Law, Morality and Religion: A Critique of the Syariah Criminal Offences (Federal Territories) Act 1997
By Professor Dr Muhammad Hashim Kamali
(commissioned by SIS, 2005)
Law and morality are the two important instruments of social solidarity. The former regulates the outer action whereas the latter disciplines the human mind and soul. A principle of law that possesses both these effects is likely to improve and ensure social cohesion in an organised society. For the same reason, a theory of composite morality is necessary to enable one to assess whether or not an act is morally and ethically valid. Protection of general morality is also necessary because the permissive societies are always in the danger of disintegration unless a stand is taken to uphold the broad basis of cohesive values.
There are disagreements among jurists over the extent to which efforts should be made to protect the minimum morality, just as there are differences of opinion over the extent of extending legal protection to the tenets of religion. In a state of equilibrium and balanced emphasis on law, morality and religion, they become conducive to social cohesion, but confusion occurs when the real contours of morality and religion are blurred and undue emphasis on one or the other disturbs the equilibrium. To legalise what really belongs to the realm of morality or religion tends to undermine the desired balance of values. The temptation for some Sharī‘a jurists has been to extend the rule of Sharī‘a over essentially moral acts so as to show that Sharī‘a was comprehensive and offered a ruling concerning all issues of concern to society. This could also be said, mutatis mutandis, with regard to the precepts of religion that were protected under the legal umbrella of the Sharī‘a although the precept in question would be of concern mainly to the religious conscience of the individual.
The advocates of a positive/scientific theory of morality emphasised the importance of actual and pragmatic morality that is determined by empirical considerations. The ethical value of a thing was thus to be determined by juxtaposing it with the living conscience of the contemporary man surrounded by a particular set of social, economic and geographic conditions. This theory basically aims at constructing a scientifically viable and a rationalist conception of morality. But it needs to be said that mere logic and practical utility are not enough to construct a comprehensive moral theory. For a theory that fails to explain the discrepancy between the practical reality and the prevailing ideology or religion is bound to be incomplete because it is likely to fail in total substitution of that ideology or religious faith by science. The ethics of pragmatism that has overwhelmed the thinking of some lawmakers thus fall short of the deeper reality that ideology and religion historically played important roles in constructing the larger part of the common morality of their societies. Now to advocate pragmatism to the extent as to ignore the foundations of moral thought and behaviour is bound to be deficient. The concern must therefore be not to isolate ideology and religion from the structure of morality, nor to imitate positivist morality at the expense of spirituality and religion. The purpose should be to strike a balance between the various factors that influence a particular form of behaviour in individual cases. Positivist morality and the common beliefs of society clearly have a role to play in the ethical evaluation of conduct and needs to be included in any comprehensive moral judgment of reality. It would be less than advisable to apply medieval ethical perspectives on contemporary reality regardless of societal changes. It would be equally inadvisable to turn a blind eye to the lines of distinction that exist between law and morality just as it is inadvisable to extend the long arm of the law to matters of concern to the religious conscience of the individual.
This work is presented in three chapters. The first chapter consists mainly of a review and critique of the provisions of the Syariah Criminal Offences Act 1997 on aspects of law, morality, and religion and the tendency in this law to blur the lines of distinction between these three spheres. Some of the consequent imbalances that emerge from the overlapping treatment of law, morality and religion in the SCOA ‘97 are called to attention. Chapter two advances a discourse in Sharī‘a on the existence or otherwise of substantive lines of distinction between law, morality and religion.
Chapter three focuses on the issue of binding fatwa under the SCOA ‘97 and its equivalent enactments in the various other states of Malaysia. It seems that the provisions of SCOA ‘97 on this subject were followed in a rapid succession, and almost reproduced in the State enactments in other States of Malaysia. The discussion that follows highlights the problematics of binding fatwa in this law and a certain conflict that arises with the clauses of Federal Constitution on freedom of speech. The chapter continues to review the theory of fatwa in Islamic jurisprudence and the points of divergence between the Sharī‘a doctrines and the fatwa making procedures of SCOA 1997.
 Cf G Saqlain Masoodi and Lalita Dhar, “Euthanasia at Western and Islamic Legal Systems: Trends and Developments,” Islamic and Comparative Law Review XV & XVI (1995& 1996) p. 7.