Los Angeles Daily Journal
August 5, 1999
By Khaled Abou El Fadl
Laws endeavor to resolve conflicts and regulate human behavior. However, often the real force of law is in making moral points, educating and indoctrinating. Some legal systems moralize explicitly, while other legal systems indulge in the fiction of moral neutrality. But all legal systems say something about the morality of right and wrong.
For example, in Islamic law, one of the world’s oldest and perhaps most significant legal systems, sometimes morality is the only point – which is hardly surprising considering that Islamic law is also a religious system. But what is fascinating about Islamic law is the way it balances competing moralities at the expense of the possibility of enforcement.
For instance, Islamic law is reputed to be a rather strict, puritan legal system. This is both true and false. Consider the way Islamic law punishes illicit sexual relations. The punishment for fornication or adultery in Islam is rather harsh. A fornicator is flogged 100 lashes, and an adulterer is stoned to death. However, adultery or fornication can only be proven in two ways.
First, it can be proven by a free, uncoerced confession that is repeated three times on three separate occasions. If the alleged perpetrator confesses twice but recants on the third time, he or she cannot be punished.
The second way fornication or adultery can be proven is by the testimony of four adult males who witness the actual act of penetration. It is not sufficient for the witnesses to catch the couple naked in bed. Likewise, if the witnesses see an act of oral copulation, that is not sufficient. A videotape or pregnancy is also inadequate to prove fornication or adultery. Furthermore, the evidence is excluded if the witnesses violate the defendant’s privacy. In other words, spying will not do.
A false accusation of adultery or fornication will result in punishment for sexual slander, which is 60 hard lashes. For example, if three witnesses say they saw the act of penetration while the fourth witness changes his mind at the last minute saying, “I am not sure I saw the penetration,” then the first three witnesses are punished for slander.
Obviously, in Islamic law the crime of fornication or adultery is hard, if not impossible, to prove. So why have the punishment at all? There are two competing values here.
Illicit sexual relations must be condemned. At the same time, people should mind their own business, and spying or slandering cannot be tolerated. The solution was to make the moral point that fornication and adultery are terrible crimes, and only if they could be proven would they be punished severely. Nevertheless, the issue is generally between a person and God. Societal interests are implicated when these crimes are committed openly and publicly.
At the same time, an accusatory culture in which people spy and slander is reprehensible, and that will be punished as well. Unlike our legal system, making the moral point is a sufficient justification for the law, even with practically no chance of enforcement.