LIBERATING ISLAM: How To Reconcile Islamic Criminal Law .
The book 'LIBERATINGISLAM' presents arevolutionary approach toreconcile Islamic CriminalLaw with Human Rights. Itis a scientific proof thatIslamic Law can bereformed.LIBERATING ISLAM: How to Reconcile IslamicCriminal Law with Human RightsBy Mark A. Gabriel, PhDOrder the complete book from the p/books/10452.html?s pdfor from your favorite neighborhoodor online bookstore.
LIBERATING ISLAMHow to Reconcile Islamic Criminal Law with Human RightsCopyright 2019 Mark A. Gabriel, PhDISBN: 978-1-64438-722-1All rights reserved. No part of this publication may be reproduced,stored in a retrieval system, or transmitted in any form or by anymeans, electronic, mechanical, recording or otherwise, without theprior written permission of the author.Published in USA by the Islam and Human Rights Research Centerwww.IHRRC.comPrinted on acid-free paper.BookLocker.com, Inc.2019First EditionLibrary of Congress Cataloging in Publication DataGabriel, Mark A.Liberating Islam: How to Reconcile Islamic Criminal Law withHuman Rights by Mark A. GabrielReligion: Islam / Law Political Science: Human Rights PoliticalIdeologies / RadicalismLibrary of Congress Control Number: 2019907953
ContentsAbout the Author. ixForeword . xiPreface . xvIntroduction. 1Background of the research . 1Description of the problem. 6Main argument . 8Chapter 1 - Understanding the Difference Between Shariahand Islamic Law . 131. Shariah versus Islamic law . 15a) The primary sources of Shariah: The Qur'an and thecorrect Sunnah. 17b) Secondary and subsidiary sources of Shariah . 212. The role of Islamic jurisprudence (fiqh) . 25a) The historical development of Islamicjurisprudence (fiqh) . 28b) The four main Sunni schools of Islamic jurisprudence . 30c) The current debate over Islamic jurisprudence . 333. Islamic law . 37a) Islamic criminal law . 39b) Hudud ordinances . 42Conclusion. 56Chapter 2 - The Conflict of Islamic World with InternationalHuman Rights . 611. Islamic reservations against international humanrights laws . 63a) The view of human rights as a western invention . 64v
LIBERATING ISLAMb) The historical development of international humanrights laws . 66c) The Islamic world’s attitude towards internationalhuman rights laws . 69d) The debated universality of human rights . 73e) The protection of religion as a limit to individuals’human rights . 762. The conflict of hudud ordinances with internationalhuman rights laws. 78a) Cruel, inhuman and degrading punishment . 78b) Discrimination — a violation of the principleof equality . 79c) Violation of freedom of thought, conscienceand religion . 80d) Death penalty . 81e) Procedural abuses . 83f) Conflicts of the individual hudud crimes withinternational human rights laws . 833. The influence of Islamic jurisprudence on the conflictof hudud ordinances with human rights . 85a) Apostasy (al-riddah) . 86b) Adultery and fornication (zina) . 88c) Drinking (shurb al-khamr) . 93d) Theft (sariqa) . 94e) Fighting against Allah and His Messenger (haraba). 964. The different Muslim positions towards hududordinances and human rights. 99a) The orthodox Muslim view — defending hududordinances and rejecting reforms . 99b) Secular Muslim view — calling for the separation ofreligion and state . 101c) The moderate Muslim position — striving tobuild bridges . 102Conclusion. 105vi
How to Reconcile Islamic Criminal Law with Human RightsChapter 3 - Hudud Ordinances according to the FourSunni Schools of Jurisprudence. 1091. The practical application of hudud ordinances in theIslamic world . 111a) The case of the Hanafi school in Pakistan . 117b) The case of the Maliki school in Sudan. 119c) The case of the Shafei school in Brunei Darussalam . 120d) The case of the Hanbali school in Saudi Arabia . 1232. The legal prescriptions of hudud ordinances accordingto the four Sunni schools of jurisprudence . 126a) Illicit sexual intercourse (zina). 130b) Defamation (qazf). 135c) Theft (sariqa) . 138d) Drinking alcohol (shurb al-khamr) . 141e) Highway robbery (qata al-tariq) . 144f) Fighting against Allah and His Messenger (haraba) . 146g) Rebellion (al-baghi) . 148h) Apostasy (al-riddah) . 150Conclusion. 152Chapter 4 - The Islamic Concept of Reformationand Renewal . 1571. The concept of reformation in the Qur'an andthe Sunnah . 160a) Allah’s promise to send reformers. 161b) The Farewell Sermon of the Prophet Muhammad . 162c) Reformation in the Qur'an . 1722. Shariah and reformation . 176a) The purposes of Shariah (maqased al-Shariah). 176b) Two major obstacles for reformation . 182Conclusion. 192Chapter 5 - An Attempt to Reform Hudud Ordinances . 1991. Why amend hudud ordinances? . 203vii
LIBERATING ISLAM2. The legal challenge and approaches to amending hududordinances . 208a) The challenge of the ‘definite’ texts . 208b) The principles of necessity and reality(fiqh al-darurah, fiqh al-waqa) . 210c) The Islamic principle of doubt (shub’ha) . 213d) Examples of the amendment of definite texts . 216e) Re-reading the five indispensables . 2203. Suggestions for amending hudud ordinances. 221a) Hudud prescriptions developed by Islamicjurisprudence . 223b) Hudud punishments prescribed by the Qur'an . 238Conclusion. 254Summary and Conclusion .2611. Main findings of the book . 264a) Questioning hudud ordinances is fully legitimateand necessary . 264b) Shariah promotes human rights and reformationand aims to serve the benefit of the people . 265c) Suggestions for reformation . 2702. Main conclusion and contribution of the book . 273Bibliography .277viii
About the AuthorDr. Mark A. Gabriel, a U.S. citizen born in Egypt, is aninternationally renowned expert on Islam and human rights.He graduated from Al-Azhar University in Cairo, the oldestand most influential Islamic university in the world, where heworked as a lecturer of Islamic studies. He holds a Ph.D. inIslamic Law and Human Rights from the University of CapeTown (UCT), which is one of the world’s top-rankinguniversities.In addition to constant research and teaching, Dr.Gabriel travels around the globe speaking at conferences anduniversities and advising governments and security agencieson how to counter Islamic terrorism.Dr. Gabriel is founder and president of the Islam andHuman Rights Research Center, an organization establishedto promote a reform of the current radical application ofIslamic law in order to advance human rights in the Islamicworld.ix
PrefaceThe main conflict of Islamic law with human rights is caused bythe part of Islamic criminal law known as hudud ordinances. This isa set of crimes and punishments that assign very harsh and cruelcorporal punishments, namely beheading by the sword for leavingIslam, stoning to death for adultery, public flogging for fornicationand defamation, amputation of limbs for thievery, and crucifixion,beheading, amputation of limbs, or exile for the crime of haraba(fighting against Allah and His Messenger). International humanrights laws are grossly violated by the hudud ordinances. Pakistan,Sudan, Brunei Darussalam and Saudi Arabia, for example, followthe doctrines of the four main Sunni schools of jurisprudence andenforce hudud ordinances, thereby violating some of the coreinternational human rights law instruments to which they are StateParties.Orthodox Muslims generally defend the hudud ordinances,claiming that they are divine and immutable. This book, however,refutes that claim and demonstrates that it is legitimate and possibleto reform hudud ordinances and to reconcile them withinternational human rights law. This book explains why it is veryimportant to differentiate between Shariah and Islamic law.Shariah refers to the rulings recorded in the Qur'an and correctSunnah and is therefore considered divine. Islamic law, by contrast,cannot be considered fully divine, for it includes also suchprescriptions that have been developed by the human effort ofIslamic jurists.xv
LIBERATING ISLAMThis book demonstrates, further, that the concept ofreformation – including restoration (islah) and renewal (tajdid) – isdeeply rooted in the Qur'an and the Sunnah. It requires thatMuslims read the teachings of the Qur'an and the Sunnah in thecontext of their own time and environment. The rulings of Islamiclaw, thus, need to be examined in the light of the Qur'an, thecorrect Sunnah and the Islamic core values promoted in them.These include several internationally protected human rights, suchas the right to life, equality, and freedom of religion.This book points out that the main purpose of Shariah is toserve the benefit of the people and to protect them from harm. Tothis end, Shariah has provided the Islamic principles of reality andnecessity. These require that the reality of life and the needs of thepeople be considered at all times. If necessary for the sake of thepeople, these principles allow for exceptions to be made from whatis generally prohibited – even from divinely assigned prescriptions.This book demonstrates how these principles can be applied toreform the hudud ordinances and to reconcile them withinternational human rights law.The unique contribution of this book is that it reconcileshudud punishments with international human rights laws in areligiously and culturally sensitive manner. It offers suggestions fora reformation of hudud ordinances that are in full compliance withShariah. The suggestions for reformation developed in this bookconsider the realities of life in twenty-first century Muslim society,including the internationally recognized human rights standards,and at the same time preserve the Islamic scholarly rules andstandards.xvi
How to Reconcile Islamic Criminal Law with Human RightsThe suggested reform of the hudud ordinances can be ofassistance to the Muslim countries where they are currentlyapplied, and also to those where they are currently not practiced,but where radical Muslims might gain more influence in the future.In contrast to the appeal to freeze or abolish hudud ordinancespronounced by several secular and moderate Muslim scholars, thesuggestions for reformation proposed in this book provide a longterm solution for the conflict between hudud ordinances andinternational human rights laws.Another major contribution of the book to the topic underdiscussion is that it clarifies the distinction between Shariah andIslamic law and lays out that it is mostly Islamic law, its rules andregulations — especially the hudud prescriptions developed byIslamic jurisprudence — that are responsible for the conflict withhuman rights and that result in Islam and Muslims being rejected asbeing a major threat to world peace, justice and security. TheQur'an and the correct Sunnah, conversely, actually promote valuesthat are comparable to human rights. Consequently, it is notnecessary for a good and committed Muslim to follow blindly allthe antiquated and inhumane rules and prescriptions that have beendeveloped by Islamic jurists over the centuries and that havebecome part of Islamic law.The book demonstrates that Shariah (the Qur'an and thecorrect Sunnah) encourages Muslims of all generations to apply theIslamic teachings in a way to fit with their own time andenvironment. This includes that they might have to re-interpret theprimary sources or to clear the Islamic law from the humanlydeveloped rulings that no longer fit with the reality ofcontemporary life, or that contradict the primary sources ofxvii
LIBERATING ISLAMShariah, its core values or main purpose. The clarification of thedifference between Shariah and Islamic law, thus, can help torestore the image and reputation of Muslims in the world and it canhelp and encourage contemporary Muslims to search for ways toreconcile also other areas of Islamic law with international humanrights standards, while remaining faithful to Shariah.xviii
IntroductionBackground of the researchHuman rights can be considered as one of the most valuable, andyet vulnerable, gifts to humankind. That human rights have beenprotected by international law and acknowledged by the majority ofthe world population as a legal basis for their domestic laws, is oneof the most remarkable achievements of our time. Some ofShariah’s core values have in fact much common ground withinternationally protected human rights. Unfortunately, though,Islamic criminal law, particularly the set of hudud ordinancesi withits extremely harsh and cruel punishments, clashes with bothShariah’s purposes (maqased al-Shariah) and with internationalhuman rights in a fundamental and severe way. The punishmentsforeseen by the hudud ordinances include beheading by the swordfor leaving Islam, stoning to death for adultery, public flogging forfornication and defamation, amputation of limbs for thievery, andcrucifixion, beheading, amputation of limbs, or exile for the crimeof haraba (fighting against Allah and His Messenger). Internationalhuman rights laws ban such punishments. The UniversalDeclaration of Human Rights (UDHR),1 the International Covenanton Civil and Political Rights (ICCPR)2 and the Convention againstTorture and other Cruel, Inhuman and Degrading Treatment oriThe Arabic term ‚hudud‘ (sing. hadd) can be translated as boundary or limit and refers tothe boundary that identifies what is prohibited and what is permissible. Hudud ordinancesare known as a set of crimes that concern the right of Allah and that have specificpunishments.1
LIBERATING ISLAMPunishment (CAT)3 unanimously declare that ‘no one shall besubjected to torture or to cruel, inhuman or degrading treatment orpunishment’.4 Hudud punishments, further, violate the principle ofequality, which is one of the most fundamental human rights. TheUDHR stresses that ‘the equal and inalienable rights of allmembers of the human family is the foundation of freedom, justiceand peace in the world’ and that these rights ‘derive from theinherent dignity of the human person’.5 Further, hudud ordinancesviolate the religious freedom, protected in art 18 of the UDHR.Several publicly professed Muslim countries, including SaudiArabia, Pakistan, Sudan and Brunei Darussalam are members ofthe United Nations and are among the signatories of the maininternational human rights treaties or conventions, yet theyofficially practice hudud ordinances as part of their criminal justicesystem. They compromise their legal responsibility of protectinghuman rights within their territory by failing to bring their domesticcriminal law into line with international human rights laws. Muslimcountries that practice Islamic law usually defend the practice ofhudud ordinances, arguing that they are divinely assigned, andtherefore perfect, infallible, mandatory and immutable.6Consequently, amending hudud ordinances to ensure consistencywith international conventions is not an option to them. This claimis based on a widespread failure to distinguish between Shariah andIslamic law. Orthodox Muslims view Islamic law as a God-givensystem that is superior to any human-made law, including theinternational laws of human rights.7 Human rights organisationsand activists who call upon Muslim countries to adjust theirnational laws and make them compatible with international human2
How to Reconcile Islamic Criminal Law with Human Rightsrights laws are, therefore, usually viewed by orthodox Muslims asinfidels who call on Muslims to court heresy.8Due to the worldwide rise of radical Islamic groups, whostrive to implement Islamic law, the threat to human rights throughthe application of the hudud ordinances is steadily increasing. Theso-called ‘Arab Spring’ contributed significantly to an increase inthe power of radical Islamic groups, including Boko Haram inNigeria, al-Shabaab in Somali
The book 'LIBERATING ISLAM' presents a revolutionary approach to reconcile Islamic Criminal Law with Human Rights. It is a scientific proof that Islamic Law can be reformed. LIBERATING ISLAM: How to Reconcile Islamic Criminal Law with Human Rights By Mark A. Gabriel, PhD Order the complet
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Islam merupakan upaya mengatasi beberapa problem kejiwaan yang 10 Hamdani Bakran Adz-Dzaky. Konseling dan Psikoterapi Islam (Yogyakarta: Al-Manar, 2008), 228. 11 Fuad Anshori, Aplikasi Psikologi Islam (Yogyakarta: 2000), 242. 33 didasarkan pada pandangan agama Islam. Psikoterapi Islam mempercayai
acuan hidup mereka. Peranan media dalam Islam mestilah menonjolkan prinsip yang selari dengan ajaran yang telah ditetapkan oleh Islam. Dalam konteks komunikasi Islam yang mempunyai ruang lingkup yang lebih luas tentang media, Islam telah menetapkan bahawa media Islam mestilah selari dengan peranan agama Islam.
KATA PENGANTAR Dewasa ini kajian tentang Islam Nusantara sangat banyak diminati tidak hanya oleh orang Islam di Nusantara saja tetapi juga oleh orang-rang Islam Luar Negeri. Studi Islam Nusantara, berkaitan dengan ajaran atau nilai Islam secara dogmatis dan aplikatif yang berm
dibuktikan melalui buku-bukunya antara lain, Ilmu Pendidikan Islam, Ilmu Pendidikan Islam dengan Pendekatan Multidisipliner, Filsafat Pendidikan Islam,Metodologi Studi Islam, Pemikiran Para Tokoh Pendidikan Islam, Perspektif Islam t
Islam means submission to God. The word "Islam" is an Arabic word derived from the root word "salaam", which means peace. Therefore, the word Islam implies submitting to God, living in peace with oneself as well as others and with the environment. The people that practice Islam are called Muslims.
4 Liberating Planet Earth doned his belief in God. In an essay he wrote in 1843, at age 25, Marx said: "Religion is the sigh of the oppressed creature, the sentiment ofa heartless world, and the soul ofsoulless conditions. It is th
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