In line with this perception of nature, the following examples show that curvature between the limits of straightness is also realized within the realm of human behavior and social, that is, legally regulated, interaction:
- The clearest sign of the existence of limits within a society are the actual borders of a country. These borders define the extent to which national laws apply and within which social, cultural, and economic relations are regulated. Between these borders a multitude of possible variations are permissible; in terms of how and where people settle down, the regional areas they live in, go to work, change their place of residence, spend their spare time, educate their children, and such. If someone wants to escape these societal patterns of life and work, in order to avoid breaking the law, he or she will have to cross the border and live under a different jurisdiction, by other norms, and within new borders.
- The lawgiver in a society stipulates the maximum number of hours a human being is required to work without being able to claim overtime payment from his or her employer. Similarly, in every workplace there exists a notion of the minimum number of hours that an employee must work before the manager steps in and issues an official warning or even initiates a cut in wages because of negligence or absenteeism.
- We are faced with hundreds of traffic signs on the roads that prescribe the maximum or minimum speed limit allowed or requested in order to secure a smooth flow of traffic. If someone exceeds the maximum speed limit or ignores the minimum speed limit, the traffic police will act and, together with city officials, prosecute the person for having broken the law.
- If a toddler burns his fingers on a hot stove he has, despite the fact that he was told by his parents not to go near the stove, crossed a limit and is punished for it (burnt fingers). He has also had a moving, new experience (pain). This is because of our innate curiosity that sometimes causes a deviation from the rules and ignites some (curved) movements by sheer impulse.
These examples illustrate that human behavior needs to be restrained by legal order. This is the reason why Allah sent messengers to humankind who brought legislation in order to put lawless societies back on (the straight) track. Before it was Muhammad’s turn to bring a new message, Allah decided to send messengers who, each in his own society, enforced concrete punishments that were expressly stipulated for each individual crime.
It was a type of direct, explicit legislation that ended with Muhammad’s messengerhood which marked the beginning of a new legal concept: Lex liminalis, law by which humans legislate between the legal limits that the Book provides Muhammad’s message not only launched a new type of human legislation but, by allowing change and nonlinearity, it also best reflected the nature of humans’ hanific predisposition. As such it essentially reflects the religion of Islam that fully corresponds to the innate propensity of all people on this earth, even if they are not (yet) aware of it.
legislation all over the world that is based on the existence of limits even if legislators are not aware that they notionally fulfil the guidelines set out in the Book. We sincerely believe that, sooner or later, most people will realize their natural inclination to this type of legislation, following the model of Abraham who was leaning towards his hanific ‘rectitude of conduct’ even before he received divine revelations: Long ago We bestowed right judgement on Abraham and We knew him well. (Anbiya”:51)
Abraham’s insights into the cosmological truth of hanific law were passed on directly to Muhammad, since the Book tells us that Lex liminalis was not part of the Christian and Jewish legal systems:
Abraham was not a Jew nor yet a Christian; but he was true in faith, and bowed his will to God’s (which is Islam), and he joined not gods with God. (al ’Imran:67) We hear, for example, that when the Jews were told to sacrifice a A heifer that’s young cow, they asked what specific kind of heifer they were supposed to slaughter. And we hear how God provided every detailed answer to every question (i.e., not a single detail of the law was left open to be filled by human legislation). In questions of penal law, we are told that the punitive logic of their Lex talionis required them to immediately punish a crime by maximum force and a like-for-like mentality that induced indiscriminate punishment: We ordained therein for them: “Life for life, eye for eye, nose or nose, ear for ear, tooth for tooth, and wounds equal for equal.” (Ma”ida:45)
In contrast, Islamic legislation tries to avoid punishments being indiscriminately enforced and instead considers mitigation as absolutely vital. In the case of theft, for example, the amputation of the thief ’s hand must be only regarded as the last resort if other forms of punishment have proved ineffective or if the type of theft was very serious.
If, for instance, only a slice of bread has been stolen and if this was not done out of sheer menace but because of desperate hunger, to cut off a person’s hand—as if he had stolen somebody’s possessions out of greed and pure self-indulgence—is a violation of the flexible and moderate character of Islamic law. Yes, we accept that Muhammad had indeed once ordered the amputation of the hands of thieves in Medina, but we don’t know the exact details to the case, but we should not forget that the second caliph Umar bin al-Khattab ruled against the Prophet’s example and pardoned a number of thieves.
In doing this, the caliph certainly did not abolish the hadd penalty for theft once and for all. What he did was to exercise his right to judge each case individually. If a theft did not occur to him sufficiently grave or sufficiently proved, he did not apply the maximum penalty. Because of this inbuilt flexibility of Islamic law, Umar, opting for a different form of penalty, did not violate the divine ruling on theft. What he did was to simply move with his (human) legislation between the upper limit of punishment for theft (amputation of the right hand) and its lower limit (full pardon).
And we should add that what Umar did as caliph in seventh century Arabia has today become common practice in legal systems around the whole world. This makes our argument even stronger that the aspect of limits is a natural element in all human legislation. And while Umar acted on impulse in judging cases of theft differently, we today can benefit from the findings of mathematical statistics and the scientific theories of limits that provide much more sophisticated means for pursuing a further diversification of Islamic legislation. We no longer need the help of the scholars who would only continue their search for the umpteenth justification for amputation. Instead, we will use modern theories that can lead us to new horizons in the formulation of Islamic law.