Christian West, as perpetual serfs, were forbidden to own land. Dhimmis, on the other hand, were considered free persons and had the right to own property.

Most importantly, the Jews of Europe were faced with much more persecution than their counterparts in the East. Under Christian rule, the Jews were faced with recurrent expulsions, forced conversions, and massacres.

The Jews were exceedingly oppressed during the middle ages throughout Christendom. In France, a Jew was a serf, and his person and goods belonged to the baron on whose demesnes he lived. He could not change his domicile without permission of the baron, who could pursue him as a fugitive…Like an article of commerce, he might be lent or hired for a time, or mortgaged. If he became a Christian, his conversion was considered a larceny of the lord, and his property and goods were confiscated. They were allowed to utter their prayers only in a low voice and without chanting. They were not allowed to appear in public without some badge or mark of distinction. Christians were forbidden to employ Jews of either sex as domestics, physicians, or surgeons…It was deemed disgraceful to an advocate to undertake the cause of a Jew. If a Jew appeared in court against a Christian, he was obliged to swear by the ten names of God and invoke a thousand imprecations against himself if he spoke not the truth. Sexual intercourse between a Christian man and a Jewess was deemed a crime against nature, and was punishable with death by burning…

Under the Roman law the Jews were the subject of severe restrictive laws and were classed in the enactments of the Christian emperors with apostates, heretics, and and heathens…Marriage with them was forbidden…and a Jew could not be the tutor of a Christian…

In the fifth book of the Decretals it is provided that if a Jew have a servant that desireth to be a Christian, the Jew shall be compelled to sell him to a Christian for twelve-pence; that it shall not be lawful for them to take any Christian to be their servant; that they may repair their old synagogues, but not build new; that it shall not be lawful for them to open their doors or windows on Good Friday; that their wives shall neither have Christian nurses, nor themselves be nurses to Christian women; that they wear different apparel from the Christians, whereby they may be known…

In England, the Jew could have nothing that was his own, for whatever he acquired he acquired not for himself but for the king..They were so heavily taxed by the sovereigns or governments of Christendom, and at the same time debarred from almost every other trade or occupation–partly by special decrees, partly by vulgar prejudice–that they could not afford to prosecute ordinary vocations. In 1253, the Jews–no longer able to withstand the constant hardships to which they were subjected in person and property–begged of their own accord to be allowed to leave the country. Richard of Cornwall, however, persuaded them to stay. Ultimately, in 1290 A.D. they were driven from the shores of England, pursued by the execrations of the infuriated rabble, and leaving in the hands of the kings all their property, debts, obligations, and mortgages. [142]

The Jewish Israeli historian Nissim Rejwan [143] sums it up best:

Under Ottoman Empire, which by the beginning of the sixteenth century dominated Syria [including Palestine] and Eygpt, the conditions under which the Jews were permitted to live contrasted so strikingly with those imposed on their coreligionists in various parts of Christendom that the fifteenth century witnessed a large influx of European Jews into the [Ottoman] Sultan’s dominions. During the first half of that century, persecutions had occurred in Bohemia, Austria, and Poland, and, at about this time, two German rabbis who sought and secured refuge in the Ottoman Empire wrote a letter to their community extolling the beauties and advantages of their new home.

But it was the measures taken against the Jews in Spain, culminating in their expulsion in 1492, that gave the greatest momentum to this migration. The Jews who chose to settle in various parts of the [Ottoman] empire found their surroundings rather congenial, and they, in turn contributed greatly to the flowering of Ottoman civilization…Marranos, who in Christian Spain had embraced Christianity to escape persecution and death, abandoned their disguise and returned to Judaism. Istanbul soon came to harbor the largest Jewish community in the whole of Europe, while Salonika became a predominantly Jewish city. The degree of the Jews’ integration into the life of Ottoman Islam was such, indeed, that two notable non-Jewish students of modern Islam found that there has been, in their words, “something sympathetic to the Jewish nature in the culture of Islam,” since “from the rise of the Caliphate till the abolition of the ghettos in Europe the most flourishing centers of Jewish life were to be found in Muslim countries: in Iraq during the Abbassid period, in Spain throughout the period of Moorish domination, and thereafter in the Ottoman Empire.”

…At the turn of the eighteenth century, the Jewish community in Jerusalem experienced a growth in numbers at an inordinate rate…According to a recent study by Tudor Parfitt, however, the startling increase in Jewish immigration to Jerusalem in the nineteenth century took place “not because the attraction of Jerusalem as the holy city grew, but because political and other factors made such immigration increasingly possible.”

…In nineteenth-century Palestine, he adds, such tolerance was “a consistent part of the relationship between the Ottoman authorities and the Jews.” He quotes European travelers as remarking on “the perfect religious freedom” that prevailed…One of these travelers, J. Wilson, is quoted as saying that “entire freedom of worship…is now accorded to [the Jews] and they are left to manage their own internal affairs without interference from any other quarter.” …

By way of conclusion, a word of caution is in order…It must be pointed out that the picture has not been uniformly so rosy and that instances of religious intolerance toward and discriminatory treatment of Jews under Islam are by no means difficult to find. This point is of special relevance at a time in which, following a reawakening of interest in the history of Arab-Jewish relations among Jewish writers and intellectuals, certain interested circles have been trying to… Judeo-Arabic tradition or symbiosis by digging up scattered pieces of evidence to show that Islam is essentially intolerant…and that Muslims’ contempt for Jews was even greater and more deep-seated than that manifested by Christians…

Such caricatures of the history of Jews under Islam continue to be disseminated by scholars as well as by interested publicists and ideologues. Indeed, all discussion of relations between Jews and Muslims…is beset by the most burning emotions and by highly charged sensitivities. In their eagerness to repudiate the generally accepted version of these relations (a version which, it is worthwhile pointing out, originates not in Muslim books of history but with Jewish historians and Orientalists in nineteenth-century Europe), certain partisan students of the Middle East conflict today seem to go out of their way to show that, far from being the record of harmonious coexistence it is often claimed to be, the story of Jewish-Muslim relations since the time of Muhammad was “a sorry array of conquest, massacre, subjection, spoilation in goods and women and children, contempt, expulsion–[and] even the yellow badge…”

Informed by a fervor seldom encountered in scholarly discourse, some of these latter-day historians have gone so far as to question even the motives of those European-Jewish scholars of the past century who virtually founded modern Oriental and Arabic studies and managed to unearth the impressive legacy of Judeo-Arabic culture, a culture that was undeniably an outcome of a long and symbiotic encounter between Muslims and Jews.

…[But] by the standards then prevailing–and they are plainly the only ones by which a historian is entitled to pass judgment–Spanish Islamic tolerance was no myth but a reality of which present-day Muslim Arabs are fully justified in reminding their contemporaries…Tolerance, then, is a highly relative concept, and the only sensible way of gauging the extent of tolerance in a given society or culture in a given age is to compare it with that prevailing in other societies and cultures in the same period…

The only plausible conclusion one could draw from the whole debate is that, while Jewish life in Muslim Spain–and under Islam generally–was not exactly the idyllic paradise some would want us to believe, it was far from the veritable hell that was the Jews’ consistent lot under Christendom. [144]


Edited from Danios article @ loonwatch.com 

Problem of Atheistic Reasoning

Imagine this scenario: You have come back home from your class after a really exhausting day. You have been hammered with a pile of homework. You enter into your room and do all important things as well as homework. The next day you reach school and find out that your best friend did not complete his homework. Consequently, he starts thinking of a plan on how to avoid being called up by the teacher. He tells you that the last day did not actually happen, thus he does not have to show his homework. Out of weird amusement, you scratch your head and ask, “what are you talking about?”. Your friend replies, “It is just a delusion in your head. Do you have any proof that past existed? Your mind might be programmed by some aliens to think of all these”. You remain silent for a second and then ask him back, “what evidence do you have that yesterday did not happen?”.
Now ponder upon this dialogue and try to answer which position you would like yourself to be in. Would you prefer explaining the evidences of past to questioning him what evidence he has got to deny the past? It is obviously the latter option that is most reasonable to resort to in this context.
The above annotation resembles discussions between theist and atheist. An atheist demands a theist to provide evidence for his belief in a creator, and the theist starts with strong determination to provide his opponent the evidences of his creator from many different ways. The theist in this context is the boy who wants to prove that yesterday occurred rather than interrogate his friend that what reasons he has got to deny the past. Which is manifestly a weaker position to begin with. So, instead of exhausting ourselves to meet the subjective and unverified criteria of atheists to prove creator exists, let us turn the table and let them deal with their own game. The question should not be “does god exists?”. The actual question should be: “What reasons have you got to deny God?”.
There are a lot of axioms/self-evident truths used in our everyday life. In mathematics, there are axioms. There are certain values assumed to be true for all circumstances in calculation. Self-evident truths are used in western academic discourses. The concept of God is an axiom. A self-evident truth. Concept of Creator is a self-evident truth because of few traits. Those are being universal, intuitive, untaught, natural.
  • Concept of creator is universal. The idea that God exists can be noticed in all the groups of people. This idea is not confined to any particular groups or specific time. It is cross cultural.
  • Belief in creator is untaught. Self-evident truths don’t require to be taught/learned. For example, you don’t go to school to learn you have a mind because it is taken as a truth that everyone has a mind. People don’t require external information to believe in a creator. Even if children of atheist parents are raised in complete influence-free place, they will end up believing in a creator.
  • Since the concept of creator is untaught, it is also natural. People naturally believe in creator. The natural default position is having belief in the existence of creator, not the other way around.
  • The concept of creator is intuitive. It is the simplest, most concise and reasonable explanation of our own existence. Now I know a lot of atheists might object to this “not all intuitions are true”, and that’t true. But a concept that is universal, untaught and natural has to be “true intuition”.

Concept of creator has great explanatory power. If anyone rejects a self-evident truth, the burden of proof falls on them, not on those who accept it. Rejecting the concept of creator is equivalent of rejecting the past or people having mind. So whenever an atheist asks a theist for proof of Creator, it is the atheist who should provide evidence and explain his reasons why believing in creator is superfluous and irrational.
The above discussion only establishes the concept of creator from a general rational perspective. From an Islamic epistemological perspective, this above discussion is valid.
Abu Huraira reported Allah’s Messenger (ﷺ) as saying:
No babe is born but upon Fitra. It is his parents who make him a Jew or a Christian or a Polytheist. A person said: Allah’s Messenger, what is your opinion if they were to die before that (before reaching the age of adolescence when they can distinguish between right and wrong)? He said: It is Allah alone Who knows what they would be doing.

Monday, 5 February 2018

Characteristics of Hudud, The Islamic Criminal Law/sharia

By: Hafiz Firdaus Abdullah1
N.B: Please comment if you discovered any error in translation !
 
Hudud is one of the important rulings in Islamic shari’ah. It must be uphold and carried out to whatever extent is possible in all Muslim countries, and Muslims must be at peace with it.
I believe the statement above is a known fact to all Muslims. However, the real picture of hudud is still vague to them. 

 Through this article, I will try to explain the basics of hudud in a brief and simple manner. I will emphasize on the characteristics of hudud, so that Muslims and non-Muslims will be able to know and understand it better. At the same time, I will try to add or squeeze in a few explanations about a few baffling aspects of hudud that are usually misunderstood. 

Simply, hudud is executing a sentence to a crime where its form and amount has been stated by Allah in the Qur’an and Rasulullah in the hadith, where the type of crime and ways to prove it has also been fixed by Allah and Rasulullah.Crimes that fall into the category of hudud are apostasy, premarital sex, adultery, sex with the same gender (gays and lesbians) and stealing.
In Islamic fiqh, the sentence to a crime is divided into three categories:
  1. Hudud, as mentioned above.
  2. Qishash, which is a sentence that is the same as the crime committed. Qishash typically refers to a crime that is committed on the human soul and body. If someone injured the hand of another, then the qishash ruling would be injuring the hand of the offender also. However, the one injured has the choice to either carry out the verdict, ask for monetary compensation, or forgive the one who inflicted the injury.
  3. Takzir, which is a sentence to a crime where its form or amount is not stated by Allah or Rasulullah. Sometimes the form and amount is stated, but it is not fixed. Amendments can be made by the judge base on factors of the crime and the criminal, case to case. Takzir is also used for crimes not mentioned by Allah and Rasulullah, or for hudud crimes that are proven in a different way. For example, proving a rape case using a DNA test or proving a swindling case by balancing the companies account.
Characteristics of hudud.
Now I will lay down the basic characteristics of Hudud.

Hudud’s nature is to deter.
The main objective of hudud is not to punish, but to deter man from committing crime. To achieve this objective, hudud is daunting and intimidating, so that man will be frightened of the crime and will stay away from it. This is mentioned by Allah: “These are the limits (hudud) set by Allah, so near them not.” [Surah al-Baqarah, verse 187]
Therefore, if some say that hudud is harsh, then we respond by saying: “True!” To this answer, one must add the explanation that the main objective in hudud is not to punish, but to restrain and deter man from committing crime and offence. 

Hudud does not fall upon those who are insane, ignorant and confused.
Once a Muslim man went to see the Rasulullah in a mosque and said: “O Rasulullah! I have committed adultery.” Rasulullah turned away from the man until the man confessed four times. Then the Prophet called him and asked: “Are you mad?” The man replied: “No.” “Are you married?” The man replied: “Yes.” The Prophet then said: “Take him and stone him.” [Shahih al-Bukhari, hadith no: 6815]
In another narration, Rasulullah asked: “Maybe you just kissed or touched or looked?” [Shahih al-Bukhari, hadith no: 6824]
Based on the questions that Rasulullah asked, it is clear that the mental status of the person must be determined first. Then, verify if the person really knows what is meant by adultery, in order to avoid any confusion.
Based on the questions, it can be concluded that a person who commits a crime when he himself cannot control his own mind, he is exempted from hudud. Other examples besides this are ignorance, confused, young age (children) and asleep.
It is mentioned in some narrations that ‘Umar al-Khatab, the second caliph of Islam did not sentence hudud law on those who committed adultery or premarital sex, because of their ignorance of the crime. 

Hudud ruling only falls on offences done publicly.
Rasulullah said: “Do not come near evil that has been forbidden by Allah, who so ever has, then he should conceal it with Allah’s veil and repent to Allah. This is because whoever does evil in the open and we came to know about it, we will sentence punishment that has been stated by Allah.” [al-Mustadrak of al-Hakim, hadith no: 7615 and it is graded shahih by him and agreed by al-Zahabi]
Besides that, together we should know that in order to sentence hudud, the accuser (plaintiff) must bring forth the number of witnesses required. If the requirements for the witness are not fulfilled, then the accuser himself will be punished. This is, again, to demonstrate that hudud sentences only fall on crimes done publicly and that there are people witnessing it.
Furthermore, by referring to the hadith about how Rasulullah turned away four times from the man who came and confessed to adultery, it can be concluded that sinning is something that has happened in Rasulullah’s time but he did not attempt to spy or scrutinize those who were suspected of it. This is parallel with what he said: “A leader, if he spies for the faults of his people, it would mean that he is destroying them”. [Sunan Abu Daud, hadith no: 4889 and graded shahih by al-Albani]
Rasulullah turned away from the man showing that he does not like to hear confessions of those who commit adultery. In other words, something that has occurred in privacy let it remain hidden. Rasulullah said: “......whoever who has done it, he should conceal it with Allah’s veil.....” It is not encouraged for those who commit offences to go and admit it to the authorities. Instead he should repent, as stated in the continuation of the above mentioned hadith: “..... he should conceal it with Allah’s veil and repent to Allah.”
Back to the case of the man who confessed to adultery to the Prophet, it is said that while being stoned, he ran away because he could not stand the pain. One of the companions of the Prophet chased him and hit him to death using a camel bone. When this event was told to the Prophet, he said: “Why did you not leave the man, maybe he has repent and Allah accepted his repentance.” [Sunan Abu Daud, hadith no: 4419 and graded hasan by al-Albani]
Whoever knows of a crime, he is not encouraged to go and report it to the authorities. Instead, he should go and give advice and counsel those who commit the crime. Rasulullah said: “Whoever covers (a crime) of a Muslim then Allah will cover him in this world and the hereafter.” [Sunan Ibn Majah, hadith no: 2078 and graded shahih by al-Albani]
The Prophet also said: “Forgive hudud crime that has happened between you because if the hudud crime reaches me, is a must for it to be punished.” [Sunan Abu Daud, hadith no: 4376 and graded shahih by al-Albani]
In another narration he said: “Who so ever commits the sins (syirk, stealing and adultery) and is punished for it, then the punishment nullifies the sins for them. And who so ever commits the sins and Allah covers it, then it depends on Allah to pardon them or punish them.” [Shahih al-Bukhari, hadith no: 6784]
To pardon or to punish? Allah, the Most Gracious, Most Merciful would pardon them. The following hadith explains: “Who so ever sins in this world by committing sin and is punished for it, then Allah is Most Just from multiplying the punishment on His servants. And who so ever sins in this world and Allah conceals it, then Allah is Most Noble from inflicting punishment on something that He has pardoned.”[Musnad Ahmad, hadith no: 775 and graded hasan by Syu‘aib al-Arna’uth]

The accused is allowed to defend himself
Rasulullah once said: “Verily, I am only a man. If you bring to me your cases, it could be that one among you can defend himself better than the rest, until I give a decision based on what I have heard. Whoever that (I gave the wrong verdict) till I gave to him what really belongs to another, then do not take it, for what you are taking is a part of the fire of hell.” [Shahih al-Bukhari, hadith no: 7169]
The above-mentioned hadith explains that the accused can defend himself by testifying. Maybe he’s ignorant, maybe he’s confused, maybe he stole because of certain dire circumstances, maybe he killed as an act of self defence and maybe the witnesses are purposely plotting against him and so on. Also based on this hadith emerge defence attorneys, where those accused and do not know how to defend themselves can ask someone else to do so. 

Punishment is only sentenced on the accused if there is no doubts
In a hadith it is narrated: “Avoid from giving hudud ruling as far as you can avoid it.” [Sunan Ibn Majah, hadith no: 2545] It is also said: “Impel hudud law that is based on doubts.” [Bulugh al-Maram, hadith no: 1047]
These hadith is famous among the companions of the Prophet that al-Hafiz Ibn Hajar al-‘Asqalani said in his work Talkish al-Habir, takhrej no: 1755: “It has been narrated by more than one companions (of the Prophet)...”
Even though the degree of the above hadiths is week, its meaning is true and the Muslim scholars have collectively agreed that hudud punishment is not given if the case is vague and doubtful. Imam Ibn al-Munzir said: “The scholars have collectively agreed that hudud law is not accepted based on doubts.” [Stated by ‘Abdullah bin Abdul Rahman al-Bassam in Taudih al-Ahkam min Bulugh al-Maram, volume 6, page 247.]
This characteristic has been taken by the conventional judicial system of today, where the plaintiff must prove without any doubts that the accused is guilty. Whereas the defender must prove that the evidence is vague and doubtful. If doubts still exist in any of the sides, sentence does not fall on the accused. 

Hudud punishment is physical
The biggest difference between hudud punishment and conventional punishment is that hudud punishment is physical, like whipping, cutting of the hand, exile and death. While in conventional punishment, the criminal usually gets sentenced to prison. Sometimes whipping or strokes of rotan is added to the prison sentence, but it is not usual. The big difference between these two styles of punishment is:
  1. Physical punishment really gives a big impact and influence on the criminal, whereas prison just eases and comforts them. A criminal would be happy to enter prison, for he obtains shelter and a place to live in, clothes, food and prison mates to socialize with. This is all one big luxury compared to physical punishment.
Furthermore, I once read in a report that some prisoners, once they finish their sentence in prison, commit other crimes as soon as possible so that they can go to prison again. This is because outside prison, he does not have a house to live in, no toilets, no food, no clothes and no one to socialize and make friends with. He is much better of living in prison. That is why to make him eligible for prison, he commits new crime.
  1. Physical punishment does not require much cost. The person who whips or cut of hands requires only a small payment or maybe none at all. This is far different from the prison system. I once read in a local newspaper that the cost for maintaining prisons and prisoners is a few million ringgits.
  2.  Physical punishment really terrifies people and this helps in deterring them from committing an offence or crime. Prison is not scary at all, in fact it’s as I mentioned above, and in a way it invites people to commit crime.
Based on this, if a new crime or offence is committed that has not been mentioned by Allah or Rasulullah 1400 years ago, the punishment that will be given would be in the form of physical punishment as well.
Some mock and taunt saying that physical punishment is barbaric. We answer: “Yes! It is.” But imagine if you or someone you love is a victim of a crime. You will definitely agree to the physical punishment and not send the criminal on a ‘holiday’ in prison.

The punishment is lessened for the weak
Even though hudud is physical, it does not mean that it is the same for all humanity who have different physical capabilities. The elderly for example will have a lesser form of punishment. During the time of Rasulullah, there was once a small and weak man who committed adultery. When the case was brought to Rasulullah, he ordered the man to be whipped a hundred times. To this decision, the companions said:
“O Rasulullah! Verily, this man is very weak to be given such a punishment, for if we were to whip him a hundred times, we would kill him.” The Prophet answered: “Take a date branch that has 100 stalks on it and whip him only once with it. After that free him.” [Musnad Ahmad, hadith no: 21935 and graded shahih by Syu‘aib al-Arna’uth]
As it can be seen, physical punishment is only lessened based on the person’s physical capabilities. Factors such as ranks, lineage or wealth cannot be used to reduce a hudud ruling. Again during the time of the Prophet, it was asked that someone caught stealing is lessened the punishment. To this request Rasulullah answered:
“Verily the people before you were destroyed for doing hudud on the poor and excluding the nobles. For my soul in His hands, if Fathimah (the daughter of the Prophet) committed the same crime (stealing), her hand will be cut of too.” [Shahih al-Bukhari, hadith no: 6787]

Anti-hudud group vs Hududiyyah
When we talk about hudud, normally we will encounter two different groups of people:
The first is the Anti-hudud Group. They are those who do not understand hudud and so reject it. To them, if hudud is carried out in a country, many of the citizens will be seen walking around with missing hands and scarred backs.
The second group is the Hududiyyah. They are those who do not understand hudud, but want it carried out very much. To them, an Islamic country is a country where its main responsibility is to cut off the hands of thieves and whip adulterous people.
If both groups are given good explanations about hudud and its characteristics, they will definitely change their views and stand regarding hudud. In hudud, justice and blessings that is the basis of Islam can clearly be seen. A country that carries out hudud, will be peaceful, just and blessed. Peaceful because hudud means to deter people from committing crimes and so the rate of crimes will fall. Just and blessed because hudud first observes the reason for the crime and the condition of the person when committing the crime.
Hudud if compared to conventional punishment used nowadays, has many similarities. The main difference is only in the form of punishment, for hudud carries out physical punishment and conventional methods imprison people. When I emphasize on the similarity, I do not mean that Muslims should think that conventional punishment is enough and be happy with it. But what I am highlighting is:
  1. Conventional judicial system used nowadays that is considered modern and updated, is actually taken from the Islamic system. Imagine when man 1400 years ago lived in ignorant times and dark ages, Islam has put down the basis for the punishment of a crime. Therefore it is oppression on oneself when the Muslims community do not follow hudud and instead take the conventional ways, which is plagiarized from Islamic heritage.
  2. Those who choose conventional punishment, they actually do not understand hudud. Furthermore, they have are petrified of it due to the Hududiyyah group. With good explanations by us, who understand, they will slowly change their perspective on hudud and will support it.
Through this short and simple article, let us become those who understand hudud and its characteristics. Take this article as a beginning for us to learn more about hudud. The motive for this should be true justice and blessing of all mankind, not for certain religion or political parties. If you find in you, characteristics of the Anti-hudud group or the Hududdiyyah, then let us together try to change and correct ourselves.

1 Originally writen in Bahasa Malaysia, translated by Aliah bt Abdul Rahman (aar_aliahar@yahoo.com) and Rowina Lynne Murray bt. Jeffery Murray (rowinalynne@yahoo.com). Edited by Mohd. Khairul b. Mohamed (khairul@microlink.com.my).
 

The truth about Hudud/sharia punishments

Extract from Misquoting Muhammad: The Challenge and Choices of Interpreting the Prophet’s Legacy 
by Jonathan A.C. Brown

In the Shariah, offenses were divided into those against God and those against man. Crimes against God violated His Hudud, or ‘boundaries,’ and were offenses whose punishments were specified by the Qur’an and, in some cases, the Hadiths, such as the punishment of certain kinds of theft by amputating a hand, punishing adultery by stoning and sexual slander by lashing.
Because these offenses were affronts against a merciful God, the evidentiary standards were often impossibly high (such as the four witnesses to sexual penetration required to prove adultery). Moreover, the Prophet ordered Muslim judges to ward off the Hudud [punishments] by ambiguities.’ The severe Hudud punishments were meant to convey the gravity of those offenses against God and to deter, not to be carried out. If a thief refused to confess, or if a confessed adulterer retracted his confession, the Hudud punishments would be waived.
This did not entail that the culprit escaped justice. Circumstantial evidence, such as a witness to the theft or finding the stolen good in the thief’s possession, could lead the judge to find him guilty of wrongful appropriation (ghasb). The wronged party could reclaim their possession or receive compensation for its value plus damages entailed. This coexistence of two legal wrongs identical in fact but subject to two very different standards of evidence and punishment is analogous to the relationship between the crime of theft and the tort of conversion in common law. While the first requires evidence of guilt beyond a reasonable doubt and can be punished with prison, the second only needs a preponderance of evidence and carries monetary damages. In cases that fell below the Hudud category in the Shariah, judges regularly assigned lesser punishments such as a beating, prison or public humiliation.
Shariah judges did not perceive applying lighter punishments as compensation for a design flaw in God’s law. Rather, they felt they were obeying the Prophet’s infallible command to find some means to move a crime from the harsh realm of the Hudud to the lower level of offenses that a judge could punish at his discretion. This was a priority for the ulama.
In fifteenth-century Cairo, when the Mamluk sultan’s men caught a royal administrator ’embracing’ a mistress, and the couple confessed to fornicating, the sultan himself took an interest in the impending execution. When the couple then retracted their confession, the senior Shariah judge in Cairo was sent into exile for insisting – correctly, other ulama affirmed – that the, couple’s sentence had to be commuted and that ‘whoever executes them should be executed in turn.’

Sunday, 4 February 2018

Why hudood and sharia are too harsh ?

By Ibn ‘Ashur (d. 1973)
Translated by Mohamed El-Tahir El-Mesawi

Thus, the aim of the Sharī’ah with regard to the legislation of fixed penalties (Ḥudūd), just retribution (Qiṣāṣ), discretionary penalties (ta’zīr) and injury compensation (urūsh al-jināyāt) is to achieve the following three objectives:
  1. To reform the criminal
  2. To satisfy the victim
  3. To deter the imitator of criminals
(1) The first objective, that is, reformation, refers to the highest objective of the Sharī’ah, which is bringing reform (iṣlāḥ) to every aspect of the daily lives of individuals comprising a society. This we discussed in chapter 12 on the all-purpose principle of Islamic legislation. Thus, God says: “Now as for the man who steals and the woman who steals, cut off the hand of each of them in requital for what they have done, as a deterrent ordained by God: for God is Almighty, Wise” (5:38). Punishing the criminal aims at removing from his soul the evil that incites him to commit crime. This evil mostly becomes more deeply rooted in the criminal when the idea of committing a crime is translated into practice. That is why God has followed the implementation of the ḥadd with the phrase: “But as for him who repents after having thus done wrong, and makes amends, behold, God will accept his repentance” (5:39).
Ḥudūd constitute the maximum possible sentences, for they have been instituted for the most serious crimes. By intensifying these prescribed penalties, the aim of the Sharī’ah is to deter people and remove evil from the offender. Accordingly, when it is proven that a crime has been committed by mistake, the ḥadd punishment is waived. Similarly, if there is the slightest doubt or uncertainty (shubuhah) that could be used in favor of the offender, then the matter is considered on the same level as a mistake, in the sense that Sharī’ah do not apply. Furthermore, if it is revealed that the unintentional offense has been committed owing to extreme negligence to take the necessary precautions, the negligent person shall receive the appropriate disciplinary treatment.

(2) When seeking satisfaction for the victim, we must remember that it is part of human nature to harbor rancor against aggressors and anger against those who wrong us in error. These feelings often push people to take vengeance against their aggressors in a way that always transgresses the bounds of justice. This is because vengeance bursts out of a passionate anger that usually affects people’s rational thinking and blinds them to the light of justice. Thus, when the victim or his relatives and defenders (awliyā’) are capable of retaliating, they will soon do so; otherwise, they will conceal their wrath, thus awaiting the first opportunity for revenge. It is against this that God has cautioned us by saying: “but even so, let him not exceed the bounds of equity in [retributive] killing” (17:33). Under these circumstances, revenge and crime will never end and the social order of the community will never settle on peace and stability. Therefore, it has been the purpose of the Sharī’ah to undertake the task of satisfying the victim and putting an end to the age-old practice of vengeance and counter-vengeance. Hence, the Prophet said during the Farewell Pilgrimage (Ḥajjat al-Wadā‘) “Abolished are also the blood-feuds of the period of pagan ignorance (Jāhiliyyah).”
Likewise, the purpose of giving the victim fair satisfaction takes into account the inclination for revenge that is rooted in human nature. Accordingly, the Sharī’ah has given the relatives of a murder victim (qatīl) the right of guiding the convicted offender (qātil), under the supervision of the judge, by a rope in his hand to the place where just retribution will be inflicted on him, which is known as qawad (retaliation). This is meant to satisfy them to the same extent if they were to take justice into their own hands.
The satisfaction of the victim is more important in the Sharī’ah than the reformation of the offender. Therefore, it carries greater weight when it is not possible to achieve both at the same time. An example is qiṣāṣ, where the reformation of the criminal cannot be achieved, so priority is given to the satisfaction of the victim or his relatives. For this, there is no point in the well-known disagreement amongst the scholars over the question of consent by the heirs entitled to exact qiṣāṣ (awliyā’ al-dam) to a pardon and blood money instead of inflicting retaliation, if the offender’s wealth is sufficient for that. In this respect, Ashhab’s view that the murderer must be forced to pay the blood money is more tenable, contrary to Ibn al-Qāsim’s opinion. That is why they agreed that if some of the relatives of the victim forgive the offender, qiṣāṣ is then cancelled. These factors, of course, do not apply to killing in brigandage (ḥirābah) and assassination (ghīlah), as we shall point out shortly.

(3) The third purpose, deterring imitators, is implied by God’s saying in the Qur’an: “As for the adulteress and adulterer – flog each of them with a hundred stripes, and let not compassion for them keep you from [carrying out] this law of God, if you [truly] believe in God and the Last Day; and let a group of the believers witness their chastisement” (24:2). Thus, Ibn al-‘Arabī said in his book Aḥkām al-Qur’an: “The real interpretation of this is that the execution of the ḥadd deters the one on whom it is implemented, and those who attend and witness it will learn a lesson from it and be deterred by it. Its story will then be on everybody’s lips, thus warning those who come after.”
It thus reverts to the purpose of reforming the community as a whole. This is because the execution of punishment according to established rules discourages perverse people and criminals from satisfying their devilish desires by committing crimes. Likewise, anything that acts as a deterrent constitutes a punishment. However, deterring the general public [other than the offender] must not transgress the limits of justice. Therefore, it has been an aspect of the wisdom of the Sharī’ahthat has laid down the punishment of the offender as a deterrent to others without violating justice. Hence, the Sharī’ah policy in instituting ḥudūd, qiṣāṣ and other types of penalties is meant to deter people from taking criminals as models.

Nevertheless, a pardon (‘afw) by the victim under certain circumstances does not defeat the purpose of deterrence, for it only rarely happens, and therefore it cannot be taken as the main reason for the offender to commit a crime. Consequently, we find that the Sharī’ah does not take into consideration forgiveness in the crimes that do not affect the right of a specific party, such as theft, the consumption of intoxicants, and adultery, because these offences are a violation of the very essence of legislation itself, and so too is brigandage (ḥirābah). As for assassination, no pardon by the relatives of the victim is accepted, owing to its hideousness. However, the repentance of the brigand (muḥārib) before his arrest has been accepted out of concern for peace and security and as a means of encouraging his companions to follow his good example.
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ByAsadullah Ali Al-Andalusi


The punishments required in Islam for certain crimes are often considered "barbaric" by non-Muslims and liberal Muslims alike. However, I believe this is due primarily to a misunderstanding of what the punishments entail and what exactly is being punished.

For example, many consider the punishments for adultery to be extremely harsh (i.e. lashing and stoning), but what many people don't understand is that adultery is not the thing that is actually punished -- rather it's the public display of adultery. This is why four witnesses are required; especially since Islam prohibits entering someone's private property without permission.
In other words, for such a punishment to be enacted, you'd literally have to have illegal sexual intercourse in a public place (enough so that you'd be noticed in full detail by four people).

Now, there are those who will argue that even with such a clarification, the punishments are still "too harsh". Why lash an unmarried couple for public displays of fornication? Why stone a married person for the same? Why not just fine them or jail them for a short amount of time?

But these questions display a lack of moral integrity and virtue when it comes to the issue of public displays of adultery. We are not just talking about the act of illegal intercourse here, but two people having the audacity to make it public -- an open rebellion against the very foundations of society itself (i.e. the family). It is not some innocuous performance done out of ignorance, but a willing protest against all moral decency.

And it's far worse when a married person does it. Not only are they spitting on the institution of marriage itself, but spitting in the face of their own family and children. Adultery is already such a heinous crime that one wonders why someone would have the gall to advertise it to the world. Even murderers and thieves try not to be as conspicuous.
Hence why the punishments are so harsh, because the very act that is being punished is so extreme -- almost inconceivable.

Thus, I think there is a no more fitting statement than "they were asking for it", because when you don't even bother to hide such an indecency then you are literally asking for whatever punishment exist -- no matter whether you perceive it as lenient or harsh.
At that point, neither of these categories matter, because you have agreed to the punishment by virtue of your behavior.