Hudūd in the Islamic Sharia
Ḥudūd : It is a decreed punishment that is prescribed against the one who performs (whatever action) that mandates it. Alternatively, it may be defined as: A decreed punishment that is obligatory as a right of God, Most High, Exalted is His Affair.
The punishment is termed a ḥadd (literally a ‘limit’) because it prevents its perpetrator from repeating it, or because it is established by the Lawgiver. The term ḥudūdis also employed in reference to transgressions, as when the Most Exalted states: “These are the ḥudūd (limits) of God, So do not come near them” (Al-Baqarah: 187).It is also used for an action for which there is something measured, as in the example where the Most Exalted states: “Whosoever exceeds the ḥudūd of Allah, these are indeed the transgressors” (Al-Baqarah: 229). Thus by virtue of their delineating the lawful (ḥalāl) from the forbidden (ḥarām), they have come to be termed ḥudūd; for a ḥaddis a fence, so of the criminal acts are those that have been punished, while other punishments are meted out for the instigation or absence of an action.
The issue of ḥudūd is summarized in two related aspects. As for the first aspect: this relates to the firm belief in the superior merits of this system of criminal punishment in deterring criminal activities, in highlighting the grave sinfulness of the crimes committed, the extent of their horridness, their detrimental effects on human society, and theirmental rejection in all their manifestations by humankind, and that this system (of punishments) does not constitute a transgression in itself, nor can it be inherently equated with violence.
As for the second aspect: it is that the Law has placed certain conditions for the enforcement of ḥudūdpunishments, just as it has outlined certain qualities and states due to which they are temporarily suspended or dropped; thus when these conditions, or qualities and states, are not in place, the the enforcement of these punishments in their absence becomes a clear violation of the Sharīʿa.
Thus, the one who carefully considers the source-texts of the Sharīʿa will find that the Law has not mandated the ḥudūdfor the purpose of revenge, but rather, they are instituted as a means of deterring criminal activities prior to their instigation, and he or she will also find that the Law does not necessarily anticipate their implementation in the same manner that it anticipates pardon, forgiveness and the concealing ofthe criminal act; and the source-texts on this question are indeed too many to mention.
For nearly over a thousand years, ḥudūdlaws have not been enforced in a country like Egypt due to the absence of the strict conditions that are necessitated for their implementation by the Sharīʿa, which has outlined specific means of verifying that the crime has taken place, has highlighted the possibility of turning down (the judgment) of what has been affirmed, and has affirmed all of this in his saying, peace be upon him, “Fend off the ḥudūdwith what remains doubtful,” and in the saying of ʿUmar b. ʿAbd al-ʿAzīz, “It is a thousand times better for me to err on the side of pardon than to err in meting out the punishment.”
Each age may be characterized by specific features that allow for what is normally considered an exception to be implemented more generally, for what is exceptional by its very nature must be implemented in accordance to whatever is limited to it; thus, an age may be characterized as an age of necessity, an age of tribulation, or an age of ignorance, and all these general features necessarily affect the legal ruling in question. Accordingly, a condition of necessity may cause permissible what is normally forbidden, even if you were to die and it continued to remain in place, and this is why they used to allow for burials in the wells of Egyptwhen this would normally be forbidden. Also, doubtful matters permit for the suspension of a ḥaddpunishment, as ʿUmar b. al-Khaṭṭab ruled during the drought of the Year of Ash (ʿām al-ramādah) when the condition of uncertainty or doubt prevailed and the Sharʿī precondition for implementing the ḥadd became absent. In another example, Imam Jaʿfar al-Ṣādiq, al-Karakhī and others dropped the prohibition of looking at nude women for the nations beyond the river due to their nonconformity with the ḥijab, such that lowering the gave would have been suspended if not impossible. Furthermore, Imam al-Juwaynī described in his book al-Giyāthī the prevailing conditions in the age of ignorance, and he provided a very detailed account of when there is an absence of mujtahids(a jurisconsult) or teachers of Law, or legal sources, for what are the people to do in such circumstances?!.
Related to this is what the legal theorists (usūliyyīn) have termed in their works, such as al-Razī in his Maḥṣul, as‘abrogation of the mind’ (al-naskh al-ʿaqlī), as it describes the disappearance of the locus of the ruling, which is a very precise definition; for the mind does not abrogate the rulings that have been firmly established, upon which there is a consensus amongst the scholars, but the ruling may not be implemented if its locus of implementation is no longer available. For instance, with regards to the ritual ablution (wuḍūʾ), the command consists of washing the hands to the wrists, and if the hand were to be cut off, the punishment would be suspended or become impossible to implement. Similarly, this is also the case with regards to rulings that are predicated on the existence of slavery, the grand Caliphate, or silver and gold currency as understood in the Sharīʿa, among many other examples.
Thus, in order to establish the ruling of the Law, and arrive at what Allah, the Most Exalted, has intended by it, and if we are to follow Allah and His Messenger, then we must acknowledge the present case, as in the authentic (ṣaḥīḥ) ḥadīth of IbnʿḤabbān in the sermon of ĀlDāwūd that the Muslim must always be perceptive of his affairs and knowledgeable of his period.
Because of this, the jurists have emphasized that legal rulings change in accordance with the time if they are rooted in social custom (ʿurf) (section 90 from al-Aḥkām al-ʿAdliyya journal). Thus, with regards to civil transactions, the Ḥanafī school permitted the use of void contracts in non-Muslim lands, indicating that rulings changed with the change of locale. As for the principle that necessities make permissible what are normally prohibited, which is taken from His speech, the Most Exalted, it allows for the matter to change in accordance with the different states. Finally, rulings also change with changes in the people, and thus the rulings with regards to a healthy person who can speak are different from the one relating to the hypothetical person who cannot speak. It is these four conditions (the time period, place, the person, and state) which al-Qarāfī specified must be taken into consideration as changing conditions that must be taken into consideration when legal rulings are implemented in the present context; for we know that our age is not as it was yesterday, and nor will today be as it is tomorrow, and the reasons are there as are many, some of which are: the development of modern telecommunication, transportation, and other technological developments, which have led the human race to live as if it were a single village,the steady rise in the global population, which has not dropped since 1830, and along with these are the many fields of knowledge that have developed to help the human being be better apprised of the reality of his individual context or of his or her place in the larger human family.
These features of our contemporary age, among many others, have altered many conventional understandings such as our understanding of the nature of the contract, the warranty, the delivery, punishment, the meaning of human welfare, Islamic politics (al-siyāsa al-Sharʿiyya), and it is incumbent upon us to grasp all of this in order to ensure that the noble objectives of the Sharīʿa do not evade us.
The Wisdom Behind the Institution of Ḥudūd:
Punishment in Islam, as in all the revealed Laws, is geared towards justice and the preservation of morality and virtue, and in Islam’s orientation towards justice, it necessarily ensures that the punishment is always commensurate with the crime and its repercussions.
Punishments have been instituted for the sake of deterring people from committing criminal offences, as Allah, the Most Exalted, states, “And you have indeed in the law of equivalent retribution(qiṣāṣ) a source of life, for those of you who possess a penetrating understanding, perchance you may attain to God-consciousness” [al-Baqarah: 179]; that is, behind this law of equivalence, which is the execution of the murderer, is a great source of wisdom that relates to the preservation of human lives and their protection.This is because if the murderer knows that he will be executed, he will be deterred from committing the crime, and in this is a source of life for people, for in the majority of cases concerning those who are rational, if one knows that if he were to kill he would be killed, then such a person would not be prone to committing murder; this is the essence of all deterrents, for the meaning of these deterrents is that people are deterred from committing them.
So Allah, the Most Exalted, has legislated certain rulings and placed other rulings to ensure their implementation, and these are the rulings pertaining to criminal punishments; thus, for instance, He ruled that the public’s wealth should be protected and, therefore, legislated that the hand of the thief be cut off to enforce this ruling, and He prohibited fornication and adultery (zinā) and legislatedthe rulings of lashing and stoning to enforce this prohibition of God, and so forth.
The punishment is thus a physical harm that is meted out to repel corruption, and the repelling of corruption is in essence beneficial to public welfare. Furthermore, repelling the harmful crime is always advanced as a priority over securing what is beneficial, and with regards to this, al-ʿIzz b. ʿAbd al-Salām states, “Doctors repel the greater of the two illnesses by treating the lesser of them, and they secure the greater of the two health benefits without worrying about securing the lesser of the two, and medicine is like the Law: it is there to secure the benefits of soundness and good health and to repel the harms of destructive illnesses, repelling whatever it can of the latter and securing whatever it can of the former.”
With the different kinds of harm that are manifested by criminal acts, so to do the punishments differ in Islam, and each punishment varies in accordance with the severity of the crime, with the law of equivalent retribution (qiṣāṣ) being the basis of punishments in Islamic law. Thus, he who kills is killed, he who gouges an eye shall have his eye gouged in return, and who ever beats is beaten, etc. Therefore, the punishments are measured in accordance with the crime in Islamic law.
For this reason, the Muslim jurists (fuqahāʿ) have agreed that in the case of punishments that are instituted for the protection of society, where the right of the individual is subsumed under the right of Allah, the Most Exalted, and does not stand on its own, for such crimes, one does not look to measuring the gravity of the crime, but rather, what is measured is the gravity of the crime’s transgression against the prohibitions of Allah, the Most Exalted, which are there to preserve what is virtuous and repel what is depraved.
As for the other crimes for which people have a right to retribution, or where Allah may share in that right in a manner that is not predominant, in such cases, the punishment is measured in accordance with the severity of the crime, where an equivalent retribution is granted to the victim.
Imam Ibn al-Qayyim states, “The wisdom behind the legislation of ḥudūdlaws: From His great wisdom and mercy, Glorified is He, is that He legislated these punishments for criminal offences that are perpetrated by the people against one another with regards to their lives, their bodies, their honour, and their wealth, such as murder, physical harm, calumny, and theft, and He has mastered the various means of deterrence for these criminal offences with utmost mastery, and He has legislated them in the most fitting of manners that are most likely to garner the desired results, without ever exceeding the limits of what the perpetrator deserves in terms of a sufficient deterrence; thus, for example, He did not legislate cutting off the tongue or killing for lying, castration for fornication, and execution for theft, but rather with regards to these, He has legislated that which is necessitated by His names and attributes of Wisdom, Mercy, Gentleness,Beneficence, and Justice, such that much destruction may be averted, and ambitions are veered away from injustice and transgressions, and each individual becomes satisfied with what His Master and Creator has given him and does not seek to steal what is not rightfully his.”
IbnHamām has said, “The benefits of the ḥudūd are clear enough beyond what is in the clear scripture or written by the fingertips; the jurist and the laity are equal in their knowledge that they serve as a deterrent against those offences that lead to corruption, as for with fornication or adultery there is a loss to one’s lineage and its effective severing due to the suspicion generated in terms of identifying the parent, and the rest of the ḥudūdcrimes reflect a loss of intellect, as attacking others’ honour, stealing their wealth, and all such ugly offences are firmly entrenched in the minds. It is for this reason that none of these major offences are sanctioned by any of the religions, even if intoxicants permitted by some. Accordingly the objective in legislating the ḥudūdis to repel what is harmful to Allah’s servants and to actualize what some of the scholars have described as the preemption of offences before they occur and their prevention after they have taken place, meaning knowledge of their legislation deters people from committing the offence, and if the offence takes place, it is a further preventive means to its recurrence.”
The human conscience is the essence of the human being, and Islam is very much concerned with its cultivation and the entrenchment of its authority in the human spirit, such that crimes may be prevented thereby. Indeed, through its guided and wise teachings, Islam has been able to manifest exemplary models of humanitarianism that have served to carry forward this living and vigilant conscience in human existence that is constantly alert and is never heedless. Certainly, one may say that all the acts of worship in Islam revolve around the nourishment and cultivation of this conscience and disciplining of the soul.
All the laws of the Islamic Sharīʿa are concerned with humane conduct in its general sense, for its rulings are full agreement with universal morals and virtues, and it thus punishes all that relates to base vices. The punishment of the Sharīʿa is of two types: a worldly punishment and a punishment in the hereafter. As for what can be ascertained with evidence of external actions without recourse to spying or the revealing of what Allah, Most Exalted, has willed to remain concealed, the Law provides a worldly punishment for it, while those offences which cannot be investigated and is not open and manifest, they are punished before Allah, the Most Exalted, in the hereafter. From this angle, the Sharīʿa bears a direct connection with the human conscience.
Relating the various laws with the human consciencehas clear advantages, as it serves as an individual form of protection against criminal offences, for the Muslim avoids committing a criminal offence out of his or her fear of Allah, the Most Exalted and due to his or her awareness that Allah is watching over their actions, such that one should fear Allah, the Most Exalted, above fearing the people. The religious conscience also causes the Muslim to be at peace and content with what Allah has judged and decreed.
The noble Prophetic biography (Sīra) offers us with exemplary models of a living and alert conscience that does not mind the prescribed punishment in exchange for tranquility of mind, as has been narrated in the following noble ḥadīth: Māʿiz came to the Prophet, peace be upon him, and said, “O Messenger of Allah, purify me (of my sins).” He said, “Woe to you, leave, seek forgiveness from Allah and repent to Him!” He left for a short while and then came back and said, “O Messenger of Allah, purify me.” So he said, once again “Woe to you, leave, seek forgiveness from Allah and repent to Him!” So he left for a short while and came back and said, “O Messenger of Allah, purify me.” He gave the same response again, and he came back once more for the fourth time, at which point the Messenger of Allah, peace be upon him, “From what shall I purify you?” He said, “From adultery”So the Messenger of Allah, peace be upon him, said, “Does he suffer from insanity?” He was informed that he was sane, and he responded, “Did he drink any intoxicants?” A man got up and sniffed his breath and did not sense any intoxicant, and so the Messenger of Allah, peace be upon him, asked, “Have you committed adultery?” He responded in the affirmative, and he was then ordered to be stoned. With regards to this story, the people were divided into two camps; some argued that he was doomed and that his sin had sealed his fate, while others argued that no act of repentance could possibly match the noble repentance of Māʿiz and his sacrifice, for he came to the Messenger of Allah, peace be upon him, of his own volition and asked that he be stoned. They stayed in their state of disagreement for two or three days, after which the Messenger of Allah, peace be upon him, came to them while they were seated in a gathering, greeted them, and said, “Seek forgiveness for Māʿiz b. Mālik.” They said, “May Allah forgive Māʿiz b. Mālik.” The Messenger of Allah, peace be upon him, then said, “He has indeed repented such a complete repentance, that if it were to be divided amongst a people it would compensate for all of them.”
This is Māʿiz b. Mālik, the Bedouin man, and this was his station with regards holding oneself to account and the elevation of one’s conscience after he believed in Allah, the Most Exalted, knew the lawful from the forbidden. He was indeed capable of keeping his sinful action to himself and returning in repentance to Allah, the Most Exalted, on his own, but he chose to settle for nothing less than receiving the prescribed punishment of his own volition in order to wipeout his sin thereby, as is made clear by what is mentioned by the Prophet, peace be upon him, in the end of the ḥadīth.
In yet another example of this conscience, it is narrated in a noble ḥadīth that al-Ghāmidiyya came and said to the Messenger of Allah, “I have committed adultery, so purify me.” He turned her away, but she came back the next day and said, “O Messenger of Allah, why do you turn me away? Perhaps you mean to turn me away as you did with Māʿiz, but by Allah, I am pregnant.” He said, “Perhaps not. In that case, go away till you have given birth.” Once she gave birth, she came back to him with her child wrapped in a rag and said, “Here is the child that I gave birth to.” He said, “Go away and suckle him until you wean him.” When she had weaned him, she came back to the Prophet, peace be upon him, with the child, and he was holding a piece of bread in his hand. She said, “Here he is O Messenger of Allah. I have weaned him, and he eats the food.” The Prophet, peace be upon him, entrusted the child to one of the Muslims and then pronounced the punishment. She was put in a ditch up to her chest, and he commanded the people, and they stoned her. Khalid b. Walīd came forward with a stone and flung at her head, causing blood to spurt on his face, and so he cursed her. The Prophet of Allah, peace be upon him, heard his cursing and said, “O Khalid, be gentle, for by Him in Whose Hand my life is, she has repented such a repentance that even if a wrongful tax collector were to repent as she did, he would have been forgiven.” Then he gave the command concerning her and prayed over her, and she was buried.
This woman could have left without returning again to the Prophet, peace be upon him, given that he did not appoint someone to guard over her or have her imprisoned, as is the case in our day and age, which was a sign of mercy towards her and her child. This points to the fact that the ḥudūd have only been instituted for the principle of deterrence and for no other reason.
“Islam, with its attention to the cultivation of the human conscience and the creation of a strong sense of restraint in the human being, has also ensured that in addition to this sense of restraint that it also provides for an external source of restraint, and that is the restraint of the ruler (Sulṭān), such that if the restraint of one’s conscience were not enough, the restraint of the ruler would take its place. Accordingly, in this manner, the human being remains well guarded, and the means from which one may escape towards sin and aggression are blocked. Our master ʿUthmān, may Allah be pleased with him, states, “Allah restrains with the ruler that which He does not restrain with the Qurʾān.”
Repel the Ḥudūd With What is Doubtful:
Islamic law approves of repelling the ḥudūd with what it s doubtful, meaning any doubts pertaining to the testimony of the witnesses or the circumstances of the offence are interpreted in favourof the accused. In such cases, the ḥadd is dropped and a lesser discretionary punishment (taʿzīr) may be meted out in its place, such as imprisonment. The Sharīʿa does not institute this punishment until all avenues are exhausted to ensure that it may be averted. Indeed, it is narrated on the authority of ʿĀʾisha that the Messenger of Allah, peace be upon him, said, “Repel the ḥudūdfrom your Muslim brethren whenever possible, and if you are able to find for the Muslim a way out, then release him, for it is far better for the Imam to make an err in his pardon than it is to err in his punishment.”
It is also narrated that our master ʿUmar b. al-Khaṭṭāb, May Allah be pleased with him, said, “To drop theḥudūd due to some fear of doubt, is more preferable to me than upholding them while some doubts remain.”
Just as the Sharīʿa does not attempt to reveal the sins of those who choose to conceal their faults, but has rather left their reckoning up to Allah, the Most Exalted, so is the case with adultery, for example; for the Sharīʿa has placed specific conditions for meting out its ḥaddpunishment, such as that there be four witnesses who bear witness directly to the full sex act as it takes place between a man and his wife, which is normally never seen by others. It is narrated from ʿIkrimah on the authority of IbnʿAbbās on the authority of the Prophet, peace be upon him, who said, “Whosoever conceals the fault of his Muslim brother, Allah will conceal his fault on the Day of Judgment, and whosoever exposes the fault of his Muslim brother, Allah will expose his fault, even this were done in his own home.” It is also narrated on the authority of Abu Hurayra that the Messenger of Allah, peace be upon him, said, “Whoever conceals (the faults) of a Muslim, Allah will conceal (his faults) on this worldly life and the hereafter.”
It is also mentioned in al-Mawsūʿa al-Fiqhiyya al-Kuwaytiyya (Kuwaiti Compendium of Islamic Law): The jurists have agreed that: “Ḥudūdare repelled by what is doubtful.” The basis of this principle is found in the narration of ʿĀʾisha, the Mother of Believers, may Allah be pleased with her, who is reported to have said: The Messenger of Allah, peace be upon him, said, “Repel the ḥudūdfrom your Muslim brethren whenever possible, and if you are able to find for the Muslim a way out, then release him, for it is far better for the Imam to make an err in his pardon than it is to err in his punishment.” In a similar ḥadīthnarration, we have, “Repel theḥudūdby whichever means you are able to find.” And on the authority of ʿAbd Allah b. ʿAmr b. al-ʿĀṣ, it is narrated that the Messenger of Allah, peace be upon him, said, “Pardon the ḥudūdamongst yourselves, for the ḥaddthat reaches me must be implemented.”
This is principle thus has precedence first: to rely on certainty in establishing the criminal offence of the accused.
Second: Any doubt may remain, no matter how preponderant it is and no matter its origin or form is to the advantage of the accused in repelling theḥadd punishment. Al-Shāṭibī states,“The proof in this case sides with the benefit of doubt in establishing the ḥadd, and for this reason, if it is confronted with a matter of doubt, even if it were weak, its ruling prevails, and the accused is granted pardon.”
Third: to err on the side of pardon is better in the Sharīʿa than to err on the side of punishment, as a wrongful acquittal is more desirable to Allah and his Messenger than punishing the innocent.
We see this principle disseminated in the trials of the Companions (ṣaḥāba) and the generation of Followers (tābiʿīn), may Allah be pleased with them and in the fatwas (legal opinions) of the mujtahids. Among these is the ruling of ʿUmar b. al-Khaṭṭāb, may Allah be pleased with him, concerning al-Mughīrab. Shuʿba, the governer of Baṣra, who was accused of adultery with a widowed woman he used to take care of. The Caliph ʿUmar called upon the accused and the witnesses, and three of them testified to witnessing the offence, while the fourth witness needed for the ruling said, “I have not witnessed what these of have stated, I am doubtful of what I saw, and I heard a loud voice. I am thus not sure what to make of it.” So ʿUmar acquitted al-Mughīra of the charge and preserved his innocence and purity, and he punished the three witnesses the penalty for false accusation (qadhf). Likewise, during the year of al-Ramāda, ʿUmar did not suspended theḥadd punishment for theft, given that there was widespread famine, which pointed to a condition of dire need (ḍarūra), and dire necessity is a sufficient ground for suspending the punishment for theft, as it pardons the thief in stealing what is considered necessary for survival.
Ibn al-ʿArabī states: Of the means by which one can hasten to fend it off is showing reluctance in exposing oneself to it, as was the case with al-Mustafa (the Prophet), peace be upon him, and Māʿiz, perchance you may understand and take heed, and also with the one who was accused of stealing; with regards to the former, he asked, “Do you suffer from insanity? Were you married (when you committed this act)?” and as for the latter, he said, “I do not think that you stole.” As for, “ . . . it is far better for the Imam to make an err in his pardon than it is to err in his punishment,” here the Imam is a reference to the ruler, and the use of the comparative form (in the word khayr, translated as “better”) is not in its typical usage, as there is no sense of good when erring in one’s ruling. Rather, what is intended here is a warning against proceeding (with punishment), while the slightest doubt remains.
The Lordly curriculum of religious edification does move people to act by means of the Law alone. Rather, it calls for unsheathing the sword of the Law, such that it is able to deter those who are only deterred by sword. As for its primary source of reliance, it is the edification of the human heart, the reform of the human temperament, and guidance of the human spirit; all this is for the purpose of establishing a social order where the seed of lofty ideals is planted and caused to thrive, while the plant of evil is made to wiltand wither. It is for this reason that the Qurʾānic narrative is very frequent in its warnings of punishment in order to have its desired effect on the human heart, conscience, and spirit, evoking within them the state of God-consciousness, encouraging them to the path of Allah and to struggling for His sake in the pursuit of salvation, while warning against the fate of disbelieving in Him. It thus presents a description of the end of the disbelievers in the hereafter in a manner that inspires fear and careful consideration. As Allah, the Most Exalted, declares, “O you who believe, be God-conscious, seek your way to Him, and struggle in His cause, perchance you may attain to success” [al-Māʾida: 35].
This wholesome curriculum of edification speaks to the human condition wherever it may be, addressing human existence from all its various aspects, reaching its living depths, while encouraging it towards obedience and deterring it from disobedience . . . The primary objective of this curriculum is thus to edify the human condition and protect it against deviation. As such, the use of punishments is but one of several means to an end; it is not an end in itself, just as it is not the only means.
Punishments and the Rights Society:
There are two aspects for consideration that necessitate the punishment:
First: that the murderer is a transgressor against the Muslim Umma (nation) and indeed against the sanctity of life itself, which Islam has commanded to respect. For this reason, the Most Exalted states, following the story of Qābīl’s murder of his brother Hābīl: “Because of this, We decreed upon the Children of Israel: “Whosoever kills a person who had not committed murder or caused corruption in the land, then it shall be as if he has killed all of humanity. And whosoever spares a life, then it shall be as if he has given life to all of humanity . . .” [al-Māʾida: 32]. Accordingly, as this passage makes clear, an attack on any soul is an attack on the right of life, which is considered of equal weight amongst everyone, meaning whoever transgresses against it has transgressed against everyone.
Second: thatholding back from meting the punishment against the criminal exposes all of human society to potential harm, and for this reason, the Most Exalted declares, “. . . it shall be as if he has killed all of humanity” [al-Māʾida: 32]. As He also states, “And you have indeed in the law of equivalent retribution (qiṣāṣ) a source of life, for those of you who possess a penetrating understanding, perchance you may attain to God-consciousness” [al-Baqarah: 179]. The example of the Law in this case is analogous to the case of the doctor who may amputate a part of the body to save the whole. As ʿIzz al-Dīn b. ʿAbd al-Salām states with regards to this, “Perhaps the means to attaining the good may be what is (normally considered) bad, such as the amputation of a diseased hands in order to save lives or the endangerment to life in the call for jihad. Similarly, all of the Sharīʿa’s punishments – such as cutting the hand of the thief and the bandit, the execution of a criminal, stoning and lashing of adulterers and fornicators, and as is the case with all other discretionary punishments (taʿzīr) – are not relied upon because they are considered harmful but because the public weal is what is intended by their institution; they are all thus harms that have been instituted by the Law for the achievement of the tangible benefits that accrue from them for the public weal. Thus, they are called ‘benefits’ in the figurative sense, in the sense that the cause comes to take on the name of the effect, not because they are in themselves inherently beneficial but because of what accrues from their institution of benefits to the public weal.
As the author of FīDhilāl al-Qurʾān states in his exegesis (tafsīr) concerning this matter: “In the pervious verse, Allah, the Most Exalted, has grouped murder with the spreading of corruptionin the land, and He has made either of them a reason for execution, as an exception to the preservation of the general right of life and mark as repulsive the crime of taking another soul . . . This is because the security of the Muslims in the Abode of Islam and maintaining the public order under which they enjoy their safety, so that they may carry on with their productive activities in a state of tranquility . . . all of this is as necessary as the security of individuals . . indeed it is even more vital; for the security of individuals is only actualized through this security (of the Muslim community); along with maintaining this lofty and exemplary community and surrounding it with all that serves to guarantee its stability, such that individuals may be able to engage in productive beneficial activities, human progress is nourished and sustained, and that the budding of goodness, virtue, and prosperity, is actualized . . . Especially, because this community, specifically, affords the all people with all the necessities of life, surrounding them with an atmosphere where the seeds of goodness are made to flourish and the seeds of evil are cut off and where preventative means come before the treatment (of social ills), while treating the ills which could not be averted.”
Al-Kāsānī, may Allah have Mercy on him, states: “The ḥudūdhave been established for the benefit of the public, as they are meant to repel the corruption that may befall them, while through them they obtain the preservation of life. Thus, the ḥadd for adultery was instituted for the preservation of the genitals from being subjected to their ruin,the ḥaddfor theft and banditry was instituted for the preservation of peoples’ wealth and lives, and the ḥaddfor intoxicants was instituted to preserve all these by preserving the minds from the loss of judgment and the effects of intoxication. Each of these offences leads to a corruption of the public, while the benefit of its punishment returns to the public – the obligatory punishment being the exclusive right of Allah, the Most Exalted, meaning this right belongs exclusively to Allah, which is a confirmation of its benefit and its effectiveness as a deterrent, as it cannot be revoked by the pardon of the victim, which is meant by the ascription of rights to Allah, the Glorified and Exalted.”
Anyone who considers the conditions that have been instituted as corroborating evidence for the establishment of the ḥudūd offences and the enforcement of their punishments in the Sharīʿa will easily recognize that the primary and overarching objective of instituting the ḥudūdis to combat the spread of moral vices in society, for if an adulterer dares to commit his offence in a public setting such that he may be easily spotted by four witnesses, then this means that he has absolved himself from his humanity and its inherent dignity and that he has violated the dignity of the general public by transgressed against its limits, and accordingly, such a person is deserving of this binding punishment for his offence.
Islam favours concealment, as opposed to the circulationof moral vices in the public. As Allah, the Most Exalted, declares, “As for those who enjoy that immorality spreads amongst those who have believed, theirs is a painful retribution in this worldly life and in the hereafter; and God knows while you do not know” [al-Nūr:19]. It has also been narrated in the nobleḥadīthon the authority of Sālim b. ʿAbd Allah who said: I heard Abu Hurayra say, “I heard the Messenger of Allah, peace be upon him, say, ‘All my Ummashall be pardoned, except for those who commit their sins blatantly. It is committing sin blatantly if a man does something at night, and then he wakes up, while His Lord has concealed him, and says, ‘O so and so, I did such and such last night,’ and so despite the fact that he retired while his Lord had concealed him, he chooses to reveal what his Lord had concealed once he wakes.’”
Those who seek to expose the faults of other should know that they are not angels, as in the noble ḥadīthof the Prophet, peace be upon him, he states, “Every son of Adam makes mistakes, and the best of those who make mistakes are those who repent.”
It is reported that the Messiah (Jesus), peace be upon him, witnessed a crowd of Jews surrounding a woman accused of adultery who were cursing her and were about to stone her, and so he said to them, “He of you has never sinned, let him cast the first stone.” This caused them to drop their stones.
Adultery and Its Punishment:
All the Laws, new and old, have agreed upon the prohibition of fornication (and adultery), and that is when a man and a woman seek to engage in sexual intercourse out of the wedlock that has been legally sanctioned, and all human societies have been in agreement with this from their earliest beginnings till our present day, and none have sought to contest this up to the present day, apart from a negligible party that have subjugated their minds to their whims. Some of the reasons for this wide consensus concerning this offence are that leads totransgression against the rights of the spouse, the mixing of lineages, and to the breakdown of family relations, among others.
Thus, fornication has been prohibited in the Islamic Sharīʿa, and it is considered among the major sins, as Allah, the Most Exalted, declares in the following verses: “And do not draw near to adultery, for it is a sinful and evil path” [al-Isrāʾ:32]; “The adulteress and the adulterer, lash each of them a one hundred lashes, and do not let any pity towards them prevent you from in executing Allah’s religion, if you indeed believe in Allah and the Last Day” [al-Nūr: 2].
On the authority of IbnMasʿud, may Allah be pleased with him, he said: I asked the Messenger of Allah, peace be upon him, “Which is the greatest of sins?” He said, “That you should associate with Allah and equal, when He is the One who created you.” I said, “And then?” He said, “That you kill your own son out of fear that he may partake in your food.” I said, “And then?” He said, “That you fornicate with your neighbour’s wife.”
The act of fornication is established in one of two ways:
1. Confession: that the guilty party who is of sound mental health and is of mature age must publicly avow before the judge in four separate instances that he has committed the offence, with the judge causing him to reconsider until he leaves him in each instance, and the judge must ask him as witnesses are normally asked, with the exception of mentioning the time. If the matter becomes clear after all this, then the ḥaddmust be enforced, as can be seen in the ḥadīthof Māʿiz.
2. External evidence: that there must be four witnesses to the act of fornication or adultery between a man and a woman, with the judge asking them about what took place, how it took place, the location, the time, and the woman with whom the act took place. If all these points are clarified and the full act of penetration is witnessed, and if it becomes evident that the woman is forbidden for him and that they are equally fair in their private and public testimonies, then theḥadd must be enforced.If they are less than four, they are to be taken as slanderers, and if they retract their testimony before the stoning, the punishment is dropped, and they are punished instead for slander (qadhf). As the Most Exalted declares, “And call upon four witnesses to testify against them.”
Some have also said that the ḥaddis also enforced in the case of a pregnant woman who is unmarried.
The punishment for fornication in Islam, as is clear from the verse in Surat al-Nūris one hundred lashes, which is the case for those who are not married. As for the one who is married, the punishment for adultery is execution by stoning, as has been reported in the aforementioned ḥadīthof Maʿīz.
It is also narrated on the authority of IbnʿAbbas, who said: ʿUmar, may Allah be pleased with him, said, “I fear that there will come a time in the future when one will declare that we do not find any punishment of stoning in the Book of Allah, the Almighty and Majestic, and the people will stray in their abandonment of a prescribed punishment that Allah, the Almighty and Majestic, has revealed. Verily, stoning is the recompense upon the adulterer, if he is married and the evidence is established, if the woman becomes pregnant, or if there is a personal confession. We have indeed read it as, ‘The sheikh and the sheikha, stone each one of them without exception.’ And the Prophet, peace be upon him, participated in stoning, and we stoned after him.”
Islam has thus made a distinction in itsḥadd punishments between those who are married (adultery) and those who are unmarried (fornication), given there is a difference between the two groups, in terms of their physical needs and power (of judgment). With regards to the married person, such a person has normally reached full adulthood and settled with a family consisting of a spouse and children, which calls for an even greater need to protect oneself against lowly and scandalous behavior before one’s spouse and children, such that it would be more grave for one to leave this behind for such obscenity . . . For this reason, some jurists have concluded that the punishment for the married adulterers may only be enforced following their personal confession to the offence and not by the mere reliance on witnesses, as was the case with Māʿiz and al-Ghāmidiyya.
Here a concern may arise regarding the stoning of an adulterer: the verse that is revealed in Surat al-Nūr does not distinguish between adultery (married) and fornication (unmarried), and there is no verse revealed in the Noble Qurʾān on stoning the adulterer, and since stoning is a severe capital punishment, it can be only established through a Qurʾānic verse or a multiply transmitted ḥadīth (mutawātir). Thus, the scholars have mentioned in this regard that the proof for stoning can be found in the practice of the Prophet, peace be upon him, as we have seen in the ḥadīths of Māʿiz and al-Ghāmidiyya. However, the question remains, was their stoning enforced before or after the relevant verse in Surat al-Nūr was revealed?!
It is reported on the authority of Abu Isḥāq al-Shaybānī that he said: I asked IbnAbīAwfā, “Did the Messenger of Allah, peace be upon him, ever stone?” He said, “Yes.” I said, “Before or after Surat al-Nūr?” He said, “I don’t know” (Narrated by Bukharī and Muslim).
Some of the ḥadīthscholars have commented concerning this questioning that the ḥadiths on stoning were in practice after the revelation of Surat al-Nūr, and they rely upon the aforementioned ḥadīthof our master ʿUmar b. al-Khaṭṭab, may Allah be pleased with him, concerning the verse, ‘The sheikh and the sheikha, stone each one of them without exception,” which has had its recitation abrogated from the Qurʾān, while its ruling remained in practice, as is confirmed by ʿUmar’s statement.
However, we find that some legal theorists (uṣūliyyīn) rejected the possibility that a particular Qurʾānic recitation may be abrogated from the text, while its ruling remains in force. For this reason, the ḥadd of stoning the adulterer does not attain to the same level of epistemic certainty as the ḥadd for fornication or theḥadd for slander, which are both confirmed in Surat al-Nūr. This is the case, even though some scholars have pointed to a scholarly consensus concerning this legal question, such as Imām al-Bayjūrī, may Allah have mercy on him, in his ḤāshiyaʿalaSharḥIbn al-Qāsim li MatnAbīShujāʿ, where he states, “(As for the married person, the ḥaddis stoning), such that he or she is excuted according to the consensus. This is because the Prophet, peace be upon him, stoned Māʿiz and al-Ghāmidiyya, and it was also read according to lesser known verse, “‘The sheikh and the sheikha, stone each one of them without exception, as an exemplary punishment from Allah, and Allah is Almighty and Wise,” which was in Surat al-Aḥzāb and which had its recitation abrogated, while its ruling remained, as al-Zamakhsharī states in al-Kashāf.”
Slander and Its Punishment:
Islam forbids backbiting others, which is defined as mentioning individuals in a negative light in their absence, and it has made this a major offence, as the Most Exalted, declares, “O you who believe, avoid too much suspicion, for some suspicion is sinful. And do not spy on one another, nor shall you backbite one another. Would one of you enjoy eating the flesh of his dead brother? You certainly would detest this. Maintain God-consciousness, for Allah is the Redeemer, the Merciful” [al-Ḥujurāt: 12].
The Messenger, peace be upon him, states in what is narrated on the authority of Abu Hurayra, “Do you know what backbiting is?” They said, “Allah and His Messenger know best.” He said, “To mention your brother in a manner that he would detest.” Someone said, “Even if what I mention about my brother is true?” He said, “If indeed he is as you say he is, then this biting, and if he is not as you describe him, then you have slandered him.”
The honour and dignity of the Muslim are among the things that are most strongly protected in Islam, and doubtful affairs are used for its protection; for an attack on one’s dignity is an attack on his humanity. For this reason, Islam has instituted a punishment for slander to protect this honour. Slander in this case is the accusation of fornication or adultery with the aim of disgracing someone. Allah, the Most Exalted, declares, “And those who accuse the chaste women and don't bring forward four witnesses, then lash them eighty lashes each, and do not ever accept their testimony. Those indeed are the evildoers” [al-Nūr:4].
It is one of the major sins and indeed one of the seven mortal sins that the Messenger, peace be upon him, warned about in what has been narrated on the authority of Abu Hurayra that he, peace be upon him, stated, “Stay clear of the seven mortal sins.” It was said, “O Messenger of Allah, what are they?” He said, “Associating partners with Allah, black magic, take the life that Allah has made sacred, except when in the pursuit of justice, usury, consuming the wealth of the orphan, turning back when the army advances, and the slander of chaste believing women who are unaware.”
Theḥaddfor slander, as is revealed in the previous verse of Surat al-Nūr is the administration of eighty lashes and, in addition to this, is an extra punishment to make a moral example and declaring the culprit as unrighteous among the Muslims by ensuring that his or her testimony is never accepted again. This is in response to the culprit’s transgression against the honour of other Muslims, and this serves as a means of holding at bay the crooked tongues that violate the rights of others.
Among the examples of this slander is the case of the man who slanders his wife by falsely accusing her of sexual impropriety. As Allah, the Most Exalted, declares, “And those who accuse their wives with no other witnesses other than themselves, then the testimony of one of them is that he should swear four times by Allah that he is being truthful. And the fifth shall be to bring Allah's curse upon him should he be among the liars. And the punishment shall be averted from her if she testifies four times by Allah that he is of the liars. And the fifth shall be to bring Allah's curse upon herself if he is speaking the truth” [al-Nūr:6-9].
The meaning of these verses is as follows:
First: that the one who slanders his wife in the absence of four witnesses must solemnly swear four times that he is honest in his accusation against his wife, with a fifth time to bring upon himself the curse of Allah should he be lying.
Second: If the wife accepts his testimony, then ḥadd is enforced upon her, and she is stoned.
Third: If the wife rejects his testimony against her, she must also swear four times by Allah that her husband is lying and slandering her.
In this case, if it ends up his oath against hers, then divorce becomes compulsory upon them, for such a shaky foundation of mistrust in their marital relations cannot be repaired.
It is narrated on the authority of IbnʿAbbas that he said: Hilāl b. Umayya came from his land in the evening and he found a man with his wife, and he witnessed and heard with his eyes and ears what he did, but he did not intervene till he went to Allah’s Messenger, peace be upon him, the next morning and said, “O Messenger of Allah, I retired to my wife at night and found in her company a man and I witnessed such and such with my eyes and ears.” The Messenger of Allah, peace be upon him, disliked what he heard from him and told him to conceal it, after which the following verse was revealed along with the one following it: “And those who accuse their wives with no other witnesses other than themselves, then the testimony of one of them is . . .” After they were revealed the Messenger of Allah, peace be upon him, he said, “You have glad tidings O Hilāl. Allah has made the matter easy for you and granted you a way out.” Hilāl said, “This is indeed what I had wanted from my Lord.” So the Messenger of Allah said, “Send for her.” So she came and the Messenger of Allah, peace be upon him, recited to the both of them the verses, reminding them that the punishment of the Hereafter is far greater than that of this worldly life, and Hilal swore that he was honest in his claim, and she rejected his claim as a liar. So the Messenger, peace be upon him, said, “Take their testimonies against one another.” So Hilal was asked to swear. So he swore four times by Allah that he was speaking the truth, and when it was time for the fifth oath, he was reminded, “O Hilal have fear Allah, for the punishment of this life is far less severe than that of the Hereafter, and this final oath shall seal your punishment (should you be lying).” He responded, “By Allah, He will not punish me for it, just as He has not mandated my lashing for it.” So he swore for the fifth time by Allah that the curse of Allah is upon him should he be among the liars, and then she was asked to swear. So she swore four times by Allah that he is among the liars, and when it was time for her fifth oath, she was reminded, “Fear Allah, for the punishment of this life is far less severe than that of the Hereafter, and this final oath shall seal your punishment (should you be lying).” She hesitated for a while, and then proceeded, “By Allah, I shall not disgrace my people”, and she proceeded to swear that Allah’s curse is upon her should he be truthful. So the Messenger of Allah separated them and judged that her child’s father shall not be named, that neither she nor her child shall be slandered, and that whoever does so shall have the ḥadd of slander applied. He also ruled that he is not responsible for housing her, nor does she need to endure a waiting period, for they were separated without a divorce, nor was she widowed.
Murder and Its Punishment:
Allah, the Most Exalted, declares, “And it is not for a believer to kill another believer, except by accident. And whoever kills a believer by accident, then he shall set free a believing slave and give compensation to the family; except if they charitably forego it. If he is from a people who are your enemies, and he is a believer, then you shall set free a believing slave. And if he is from a people between whom you have a covenant, then he must provide compensation to his family and set free a believing slave. Whoever is not able to do so, then he must fast two months sequentially as a repentance from God; God is Knowledgeable, Wise. And whoever kills a believer intentionally, then his recompense shall be Hell, eternally abiding therein, and God will be angry with him, and curse him, and for him is prepared a great retribution” [al-Nisāʾ:92-93]. He also states, “And you have indeed in the law of equivalent retribution (qiṣāṣ) a source of life, for those of you who possess a penetrating understanding, perchance you may attain to God-consciousness” [al-Baqarah: 179].
It is also narrated in the noble ḥadīth on the authority of Abu Hurayra that the Messenger of Allah, peace be upon him, said, “Stay clear of the seven mortal sins.” It was said, “O Messenger of Allah, what are they?” He said, “Associating partners with Allah, black magic, take the life that Allah has made sacred, except when in the pursuit of justice, usury, consuming the wealth of the orphan, turning back when the army advances, and the slander of chaste believing women who are unaware.” As can be seen, these proofs are clear in their criminalization of this offence and in clarifying its prohibition, as it is one of the major mortal sins, and they have also clarified the ḥaddof seeking equal retribution the soul that has been killed.
The Islamic Sharīʿa makes a clear distinction between an intentional homicide and an accidental killing, where in the first instance, the ruling is inevitably an equivalent execution as a recompense, as in His saying,“And you have indeed in the law of equivalent retribution (qiṣāṣ) a source of life, for those of you who possess a penetrating understanding, perchance you may attain to God-consciousness” [al-Baqarah: 179]. Murder is established by means of the murderer’s own admission or by the testimony of two righteous men who have witnessed the crime. If the murder is established without doubt, then no blood money or ransom may be taken from the criminal; rather, the ḥaddmust be enforced upon him according to the unanimous agreement of the jurists.
This through this wise arrangement by Allah, the Glorified and Exalted, concerning what He has instituted with regards to the law of equivalent retribution in the case of murder, peoples’ lives and blood are protected from murder. In this is, thus, a sign that Allah has granted mankind an honorable status amongst the creation, for the single human beings stands in the place of all of humanity, as in His saying to the Children of Israel, “Whosoever kills a person who had not committed murder or caused corruption in the land, then it shall be as if he has killed all of humanity. And whosoever spares a life, then it shall be as if he has given life to all of humanity . . .” [al-Māʾida: 32]. This is because the sanctity of human blood in the Islamic Sharīʿa is a very serious matter.
As for the unintentional killing, the Most Exalted has clarified in the verse of Surat al-Nisāʾ that whoever kills a believer by mistake shall free a believing slave and provide some blood money to the victim’s family. This financial compensation that must be paid out has been determined by the scholars to be the equivalent of one hundred camels, and if one is unable to then he or she must fast for two consecutive months, seeking repentance and forgiveness from Allah.
Theft and Its Punishment:
The human soul is naturally predisposed towards the love of wealth, such that the desire for ownership is never far, and this love of wealth is what is the root all evil acts of transgression injustice between one person against another and one group against the other. Since the attainment of wealth has such a strong hold over the human soul, Allah’s Wisdom, Most Exalted is He, has been to institute a powerful restraint for the people, by which their wealth is secured against the trespasses of the unjust against it.
For this reason, the Islamic Sharīʿa has instituted a punishment against those who steal peoples’ wealth that may act as a strong deterrent, as the Most Exalted states, “As for the male and female thief, you shall cut off their hands as a recompense for their crime, as an exemplary punishment from Allah, and Allah is Almighty, Wise.” [al-Māʾida:38].
It is narrated on the authority of IbnMasʿūd that he said, “The hand of the thief is only cut off for what is above a Dīnar or ten Dirhams in worth.” And in Muslim, we have that the Messenger of Allah, peace be upon him, said, “The hand of the thief is only cut off for what is worth a quarter of a Dīnar or more.” And in al-Nisāʾī and others, we have that the Messenger of Allah, peace be upon him, said, “The hand is not cut off except for what is the cost of al-mijann: what is a third of a Dīnar, or half a Dīnar or more.” On the authority of IbnMasʿūd, may Allah be pleased with him, it is narrated that he said, “The hand is not cut off for anything under ten Dirhams.”
On the authority of ʿĀʾisha, may Allah be pleased with her, it is narrated that she said: Quraysh was concerned about the fate of the Makhzūmi woman that stole, and they said, “Who shall inform the Messenger of Allah, peace be upon him, about her? And who is bold enough other than Usāma b. Zaid, who is loved by the Messenger of Allah, peace be upon him?” So Usāma informed him, and the Messenger of Allah, peace be upon him, said, “Do you intercede (on her behalf) concerning one of Allah’s prescribed ḥudūd?” So he got up to give a speech, and said, “The people before you were brought to their ruin because when the noble and reputable among them stole, they were released, while when those who were poor did the same, they were punished. I swear by Allah, if Fātima, the daughter of Muhammad were to steal, her hand would be cut off.”
The scholars are in agreement that theft may be defined as the taking of wealth, and the jurists have added that it be in a well guarded place as well.
Among the conditions that the Sharīʿa has instituted for establishing the ḥaddfor theft are the following:
1. That whatever is stolen must be of value, i.e. it must be have a certain economic value for the people.
2. That the stolen wealth be well guarded in a hidden place, such that it cannot be easily reached or stolen, and there is no cutting for the theft of grazing livestock or dates in their trees, but a discretionary punishment may be enforced in these instances.
3. That the theft is not committed in a time of famine, for he who steals during a time of famine to avert his death out of hunger shall not be punished.
4. There may be certain conditions or circumstances that the ruler may have in mind, which are taken into consideration with regards to the condition of the thief. Thus, as is narrated on the authority of Abī al-Makhzūmī, the Messenger of Allah, peace be upon him, had a thief brought to him who admitted to his guilt but did not have any possessions on him. He said, “I do not think you stole.” He said, “I did.” He said, “I do not think you stole.” He said, “I did.” He said, “Then go with him and cut off his hand.” So they cut off his hand and came back with him, and he said, “Seek forgiveness from Allah and repent to him.” He said, “I seek forgiveness from Allah and repent to him.” He said, “O Allah accept his repentance, O Allah accept his repentance.” As can be seen from the Prophet’s initial words , peace be upon him, he intended to avert from him the punishment, perhaps because he did not possess with him any stolen belongings, and he therefore unsure of his theft.
Furthermore, the hand of the thief is cut off only after the theft has been established either through his own admission or through the testimony of witnesses, and witnessing its deterring punishment is meant to protect society and guard the public’s security and wellbeing, so that it can go about its work and proceed with seeking what is lawful.Islam thus recognizes that money has power, and in most of the cases where money is mentioned in the Qurʾān, it is mentioned along with children and others, as in the statement of the Most Exalted, “Money and children are the pleasures of this worldly life” [al-Kahf:46].
The Question of Apostasy:
The majority of jurists have agreed that the punishment of the apostate is death, as can be found in his statement, peace be upon him, “Whoever changes his religion, kill him,” and his statement, “It is not permissible to spill the blood of a Muslim except in these three instances: the married person who commits adultery, a life for a life, and the one who forsakes his religion and separates from the community” (Narrated in al-Bukhārī in his Ṣaḥīḥon the authority of ʿUmar b. Ḥafs, on the authority of his father). They have also concluded that the apostate is killed for his disbelief and not as a ḥadd.
Most of the scholars have not mentioned any disagreement with regards to apostasy, except in two cases:
First: Is the apostate given an opportunity to repent or not? Here, they have interpreted what was narrated on the authority of ʿUmar, may Allah be pleased with him, as pointing to the repentance option and not as being opposed to the original ḥadd of apostasy.
Second: This concerns the question of whether the ḥadd for apostasyis applicable to women – the majority of scholars have concluded that it is applicable to women. They were opposed by Abu Ḥanīfa, IbnShubrumah, al-Thawrī, ʿAṭāʾ, and al-Ḥasan, who argued that the female apostate is not killed, and they relied for this opinion on the prohibition of the Messenger, peace be upon him, against killing woman during military jihād.
Some scholars, however, have also argued that this ruling of killing the apostate is not established in the Qurʾān, and since it is a severe and dangerous punishment, it cannot be established except by a definitive proof. Similarly, they have pointed out that the second ḥadīth(“the one who forsakes his religion and separates from the community”) alludes to the fact that the nature of the offence is political and that it is related to the political order, suggesting that it is not related to the change in religion and that whenever it is mentioned in the general sense, it is to be interpreted in this more specific sense.
There is thus disagreement concerning the nature of this offence, for some have argued that it essentially constitutes a political offence, while others have argued that it is primarily a theological offence. Thus, holding it to be a political offence, means that they fall under the domain and prerogative of the political authority (walī al-amr) and, as such, he has the right to decide the discretionary punishment most fitting to the crime(which is similar to espionage in the context of international foreign relations). On the other hand, holding it to be a theological offence means that it falls under the ḥudūd laws that are considered the exclusive right of Allah, in which case there is no room for juristic interpretation.
Given this discussion, it is important to note that it is well established that Abu Bakr, peace be upon him, fought against the apostates not because they changed their religion, even though this was the case for some of them, but because they refused to pledge their allegiance to an emerging Muslim state that they saw as giving Quraysh greater power, and this is confirmed by the fact that he did not prescribe the punishment against the defeated apostates, who were now considered mere individuals who posed no military threat to the state.
It is also well established that theMessenger, peace be upon him, pardoned a group of apostates during the conquest of Makka, whom he had wanted to kill. Among these was ʿAbd Allah b. AbīSarḥ, who used to be among the scribes of the revelation before he apostatized, and he, peace be upon him, accepted the intercession of ʿUthmān b. ʿAffān on his behalf, whereas it is well known that there is no acceptable intercession with regards to any of the ḥudūdof Allah. Thus, apostasy in this context, takes on an exclusively political meaning that is not at all related to the issue of freedom of religion, which is very clearly addressed in the Qurʾān (“He who believes let him believe, and he who disbelieves let him disbelieve”). Indeed, we do not find, a single verse by contrast that points to the killing of the apostate; the Qurʾānic suffices itself on this topic with the following verse: “Those who have disbelieved after their belief and then increased in their disbelief, their repentance shall not be accepted of them, and these are truly the ones gone far astray.” This means that the question of granting the apostate an option to repent has several clear precedents, in addition to the fact that this sword that is used to threaten those who choose to disbelieve would only serve to increase the number of those who display the signs of belief out of fear, while maintaining their inner state of disbelief. Such individuals would seek to change their religion based on seeking particular benefits, thus becoming the victims of Muslim tyranny, when in fact the origin of the Son of Adam is that he is born free and dignified, irrespective of his religious belief. Furthermore, this ruling is very highly prone to abuse by unjust rulers, who would utilize it for the elimination of their political opponents on the grounds of a change in belief; and vice versa is also the case.
Theḥudūdof Islam must therefore be understood in a more holistic sense in accordance with its overall teaching, which guarantees the rights of all the social classes in society, without having one group obtaining its rights at the expense of the other . . which also favors the means of prevention over recourse to punishments, and whichonly seeks to punish the perpetrator who has no excuses.
Finally, from the current efforts of contemporary Muslim countries in implementing the ḥudūd, we note following observations:
1. We find that Saudi Arabia implements the ḥudūd directly through the Sharīʿa courts, without applying the laws of a criminal code that deals with these offences. Saudi’s enforcement of the ḥudūd is thus entirely independent, and there are currently no influential efforts aimed at their prevention, banning or suspension, despite a few calls for the reform of legal proceedings that continue to describe the current regime as unjust and in violation of human rights.
2. As for the cases of Pakistan, Sudan, and some of the provinces of Nigeria, Malaysia, and Iran, their criminal codes have been developed on the basis of the ḥudūd laws; in the case of Pakistan their application has effectively stopped for all practical purposes, while they were fully suspended in Iran, Malaysia, and under the reign of al-Namīrī in Sudan, and as for Nigeria, they have been applied in a highly selective and biased manner. These countries have relied on the use of discretionary punishments in place of the ḥudūd, with the exception of the major crimes that call for execution.
3. As for the remaining Muslim countries, which constitute 56 countries out of the world’s 196 countries, they have remained silent in their legislation concerning the application of theḥudūd,and the general reasoning behind this is that our age is one of general ignorance, and it is if the Messenger, peace be up on him, is telling us that the kind of upright witnesses who would have been needed by the Sharīʿa to establish a ḥaddhave long disappeared. Thus, al-Tanūkhī relates that the judge (qādī)used to enter a locality or village and be able to find forty individuals who would qualify as upright witnesses in terms of their fairness and accuracy, whereas by his time, the judge used to enter a town and not find in it except maybe one or two viable witnesses. Accordingly, our current age may be described as having an absence of witnesses.
The mere stipulation of the ḥudūd, as we have already mentioned, serves to magnify the gravity of the sin, first and foremost, besides the actual punishment, highlighting that it is amongst the major offences and moral vices that necessitate this grave punishment and serving to deter the people from such criminal offences, as in His saying, Most Exalted is He, “Allah thus frightens His servants with it, ‘O My servants, be Conscious of Me’” [al-Zumar:16]. Thus, the ḥaddin this regard serves to mend the social order that may give birth to a noble culture amongst the people through the magnification of these sins and the dismissal of he who seeks to spread their mention or takes pride in them. It should also be noted that the Law has also opened the gates to repentance and called for concealment in many instances of the Qurʾān and Sunna.