Saturday, January 12, 2013

Trial by ordeal or the Shariah Law?

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Trial by ordeal or the Shariah Law?
Epigraph: "And as for the man who steals and the woman who steals, cut off their hands in retribution of their offence as an exemplary punishment from Allah. And Allah is Mighty, Wise." (Al Quran 5:39)
What is the significance of these large pillars?  Read in the Epilogue
Written and collected by Zia H Shah MD
It is amazing that Europeans over the last few centuries have been vehemently critical of the punishment of cutting of a hand for theft, which could be reduced to cutting of a finger or interpreted in a metaphorical sense and have conveniently forgotten their trials by ordeal. Let me quote from an article, Justice, medieval style:
For the better part of a millennium, Europe's legal systems decided difficult criminal cases in a most peculiar way. When judges were uncertain about an accused criminal's guilt, they ordered a cauldron of water to be boiled, a ring to be thrown in, and the defendant to plunge in his naked hand and pluck the object out. The defendant's hand was wrapped in bandages and revisited three days later. If it survived the bubbling cauldron unharmed, the defendant was declared innocent. If it didn't, he was convicted.
These trials were called "ordeals." They reached their height between the 9th and 13th centuries, and the methods varied. In one variant, a piece of iron was heated until it was red hot. The defendant picked it up and carried it with her bare hand. In another, the defendant was stripped naked, his hands and feet bound, and he was pushed into a pool of holy water. If the defendant sank, he was acquitted. If he floated, he was condemned.
The Encyclopedia Britannica has the following to say about Trial by ordeal:

The ordeal by physical test, particularly by fire or water, is the most common. In Hindu codes a wife may be required to pass through fire to prove her fidelity to a jealous husband; traces of burning would be regarded as proof of guilt. The practice of dunking suspected witches was based on the notion that water, as the medium of baptism, would "accept," or receive, the innocent and "reject," or buoy, the guilty.
Since Constantine I (272 CE - 337 CE) converted to Christianity in the early 4th century, Christianity had become the official religion of the Roman Empire, so, whatever was common practice during the Dark Ages in Europe, was with explicit or implicit consent of the bureaucracy of the Catholic Church until the Protestant Reformation in the 16th century. 
It was not until the 12th and early 13th century that Pope Innocent III (1161 – 1216), after the first three Crusades and constant interaction with Islam for decades, woke up to the horrors of these practices of trial by ordeal. 
Here is a short clip from a documentary the Dark Ages, which talks about trial by ordeal towards the end of the clip in reference to the time frame of Clovis I (466 CE - 511 CE), click on the picture below to see the video in the Muslim Times:

First a few words about Clovis I (466 CE – 511 CE):

Shortly before his death, Clovis called a synod of Gallic bishops to meet in Orléans to reform the Church and create a strong link between the Crown and the Catholic episcopate. This was the First Council of Orléans. Thirty-three bishops assisted and passed 31 decrees on the duties and obligations of individuals, the right of sanctuary and ecclesiastical discipline. These decrees, show that the politics of Clovis  were always married to the Catholic Church. 
 Clovis I is traditionally said to have died on 27 November 511; however, the Liber Pontificalis suggests that he was still alive in 513.  After his death, Clovis was laid to rest in the Abbey of St Genevieve in Paris. His remains were relocated to Saint Denis Basilica in the mid- to late-18th century.  In other words he has always been celebrated by the Catholic Church.
Upon his death his realm was divided among his four sons: Theuderic, Chlodomer, Childebert, and Clotaire.
In this historic context, if we begin to look at the teaching of cutting of a hand of a thief, with its varied interpretations, rather than finding it barbaric, we find it, to be the one that created law and order in human societies, over the centuries.  Especially, when we take into consideration the fact that most medieval societies did not have resources to provide humane conditions in prison systems.
Many of us in the West have seen the deterrent effect of financial penalties and high interest rates, for failing to pay federal taxes in time.  On several occasions, I have paid, almost 10% of the money due, as fines, to the Government, for delay of as little as a day, in paying withheld taxes of my employees.  It has certainly created respect and awe of Law in my mind and has shaped my practice of making it a priority to pay in time. 
In a broad context, these penalties can be considered to be part of the metaphorical domain of, 'cut off their hands,' to deter late or missing payments.
Cutting hands of thieves, even if taken literally, in the present day circumstances, can certainly be interpreted in milder tones and mean cutting of a little finger in a modern operating room or a short jail term, as is mentioned in the Holy Quran that Allah is the Gracious and the Merciful and He is the Most Forgiving, scores if not hundreds of times.  There is a Hadith in the Book of Bukhari, "Allah's mercy surpasses or far outweighs His anger."
In a recent informal discussion at a dinner table, with my friends, I asked half jokingly, God forbid, if one of them was convicted of theft and given a choice of a finger cut off or ten years in a federal prison in USA, which one would  they prefer.  To my surprise I did not find any takers for 10 years of prison, which they would otherwise tout as very civilized, modern and humane punishment!
Why are the government buildings built in majestic architecture, rather than with an intent of saving the tax payers' money? The construction of most supreme courts around the world, with large pillars and other giant structures, is meant to create awe in the hearts and minds of common man, to create a deterrent effect against crime.  So deterrence is no stranger to our modern minds.
Once we look at any Islamic teaching, without hype and prejudice and compare apples with apples, we find Islamic teachings, if interpreted properly, to be very profound and find in them great utilitarian value.

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'One learned man is harder on the devil than a thousand ignorant worshipers': Prophet Muhammad (pbuh)

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