By Abu Amina Elias
In the name of Allah, the Gracious, the Merciful
The ḥudūd ordinances and punishments in classical Islamic law, which include flogging, stoning the married adulterer, and capital punishment, have ignited a new controversy in Muslim lands as Islamic political parties have called for their strict and immediate application as state statutory law (qanūn). This call is largely based upon popular passions, the understandable desire of Muslim masses to be more faithful to Islam, but their reintroduction into state law has been very problematic on many levels. Instead of applying these laws in a literal and decontextualized manner, we should examine the texts in light of the purposes of Islamic law and their historical context before rushing to implement legal punishments that a large number of people, many Muslims included, deem harsh and unnecessary.
Any application of Islamic law must first and foremost address the essential objectives of the law (maqāṣid al-shari’ah). The scholars agree that the ḥudūd are legislated to ensure justice between the people and to protect their natural rights to life and property.
Ibn Al-Qayyim writes:
ŁَŲÆْ ŲØَŁَّŁَ Ų³ُŲØْŲَŲ§ŁَŁُ ŲØِŁ َŲ§ Ų“َŲ±َŲ¹َŁُ Ł ِŁْ Ų§ŁŲ·ُّŲ±ُŁِ Ų£َŁَّ Ł َŁْŲµُŁŲÆَŁُ Ų„ŁَŲ§Ł َŲ©ُ Ų§ŁْŲ¹َŲÆْŁِ ŲØَŁْŁَ Ų¹ِŲØَŲ§ŲÆِŁِ ŁَŁِŁَŲ§Ł ُ Ų§ŁŁَّŲ§Ų³ِ ŲØِŲ§ŁْŁِŲ³ْŲ·ِ ŁَŲ£َŁُّ Ų·َŲ±ِŁŁٍ Ų§ُŲ³ْŲŖُŲ®ْŲ±ِŲ¬َ ŲØِŁَŲ§ Ų§ŁْŲ¹َŲÆْŁُ ŁَŲ§ŁْŁِŲ³ْŲ·ُ ŁَŁِŁَ Ł ِŁْ Ų§ŁŲÆِّŁŁِ ŁَŁَŁْŲ³َŲŖْ Ł ُŲ®َŲ§ŁِŁَŲ©ً ŁَŁُAllah the Exalted has made clear in his law (sharia) that the objective is the establishment of justice between his servants and fairness among the people, so whichever path leads to justice and fairness is part of the religion and can never oppose it.
Source: Turuq Al-Hukmiyyah 13
Any practice that leads to justice and the protection of people’s rights is necessarily a part of Islam, even if it is not based on an explicit text. The question is not whether the ḥudūdpunishments should be reintroduced as statutory law, but rather: how can classical Islamic law be adapted to meet the needs of justice in modern societies?
Moreover, a literal and decontextualized application of the ḥudūd in some Muslim countries has led to injustice as these laws have disproportionately targeted the lower classes and women, and they have been applied without necessary due process and appropriate legal counsel in defense of the accused. It cannot be said that an unjust application of an Islamic law is, in reality, a faithful adherence to Islam.
Ibn Al-Qayyim writes:
ŁَŁُŁُّ Ł َŲ³ْŲ£َŁَŲ©ٍ Ų®َŲ±َŲ¬َŲŖْ Ų¹َŁْ Ų§ŁْŲ¹َŲÆْŁِ Ų„ŁَŁ Ų§ŁْŲ¬َŁْŲ±ِ ŁَŲ¹َŁْ Ų§ŁŲ±َّŲْŁ َŲ©ِ Ų„ŁَŁ Ų¶ِŲÆِّŁَŲ§ ŁَŲ¹َŁْ Ų§ŁْŁ َŲµْŁَŲَŲ©ِ Ų„ŁَŁ Ų§ŁْŁ َŁْŲ³َŲÆَŲ©ِ ŁَŲ¹َŁْ Ų§ŁْŲِŁْŁ َŲ©ِ Ų„ŁَŁ Ų§ŁْŲØَŲ¹ْŲ«ِ ŁَŁَŁْŲ³َŲŖْ Ł ِŁْ Ų§ŁŲ“َّŲ±ِŁŲ¹َŲ©ِ ŁَŲ„ِŁْ Ų£ُŲÆْŲ®ِŁَŲŖْ ŁِŁŁَŲ§ ŲØِŲ§ŁŲŖَّŲ£ْŁِŁŁِEvery matter which abandons justice for tyranny, mercy for cruelty, benefit for corruption, and wisdom for foolishness is not a part of the Sharia even if it was introduced therein by an interpretation.
Source: I’lam Al-Muwaqqi’in ‘an Rabb Al-Alamin 11
In other words, if the application of the letter of the law does not result in justice, mercy, benefit, and wisdom, then it cannot properly be considered an Islamic law even if it is based upon an interpretation of the Quran, the Sunnah, and the jurisprudence of the scholars.
The ḥudūd punishments are largely a teaching mechanism for society and a deterrent for potential criminals. The law is a teacher and an expression of society’s disapproval of the most major crimes: theft, adultery, and murder.
Allah said:
ŁَŁَŁُŁ ْ ŁِŁ Ų§ŁْŁِŲµَŲ§Ųµِ ŲَŁَŲ§Ų©ٌ ŁَŲ§ Ų£ُŁŁِŁ Ų§ŁْŲ£َŁْŲØَŲ§ŲØِ ŁَŲ¹َŁَّŁُŁ ْ ŲŖَŲŖَّŁُŁŁَThere is for you in legal retribution saving of life, O people of understanding, that you may become righteous.
Surat Al-Baqarah 2:179
However, the burden of proof classical Islamic law requires to implement the ḥudūdpunishments is so high, along with other mitigating principles, that many modern Muslim scholars today say that these punishments should almost never apply except in the most extreme circumstances. As an example, the requirement of four trustworthy witnesses to establish a crime of adultery is practically impossible to achieve. Thus, the ḥudūd should be on the law books as a deterrent and expression of Muslim society’s values, but they are a last resort. They are not necessarily the preferred or exclusive Islamic method of punishing crime.
Historically, this is how the ḥudūd punishments were understood and applied in the time of the Prophet and in the great empires that were ruled by Sharia law. In fact, in the entire history of the Ottoman Empire there is only one recorded incident in which an adulterer was stoned to death.[i] This fact stands in stark contrast to the political platform of some Islamic parties today that call for immediate, strict, and widespread application of these punishments.
Several mitigating factors contribute to the restriction of the ḥudūd punishments. The practice of the Prophet, his companions, and the understanding of the scholars have allowed for many excuses that prohibit the application of the harshest punishments.
As-Suyuti writes
Ata reported: Those who came before would be presented with someone accused of theft and they would say, “Have you stolen? Say no.” I do not know who did so except Abu Bakr and Umar.
Source: Musannaf ibn Abi Shayba 28014
Grade: Sahih (authentic) according to Al-Albani
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