The Islamic hudud: is it meant for application?
One of the matters leveled against Islam is the claim that hudud [legal penalties] distort the image of Islam but the fact is that hudud in Islam are limited and restricted. For instance, there is penalty for robbery which is cutting off the hand, penalty for fornication which is lashing or stoning to death and the penalty for killing which is retaliation. And the penalty for alcohol which is either 40 or 80 lashes according to the difference of opinions among the companions and so forth.
The issue of hudud is not introduced exclusively in Islam as they are also found in the Torah because the Jews administer the legal penalty of stoning the fornicator. They also administer lashing and observe such penalties. When Jesus came (peace and blessings be upon him and upon our Prophet) and the Jews wanted to stone the fornicator, he said: “He who is without sin among you, let him be the first to throw a stone at her” and thus he reminded them of the conditions they have ignored which is the person who administers the legal punishment must be free from committing these sins and guilt. Consequently, they failed to find the person who is free from committing this sin to administer the legal penalty on the sinner. If we contemplated this situation, we will find that Jesus [peace and blessings be upon him and upon our Prophet] has implicitly approved the legal penalties. He did not say that the legal penalty was cruel or improper; however, he said implement the legal penalty after observing its conditions.
Although hudud are punishment, they have very strict conditions. Therefore, the wise who contemplates these hudud would figure out the wisdom behind. First: they warn against committing these sins and maintain that preserving people’s souls, intellects, religion and properties are highly considered matter and one of the objectives of Islamic law. Legal penalties deter people from committing such sins that are regarded as enormities. Robbery for example is a serious matter because there is a legal penalty for this sin which is cutting off the hands The second wisdom, it warns people against committing these sins: Allah says in the Quran, “By that Allah threatens His servants. O My servants, then fear Me.” [39: 16] It prevents the sin before being committed which means that it prevents corruption in the community. The third wisdom, which is the least among them: “And We made it a deterrent punishment for those who were present” [2: 66] This means that if the punishment is implemented only once, it would be deterrent for all people who will fear this punishment afterwards. When we discuss hudud, we will find that Allah the Almighty has set a number of unusual conditions. The first condition, the believer is commanded when committing an enormity to conceal the matter and commanded other Muslims to cover his/her sin.
However, if he openly publicizes his sin, God forbid, and he was seen by everyone and no one was able to conceal his sin or he was motivated by his conscience to confess his sin, it is permissible for him to retract and the judge accepts his retraction. Based on this, Islamic law is not keen on administering the legal penalty and does not regard administering the legal penalty as the core of Islamic law.
As some people claim that we are not implementing Islamic law since we do not cut off the hands of the thief. Islamic law is not meant to cut off the hands of the thief but to prevent robbery in the first place. Islamic law aims to achieve justice between people, so that no person is required to steal and in this case, only the immoral will be stealing. Islamic law has come to preserve the authority but not to cut off hands. Such a matter distorts the image of Islam because these are not the conditions imposed by Islamic law. Therefore, we have to contemplate what is narrated from the Prophet [peace and blessings be upon him] and his honorable companions in order to be able to realize the true image of Islam and know what we are calling for. And the Prophet [peace and blessings be upon him] said: “Ward off legal hudud with suspicions” which means that suspicions fend off legal penalties to the extent that the scholars have maintained that hudud are not to be implemented over jurists, because they will create any suspicion which will prevent the judge from administering the legal punishment over the jurist. Our master ‘Uthman reported through Abu Bakr and ‘Umar the narration included by Ibn Shaiba in his Musnaf that when a thief was brought to them to cut off his hands, he would ask him and at that time, he was the judge and the ruler: “Have you stolen? Say no” in order to avoid administering the penalty.
Some people may wonder, was he telling him to lie? The thief in this case when he says no following the order from the judge, he was not lying. And the judge said so because he knew the position of Islamic law from these penalties that are based on deterrence and warning from falling into sin. Furthermore, these penalties were not meant to be administered as they are considered an opportunity for him to repent. Ma’iz al-Aslamy approached the Messenger of Allah [peace and blessings be upon him] and said: “O Messenger of Allah, I have committed adultery”. But the Prophet turned away from him pretending he has not heard him. Then, Ma’iz came from the other side and repeated his words: “O Messenger of Allah, I have committed adultery”. And the Prophet [peace and blessings be upon him] kept turning away from him and when the Prophet saw his persistence, he told him: “You may have kissed or embraced or so and so but without committing adultery” Afterwards, the Prophet moved away, but Ma’iz once again came to him and said: “O Messenger of Allah, I have committed adultery”. The Prophet [peace and blessings be upon him] asked him: “Are you insane? and asked others about his mental stability. Consequently, a group of people came from his tribe and the Prophet asked them: Is he insane? They answered, “he has the soundest mind among us” and there was no escape from administering the penalty upon him. Then, they took him to administer the penalty upon him as prescribed in Islamic law and when they were about to stone him, he said: “I did not do it”. He then went out of the hole and wanted to flee but they seized him and killed him. Our master ‘Umar went to the Prophet and said: “O Messenger of Allah, have you seen what this miserable has done? The Prophet asked “who are you talking about”? ‘Umar answered: “Ma’iz”, the Prophet said: “If his repentance is distributed among all the people of Madina, it would have been enough for them all”. Then, ‘Umar said: “he was saying that he has not committed adultery”. Then the Prophet said: “And what have you done to him”? ‘Umar answered: we have killed him. The Prophet said: “you should have pardoned him?”
Scholars deduced from this situation that a sinner may retract in his confession after trial and after being sentenced even if he was lying. These are the images of both Islam and Christianity and these are the conditions that most of the people do not know. More importantly, this is the way which the companions and their successors lived. Even Egypt has not implemented hudud since 1000 years ago. Some people believe that hudud were canceled with July’s revolution for example or with Muhammad Ali Pasha. However, the legal penalties have not been administered for more than 1000 years and we were Muslims and we still are from 1000 years ago. And those who utilize hudud as proof that we are not Muslims and wanted to control our lands in order to turn us into Muslims, this is nonsense, illogic and false claim. We are Muslims and our country is Islamic since the advent of Islam as we have never departed the religion of Allah. And the issue of hudud has its own details. We need our visions to be Islamic and our targets to be that of the Muslim who worships Allah, inhabits the earth and purifies the soul We need to love the world and to be loved by the entire world and to be good examples. Allah the Almighty says: “And thus we have made you a just community that you will be witnesses over the people and the Messenger will be a witness over you” [2: 143]