The Taliban have, not surprisingly, reinstituted the brutal regime of gruesome punishments that has been central to their idea of an Islamic State. When challenged they defiantly claim they will not give up on God’s law.
But is cutting off the arm of a thief God’s law in Islam? Is stoning adulterers God’s law in Islam? The question is relevant to Muslims, Christians, and Jews because all three traditions have scriptural mandates for the community to carry out such grotesque acts. Even as a Christian I must ask whether the Taliban's actions fall within what I know about Islamic law.
These crimes and their punishments are referred to in Islam has "hudud," which in this case means offenses against God. Or more literally crimes which transgress the boundaries God has set. However, even in the Prophet’s lifetime putting these laws into effect in a human community was complicated.
Early on the human implementation of these punishments seemed inconsistent with other values the Quran enjoins upon the Muslims. When the Muslim community moved from these general laws to specific people and offenses there immediately arose complexities that begged for definition and exception.
Moreover it could be argued that God, in God’s final judgement would punish those whose sin offended only God, such as apostasy. After all, these were offenses against God.
So questions came to Muhammad about these punishments. How serious must a theft be to warrant removing a thief’s hand? What standards of evidence were necessary to establish adultery? How can you carry out a harsh punishment without risking it becoming a death penalty? And most of all, who exactly is to carry out the punishment? These are critical matters in which the Quran by itself is silent and thus demands interpretation.
These complexities are no doubt the reason that for most of Islamic history these punishments were rarely carried out. The questions above, and many others led Islamic courts to recategorize criminal behavior in ways making it more amenable to human judgment. It is only in the last century that Islamist movements have made codifying and implementing these punishments central to their demand for what are called "Islamic States." And it should be remembered that much of this codification was inspired by, if not driven by the need for colonizing powers to systematize local law.
But in this modern codification Islamist movements make two fundamental mistakes, as numerous Muslim scholars have pointed out.
First they assume that there a should be Islamic States. In reality neither the Qur'an nor the Hadith make any mention of a state in its contemporary form, nor did any such state exist in Islamic history until the modern era. There were kingdoms, and caliphates, and military dictatorships. But no states as we know them. Taking these crimes and punishments and putting them in the context of a modern state is deeply problematic. It takes these laws out of the context of personal, human interactions characteristic of classical Islamic societies and places them in the context of a modern state’s bureaucratic machine.
Inevitably the result, as pointed out by scholars like Zaiuddin Sadar and Tarik Ramadan, is oppressive, violent, and dehumanizing. What Muslims need to be Muslims isn’t an Islamic State, as Sadar and Ramadan point out, it is human rights.
Secondly there is a difference between Shariah, or Divine Law, and these hudud laws and punishments.
Shariah, Divine Law, does not spring direct from reading the Quran. At the very least the Quran requires interpretation, the mastery of which involves considerable study of everything from grammar, to literary forms, to history. Moreover, according to classical Islamic teaching, Shariah is identified through a process of rational reflection on its four roots: the Quran, the Hadith traditions of the Prophet, the use of analogy, and seeking the consensus of legal scholars. To take a punishment directly from the Quran is to tear it away from the context of the Prophet’s interpretation of the Quran, the wisdom of the early Muslim community in understanding its full meaning, and the consensus of the community about how it is to be administered. As Muhammad said, “my people will not agree on an error,” making the consensus of the people critical to the understanding of Shariah.
In short, just listing the hudud crimes and punishments as laws and implementing them on an ad hoc basis isn't Shari'a, it isn't Divine Law. And in the context of a modern state it may be a travesty of Divine Law.
The reality is that calls by Islamist groups for hudud punishments in modern times have served one or both of two purposes. The first is to claim some kind of Islamic legitimacy among Muslims who are ignorant of Shari'a. Some politicians put these laws in place with no intention of enforcing them, and indeed in circumstances in which they are unenforceable. They want to appear Islamic without actually doing what they know is wrong. The second reason is to give an excuse for engaging in a reign of terror against the enemies of the state.
The Taliban have used the hudud punishments both to claim Islamic legitimacy and to excuse their terrorist rule over an unwilling population.
And that is why the Taliban regime may claim to be an Islamic state, but quite apart from its enemies from within who clearly disagree, the Taliban implementation of Quranic punishments has little or no claim to be rooted in Shari'a, or Divine Law.
But I want to take this a step further based on a recent presentation I heard by a Muslim scholar. She pointed out that in Islam the highest realm of ethics is not submission to outward laws, but ihsan, or doing good for others; beneficence. Ihsan is putting into action the core of Islam. It is, as Dr. Hiza Azam pointed out, putting Shariah into action.
Quran 4:36, "Worship Allah, and do not associate with Him anything, and be good to parents and to kinsmen and orphans and the needy and the close neighbor and the distant neighbor and the companion at your side and the wayfarer and to those (slaves who are) owned by you. Surely, Allah does not like those who are arrogant, proud"Quran 2:177 "Righteousness is not that you turn your faces toward the east or the west, but [true] righteousness is [in] one who believes in Allah , the Last Day, the angels, the Book, and the prophets and gives wealth, in spite of love for it, to relatives, orphans, the needy, the traveler, those who ask [for help], and for freeing slaves; [and who] establishes prayer and gives zakah; [those who] fulfill their promise when they promise; and [those who] are patient in poverty and hardship and during battle. Those are the ones who have been true, and it is those who are the righteous."
Always beneath the laws are the principles that determine how they are to be interpreted and implemented.
So here is the takeaway: When the Taliban announce that they are going to implement the punishments found in the Quran they are not actually implementing Shariah, or Divine Law as it is understood by most Muslims. Indeed from the standpoint of classical Islamic jurisprudence they are taking these verses of the Quran entirely out of their proper context, and thus may be implementing something completely opposed to Divine Law.
Those of us who are non-Muslims looking on in horror at the emerging Taliban regime should not be misled by their claims to be the guardians of Islamic Law. They are far from it, and far from representing the religion of which our Muslim neighbors are a part.
