veiled4allah: fundamental rights of the individual in Islamic thought veiled4allah: fundamental rights of the individual in Islamic thoughtThe right to freedom of speech is guaranteed in the First Amendment to the Constitution. Yet there are certain types of speech that are against the law. These are when the speech is slanderous or libelous, making false and damaging statements about another person. In short, our freedom of speech is not absolute, but rather there is a certain line, set by the law, beyond which the speech is deemed so injurious to others that it should not be allowed. Legal systems are always seeking such a balance, and Islamic law is no different. In particular, Islamic law distinguishes between a sin and a crime. A sin is a disobedience of God, and is punishable by Him. A crime is something that is punished by the state. A study of the sources of Islamic law will quickly show that although many things are mentioned as sins, only certain types of sins are designated as also being crimes, which the state is given the authority to punish. And the acts that are designated as crimes are those which harm others. For instance theft, slander, assault, murder.I returned to the issue again a couple of months ago in my blog entry Islam and Individual Freedom. I summed up my view as:
[E]ach person has a right to his or her religion, life, intellect, progeny, and property and the law's purpose is to protect these rights from being violated by others. Acts that harm others or violate their rights should be punished by the law. Acts that harm only the self are God's exclusive preserve and people should leave it to Him.The Kamali article presents a third argument supporting this same position:
Haqq (right) can be subdivided further in terms of enforceability: religious moral (dini) and juridical (qada'i). The former, although validated by the Shari'ah, cannot be proven or enforced by a court... Most of the rights of God [...] are in this category. As no one is expected or authorized to demand their enforcement, they are basically unjustifiable, despite the fact that the judge is vested with discretionary powers (ta'zir) to discipline those who seriously neglect them. Rights without a particular party as the right-bearer, such as a religious endowment (waqf) for the poor and the indigent, also fall into this category. Juridical rights, on the other hand, are susceptible to proof at the behest of the right-bearer, and a Shari'ah court has the power to adjudicate them. Some examples of this right are the creditor's right to demand repayment from a debtor and a wife's right to maintenance by her husband (Abu Sinnah 1971; al Mawsu'ah al Fiqhiyah 1987).There is a common thread running through all of this. Rights that belong to a specific person or group are considered in Islamic thought as juridical rights or legal rights. A violation of a juridical right will cause harm to someone. You can look at it that the government is only authorized to intervene when doing so will prevent harm. Or you can look at it that legal action will only commence when there is an injured party who seeks to enforce their right. Either way, the result is the same: violation of a juridical right leads to legal action. I referred to this violation as a crime.
Contrary to the assertion of western commentators that the Shari'ah recognizes no separation between law and religion, there is evidently such recognition as regards matters of haqq. Legal rights and duties are identified and separated from their purely religious counterparts... The Shari'ah is in unison with religion in matters of belief, 'ibadat (worship practices), and in commitment to basic values, yet it clearly recognizes a functional separation between law and religion on an extensive scale.
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Most of the rights of God [...] are in this category. As no one is expected or authorized to demand their enforcement, they are basically unjustifiable, despite the fact that the judge is vested with discretionary powers (ta'zir) to discipline those who seriously neglect them.
My understanding of the four schools (mazhabs) is that they take the position that serious neglect of for example prayers can be punished under the law.
Disclaimer: I am recalling this from books read more than 6 years ago. So I might be wrong.
How exactly would one go about proving that a person was not praying regularly? The only way that the government could even possibly know about it is if a person was never seen at the mosque. Of course, since it is considered preferable for women to pray at home, women would have to be immune from prosecution on this point. And what if a man chose to pray at home? Except for jumu'a, that is permitted although discouraged. Or he might be at a private congregation (for instance, at his place of employment) rather than the mosque, which is perfectly OK if he can't get to the mosque. So we have to narrow it again and say that men who persistently failed to attend jumu'a might be prosecuted but not anyone else or for any other prayer.
Jumu'a in an Islamic state is not simply a congregational prayer. Ideally, the ruler or his deputy (such as a local leader) gives the khutba and afterwards discusses affairs of community interest (I believe that the Hanafi madhhab says that in the absence of a ruler, jumu'a is not required; apparently it is the political aspects that bring on the obligation not the prayer itself)
So what we have here is that in an Islamic state, jumu'a is a civic and political activity not just a prayer, and all other prayers are not required to be offered in the mosque and are therefore not susceptible to prosecution.
We also have to look at the example of the Prophet (sAas). Did he set up a system to monitor who was coming to jumu'a and who was not, and question those who were not to find out if they had a legimitate excuse? Did he punish those who did not have a legitimate excuse? The answers, to the best of my knowledge, are no, no, and no.
To me, that is what Kamali is getting at. Theoretically, such a rule might exist but there is no real way of enforcing it except in regard to jumu'a and there is no precedent for doing it for jumu'a. Also, like I said, jumu'a brings up other issues than just prayer because of the political functions associated with jumu'a in an Islamic state. My reasoning does not address those functions at all. There may well be good reasons for compelling attendance, just as we compel attendance when summoned for jury duty. I would need to look at that separately.
I would be interested to learn the views of the madhhabs on how their rule would be legally enforceable.
I'll have to dig up some details. I don't remember any examples from the Prophet Muhammad's time. However, I do remember reading something about punishment by the state for not praying (meaning almost not at all rather than just missing some and being lazy). There are definitely practical problems to this.
I guess I'll have to ask my sister to look it up in my Dad's library.
Ultimately I'm most interested in where the rubber meets the road: what are the rules that are actually legally enforceable?
I should also note that my formulation leaves it open that if the people agreed and so voted, the state could choose to enforce the prayers. But without a precedent from the Sunna, I don't think that such a rule should be established without the consent of the people who would have to live under it. They may feel that such a rule would benefit the society and the community, in which case they can vote to make it the law.