The harsh punishments imposed under Islamic Law (though less harsh than those prevailing in Europe until comparatively recently) are the expression of principles which cannot be changed to suit our convenience; what matters, however, is not that the punishment should be inflicted whenever appropriate but that the principle should remain intact. The prophet told his people to ‘avert penalties by doubts’, and any stratagem which averts the penalty without impugning the Law is legitimate. The tale is told of a lawyer in Harun’s time who rose to wealth and eminence after devising a subtle legal argument which saved the Caliph from having to charge his own son with adultery. The Westerner might say that this cunning lawyer earned himself a fortune by twisting the law to suit his master; the Muslim, on the other hand, approves his conduct in that he found a way for the Caliph to show mercy without offending against the majesty of the Law.
The severity of the punishment for adultery marks the gravity of this offence against a society based upon the integrity of the family and its delicate web of relationships. The existence of the penalty makes the necessary point, but its application is made almost impossible – except in cases of voluntary confession by the proviso that four unimpeachable witnesses must have observed the act in detail and must submit to being flogged for perjury if the case is still not proved. Flogging is specified as the penalty for a number of offences, but the Law does not specify what instrument is to be used, and in the early days of Islam it was often nothing more damaging than a light sandal or the hem of a garment; this was still technically a ‘flogging‘, the point was made and the Law was upheld. A thief may have his hand cut off, but not if he stole from genuine need or because his family was hungry, or if he stole the property of the state. (Unlike contemporary advocates of ‘nationalisation’, the Muslim jurists of ancient times maintained – with perfect logic – that property is indeed ‘public’ and therefore quite different to private property. Each citizen is part-owner of whatever belongs to the state, and a man cannot steal from himself).
From Islam and the Destiny of Man p .185, by English convert to Islam Gai Eaton. Read a moving tribute by one of his friends here Glamour and Humility: a Tribute to the British Muslim Gai Eaton