Hudud (Penalties) in Contemporary Legal Discourse

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On Sunday, January 2, 2011, Sheikh Yusuf Al-Qaradawi, president of the International Union for Muslim Scholars (IUMS), was interviewed by Al Jazeera channel program Ash-Shari`ah wa Al-Hayah (Shari`ah and Life). The interview’s main theme was “Hudud in Contemporary Fiqh.”

From time to time, the question of hudud (fixed penalties in the Islamic Shari`ah) and their application in the modern world raises debates in Muslim and non-Muslim societies. While mainstream Muslims regard the right application of hudud as an integral part of Shari`ah, others see it as a controversial issue that should be open to ijtihad (personal reasoning) on the part of contemporary scholars.

Sheikh Qaradawi, who is known for his vast and deep knowledge of Shari`ah and its essential objectives, wonderfully and distinctively dealt with this thorny topic in his recent interview on Al Jazeera. In the following lines, the main points discussed during the interview are reviewed.

Qaradawi

Historical Background

For more than 14 centuries Muslims have resorted to Shari`ah as a means to govern their lives until the Western occupation forces invaded Muslim lands. At that time, the occupiers changed the laws by force, so it was natural that peoples and reformers in Muslim countries fought to restore the rule of Shari`ah, as these countries were mainly Muslim-majority ones.

Sheikh Qaradawi calls for applying Shari`ah while bearing into consideration the changes in time, place, and people themselves, as there are old jurisprudential rulings that are not valid in this modern world. Shari`ah is valid for all times and places; however, the application of Shari`ah needs ijtihad on the part of qualified scholars who consider the changes in today’s world while having deep knowledge of the tenets of Shari`ah.

Shari`ah and Hudud

Shari`ah cannot be divided; it should be dealt with as a whole. In the Qur’an, out of 6,236 verses, only 10 address the topic of hudud directly. These verses were revealed late during the mission of Prophet Muhammad (peace and blessings be upon him). The hudud laws mentioned in the Qur’an are 4 -or 5 if the one of qisaas (retaliation) is added-. These 5 hudud address qisaas, adultery, qadhf (false accusation), hirabah (highway robbery), and theft.

In order to realize the actual volume of hudud compared to the rest of Islam, many scholars divide Islam into creed, acts of worship, morals, manners, and laws. The laws are divided into civil, economic, family, commercial, criminal, constitutional, international relations laws, and so on.

So why do people focus only on one part of the criminal law and ignore the rest of Shai`ah and Islam? This is because some people — even among Muslims — see this part as a group of distinguishing laws of Islam, because these laws are essentially different from those foreign or man-made laws. Moreover, this is because hudud are the apparent part of Shari`ah to people, though hudud alone are not enough for a thorough application of Shari`ah itself.

However, if the laws related to banning usury or collecting zakah (prescribed alms) are applied, many people will think that the ruler is not applying Shari`ah so long as hudud are not applied.

Apart from this, the phrase hududu Allah mentioned in some verses of the Qur’an is even related to issues like divorce and marriage. Here, the term hudud refers to the features and limits that distinguish what is permissible from what is forbidden concerning jurisprudential rulings.

Hudud in the Qur’an and Sunnah

There are clear-cut hudud established by the Qur’an as mentioned above, with regard to qisaas,qadhf, hirabah, and theft. There are also the zanni (speculative) hudud, which were established by the Sunnah, such as the penalty for drinking wine. Some scholars said it is 40 lashes; others said it should be 80 lashes, while some others, like Al-Bukhari and At-Tabari, said there is no penalty for drinking wine but only ta`zeer (or other less punishment). adultery,

Sheikh Qaradawi notes that he goes for the last opinion, so the punishment could be whipping, imprisoning, or imposing fines.

One of the speculative hudud is also the one for apostasy, which was established by the Sunnah. There are many hadiths, as well as some references in the Qur’an, on killing apostates. However, `Umar ibn Al-Khattab asked an apostate to repent. Also, Imam An-Nakh`iy and Imam Ath-Thawry are of the opinion that apostates should continuously be asked to repent. Moreover, the stoning penalty for a married adulterer was referred to in the Sunnah, not in the Qur’an.

Applying Hudud Is Not a Problem

Although the late Syrian prime minister and great man of law Faris Al-Khoury was a Christian, he was one of the figures most enthusiastic about applying Shari`ah. The problem is not with the application of hudud, but it has to do with the misapplication of them; that is, applying them without meeting their conditions. The Prophet (peace and blessings be upon him) prepared the society before applying hudud. He applied the whole of Islam: He performed the Prayers, collected zakah from the rich, and distributed it among the poor, stressing the importance of social solidarity. He also provided jobs for the unemployed. Generally speaking, he made an Islamic life. In that case, the theft penalty could be applied.

But how can hudud be applied when people are unemployed, hungry, sick, orphaned, and homeless? Islam should be established in such aspects first, and then if someone steals, such an act of theft is because of the evil inside him or her.

`Umar ibn Al-Khattab did so by suspending the theft penalty during the Starvation Year, as people were stealing because of need and hunger. When a rich man came to `Umar complaining that his slaves were stealing, after pondering and investigating the matter and knowing that this master had not met the needs of his slaves, `Umar told him, “Go meet their needs first or I’ll cut your hands off.” So, social justice should be applied, and people’s needs should be met, and conditions should be considered in order to apply hudud. Otherwise, hudud may be used as a pretext to oppress people by their rulers.

Moreover, sometimes some individuals steal millions and billions and hudud are not applied to them as they are politically empowered and rich. In the same time, hudud are applied to the weak and the poor. Here, imbalance takes place.

Hudud Are Not the Ultimate Goal

Another point is that when someone commits a crime related to hudud, the authorities should not start with applying the penalty, but any other way out should be sought. A rule, which Muslims agree upon, says, “Let doubt suspend hudud.” Many jurists widen the range of doubt based on the following hadith related by Al-Hakim and As-Suyuti:

“Refrain from enforcing hudud on Muslims as much as you can. If you find a way out for a Muslim, let him (or her) go, as it is better for the imam (ruler) to wrongly forgive than to wrongly punish.”

Islam is not keen on punishing people. Punishments are for abnormal people, who constitute a small portion of society. However, if these people are not punished, corruption will prevail. There is a hadith that says,

“A penalty applied on earth is better for people than rain falling upon them for 30 or 40 mornings.” (Ahmad)

This is because there is no benefit in receiving rains and growing crops while thieves are allowed to steal what hardworking people should harvest.

Conditions and Restrictions of Applying Hudud

Allah has prescribed hudud to deter and purge the wrongdoers. Hudud deter those who commit crimes and prevent them from committing them again; they further discourage other people from committing crimes.

Some people say that the hudud are harsh. In fact, harshness is sometimes required for reform. Another point is,what is the alternative for hudud? The alternative in man-made laws is imprisonment, which does not deter criminals; Some criminals sometimes repeat their evil acts even more shockingly after gaining more experience from their fellow criminals in jails.

Islam’s philosophy of applying hudud with regard to adultery, for example, does not have to do with the act of adultery itself – which is a forbidden act of course due to many reasons -. That philosophy rather has to do with the doer’s committing his or her act publicly, as it is known that the adultery penalty is applied only when four just people (with acceptable testimony) witness the evil act of illegal sexual intercourse, or when the adulterer confesses four times before a judge that he or she has committed that act. In that case, the defendant should be informed of the penalty before he or she confesses.

Moreover, the four witnesses must be just, and the judge must make sure that they are not lying to him. If any of these conditions are not met, the penalty cannot be applied. In that case, the adulterer may have the chance to repent without receiving the penalty.

Another condition for applying hudud is the removal of all dubieties. For example, if someone steals an amount of money from Bayt Al-Mal (the Treasury), he or she should not receive the prescribed penalty (namely, cutting off the his/her hand). This is because some scholars say that the doer of this act already has a share of that public money as he or she is one of the Muslims. However, if the penalty of theft is not applied, another lesser punishment should be inflicted on the doer.

However, when all dubieties are removed, there still remain conditions for hudud to be applied:

1-     A defendant’s committing a crime by free will while knowing that this act or crime is illegal

2-     A defendant’s publicly committing a crime or confessing to committing it.

Ijtihad and Application of Hudud

There are differences among scholars with regard to the application of some hudud. For example, there are differences relating to the meaning of cutting off  a thief’s hand, the accurate place of cutting, and the amount or number of stolen stuff that deserves the penalty. This is natural because jurisprudential details differ, but the basic rulings are agreed upon.

So, if someone steals something that exceeds a certain amount, the penalty is applied. Based on that, if someone steals something less than such a certain value or something to eat, the penalty is not applied. The amount of stolen money should be significant enough for the penalty to be deserved, and this can be subject to ijtihad in our modern time. But generally speaking scholars agree that a thief’s hand should be cut off exactly at the wrist.

It is natural that these jurisprudential differences open the door for contemporary ijtihad, which must be open in order to apply Shari`ah. There are many examples of issues that need contemporary ijtihad. For example, there is a hadith that says, “A Muslim should not be killed in qisaas (equality in punishment) for killing a disbeliever” (Al-Bukhari). So, should a Muslim be killed if he or she kills a Dhimmi (a non-Muslim living under the protection of the Islamic State)? Abu Hanifah and his companions say, “Yes,” as disbeliever in the hadith refers to the disbelievers fighting Muslims, not Dhimmis. This ruling was applied during the Abbasid and Ottoman caliphates as these caliphates adhered to the Hanafi School of Thought.

Another example is the diyyah (blood money) — should it be the same amount of money for both Muslims and Dhimmis killed? Should it be the same amount for men and women killed? I am for paying an equal amount, because Almighty Allah says in the Qur’an (Pay blood money to the family of the slain.) (An-Nisaa’ 4:92)  Thus, Almighty Allah does not differentiate between a man and a woman. Moreover, in qisaas, a man is killed when he kills a woman. So, we should open the door for ijtihad in such issues.

Islamic vs. Secular Penal Laws

The majority of secular laws are in accordance with Shari`ah laws, except for penal laws (those relating to hudud and qisaas). However, the essence of the relation between the Islamic system and the secular ones is one of separation. This is because secular systems represent philosophies that are different from Islam’s.

For example, the secular system does not punish adulterers as it views their act as a right to please themselves. It also does not punish homosexuals as it views their act as a personal right. While it does not forbid usury, Islam sees usury as a matter that deserves waging war against those practicing it. So the Islamic and secular philosophies are different in such a way that they do not complement one another.

There might some sort of integration between these two kinds of systems concerning some civil laws, but this does not mean that the application of secular laws equals the application of Shari`ah, as any system must be adopted along with its philosophy.

Possibility of Applying Hudud Today

It is supposed that when the elements of a crime are complete, hudud should be applied. However, if these elements are not present, then ta`zeer should be applied. Ta`zeer is to be applied by the authority of the imam or judge. Applying hudud is the right of the state. Consequently, no group in any place has the right to apply hudud to a group of people away from the authority of the state.

Hudud may be suspended until there is an Islamic life comprehensively established, with all conditions guaranteed. If these conditions are met in a certain case, hudud must be applied.

There are countries that apply hudud nowadays like Saudi Arabia, Iran, and Sudan. But the question is, do they apply hudud properly? This needs to be discussed in detail.

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