Faith & Reason: Do not mock the Sharia as barbaric

Are Western objections to the punishment of two British nurses under Islamic law merely cultural? asks Shabbir Akhtar. Or do they have a more profound basis?

Most Westerners, no longer faithful to their dogmatic traditions, would casually dismiss as brutal and antiquated the biblical law of "punishment in kind" which demanded an eye for an eye. But no Muslim does that even if he or she regrets what the Koran has enjoined and which is enshrined by Islam in the canon of law known as the Sharia.

The Sharia is a vast and supple essay in legal reasoning. It covers not only law but also areas that in Western thought are classified under private ethics, custom and even etiquette - much as the normative injunctions derived from the Torah are embodied in the Jewish religious law. The Sharia often sees as private what is seen as public in secular European law, which is why in cases of murder, the parties may settle matters by pardon or payment of compensation.

Though the procedures of Islamic law differ from English law, the moral intention motivating both is the implementation of justice. Yet serious differences arise both in process and in the penalties for "extreme" (hudood) punishments for adultery, murder and social disorder.

Most Islamic nations implement only those parts of the Sharia which deal with family matters. Saudi Arabia is one of the few claiming to implement the entire Sharia, taking the Koran as the kingdom's constitution.

Westerners rightly question the fairness of judicial procedure in a country such as Saudi Arabia (though it must be said that an unfair procedure does not automatically lead to an unfair verdict). Islamic courts usually sit in camera: the public and press are excluded and there is limited access to information. The judges interpret the law and base their verdict on the Koran, the authentic parts of the Prophet's example, and use a measure of independent personal reasoning.

Use of analogy and support of the consensus of learned colleagues are allowed. Offences incurring extreme punishments require rigorous evidence for conviction: direct, ocular and from multiple independent sources, although with offences such as adultery voluntary confession is considered conclusive evidence.

Torture is , under Islamic law, considered an unacceptable means of obtaining confession or evidence. In practice, however, some information is said to be extracted in some Islamic countries by torture and the threat of sexual abuse by police interrogators - although with a state-controlled press it is hard to obtain objective evidence of this. But where confessions are voluntary it is no argument, in any system of law, to say that these are necessarily weak evidence. Most evidence in all legal settings is circumstantial: it establishes conclusions by inference from known facts.

The British legal system presupposes that two opposed parties should freely present evidence in court while a third impartial party decides; under the pressure of cross-examination, the truth is sifted from error. By contrast, in Islamic law, the judges both conduct the investigation and determine the verdict. This invariably raises questions in the West, as does the insistence in Muslim courts that a woman's testimony is worth only half of a man's. It is difficult to see how this can be reconciled with Western norms.

There is a similar cultural gap over the question of leniency. Many Muslims accept that the Islamic system allows little room for human error; miscarriages of justice do occur. But they also regard as a miscarriage many Western acquittals where the guilty walk free because there is insufficient evidence to convict. Such a sentiment is at odds with the Sharia insistence that "it is better to be mistaken in forgiveness than in punishment". It draws its force from the assumption that a system based on supernatural sanctions can right wrongs beyond the grave. It is the same disposition which undergirds the right the Sharia gives to the eldest male relative the right to exact revenge. Such threats and promises are alien to secular law.

Yet the major obstacle to a meeting of minds is none of these. In Saudi Arabia many are beheaded annually, but so far none have been white Westerners. Western moral outrage over the British nurses might be more convincing had Westerners protested about a violation of human rights in those other executions. The life of a white nurse is not more sacred than that of a Pakistani drug smuggler. And would Robin Cook be equally outraged by the judicial execution of a Briton in America? But more than that, is it reasonable to expect any culture to pass muster not only by its own professed standards but also by those of its detractors?

`Faith & Reason' is edited by Paul Vallely