No Hudud please....

with thanks to Azam

 

In Islamic law or Sharia, hudud usually refers to the class of punishments that are fixed for certain crimes that are considered to be "claims of God." They include theft, fornication, consumption of alcohol, and apostasy.Hudood is one of four categories of punishment in Islamic Penal Law^[1]:

 

The four are:

• Qisas - meaning retaliation, and following the biblical principle of "an eye for an eye."
• Diyya - compensation paid to the heirs of a victim. In Arabic the word means both blood money and ransom.
• Hudud - fixed punishments
• Tazir - punishment, usually corporal, administered at the discretion of the judge

Hudud offenses are defined as "claims of God," and therefore the sovereign was held to have a responsibility to punish them. All other offenses were defined as "claims of [His] servants," and responsibility for prosecution rested on the victim. This includes murder, which was treated as a private dispute between the murderer and the victim's heirs. The heirs are given the right to forgive the murderer, or demand compensation (see Diyya) or demand execution of the murderer (see Qisas).

Hudud offenses include:^[2]

• Theft (sariqa, السرقة)
• Highway robbery (qat' al-tariq, قطع الطريق)
• Illegal sexual intercourse (zina', الزناء)
• False accusation of zina' (qadhf, القذف) ^[3]
• Drinking alcohol (shurb al-khamr, شرب الخمر)
• Apostasy (irtidād or ridda, ارتداد) includes blasphemy. (Unlike the five offenses listed above, not all jurists consider apostasy to be a hudud offense.

In traditional Islamic legal systems, there were very exacting standards of proof that had to be met if hudud punishments were to be implemented.

There are minor differences in views between the four major Sunni madhhabs about sentencing and specifications for these laws. It is often argued that, since Sharia is God's law and states certain punishments for each crime, they are immutable. However, with liberal movements in Islam expressing concerns about hadith validity, a major component of how Islamic law is created, questions have arisen about administering certain punishments. Incompatibilities with human rights in the way Islamic law is practised in many countries has led Tariq Ramadan to call for an international moratorium on the punishments of hudud laws until greater scholarly consensus can be reached.^[4]

Requirements for conviction

Only eye-witness testimony and confession were admitted. For eye-witness testimony, the number of witnesses required was doubled from Islamic law's usual standard of two to four. Only free, adult Muslim men are eligible to testify in hudud cases. (In non-hudud cases the testimony of women, non-Muslims and slaves could be admitted in certain circumstances). A confession had to be repeated four times, the confessing person had to be in a healthy state of mind, and he or she could retract the confession at any point before punishment.

However, while these standards of proof made hudud punishments very difficult to apply in practice, an offender could still be sentenced to corporal punishment at the discretion of the judge (see tazir), if he or she was found guilty but the standards of proof required for hudud punishments could not be met.

Adultery

The punishment of adulterers under Islamic law is stoning (Rajm). It is not mentioned in the Qur'an but "derives its authority from hadith literature references which are imputed by many," according to Kemal A. Faruki.^[5] There are certain standards for proof that must be met inIslamic law for this punishment to apply. In the Shafii, Hanbali, Hanafi and the Shia law schools the stoning is imposed for the married adulterer and his partner only if the crime is proven, either by four male adults eyewitnessing the actual sexual intercourse at the same time or by self-confession. In the Maliki school of law, however, evidence of pregnancy also constitutes sufficient proof.^[6] Scholars such asFazel Lankarani and Ayatollah Sanei hold that stoning penalty is imposed only if the adulterer has had sexual access to his or her mate.^[7][8] Ayatollah Shirazi states that the proof for adultery is very hard to establish, because no one commits adultery in public unless they are irreverent.^[9] For the establishment of adultery, four witnesses "must have seen the act in its most intimate details, i.e. the penetration (like “a stick disappearing in a kohl container,” as the fiqh books specify). However they may be charged with indecency and immoral behavior. If their testimonies do not satisfy the requirements, they can be sentenced to eighty lashes for unfounded accusation of fornication." 

 

 Theft

Malik, the originator of the Maliki judicial school of thought, recorded in The Muwatta of many detailed circumstances under which the punishment of hand cutting should, and should not, be carried out. Commenting on the verse regarding theft in the Quran, Yusuf Ali says that most Islamic jurists believe that "petty thefts are exempt from this punishment" and that "only one hand should be cut off for the first theft."^[11] Maududi also agrees that petty theft is exempt, although he admits that jurists disagree as to the exact dividing line.^[12] In Shi'alaw, the penalty for the first theft is interpreted as the severing of the four fingers of the right hand based on hadith authentic to them,^[13]and this penalty will be applied only if the thief is adult, sane, has stolen from a secure place, was not under compulsion or misery, and does not repent before the crime is proved, among other conditions.

 

The orthodox interpretation of  the Sharia is that the punishments for Hudud offenses are fixed. But they are not mentioned in the Quran, it came about from interpretations of jurists several centuries ago. The practice in Arabia and many other places in the 7th century was for punishments to be along those lines, so it was not something new brought about by the Quranic revelations.

 

The purpose of the revelations was to reform society for the better. The Quran will also not bring about changes suddenly so as to enable the people to accept the changes. Are the Hudud laws to be practice as understood by the orthodox? Did Allah meant the laws to be as such? An error can be made by any side. The Prophet (pbuh) said those who hold extreme views on religion ara not of  his people.

 

From the above account, Hudud laws are said to be claims of God but murder is considered as claims by an individual. Murder is look to be smaller than theft, drinking alcohol, fornication. The Quran says the taking of one individual life is like the taking of the lives of the whole of humanity - shows how great a crime the Quran considers murder is.

 

The Quran allows flexibility to the punishment for murder. Before the coming of Prophet Mohamed (pbuh) the punishment for murder had always been the life of the murderer as was stated in the Torah and Ingil. However for those after our Prophet, Allah gives the choice of a life for a life or compensations or even forgiveness. See Quran surah 2.178, 5.45. It states that to be forgiving and seek reasonable compensation is better than revenge. The guilty party is even given some protection that the compensation seeked should not be excessive and once settled it cannot be brought up again.

 

The flexibility is given to later generations when human society will be more developed. When for the great crime of murder flexibility is given, why not for lesser crimes like theft, fornication or drinking alcohol. It is not stated in the Quran that the punishments will always have to be such, it was the opinion of past jurists. By allowing flexibilty in punishments shows how fair the Quran is and how advance it is - more than the std prevailing in the most advanced countries now. Some people still say that the capital punishment will have to stay because some murderers are too heinous. To prevent certain crimes, extreme punishments will have to be imposed. The Quran allows for that but depending on circumstances it can be flexible and humane.

 

Who ever says, Islamic / Quranic laws are out of  date or cruel. Understanding and implementation depends on people. Let us do'a that honest, God fearing people will hold the reins of power, and we will have a better world.

 

azam 64A