Rightfully Syariah seeks to educate and prevent rather than let a crime happen and then punish. The magnitude of punishment itself should avert people from committing crime, and if that does not help, either the person is really desperate or a criminal. There is a need to clarify the purpose of the crime before punishment can be carried out.
As done by the second caliph Umar Bin al-Khattab, he did not punish slave who stole for food, instead he punished the master for keeping that slaved hungry by forcing him to pay double the amount stolen. What was stolen, you may ask? A she camel was stolen.
For the urban dweller of the 21st century outside of the camel herding industry one might not know the significance of mentioning a “she-camel”. Simple, a she-camel is a very important source of income, it gives birth, it gives milk and is viewed as an important source of income, something we call a cash-cow nowadays.
Here is the event that led to Umar’s judgement,
Malik related to me from Hisham ibn Urwa from his father from Yahya ibn Abd ar-Rahman ibn Hatib that some slaves of Hatib stole a she-camel belonging to a man from the Muzayna tribe and they slaughtered it. The case was brought before Umar ibn al-Khattab, and Umar ordered Kathir ibn as-Salt to cut off their hands. Then Umar said to Hatib, “I think you must be starving them,” and he added, “By Allah! I will make you pay such a fine that it will be heavy for you.” He enquired of the man from the Muzayna tribe, “What was the price of your camel?” The Muzayni said, “By Allah, I refused to sell her for 400 dirhams.” Umar said, ”Give him 800 dirhams.”…
Muwatta’ Malik Book 36 Hadith 38
As we can see, Umar r.a. did not punish the thief but placed a harsh fine on the master. This in the modern day is minimum wage, a wage that is necessary for one to care for his family and carry out his responsibilities. What the minimum wage is and should be is another topic altogether and we shall not be discussed in this article.
By quoting and explaining these two hadith(s), it becomes easier to explain the implementation and execution of hudud in modern times. The first question was related to stealing while in hunger either one’s self or his/her family. This has been pretty much dealt with in the incident of Umar.
Stealing for hunger is basically not punishable by Syariah, and should not be punished under any other legal system either. Life is the second most important tenet in maqasid Syariah and hence must be protected. If a citizen can not afford to feed him/herself then the obligation is upon the government to do so.
This article only discusses the pretext of punishments with respect to the Syariah and not state welfare, we shall leave this question for another day.
Now down to the second question stealing for medicine, we know that some treatments can be really costly. The amount stolen can also be astronomical, but if the person in question has no means of obtaining such funds what is he/she to do when in dire need?
Again the maqasid Syariah comes into reference, and this time again it is to safeguard life. The government shall take responsibility in the preservation of life of its subjects and/or citizens. These first two points are in a way enough to demonstrate the nature of welfare in a State ruled by Syariah.
Syariah is not a simplistic method of merely punishing criminals, it primarily seeks to prevent rather than cure. And prevention from all aspects of life, food, shelter, education, health, etc. to name a few are a part of the Syariah system. It is a holistic approach to any society’s issues.
The welfare of citizens and/or subject is the primary concern of Syariah, and after all that if someone still violates the law then one can expect a severe punishment. And there are mainly three branches of laws in Syariah when sentencing, Hudud, Ta’zeer and Qisas.
Hudud requires two or four witnesses, who witnessed the event before their eyes. A witness’ account can not be taken if he/she merely suspect something amiss. It has to be seen by at least two people. And for this to happen, a crime can only be done in public. One needs to understand that Hudud punishes one not for the nature of the crime itself, but rather how can someone do such a heinous crime in a public sphere.
Hence the severe punishment for those defy all values of ethics and law to conduct a crime in broad daylight. For example, zina(fornication) has such harsh punishment under Hudud(100 lashes or stoned to death if he/she is married) is not solely because of the nature of fornication itself, but rather that how can one commit fornication in such a way that the criteria of 4 witnesses is met as for this crime, four witnesses are required.(which is borderline impossible unless you do it in broad daylight in a public sphere). Even if you don’t agree that fornication is a crime, you would at least still agree that having sex in public is inappropriate, right?
And what if the four witnesses are absent? Then the judicial system would have to try that person under Ta’zeer which can be any legal system implemented in a country, even British Law can be considered as being a part of Ta’zeer albeit with the Islamic idea of welfare incorporated.
How can anyone, regardless of their religion, race, nationality be opposed to such a fair system? Most likely, they have some misunderstanding on the Syariah system or no one explains to them what Syariah system truly is. A system which looks at each and every case in its individuality and not merely by the crime. Where else would such a system exist in such a humane manner. This is the highest form of human right that can be practiced.