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Tag: islamic law

  • Hudud (Penalties) in Comtemporary Fiqh

    Sheikh Yusuf Al-Qaradawi  calls for applying Shariah while taking into consideration the changes in time, place, and humanity, as there are past jurisprudential rulings that are not applicable in this modern world.  Shariah is valid for all times and places; however, the application of Shariah needs ijtihad (use of reasoning and educated judgment to deduce an opinion or ruling) by qualified scholars who take into account the prevailing conditions in today’s world while having extensive knowledge of the tenets of Shariah.

    Shariah and Hudud

    Shariah cannot be taken in one part while another part or part are disregarded; it must be administered as a whole.  It is worth noting, therefore, that out of 6,236 Quranic verses, only 10 directly address the topic of hudud (the limits of lawful behavior and the fixed punishments for transgressing those boundaries). These verses were revealed late during the mission of Prophet Muhammad (peace and blessings be upon him). The hudud laws mentioned in the Quran are four, or five if the one of qisaas (retaliation) is added. These five hudud address qisaas, adultery, qadhf (false accusation), hirabah (highway robbery), and theft. The phrase “hududu Allah” mentioned in some verses of the Quran relates to issues like divorce and marriage. In those verses, the term “hudud” refers to the features and boundaries that distinguish what is permissible from what is forbidden .

    We realize that the subject of hudud (prescribed punishments) is an integral but limited aspect of Islam when we consider that many scholars divide Islam into creed, acts of worship, morals, manners, and laws. The laws are then divided into civil, economic, family, commercial, criminal, constitutional, international relations,  and so on.  Yet some people focus only on one part — the criminal law — and ignore the rest of Shariah. Non-Muslims and even some Muslims  see the hudud as the distinguishing element of Islam. Perhaps it is because the hudud laws are essentially different from man-made  and, therefore, changeable laws. Moreover, people see the hudud as the conspicuous part of Shariah; however, hudud alone are a core but very limited part of Shariah and its application. People are so primarily focused on the hudud that if the laws related to banning usury or collecting zakah (prescribed alms) are applied, many will think that the ruler is not applying Shariah so long as hudud are not applied.

    Hudud in the Quran and Sunnah

    There are clear-cut hudud established by the Quran as mentioned above, with regard to retaliation, adultery, false accusation, highway robbery, and theft. There are also the dhanni (deduced) hudud, which are derived from 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 specified penalty for drinking wine but should receive a  lesser tazeer punishment (discretionary punishment).  Sheikh Qaradawi  agrees with the application of a discretionary punishment, which could be whipping, imprisoning, or imposing fines.

    Another dhanni (deduced) hudud is the one for apostasy, derived from  the Sunnah. There are many hadiths, as well as some references in the Quran, about putting apostates to death. However,  Umar ibn Al-Khattab asked an apostate to repent. Also, Imam An-Nakhiy and Imam Ath-Thawry are of the opinion that apostates should repeatedly be given opportunity to repent.  Another example  of a dhanni hudud is the stoning penalty for a married adulterer, a penalty derived from the Sunnah and not the Quran.

    Application of Hudud

    The problem with hudud is not their application in society but their misapplication — applying them without meeting the necessary conditions. The Prophet (peace and blessings be upon him) prepared his contemporary society before applying hudud. He established the pillars of Islam including the prayer and the collection of zakah from those who could afford it, and distributed it among the poor. He created all the necessary conditions for social stability and solidarity. He established Islam as the way of life so that the needy were provided for and no one was left destitute, without food or shelter or other necessities for survival. In that case, for example, the theft penalty could be applied. But how can hudud be applied when people are unemployed, hungry, sick, orphaned, or homeless? Islam must be established in all aspects first, and then if someone steals, such an act of theft is a result of corruption of the soul rather than out of necessity.

    Umar ibn Al-Khattab suspended 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 proper conditions should be established in order to apply hudud. Otherwise, hudud may be used as a pretext by rulers to oppress people. Most egregious is the reality in some countries that the hudud are not applied to those who are politically connected or wealthy, even though they may defraud the people or embezzle millions of dollars. Yet the hudud are applied to the weak and the poor.

    Hudud Are Not the Ultimate Goal

    Another point is that when someone commits a crime with a prescribed punishment, the authorities should not start with applying the hudud penalty, but rather should seek lesser punishment if any doubt about guilt or mitigating circumstance exist.  An agreed-upon rule of Islamic jurisprudence is “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.”  We can thus see that Islam is not keen on punishing people. Punishments are for wicked, corrupt, or sociopathic 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 in the case that guilt is “beyond doubt” and with no mitigating circumstance. Then, according to this hadeeth, there is no benefit in receiving rain and cultivating when all that hardwork becomes a stolen harvest by thieves prevailing in a society.

    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. Moreover, what is the alternative for hudud? The alternative in a man-made system of justice is imprisonment, which does not deter criminals. And a large percentage of criminals repeat their evil acts with more severe and harmful results after being released from prison. They become more hardened in their criminal intent and, unfortunately for society, have gained in criminal know-how from the malevolent experiences of their fellow criminals while in jail.

    Islam’s rational and jurisprudential basis for applying hudud with regard to adultery, for example, does not relate to the act of adultery itself – which is a forbidden act due to many reasons . Rather it is correlated to the adulterer committing his or her act publicly. Thus, the adultery penalty is applied only when four individuals witness the  act of illicit 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 competent to give testimony, and the judge must interrogate them to determine if they are lying or in any way untrustworthy in their testimony. 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.

    Even when guilt has been established beyond doubt or disupte and there exist no mitigating circumstance, there still remain conditions for hudud to be applied:

    1. It must be established that the accused committed the crime by choice rather than under duress of some kind, and while knowing that the act is illegal and a punishable crime.
    2. The defendant has publicly committed the crime or confessed to committing it.

    Applying Hudud Today

    When the elements of a crime categorized as punishable by hudud laws are established according to all requisite conditions, hudud should be applied. However, if these elements are not present, then tazeer (lesser, discretionary punishment) should be applied. Tazeer is to be applied under the authority of the imam or judge. But applying hudud is the exclusive domain of the state.  Thus no group in any place has the right to apply hudud to a group of people away from the authority of the state.

    Countries today that apply hudud such as Saudi Arabia, Iran, and Sudan must answer for themselves as to whether all conditions have been met and an Islamic way of life fully established so that hudud is applicable and Islamically warranted. And Allah SWT knows best.

  • The Role of Human Rights in Islamic Law

    The Legacy of Love, Truth, and Justice

    The legacy of the Prophet Muhammad is revival of the essence of all religion. He revitalized personal awareness and loving awe of God leading to piety, which is a core aspect of  taqwa, and a resulting commitment to truth and justice. These two pillars of Islam and of every world religion reinforce each other. The neglect of either one can result in extremism. Without love and mercy, the pursuit of justice can result in cruelty and oppression. And without commitment to truth and justice, one’s love of God is powerless in the world.

    The two basic philosophical principles of Islam are known as tawhid and mizan. Tawhid refers to the concept that everything in the universe is interrelated with everything else in a coherent whole, and that this unity is the inevitable result of the Oneness of the Ultimate, the Creator of all, whom Muslims refer to as Allah and Christians call God.

    Mizan, the second philosophical principle, emanates from the first one. Mizan means balance. Since God created the universe as a balanced whole, a task of every human is to help maintain this perfect balance by avoiding extremism. This maintaining of balance and avoiding extreme thought, policy or action that neglects other necessary principles, applies to all facets of life including human interaction with the ecosystem or personal moral imprint on one’s own life activities and relationships.

    A framework for maintaining balance in life is provided by Islamic law and is its very purpose. This framework is a hierarchical system of human responsibilities and rights. For example, one has a responsibility to defend one’s family and community, and one has an equal responsibility to respect individual human life. Therefore, those who kill innocents in the alleged defense of their community clearly have lost balance. This violates the design of Allah.

    It is extremist and therefore immoral.

    The indignities of miserable poverty and political oppression can produce alienation, desperation, and extremism. Unfortunately, Muslims have suffered more than their share of both these causes and effects; but regardless of how understandable the source of extremism, the resulting indiscriminate violence and aggression is immoral and Islamically abhorrent.

    Extremism does not have to result from indignities, but it all too often does unless there is a source and framework for hope. The source must be spiritual, based on taqwa. The framework must be a coherent body of human responsibilities and rights, based on a mutually reinforcing combination of divine guidance through revelation (wahy), and natural law (sunnat-Allah or signs of divine order in the universe). Without this intellectual framework, people wander in an intellectual void, and this, in turn, can produce a spiritual malaise.

    Over the long run, the most productive initiative, available to the still largely silent majority of Muslims, to marginalize and disempower Muslim extremists is to fill the intellectual and spiritual void that serves as an ocean in which the extremists can sail, casting their spurious safety ring buoys to those drowning in poverty and humiliation. One way to fill that void  is to ally with like-minded Americans of other faiths to create mutual understanding of how classical Islamic ideals, as all classical religious principles and values, are  consonant with classical American ideals, even though many people do not understand or live up to the respective ideals.

    Teaching and emphasizing that the founders of America and the great scholars of Islam shared a similar vision for a society based upon truth, justice, and mercy is one good way to nurture a commonality of purpose in life. Those who are willing to envision a society of individuals who transcend their own self-centered interests and join together in a single pluralist community, lay down a template for hope that pushes beyond conspiracy theories and the emptiness of  a life constrained by ruthless survival demands.

    The Framework  of Justice

    Justice is the Will and Design of God.  It is also the underpinning for the body of Islamic normative law which provides the intellectual framework to understand and address all of reality. Muslims need to emphasize the universal Islamic principles, known as the maqasid al shariah, which spell out precisely the human rights that some critics have asserted do not exist in Islam. These maqasid, following the methodology instituted by the Prophet Muhammad and superlatively elaborated on six centuries ago by Al-Shatibi, are considered to consist of seven responsibilities, the practice of which actualize the corresponding human rights.

    The first one, known as haqq al-din, provides the framework for the next six in the form of respect for a transcendent source of truth that guides human thought and action. God instructs us in the Quran “…and the word of your Lord is perfected in truth and justice (Al-Quran, 6:115). Recognition of this absolute source of truth and of the responsibility to apply it in practice are needed to counter the temptations toward relativism and the resulting chaos, injustice, and tyranny that may result from de-sacralization of public life.

    Each of the seven universal principles is essential to understand the next and succeeding ones. The next three universal principles are necessary to sustain existence. First of these is haqq al-nafs or haqq al-ruh, which is the duty to respect the human person. The ruh, or spirit, of every person was created by God before and outside of the creation of the physical universe and is constantly in the presence of God. This is the basis of the intimate relationship between God and the individual as expressed in the Quranic verse, “We are closer to him than is his own jugular vein” (Al-Quran, 50:16). At the secondary level of this principle of haqq al-nafs, lies the duty to respect life, haqqal-haya. This provides guidelines for what in modern parlance is called “the doctrine of just war.”

    The next universal principle, haqq al-nasl, is the duty to respect the nuclear family and the community at every level, all the way to the community of humankind as an important expression of the individual. This principle teaches that the sovereignty of the person, subject to the ultimate sovereignty of God, comes prior to and is superior to any alleged sovereignty of the secular invention known as the State.

    This principle teaches also that a community at the level of the nation, of a people who share a common narrative of the past, common values in the present, and common hopes for the future, such as the Palestinians, Kurds, Chechens, Kashmiris, the Uighur in China, and the Anzanians in the Sudan, have legal existence and therefore legal rights in international law. This opposes any national or international entity that operates on the principle of “might makes right.”

    The fourth principle is haqq al-mal, which is the duty to respect the rights of private property in the means of production. This requires respect for institutions that broaden access to capital ownership as a universal human right and as an essential means to sustain respect for the human person and human community. This principle requires the perfecting of existing institutions to remove the barriers to universal property ownership so that wealth will be distributed through the production process rather than by redistribution from the rich to the poor through taxation, monetary policy, or other means. Such redistribution can never have more than a marginal effect in reducing the gap between the inordinately rich and the miserably poor.

    The last three universal principles in Islamic law primarily concern what we might call the quality of life. The first is haqq al-hurriya, which requires respect for self-determination of both persons and communities through political freedom, including the concept that economic democracy (which includes such ideas as giving citizens a voice in economic decision-making and ensuring that the collective well-being is not subordinated to private profit) is a precondition for the political democracy of representative government.

    The secondary principles required to give meaning to the parent principle of haqq al-hurriya and carry it out in practice are khilafa, the ultimate accountability of both the ruled and the ruler to God; shura (mutual consultation), to ensure the responsiveness of the ruler to the ruled, which must be institutionalized in order to be meaningful; ijma, the duty of policy makers, by engaging in shura, to reach a consensus on any specific issue; and an independent judiciary.

    The sixth maqasid is haqq al-karama or respect for human dignity. The two most important requirements (hajjiyat) for individual human dignity are religious freedom and gender equity. In traditional Islamic thought, freedom and equality are not ultimate ends but essential means for each individual to pursue the higher purposes inherent in the divine design of the Creator.

    The last universal or essential principle at the root of Islamic jurisprudence, which can be sustained only by observance of the first six principles and also is essential to each of them, is haqq al-ilm or respect for knowledge. Its second-order principles are freedom of thought, press, and assembly so that all persons can fulfill their purpose to seek knowledge to whatever degree they choose and in all ways available.

    This framework for human rights is at the very core of Islam as a religion. Fortunately, this paradigm of law in its broadest sense of moral theology is now being revived by what  is still a minority of courageous Muslims. They are determined to fill the intellectual gap that has weakened the Muslim umma for more than six hundred years. This revival can be part of a spiritual renaissance in all faiths, a reawakening that can transform the world.