The early release of Ms Gibbons and 'pardoning' of her 'crime' by Sudanese president Omer el-Bashir has been welcomed by all. This was after the hard work of the two Muslim peers Lord Nazir Ahmed and Lady Warsi.
Lord Nazir issued a statement, saying that the misunderstanding is over. Gordon Brown said that she never should have been arrested. The Sudanese ambassador said the pardon meant that the initial error had not been 'forgotten', rather it was 'forgiven', whilst maintaining the original 'mistake' - and the conviction therefore - still 'stood'.
This, however does not really address a number of fundamental questions; amongst them: Muslims may well belie such an incident as being alien to Islam, but how does it take place in the name of Islam? What if she was guilty? Do Muslims advocate flogging and imprisonment in that case? It seems in some circles, they go even further. "Moderate" Islamist movement leaders such as el-Sheikh el-Nur of the Muslim Brotherhood went further and said, "If she intended the prophet by naming the teddy bear, she should be killed".
In the same vain are punishments such as amputation of limbs, stoning of adulterers, and lashing/imprisoning/killing those that dare name a bear Muhammad. Are these really aspects of Islam, and the "shariah" that are essential aspect of divine wisdom, as understood by Muslims?
Muslims and Muslim scholars have attempted to address this and many other issues that pertain to Muslims, Islam and modernity and civil society, but the question still arises amongst Muslims and mainly propounded by Islamists. Muslim scholars have traditionally viewed the Shariah as seeking to preserve certain fundamental goals (maqasid) as vital necessities, upon which the whole of the shariah is built and in fact the rest of the rules are just means (wasail) to realize them.
These would be the preservation of religion, intellect, family/lineage, life and property. Muslim theologians also believe that these are universal values. Muslim scholars have explained that these aims are fundamental interests (masalih) that societies seek. And the rest of the rules were means to do so.
So Muhammad (saw) organised his community, alongside the Jewish tribes, and polytheists by negotiating an agreement in Mithaq ul-Madinah 'The document of Madinah'. This was in his time, and situation, how best to realize these aims. He described the Muslims, Jews and Polytheists who were signatories to this document as 'one Ummah, separate from the rest of mankind' and a plurality of legal traditions, Jewish and Polytheistic local tradition e.g. blood money (see Ibn Hisham).
The Prophet made other agreements; He agreed with the tribe of Thaqeef that they would have their own leader for prayer from amongst themselves, they would not join the congregation of Madinah, they would not pay the Zakat (alms) nor would they take part in the Jihad (armed conflict) alongside the Muslims (Sunan Abu Dawud).
Muslims maintained this political tradition. They asked Abu Bakr to appoint the next leader to prevent the discord that occurred after the appointment of Abu Bakr. Umar separated the power of judging from the governors to ensure justice. The Muslims appointed Uthman, after Umar had restricted the nominees, on condition that he follows the rules and laws of Abu Bakr and Umar (See Bukhari). The court of mathalim was established by the Abbasids (Mawardi the Qadi and writer notes this was an imitation of the Persian system present at the time) to bring about justice and account the governors.
Mawardi, the Judge and scholar from the Abbasid era describes in his work both the functioning of polity in his time, and dictates some rules pertaining to them. He gives an incident where Qadi Abu Yusuf was adjudicating in a case with competing interests. The Qadi informed the Caliph, Harun al-Rashid who advised discretion and not imposing the old traditions in a manner that would create political discord as it was completely out of sink with the views of Society. Imam Mawardi states that Abu Yusuf did so, and is perfectly permissible as it was seeking the maslaha (see Ahkam al-Sultaniyah). In the same context Imam Ahmed al-Hadawi al-Murtada explains that the 'Hudood' ("prescribed punishments") should be dropped when there is an interest (Maslaha) in doing so (See 'al-Azhar').
In today's day and age, we can have various means to ascertain lineage and parental responsibility, maintenance measures; DNA testing involved in detecting crimes and various means of rehabilitation; a developed and developing understanding (there is still huge disparity in the West between salaries across gender) of the social value of women in the work place and their understanding of socio-economic-political matters - we can seek to redress any imbalances and outdated or outmoded expressions of the means by which the these important goals (Maqasid) are realized. All of this away from the influences of the medieval mindset. We can relieve ourselves of ancient and outmoded punishments, such as 'flogging' and 'stoning' as not being consistent with the actualizing of the Maqasid (Something that the Ottomans had abandoned for the last 300 hundred years in its imperial life).
Professor Imran Khan Nyazee in his work 'Theories of Islamic Law', explains that today we should re-evaluate the disparity between female testimony, their apparent economic value as being equal to that of men, and more importantly, the most appropriate political system as a democratic political system which would facilitate the best means of Muslims realizing the above aims in a just political order.
It should also be clear that the Prophet and the early Muslims were able to establish a 'social contract' that facilitated harmony in their own societies, allowing the political means to develop pragmatically, as necessitated. Where are we in this respect? How close are we to developing our own 'home-grown' organic conception of civil society and develop a discourse where we can replicate the same notion of 'Ummah', that the Prophet (saw) managed to create in multi-faith Madinah, whilst maintaining social cohesion? This for me is the question of our age.
Rashad Ali is a former lecturer at Jami Taybah University, Madinah and King Adul Aziz University, Jeddah, Saudi Arabia. He is a former member of Hizb ut-Tahrir, Britain and previously a member of its Wilayah (leadership) committee.