Humans are social and civil-natured beings whose lives depend on each other. In such a circumstance, the behaviours of the members of a society would lead to the requirement of defining civil and criminal codes to control the order of that society.
Despite having a childish mind in the beginning, the humankind realised the need to implement laws in order to prevent abuses and social disorders because they understood that the human ego is oriented towards pleasures, as a result of which, if no prevention is carried out, it is not implausible for it to become oppressive or suppressive. And hence the human being attempted to impose civil and criminal laws. However, because of the lack of knowledge concerning the world that they were surrounded by, most of the implemented orders were in a way affected by such natural incidents as earth quakes, flooding, volcanic eruptions, eclipses, lunar eclipses, drought and etceteras. This resulted in them getting the impression that these incidents are caused by the wrong doings of some people. Consequently, in order to prevent those unpleasant natural incident, they implemented some rules to either protect themselves from those incidents or somehow make the incidents favourable to themselves.
Therefore, majority of the regulations within the primitive societies - both personal and social ones - were somewhat influenced by metaphysics and thus considered to be customs and religious rituals. If the primitive customs and religious rituals, some of which are nowadays practiced by the underdeveloped local tribes of Africa, South America or Australia, are studied and inspected, it can be understood that many of their personal or social practices are influenced by metaphysics and thus majority of the natural incidents, auspicious or ominous in their perspectives, are derived from respecting or breaking the regulations defined for them by their religions. These regulation were usually implemented and executed by either the wizards and temple preachers who were the spokesmen and mediums of the gods to the people, or otherwise by the tribal chiefs.
Once the holy Prophets and thus the monotheistic religions were revealed, the issuance of verdicts and legislations became exclusive to God. Moses (may peace be upon him) declared God’s first divine commandments to the Israelites, which were collected into a book entitled Torah (= תורה [in Hebrew]) meaning “the law”. A book that includes individual, social, legal, criminal and penal codes. In accordance with Torah, in order to monitor the correct implementation of the imposed codes in the book which could be considered to have been the constitution of the Israelites at the time, appointed the generation of Moses’ (may peace be upon him) brother, Aaron, to protect and supervise the book and the pledge funds. Thereby the sons of Levite were introduced as the agents and hosts to Torah and were recommended [by God] not to get involved with financial and sublunary affairs and thus protect their spiritual characters from any pollution [1].
Over time, those who were to supervise the correct application of the verdicts, transformed to legislators. The temples in which God was to be worshiped, transformed to enterprises and firms, and consequently the religion that led to their freedom from the Pharaohs, transformed to a form of commercial business for its trustees. The Jewish clergies, seized the rules defined by Torah in accordance with their own favours, and whenever needed, created new rulings. The society was encapsulated by vice, corruption and avidity until Jesus (may peace be upon him) emerged and pointed his arrow directly towards the Jewish clergies and explicitly initiated them as the claimants of Moses’ (may peace be upon him) position [try to be a Prophet like Moses], who create and implement many rulings that are not respected by themselves; who are deceptive persons and takeovers of the properties of the defenceless people, and who thereafter stand long prayers out of hypocrisy [2]. Eventually, once these “retailers” saw their trades threatened, they crucified Jesus (may peace be upon him) by resorting upon the ignorance and blind prejudice of the people.
Afterwards, Jesus’ (may peace be upon him) disciples wrote his advice and orders, and hence spread his religion. Though once again, new “retailers” and abusers came along and claimed to be the supervisors of Jesus’ (may peace be upon him) religion and named themselves his holy substitutes. Against the clear orders of Jesus Christ (may peace be upon him) that included peace, friendship, love, having simple lives and avoidance from amassing wealth; they set up an imperial state, held people in his name, ruled however they wanted, issued verdicts, created [committed] crimes, and blackened the bonds of history with their catastrophic doings in a way that thus far the church have not been able to vanish those calamities. (Age of inquisition is amongst the darkest periods of European history).
At the beginning of the 6th century A.C. in a remote land that contained people with absurd beliefs and deeply primitive cognitions, God introduced his last Prophet. Unlike his predecessors, God did not give this last representative a cross-sectional miracle, instead, he gave him his own words to leave for the humankind as a souvenir. In accordance with the very signification of holy Quran, that foundation of Islam are built upon it; it is a clear book with no perversity [3] which contains and clearly and comprehensibly demonstrates whatever that is needed for its followers in terms of divine injunctions, opinions, teachings and instructions, leaving no lacuna: “We sent you a book that clarifies all matters” [4]. And the holy Prophet [of Islam] (may peace be upon him) highlighted: “Whomever seeks for leadership from outside Quran, God shall leave them to their ignorance.” [5] and Imam Ali¶ (may peace be upon him) indicated: “God demonstrated everything in Quran and described them for the followers, in order to clear everything and dismiss all [further] excuses” [6]. Consequently, Quran is a complete book that perspicuously demonstrated all definitions and laws that have been considered necessary and incumbent for its followers, and has further requested the Muslims to stick with them and avoid any route that leads to conflict, superstition or fictitiousness so that they shall not suffer [7].
Prior to the emergence of holy Prophet of Islam (may peace be upon him), the religious laws and orders of two great Abrahamic religions had been played by their preachers. Those who by denying some orders, implementing some others, and publishing different books in God’s name, had transformed the religion into a commercial business for their own benefits. Therefore, in holy Quran, God explicitly indicates that the issuance of verdicts and orders is exclusive to him [8] and in order to prevent the religion to become the playground of some self-assigned preachers, he even denied his own Prophet the right to issue verdicts or define lawfulness and unlawfulness [9] and explicitly ordered the Muslims to stick with Quran and follow Sunnah~ of the Prophet [10].
Some people imagine that Sunnah~ of the Prophet of Islam (may peace be upon him) is something equivalent to Quran, this is while Sunnah~ itself was a follower of Quran and is meant to be a description to its aggregations. Sunnah~, lexically means a “way” or ”a method”, and in jurisprudential terminology it refers to the narrations concerning the appreciations and actions of the Prophet - other than God’s revelation - in description of the aggregation£ of Quran. For instance, when holy Quran orders people to pray, the quality and quantity of the prayer may be retrieved from the Sunnah~. However, Sunnah~ cannot in any way extend the definition of Quran in lawfulness, unlawfulness, divine confinements; define or apply new verdicts or confinements. Because as indicate before, issuance of the verdicts is exclusive to God and no one whomsoever, even the Prophet of Islam or the Imams† (may peace be upon them) - is not permitted to issue any verdict whatsoever even if there is nothing available in Quran concerning a certain matter [11], whereas if God would have exempted someone, it was not improbable that the opportunists would have done what they did in other religions by altering the verdicts and issuing materials in God’s name. Apart from that, God implemented Quran as a criterion to distinguish good and bad [12].
Accordingly, there is a number of Hadith§ narrated from Holy Prophet and the Imams (may peace be upon them) which indicate to the believers of the religion: if any narrative or Hadith is narrated on their behalf, refer to Quran and compare them, if they were identical, accept them; but if there was any contradiction, those narratives must be thrown away [13]. This is because God did not want some opportunists to take over his last religion and use it for their own benefits. Specially because Islam was the most objective religion in a way that even the prophet himself (may peace be upon him) with all his magnificence, was only a messenger to deliver the divine message to the people and do not intervene with their good and bad [14].
Despite all these stresses, emphasises and restless efforts of the righteous people in order to impose these implementation [of Quran] and inform the people of the facts and prevent fabrications, there is still a vast number of fabricated Hadith§ and narratives under the name of the Prophet of Islam and the Imams (may peace be upon them) which have resulted in the division of Islam into several denominations. This is in spite of the fact that they all believe in the same book and the same prophet; simply because their interpretations of the Sunnah~ vary. The only reason that lead to this, is the fact that they disregarded the implementations of Quran and instead of using their “minds”, they chose to act based upon their “impressions”. They left [ignored] the words of God and instead of the balancing the Hadith§ with Quran, they attempted to balance Quran with the Hadith§. And what could be more oppressive than this?
Hence in accordance with the signification of holy Quran, the implementation of all verdicts is exclusive to God and therefore no one else, no matter whom, is permitted to implement anything apart from what has been demonstrated by God in his Quran; and if such a thing happens, that verdict is not divine and is a personal opinion and is for a certain period and - as will be demonstrated in details - it can be altered and updated in accordance with the culture of Quran. In which case, if some opportunists attempt to illustrate it as though a verdict may also be implemented by others as well and is the same as God’s verdict, are those whose intention is to satisfy their own wills in God’s name and execute their own plans in the name of religion. Such proposal are no more than absurd lie and are agains the very signification of holy Quran: “You must not say whatever comes onto your tongues and falsely say this is lawful and this is forbidden, and invent a lie against God. Surely, those who invent lies against God shall not prosper [15]”. And also says “What has been declared lawful or forbidden by Muhammad [the prophet (mpbuh)] is so until they day of resurrection.” does not mean that the Prophet of Islam (may peace be upon him) had declared them from himself and that they are detached from what is in Quran. This actually refers to the verdicts that have been implemented by God in his Quran through his Prophet [16].
God completed his religion through his prophet by indicating all the required verdicts, orders of worship, transactions, compensations, practices, prohibitions and divine confinements; and no one can add or remove anything from it. However, a question may well rise here that how is it possible to apply rulings that were created and implemented some 1400 years ago? The world and thus living conditions have significantly changed, and therefore new matters and issues have been risen for which one may not be able to find verdicts or instructions directly from Quran. The answer to this question, on the other hand, is very simple. God has highlighted the matters in Quran which apply to the society at any given time. As a result, developments, advancements or civil conditions do not influence their essences, in a way that one cannot claim that something had existed at the Prophet’s (may peace be upon him) time, but there is no sign of it nowadays. For instance, when Quran says “We made trade lawful and usury forbidden” [17] , no one can claim that usury was something that had existed in the past and it is unknown nowadays.
However, as indicated before, the explanation of the aggregates of Quran may be retrieved from Sunnah~. What causes conflicts and inconsistencies is some of the retrievals from Sunnah~, which must be corrected and update in accordance with the concept and the culture of Quran, and the shape of Sunnah~. Failure in adaptation with the societal developments and conditions, must be considered as the most fundamental issue of Islamic jurisprudence. The duty of the jurisconsults is indeed to update the verdicts in accordance with Quran and Sunnah~; some of them who have realised the importance of this matter, have therefore attempted to update some of the verdicts under the title of “The Secondary Verdicts”, however, measuring their success in accomplishing this target is a separate subject. These verdicts are not the same as the individual and worship verdicts which are not changeable. Definite verdicts such as those referring to prayers, fasting, marriage, divorce, and to some extend Hajj, are not updatable to the circumstances and conditions. Individuals verdicts are the ones that believers must practice regardless to the time and era. For instance, the knees of a prayer, or the definitions of fasting or Hajj have nothing to do with time and must, hence they are not changeable. However, the social verdicts, prosecutions, Hads*, and limitations defined by the Sunnah~ need to be reviewed and thus updated. Having an impression that altering Sunnah~ is equal to its dismissal and rejection could probably be considered as one of the reasons why the jurisconsults tend to avoid updating some of the verdicts, as they suppose doing so may lead to the removal of Sunnah~ from the Islamic Sharia‡. Therefore, they claim that no alteration should be applied to the Sunnah~ , even if it is preventing the orders of Quran! Sunnah~ defines limits and shapes for the execution of any verdict following which the verdicts can be updated, and as a result terminate most of the issues and conflicts caused by the outdated verdicts. Accordingly, I will demonstrate one instance as follows.
Holy Quran has thoroughly emphasised the importance of Zakat$ [18], which is an Islamic form of tax and provides funds for the governments. The importance of Zakat$ is equal to daily prayers as in most passages where the prayers have been noted, Zakat$ is noted immediately afterwards. This means that Zakat$ is as important and obligatory for a faithful Muslim just as the prayers are, and quitting it, is the same as quitting the prayers. The importance of this is to an extent that even one of the specifications of a believer is indicated as the payment of Zakat$ [19]. A Hadith§ from the holy Prophet on Islam (may peace be upon him) indicates accordingly: “Prayer and Zakat$ are doublets. One is not accepted without the other” [20].
Sunnah~ has defined 9 items for which, if reached a minimum, a fortieth is to be paid as Zakat$: 1-Wheat, 2-Barley, 3-Date [of palm], 4-Raisins, 5-Coined Gold, 6-Coined Silver, 7-Camel, 8-Cow, 9-Sheep [21]. Nowadays the jurisconsults still consider Zakat$ to be applicable to these 9 products only, and have thereby withheld one of the most important verdicts of the religion; in which case, the farmers and the gardeners who produce wheat, barley or date with a lot of difficulty, must pay Zakat$, however, it does not apply to those who have Saffron farms, the income of which is far more than a wheat farm; not to mention of the citrus and vegetable gardens and farms, factories, big capitalists and so forth.
Now if the shape of these 9 items defined for Zakat$ by Sunnah~ are assessed properly, it would be understood that they are classifiable into 3 categories: 1-Agriculture and horticulture, 2-Commerce, 3-Livestock. In accordance with this definition and the fact that Zakat$ is the Islamic form of tax, it is nowadays impracticable to limit Zakat$ to those 9 items only, and it must therefore apply to all incomes. In accordance with the signification of Quran, Zakat$ applies to any income producing occupation. Additionally, Zakat$ is payable to and consumable by the governments as they can specify the exact amount required to cover the expenses of the society. Therefore, the orders and verdicts of Quran should be updated in accordance with the shapes defined by the Sunnah~, or otherwise many of the orders and verdicts of Quran would be withheld unnecessarily, as they are now.
Islamic prosecutions and Hads* are amongst the subjects that have been considered the least by the Islamic jurisconsults and preachers. In the relevant books and study materials, these subjects are placed at the end. As a result, the instructor do not normally manage to finish them and hence they focus on the parts that can be finished. The reason could probably be identified as the cautiousness of the Shia Muslims concerning the Islamic prosecutions and Hads* as in Shia it is extensively believed that it is somewhat problematic to apply Hads* and Islamic prosecutions during the Occultation^.
In the definition of the Islamic prosecutions, it must be carefully noted that in accordance with the culture of Quran, sin is distinguished from crime. From the perspective of Quran, criminal offences are sins, however, the prosecution for them are not defined because they are sins, but because those offences are violating or threatening the rights of other people. On the other hand, sin is a religious offence and the prosecution for such offences are defined by God on the resurrection day, and no human being is permitted to define any prosecution whatsoever for someone who does not respect the religious practices; and if defined, it would be an innovation. Simply because God did not want some opportunists attempt to import verdicts to the religion and apply them under the name of God and make the Islamic Sharia‡ their playground and alter it in accordance with their own benefits.
Anyhow, with respect to the passages and narratives, prosecutions could be classified into two categories: 1-Hads* (Hôdūd = حدود [Arabic]) , 2-Suspensions (Tázeerāt = تعزیرات [Arabic/Persian]).
Hôdūd (= حدود [Arabic]) is the plural form is the word Had (= حد [Arabic]) and lexically means “prevention” [in Arabic] [22]. In jurisprudence terms, it refers to the prosecutions defined by God in Quran for 4 criminal offences which are as follows: 1-Murder or Mayhem (threatening someone’s life), 2-Theft (threatening someone’s properties), 3-Adultery (threatening someone’s honour), 4-False accusation (threatening someone’s dignity). In accordance with the innermost meanings of these offences, it can be understood that the purpose of Quran, more than anything, has been to impose preventions towards the commitment of such crime. These four are the divine prosecutions (Hads*), and anything else would not fall into the category of Hads*, in which case they would be called the Suspensions (Tázeerāt) that lexically means “to discipline”, “to blame”, “to prevent” and “to support and assist” [23] and is occasionally defined as “to respect and revere” too; therefore, the Suspensions are preventives and not divine Hads* or confinements [24]. Accordingly, all the prosecutions defined for the offences that are relevant to civil developments and advancements, such as traffic offences, are classified as the Suspensions. It could be noted that nowadays, the offences and the proportion of the crimes and the punishments are to be defined by well-experienced lawyers to be proper and preventive and lead to having a safe and a secure society. It is not correct to apply lashes for every sin or religious mistake and then name it as a religious suspension.
In such a circumstance it is necessary to review and rectify the definitions and rulings at any era. However, it must be noted that in defining civil and criminal codes, they must not be mixed up and combined with divine verdicts and display them in God’s name. Unfortunately, such combinations have occurred in the past and have continued to the present. This has led the public opinion, and in some cases the opinion of the jurisconsults, to suppose that these are in face divine Hads* and are amongst the obligations of the religion. I shall indicate one instance in here, and perhaps in the future, I separately demonstrate more examples in details.
In Islamic verdicts, drinking alcohol has a Had of 80 lashes which has been referred to as the Had for the Drunken [intoxicating drinks]. Whereas in spite of the fact that drinking alcohol has been banned by Quran, no Hads* or prosecutions has been defined for it. As indicated before, the divine Hads* are those that have been clearly demonstrated in Quran. Now the question arises that where has this verdict come from then?
There is not Had for the consumption of alcohol in Quran. It has therefore been retrieved from the narratives of the two branches of Islam [Shia and Sunni]. In no narrative concerning the consumption of alcohol have I seen a single correct Hadith§ that any Hads* whatsoever has ever been defined or applied by holy Prophet of Islam (may peace be upon him). In most narratives, there is a referral to the verdicts either issued by Imam Ali¶ (the first Imam of Shia) or Umar Ibn al-Khattab (the 2nd caliph of Sunni). I will demonstrate 2 of the narratives as an example [25].
In the first Hadith§, the following is narrated: Umar Ibn al-Khattab sentenced someone to 80 lashes for drinking alcohol. This verdict led to an unrest amongst people and the caliph was accused of innovating verdicts and sentences. Because in Quran, drinking alcohol has been banned but there is not punishment defined for those who drink. Therefore, people protested against this decision and Umar, in order to end the unrest, consulted with Imam Ali¶. Thereafter, Imam Ali¶ verified the verdict by relying upon the argument that: When one drinks alcohol, one gets drunk, and when one gets drunk, one speaks deludedly, and thus one would become the causes of defamation, for which the sentence is 80 lashes [26].
The second Hadith§ indicates: Bukhari narrates from Saib Ibn Al-Yazid that at the time of holy Prophet of Islam (may peace be upon him) and the beginning Abu Bakr’s time, the drinker would have been brought and then we would have hit them with our clothes and shoes until he would lose temper and react, and would become bawdy and immoral. So that Umar would have applied a sentence of 80 lashes [27].
These narratives, regardless to the narrators, are extremely outrageous and absurd, in a way that the most illiterate people about Islamic jurisprudence could easily realise they have been fabricated. I shall briefly demonstrate the reasons:
1- In the first narrative, despite the fact that the narrator and the fabricator tried to officialise the Had for a drinker by relying on Quran and Imam Ali¶, they unintentionally demonstrated that until when Umar became the caliph, there was no such a thing as a Had for a drinker. If there was any such a prosecution at the time of holy Prophet of Islam (may peace be upon him), even as a Suspension, people would not have demonstrated agains it and question Imam Ali¶ accordingly.
2- The fabricator, intentionally or unintentionally, has accused Imam Ali¶ to have acted based upon hypothesis, and act that has been noted as one of most disgracing acts [28]. Imam Ali¶’s personality, as a person who was amongst the most knowledgable people of all times about Quran, would not match with this accusation.
3- In the Islamic Sharia‡, one can never be sentenced to anything based upon hypothesis or prediction. Hence the adjustment that if some drink alcohol, one would speak deludedly and would therefore become the cause of defamation, is an obvious example of prediction and hypothesis. If based on such an adjustment a sentence is being defined, it could be said that when some drinks alcohol, one might lose his mind and whomever loses his mind may commit adultery or murder, and therefore the sentence should be 100 lashes or death penalty, not 80 lashes!
4- In accordance with the reliable Hadith§, the divine Hads* are applicable when the criminal is wise and sober, mature, major, and autonomous. Therefore, if someone cannot think when committing a crime, the person cannot be prosecuted for that crime because it can argued that the person has committed the crime when he was unable to think properly! That is regardless to the very fact that it is rationally, logically and religiously incorrect and unjustifiable to prosecute someone before a crime has been committed.
5- The fabricator of the Hadith§ has unintentionally demonstrated that drinking alcohol on its own does not have any divine Had and that even Imam Ali¶ did not verify the lashes merely due to the fact that the person had been drinking, but because of “defamation”, and not even the commitment of it, but the hypothesis and prediction of its commitment!
6- It is in contradiction with Imam Ali¶’s personality to verify something against Quran and the Sunnah~, and instead of fighting innovators, become an innovator himself and religiously officialise and formalise it.
7- The second narrative is outrageous, too. It indicates itself that drinking alcohol on its own has no prosecution. But there is a point in this narrative that is extremely disgusting, and that is to persecute so one who is intentionally or unintentionally drunk to a point that a person lose control and swear, and then become liable to lashes. Putting pressure on someone or persecute them to commit a crime is a sin on its own!
8- In a reliable narrative from holy Prophet of Islam (may peace be upon him) indicates “Prevent the execution of Hads* by imposing doubts [29]”. Whereas in that fabricated Hadith§, the Muslims were acting against this order and were forcing people to commit crimes by persecuting them in order to sentence them to a Had!!
Anyhow, other narratives that define prosecutions for a drinker, are no better than these two. In which case either the sources are not reliable, or the content is faulty. Even if they were reliable and correct, in accordance with “That of the ruling God (ان الحكم لله [in Arabic])” they could not have been referred to, and in such cases Consensus and Frequency [in jurisprudence] cannot withdraw the weakness, because if a prosecution was necessary for consuming alcohol, God would have directly indicated so in Quran as he has clearly indicated other necessary prosecutions and Hads*. Therefore, if it is assumed that the consumption of alcohol has any prosecution attached to it, that prosecution does not have anything to do with the divine Hads* and the Sunnah~, and should be classified in the category of the Suspensions.
God has highlighted 4 entities as sins and devil acts in holy Quran, and has ordered people to avoid them [30]. In accordance with the insistence upon the relevant passages, the prohibition of the following 4 entities are clear: 1-Consumption of Alcohol, 2- Gambling (=قمار [in Persian] / =مسیر [in Arabic]), 3-Statues (= Ansaab = انصاب [in Arabic]) [31], 4-Druidism and Fortunetelling (= Azlaam = ازلام [in Arabic] / = Fālgîrî = فالگیری [in Persian]) [32]. Among these 4 entities, consuming alcohol and gambling has been noted as the causes of conflicts between people. This is because alcohol leads to the loss of mind, and gambling leads to the loss of properties. These two matters are equal in prohibition and there is no difference between them. Hence if there is to be a prosecution or Had for one, the other one should automatically be included as well, however, there not a single sign of such a verdict for gambling. This is despite the fact that personal and social issues caused by gambling are no less than the consumption of alcohol, if not more. Undoubtedly, consuming alcohol, no matter how much, is prohibited. But trying to define a prosecution for it and call it a divine Had and do it in God’s name, would exactly be the same as what Jewish clerics did to the Sharia‡ of Moses (may peace be upon him).
May God forgive, whether God almighty did not have the prompt and understanding to realise that alcohol is the nature of corruption and in order to prevent people from consuming it, he needed to define a prosecution?! God has paid attention to the consumption of alcohol, just like many other things, and have clearly prohibited it. However, no prosecution has been defined for the person who does not respect this prohibition. Also, in accordance with Quran, no one is allowed to define prosecutions based upon personal interests and orientations, and release it in God’s name and his Sharia‡.
Apart from that, punishment by whipping would not prevent people from wrongdoings. In the past, emperors and sultans used to consider people as their workers and slaves. Therefore in order to discipline them and make them follow the orders, they used to hit them with wands. However, nowadays one cannot even persuade children to listen by hitting them, not to speak of adults! This is because the humanity has become precious to people and they would no more be willing to do slavery. Consequently, such matters must be dealt with by various experts and academics in order to respect humanity, and to indeed study the issues of the society and resolve them by encouraging the public or setting proper preventives. As a result of which the mental and behavioural well-being of the society would be protected within the borders of human dignity.
The fact that reasoning and consensus of opinions in Islamic resources have been [in terms of importance] put right next to Quran and Sunnah~, solely highlights the momentousness of logic, rationality of solutions, and public opinions [in decision making]. Thus dealing with the affairs of this world have been left up to the citizens in order for the people to take advantage and update them as required. Consequently, if nowadays Islam is considered to be one of the five legal systems recognised by the United Nations; it is because Islam has the capability of getting adapted to the current circumstances and world affairs [33].
The conclusion would be, defining the lawful and unlawful, the Hads* and the prosecutions, are exclusive to God and no one has any share of it and thus no one can issue any verdict in the name of God or the Sharia‡. This is a clear and obvious fact and as indicated, the intention of holy Quran. It was also noted that in defining prosecutions, criminal offences must be separated from religious sins and any combination must be avoided.
It is also important to notice the fact that in order to execute the verdicts correctly and observe justice; the judges must be independent from the government or political orientations. In significant consideration has been given to this matter within the reliable Hadith§, to an extent that it has been indicated that receiving wages from that Islamic leaders is problematic and incorrect [34]; because receiving wages and salaries affects the independence of the judges and transforms them to the agents of the governments, instead of being just and fair-minded and execute the law duly.
Historical experiences also show that the judicial systems and tribunals must be independent from the executive and political systems consider the offences or conflicts justly. Otherwise, not only a proper and acceptable outcome would not be made, but many corruptions would be caused within governments, too. As Imam Ali¶ also separated the judiciary from his government at his time and the judge summoned Imam Ali¶, himself, due to a complaint made by an ordinary citizen. However, unfortunately after Imam Ali¶, the judicial system lost its independence and then became the broker of the government. This happened in a way that during Yazid Ibn Al-Muavia’s time, the judicial system issued a sentence of apostasy for the grandson of the Prophet of Islam (may peace be upon him) and accused him to have left the religion; and thus against Quran and Sunnah~, convicted Imam Hussein# of high treason@ and sentenced him to death on sight*. And that corrupted and unjust system continued within future generations.
In modern law also, the independence of the judicial system plays a significant role. Therefore, the judges at least must not be controlled or supervised by the governments or political bodies in any way. Some specialists even believe that the judicial system as a whole must be a separate foundation from that of the political one and must not in any way be overseen by the governments; in which case the society and the government would not be dragged into corruptions and violations.
References and Bibliography:
1- Old Testament:
Exodus 28, 30:26-30, 40:9-15.
Numbers 18:20.
Deuteronomy 10:9, 33:8-10.
2- New Testament: Matthew 23.
3- Al-Zumar: 28.
قُرْآناً عَرَبِيًّا غَيْرَ ذي عِوَجٍ لَعَلَّهُمْ يَتَّقُونَ - الزمر - ۲۸
4- Al-Nahl: 89.
وَ نَزَّلْنا عَلَيْكَ الْكِتابَ تِبْياناً لِكُلِّ شَيْءٍ وَ هُدىً وَ رَحْمَةً وَ بُشْرى لِلْمُسْلِمينَ - النحل - ۸۹
5- Al-Wasayel Al-Shia: Reading Quran
الوسائل الشيعه، باب قرائة القرآن
6- Behar Al-Anwar, Vol. 92, P. 13.
7-
Al-i-Imran: 105.
وَ لا تَكُونُوا كَالَّذينَ تَفَرَّقُوا وَ اخْتَلَفُوا مِنْ بَعْدِ ما جاءَهُمُ الْبَيِّناتُ وَ أُولئِكَ لَهُمْ عَذابٌ عَظيمٌ - آل عمران - ۱۰۵
Al-Anfal: 46.
و وَ أَطيعُوا اللَّهَ وَ رَسُولَهُ وَ لا تَنازَعُوا فَتَفْشَلُوا وَ تَذْهَبَ ريحُكُمْ وَ اصْبِرُوا إِنَّ اللَّهَ مَعَ الصَّابِرينَ - انفال - ۴۶
8- Al-Qesas: 70.
وَ هُوَ اللَّهُ لا إِلهَ إِلاَّ هُوَ لَهُ الْحَمْدُ فِي الْأُولى وَ الْآخِرَةِ وَ لَهُ الْحُكْمُ وَ إِلَيْهِ تُرْجَعُونَ - القصص - ۷۰
9- Al-Anam: 57.
قُلْ إِنِّي عَلى بَيِّنَةٍ مِنْ رَبِّي وَ كَذَّبْتُمْ بِهِ ما عِنْدي ما تَسْتَعْجِلُونَ بِهِ إِنِ الْحُكْمُ إِلاَّ لِلَّهِ يَقُصُّ الْحَقَّ وَ هُوَ خَيْرُ الْفاصِلينَ - الانعام - ۵۷
10- Al-i-Imran: 105.
وَ لا تَكُونُوا كَالَّذينَ تَفَرَّقُوا وَ اخْتَلَفُوا مِنْ بَعْدِ ما جاءَهُمُ الْبَيِّناتُ وَ أُولئِكَ لَهُمْ عَذابٌ عَظيمٌ - آل عمران - ۱۰۵
11- Kahf: 26.
قُلِ اللَّهُ أَعْلَمُ بِما لَبِثُوا لَهُ غَيْبُ السَّماواتِ وَ الْأَرْضِ أَبْصِرْ بِهِ وَ أَسْمِعْ ما لَهُمْ مِنْ دُونِهِ مِنْ وَلِيٍّ وَ لا يُشْرِكُ في حُكْمِهِ أَحَداً - کهف - ۲۶
12- Shura: 17, Hadid: 57.
اللَّهُ الَّذي أَنْزَلَ الْكِتابَ بِالْحَقِّ وَ الْميزانَ وَ ما يُدْريكَ لَعَلَّ السَّاعَةَ قَريبٌ - شوری - ۱۷ ، حدید - ۵۷
13- Al-Wasayel Al-Shia, Vol. 3, Page 381.
الوسائل الشيعه، ج۳ ، ص ۳۸۱
14-
An’am: 107.
وَ لَوْ شاءَ اللَّهُ ما أَشْرَكُوا وَ ما جَعَلْناكَ عَلَيْهِمْ حَفيظاً وَ ما أَنْتَ عَلَيْهِمْ بِوَكيلٍ - انعام ۱۰۷
Al-Zumar: 41.
إِنَّا أَنْزَلْنا عَلَيْكَ الْكِتابَ لِلنَّاسِ بِالْحَقِّ فَمَنِ اهْتَدى فَلِنَفْسِهِ وَ مَنْ ضَلَّ فَإِنَّما يَضِلُّ عَلَيْها وَ ما أَنْتَ عَلَيْهِمْ بِوَكيلٍ - الزمر - ۴۱
Shura: 6.
وَ الَّذينَ اتَّخَذُوا مِنْ دُونِهِ أَوْلِياءَ اللَّهُ حَفيظٌ عَلَيْهِمْ وَ ما أَنْتَ عَلَيْهِمْ بِوَكيلٍ - شوری - ۶
15- Nahl: 116.
وَ لا تَقُولُوا لِما تَصِفُ أَلْسِنَتُكُمُ الْكَذِبَ هذا حَلالٌ وَ هذا حَرامٌ لِتَفْتَرُوا عَلَى اللَّهِ الْكَذِبَ إِنَّ الَّذينَ يَفْتَرُونَ عَلَى اللَّهِ الْكَذِبَ لا يُفْلِحُونَ - نحل ۱۱۶
16- An’am: 145.
قُلْ لا أَجِدُ في ما أُوحِيَ إِلَيَّ مُحَرَّماً عَلى طاعِمٍ يَطْعَمُهُ إِلاَّ أَنْ يَكُونَ مَيْتَةً أَوْ دَماً مَسْفُوحاً أَوْ لَحْمَ خِنزيرٍ فَإِنَّهُ رِجْسٌ أَوْ فِسْقاً أُهِلَّ لِغَيْرِ اللَّهِ بِهِ فَمَنِ اضْطُرَّ غَيْرَ باغٍ وَ لا عادٍ فَإِنَّ رَبَّكَ غَفُورٌ رَحيمٌ - انعال - ۱۴۵
17- Baqara - 275.
الَّذينَ يَأْكُلُونَ الرِّبا لا يَقُومُونَ إِلاَّ كَما يَقُومُ الَّذي يَتَخَبَّطُهُ الشَّيْطانُ مِنَ الْمَسِّ ذلِكَ بِأَنَّهُمْ قالُوا إِنَّمَا الْبَيْعُ مِثْلُ الرِّبا وَ أَحَلَّ اللَّهُ الْبَيْعَ وَ حَرَّمَ الرِّبا فَمَنْ جاءَهُ مَوْعِظَةٌ مِنْ رَبِّهِ فَانْتَهى فَلَهُ ما سَلَفَ وَ أَمْرُهُ إِلَى اللَّهِ وَ مَنْ عادَ فَأُولئِكَ أَصْحابُ النَّارِ هُمْ فيها خالِدُونَ - بقره - ۲۷۵
18- In Islamic jurisprudence, there are two mandatory Zakat$s: one is Zakat$ on properties, and the other one is Zakat$ of Fitr. Zakat$ on properties is the one that has been demonstrated in the text. Zakat$ of Fitr is the dedication of a course of meal, depending on the number of one’s family, to those who are explained in jurisprudence. This Zakat$ is obligatory at the end of Ramadan, on the day of Eid Al-Fitr.
19- Namal: 3.
الَّذينَ يُقيمُونَ الصَّلاةَ وَ يُؤْتُونَ الزَّكاةَ وَ هُمْ بِالْآخِرَةِ هُمْ يُوقِنُونَ - نمل - ۳
20- Al-Wasayel Al-Shia: Obligations of Khums as a prayer
وسائل الشيعه باب وجوب العبادات الخمس
21- Al-Wasayel Al-Shia: Zakat$
من لايحضره الفقيه، كتاب الزكاة، باب الاصناف التي تجب عليها الزكاة - الوسائل الشيعه، ابواب الزكاة
22- Muntahi Al-Rab - منتهي الارب
23- Mintahi Al-Rab - منتهي الارب
24- Sharh Lomeh: Book of Hads* - شرح لمعه، كتاب الحدود
25- In Shia and even Sunni jurisprudential bibliographies, the reference of 80 lashes as a Had for consuming alcohol is said to be the verdict of Imam Ali¶ that was applied to Ibn Umar and Valid Ibn Aqabeh for drinking alcohol. Even if these narratives are correct, they cannot still be relied upon as divine verdicts. Because as indicated in the text, even the Prophet (may peace be upon him) is not permitted to invent a prosecution based upon personal interests for something that has no prosecution defined for it in Quran, not to speak of Imam Ali¶ who was the most knowledgable person to Sunnah~ and Quran. Probably those sentences applied to those two people were because of their social and governmental positions, and not merely because they had consumed alcohol. Anyhow, most references regarding the Had of Consuming Alcohol refer to the execution of a verdict of lash to Valid and Ibn Umar.
فاعلم أن من تناول المسكر أو الفقاع، أو العصير العنبي (حد ثمانين جلدة ) إجماعا، والنصوص المتواترة المتقدم بعضها تدل عليه، وظاهر النصوص اعتبار الثمانين مترتبة وما تضمن من ضرب الامير - عليه السلام - ابن عمر والوليد بن عقبة بسوط له شعبتان أربعين جلدة، محمول على جواز ذلك لمصلحة
Fiqh Al-Sadiq - Grand Ayatollah Seyed Sadiq Rohani, Books of Hads*, Season 10, Hads* of Alcohol Consumption.
26- Bidayah Al-Mujtahid, Ibn A-rushd. Vol. 2, Page 482.
بدايه المجتهد، ابن رشد، ج ۲، ص ۴۸۲.
27- Sahih Bukhari: Book of Hads*, Hadith§ 6779.
صحيح بخاري، كتاب الحدود، حديث ۶۷۷۹.
28- Hujurat: 12.
يا أَيُّهَا الَّذينَ آمَنُوا اجْتَنِبُوا كَثيراً مِنَ الظَّنِّ إِنَّ بَعْضَ الظَّنِّ إِثْمٌ وَ لا تَجَسَّسُوا وَ لا يَغْتَبْ بَعْضُكُمْ بَعْضاً أَ يُحِبُّ أَحَدُكُمْ أَنْ يَأْكُلَ لَحْمَ أَخيهِ مَيْتاً فَكَرِهْتُمُوهُ وَ اتَّقُوا اللَّهَ إِنَّ اللَّهَ تَوَّابٌ رَحيمٌ - حجرات - ۱۲.
29- Says the Prophet of God (may peace be upon him): Prevent the execution of Hads* by imposing doubts.
قال رسول الله (ص): تدرء الحدود بالشبهات.
30- Al-Maedah: 90.
يا أَيُّهَا الَّذينَ آمَنُوا إِنَّمَا الْخَمْرُ وَ الْمَيْسِرُ وَ الْأَنْصابُ وَ الْأَزْلامُ رِجْسٌ مِنْ عَمَلِ الشَّيْطانِ فَاجْتَنِبُوهُ لَعَلَّكُمْ تُفْلِحُونَ - المائده - ۹۰
31- Regarding Statues (= Ansaab = انصاب [in Arabic]), Sheik Tabaresi mentions in Majma al-Bayan: “Nasb” and “Ansaab” were the stones that were being adored by the ignorant Arabs [before Islam]. Also accordingly, in Munhij Al-Sadeqin, the passage is explained as follows: “Nasb” and “Ansaab” were the stones around Beit Al-Haram that the ignorants had installed next to Kaaba and were bowing in front of them. They used to dedicate sacrifices to them and shred the meats above their heads. Amongst the ignorant Arabs, two kinds of idols were to be bowed for: those made of wood or metal who looked like human and were called “Sanam” (= صنم [in Arabic]); and those made of stones with no defined shape or style and were call “Vasan” (=وثن [in Arabic]) (Al-Asnaam ibn Kalbi = الاصنام ابن کلبی [in Arabic]). It looks as thought the attention given by the ignorant Arabs to these stones, regardless to their attachment to the house of Kaaba, was their believe on the metaphysical influences of those stones. Sort of beliefs which were retrieved from Fetishist ideologies. Those ideologies exist nowadays amongst the believers of different religions, as there are impressions that relate special influences to some such stones as turquoise, agate, and other ornamental stones. These beliefs have thoroughly been derived from Fetishism.
32- The practice of Druidism and Fortunetelling (= Azlaam = ازلام [in Arabic] / = Fālgîrî = فالگیری [in Persian]) was a kind of divination, consulting with books or bidding beads that ignorant Arabs were conducting in front the idol of Hubal in the house of Kaaba. The materials needed for this consultation were 7 spears that were placed inside Kaaba in front of Hubal and the following words were written on them: on the first one “God Almighty” (=الله عزوجل [in Arabic]), on the second one “For You” (= لكم [in Arabic]), on the third one “Over You” (= عليكم [in Arabic]), on the forth one “Yes” (= نعم [in Arabic]), on the fifth one “From You” (= منكم [in Arabic]), on the sixth one “Anyone Other Than You” (= من غيركم [in Arabic]), and on the seventh one “Unknown [but possible]” (= الوعد [in Arabic]) (History of Yaqubi, vol. 1, page 215). History of Tabari indicates it as: “In front of the Hubal there were 7 spears, and the following were written on it: the first one “Yes” (= نعم [in Arabic]), on the second one “No” (= لا [in Arabic]), on the third one “From You” (= منكم [in Arabic]), and the forth one “Attached” (= ملصق [in Arabic]). The person wanting the consultation had to pay a hundred Dirhams as well as some presents to Hubal and then the broker of the consultation would have held the request in front of Hubal whilst reading the following:
يا الاهنا هذا فلان بن فلان قداردنا به كذا و كذا فاخرج الحق فيه.
which means “Oh god, this is [someone’s name], show him the right [way]” (History of People and the Kings (= تاريخ الامم و الملوك [in Arabic]), vol. 2, page 174). Conduction of Druidism and Fortunetelling (= Azlaam = ازلام [in Arabic]) was that following the preparations, the broker would have thrown an arrow towards those 7 spears. And depending on the hit, the text written on that spear would have been the answer (History of Yaqubi, vol. 1, page 215; History of Tabari, vol. 2, page 174). In accordance with Islamic and Arabic narratives; when repairing the well of Zamzam, Abdul Mutalib ibn Hashim, great-grandfather of Prophet of Islam (may peace be upon him) had vowed that if he managed to reach for water from the well, if he got 10 sons, he would sacrifice one of them after puberty in front of the idol of Hubal. Because he succeeded in repairing the well, and then afterwards, he got 10 sons, to choose one of his sons [to sacrifice], he went for consultation through Druidism and Fortunetelling (= Azlaam = ازلام [in Arabic]). The outcome was the name of Abdullah - father of the Prophet of Islam (may peace be upon him) -, Abdul Mutalib then placed 10 camels at one side, and Abdullah at the other side, the outcome was again the name of Abdullah. He did that 10 times until finally the outcome became a hundred camels, and thus Abdullah was not sacrificed (Sirah of Ibn Hisham, vol. 1, page 141; History of Tabari, vol. 2, page 173). Therefore, Sura of Maeidah, Ayah [(passage)] 3, has banned such sacrifices under Azlaam (= ازلام [in Arabic]). Some commentators have misunderstood Azlaam (= ازلام [in Arabic]) and falsely believe that Azlaam (= ازلام [in Arabic]) was a kind of drawing or lottery and was a form of gambling. However, what was popular amongst the ignorant Arabs as lottery and drawing was something similar [but not identical] to Azlaam (= ازلام [in Arabic]), it was called Meisar (= میسر [in Arabic]) which is referred to in Ayah 90 of Sura of Maeidah. It used to be practiced as follows: 10 spears or sticks were to be installed at a certain location, and on seven of them, 7 shares of the total amount would have been written respectively: on one of them they would have written a seventh and illustrated it by the word Alfad (= الفد [in Arabic]), the second would would have a share of two seventh and illustrated as Atuwam (= التوام [in Arabic]), third one would have got three seventh of the share and shown as Valraqib (= والرقيب [in Arabic], the forth one had four seventh and demonstrated as Valjalis (= والجلیس [in Arabic]), the fifth one shared a value of five seventh and indicated as Valnaafes (= والنافس [in Arabic]), the sixth one included six seventh of share and displayed as Valmusbel (= ولمسبل [in Arabic]), the seventh one had the whole share and was presented as Valmualaa (= والمعلی [in Arabic]). The last three spears had no value but had these words written on them: Almani’ - Valsafi’ - Valva’d (= والوعد - والسفیع - المنیع [respectively in Arabic]). The gamblers of the era of ignorance, would have bid the same amount of money or material [property] and divided it by seven. They would then throw an arrow towards those 10 marks. The arrow could have hit the spear with a seventh of the share, or the spear with the whole share, or the spear with nothing. This was popular amongst the wealthy Arabs and Quran highlighted it as a devil act and banned it. (Same references).
33- Comparative Law - Dr Hassan Afshar
34-
من لايحضره الفقيه، كتاب القضايا و الاحكام، باب كراهه اخذ الرزق علي القضاء
كافي، كتاب القضاء و الاحكام، باب اخذ الاجره و الرشا علي الحكم
There are various narratives with regards to this matter. For information, I shall demonstrate one: Imam Sadiq was asked: “How would it be if a judge receives money from the leader of Muslims in order to do his work [and be a judge]?” He responded: “It is null and illegitimate”.
Descriptions
† Imam in Shia: Imam in Shia has a different meaning than that of Sunni. In Shia, it is believed that there are 12 Imams, respectively named: Ali ibn Abi Talib, Hassan ibn Ali, Hussain in Ali, Zein Al’abiddin, Mohammad Baqir, Jaffar Sadiq, Musa ibn Jaffar, Reza, Jawad, Hadi, Askari, Mahdi.
§ Hadith: “A collection of traditions containing sayings of the prophet Muhammad which, with accounts of his daily practice (the Sunna), constitute the major source of guidance for Muslims apart from the Koran.” - Oxford Dictionary of British English 3rd edition, 2010 by Oxford University Press, Inc.
~ Sunnah: (not to be confused with Sunni): Lexically means Tradition. However, in Islamic jurisprudence, it refers to “the traditional portion of Muslim law based on Muhammad's words or acts, accepted (together with the Koran) as authoritative by Muslims.” - Oxford Dictionary of British English 3rd edition, 2010 by Oxford University Press, Inc.
* Had: Lexical meaning of this word in Arabic is limitation, however, in Islamic jurisprudence, it refers to certain prosecutions defined by God in Quran, also know as divine confinement. These are considered as obligatory prosecutions which cannot be alter or modified in any way.
£ Aggregation: (mojmalaat = مجملات [in Arabic]): This refers to the short passages of Quran or where command has been issued but the details of its execution is not explained.
‡ Sharia: “Islamic canonical law based on the teachings of the Koran and the traditions of the Prophet (Hadith§ and Sunna), prescribing both religious and secular duties and sometimes retributive penalties for lawbreaking. It has generally been supplemented by legislation adapted to the conditions of the day, though the manner in which it should be applied in modern states is a subject of dispute between Muslim traditionalists and reformists.” - Oxford Dictionary of British English 3rd edition, 2010 by Oxford University Press, Inc.
$ Zakat: Also written Zakāt, Lexically means that which purifies" or "alms". - Benda-Beckmann, Franz von (2007). Social security between past and future: Ambonese networks of care and support. LIT Verlag, Münster. p. 167.
It “is an Islamic form of tax. is the giving of a fixed portion of one's wealth to charity, generally to the poor and needy.” - Salim, Arskal (2008). Challenging the secular state: the Islamisation of law in modern Indonesia. University of Hawaii Press. p. 115.
^ Occultation: or “Gheybat” (= غیبت [in Persian and Arabic]) is the term used in order to refer to the 12th Imam of Shia Muslims who shall remain absent until the day of resurrection, and shall return with Jesus Christ.
¶ Imam Ali: Was the first Imam of Shia Muslims and the forth caliph of the Sunnis. He is considered to have been the most knowledgable person to Quran and Sunnah~.
# Imam Hussein: The third Imam of Shia Muslims who was killed in Karbala on 10th of Muharam. Shia Muslims from all over the world mourn the anniversary of his death every year.
@ High Treason: or Mahdur A-dam (= مهدور الدم [in Arabic]) lexically means someone who is sentenced to capital punishment. However, in jurisprudential terms, it means someone who has betrayed the religion and is therefore subject to death and killing him has no divine Had or prosecutions. This verdict is considered to be false and fabricated by many religious scholars, including Ayatollah Masoumi and Dr Soroush.
This is a middle English term extracted from Anglo-Norman French “Treisoun”, which has been taken from Latin “traditio(n-)”, which means “Handing Over”, and is derived from the verb “Tradere”.
The term “High Treason” is the closes match in English. Formerly, there existed two derivatives of the word “Treason”. They were “Petty Treason” and “High Treason”. Petty Treason meant killing one’s master, and High Treason meant betraying one’s country. Petty Treason was abolished in early 1800, and high treason simply transformed to treason. - Oxford Dictionary of British English 3rd edition, 2010 by Oxford University Press, Inc.
Ignorant Arabs: This is a term referring to the Arab people before Islam.
Idol: In Arab cultures, idols were not considered as gods, but mediums between men and gods. They were therefore being called Mushriks. This lexically means someone who associates a partner for God.
