Post by StudentOfTheDeen on Nov 23, 2021 16:03:18 GMT
Answering Modernist Objections to Ḥudūd
Muftī Muḥammad Taqī Usmani
Westerners of these latter times have made much noise in opposition to Islāmic criminal law, claiming its laws are extremely harsh – refuge is from Allāh! – given it necessitates stoning a living person until he dies, cutting off his hand and foot and impaling him on wood. Some who are affiliated to Islām have been influenced by this commotion, thus they have begun to distort the eternal rules of Sharī‘ah, offering weak interpretations to the textual evidences that have come in this regard, which a sound academic temperament will reject. It is as though the criminal laws are a blemish on the forehead of Islām that these individuals want to wash away or obliterate with these weak interpretations. Refuge is from Allāh, the Mighty!
The truth is that the Islāmic Sharī‘ah is one of the most pliant legal systems on criminal law. It has not fixed punishments in the manner of eternal, everlasting laws except for some specific crimes, whose number does not exceed seven – namely, the crimes of murder, theft, banditry, fornication, slander, drinking wine and apostasy. It has left the specification for the punishments of other crimes, which are more than can be numbered, to the ruler of each era and region. It is allowed for the ruler, after inspecting the circumstances of the case presented before him, to let the criminal go after a stern look or a warning and caution. It is permissible for him to carry out another punishment upon him that is suitable for deterring him and pushing him away from committing the crime again. This is to the point that if it appears to the ruler that the criminal is someone whose betterment is not expected, and it is feared that his corruption will spread to other members of the community, it is permissible for him to rule that he be put to death and executed.
There is no pliability greater than leaving the specification of punishments to the rulers of each era and region, choosing punishments that are suitable to the criminals of their era and region. The Sharī‘ah has specified the punishment of the seven crimes that we mentioned. This is because these crimes are from the foundations of evil and corruption. The harm that arises from them encompasses the community and spreads to others. Hence, the Sharī‘ah has specified punishments for them so they are a deterrent to criminals and a lesson for others. Their specification has not been left to the judgement of the rulers, given they may be lenient on such matters which require severity. Imām Walīullāh al-Dihlawī (Allāh have mercy on him) said in Ḥujjatullāh al-Bālighah (2:158):
Recognise that Allāh has legislated ḥadd (fixed legal punishment) for some sins. These are every sin that combines multiple dimensions of harm: in that it causes corruption on earth, breaks the peace of the Muslims, and spurs the hearts of man and continues to foster in them, and has a hold that they are not able to resist after their hearts have become consumed by them, and has a harm that a victim is unable to avert from himself many a time, and occurs frequently amongst people. Such sins as these, warning about the punishment of the next life is not sufficient for them. Rather, it is necessary to institute severe censure against them and a punishment that takes place before the eyes of people so it deters them from what they intend.
For example, fornication, which flares up from base desire and a passion for the beauty of women. It has a severity to it, and causes great dishonour to the family of a woman. Men competing over a mate alters their human nature [to an animalistic one], and is a likely cause of infighting and battles. It normally occurs with the consent of the male and female fornicators and in closed spaces known only to a few. Hence, had a painful ḥadd not been legislated for it, deterrence would not be achieved.
Another example is theft. A human being often does not find a suitable job so falls into theft, which has a hold over their hearts. Theft occurs hiddenly in a manner that people don’t see the thief, as opposed to “usurpation” which occurs based on a weak evidence that is not supported by Sharī‘ah during transactions between two individuals and before the eyes of men. Hence, usurpation [as opposed to theft] is a transaction amongst other transactions.
Another example is highway robbery. A victim is unable to push him away from his life and wealth. It does not take place in the Muslim centres that are under the authority of Muslims where they can ward them off. Hence, the punishment for such a person must be increased.
Another example is drinking wine, which has a force to it, and causes corruption on the earth and takes away the hold of their minds, through which their afterlife and present life is kept sound.
Another example is slander because the one that is slandered bears great harm and is unable to ward it off by killing [the slanderer] or something similar, because if he killed, he will be executed in return, and if he struck, he will be struck in return, so a major deterrent is necessary for such a thing.
For example, fornication, which flares up from base desire and a passion for the beauty of women. It has a severity to it, and causes great dishonour to the family of a woman. Men competing over a mate alters their human nature [to an animalistic one], and is a likely cause of infighting and battles. It normally occurs with the consent of the male and female fornicators and in closed spaces known only to a few. Hence, had a painful ḥadd not been legislated for it, deterrence would not be achieved.
Another example is theft. A human being often does not find a suitable job so falls into theft, which has a hold over their hearts. Theft occurs hiddenly in a manner that people don’t see the thief, as opposed to “usurpation” which occurs based on a weak evidence that is not supported by Sharī‘ah during transactions between two individuals and before the eyes of men. Hence, usurpation [as opposed to theft] is a transaction amongst other transactions.
Another example is highway robbery. A victim is unable to push him away from his life and wealth. It does not take place in the Muslim centres that are under the authority of Muslims where they can ward them off. Hence, the punishment for such a person must be increased.
Another example is drinking wine, which has a force to it, and causes corruption on the earth and takes away the hold of their minds, through which their afterlife and present life is kept sound.
Another example is slander because the one that is slandered bears great harm and is unable to ward it off by killing [the slanderer] or something similar, because if he killed, he will be executed in return, and if he struck, he will be struck in return, so a major deterrent is necessary for such a thing.
Furthermore, Islām did not suffice with legislating these punishments alone. Rather, it produced through its various rulings an environment that opens the doors to good and shuts the doors to evil and corruption and drives man towards righteousness and pushes him away from evil, and strengthens the motivations for good and lessens the motivations towards wickedness and sin. This will become clear with an example:
Fornication figures in the list of crimes that are punished with ḥudūd. However, Islām did not suffice with legislating ḥudūd to eliminate this crime. Rather, it legislated rulings prior to it that become an obstacle to a person from perpetrating this obscenity. Hence, it commanded women to observe purdah and lower the gaze and remain glued to their homes except in the situations of need, and to not make a display in front of strange men and not reveal their fineries except in the presence of their maḥrams and not soften their voices towards strange men so that one in whose heart is an illness desires them and not come out from their homes except with their jilbābs; and it has obligated men to provide for them so they do not need to come out to earn.
It has ordered men to lower their gaze, and has encouraged them to marry and to rush to it after turning bāligh as marriage is from the most powerful of means towards chastity and preventing fornication, and it has made marriage a simple transaction with no expense besides that of the mahr and the provisions, and it has not required a Qāḍī for it, nor ceremonies, nor expensive preparations that prevent the guardians from giving their daughters in marriage until they have a lot of wealth to equip them with causing women to remain unmarried in the homes of their fathers and temptation and great corruption arising from them.
It has permitted men to marry in twos, threes or fours provided they are fair to them because the desires of many men will not be abated with one wife, who has long lapses of menstruation, pregnancy and post-partum bleeding, when she is not suited for men, so Islām has freed him of ḥarām through ḥalāl so that he does not desire strange women via fornication.
Furthermore, Islām has stipulated requirements for the implementation of punishments of ḥudūd which are hardly fulfilled except in rare cases. Hence, it is not permissible to establish the ḥadd of fornication unless the criminal himself confesses or via the testimony of four witnesses who saw this obscenity without any doubt or confusion and they testify in front of the Qāḍī that they saw the criminal perpetrating this obscenity just like a pencil inside the kohl-pot and a rope inside the well.
Whoever crosses all these limits and perpetrates fornication in such a way that four witnesses see him without any doubt, he has not violated the sanctity of only one ruling of Sharī‘ah but has violated all the sanctities that Islām has made as a prelude to close the door to fornication. He has opposed the rules of purdah and lowering the gaze and being in solitude with a strange woman and let himself be subdued by his desires and perpetrated this obscenity in view of four upright and free men, making him lose human dignity and reach the level of animals, and has made himself equivalent to a rotten, putrid part of the body of the Islāmic religious community, the rottenness of which it is feared will spread to the rest of the body. What is the fate of such a part besides it being amputated from the body so that the rest of the parts are secure from its rottenness? No one will censure a doctor or surgeon who cuts such a part and isolates it from the body, nor will they accuse him of oppression and harshness. This harshness is the very thing by which the life of the society remains sound. Were it not for this harshness, great corruption would manifest in the world.
It is strange that those who object to these ḥudūd, namely the Westerners, they are the very ones whose necks are weighed down by the blood of thousands of women and elderly men and children who were burned down by their nuclear bombs in Japan despite being guilty of no crime besides being born in the land of their enemy. Their “compassion” did not stop them from killing them and annihilating them and burning them down, even though they did not commit a crime against another’s life, wealth or reputation. Yet, they show “compassion” towards the transgressing criminals and object against those who wish to implement strong ḥudūd against them, as though no community more compassionate than them was created on the face of the earth! I swear by Allāh, these objections against ḥudūd are nothing but the product of blind fanaticism and hatred, and their bitterness against Islām and Muslims hidden within their hearts.
After this prelude, we will describe some merits and distinguishing features of Islāmic criminal law which is not found in any other law.
1. The Division of Punishments into Ḥadd and Ta‘zīr
The Islāmic Sharī‘ah divides punishments for crimes into two categories:
The first are those whose amount and nature the Sharī‘ah has specified based on laws from the Qur’ān or Sunnah, namely qiṣāṣ and ḥadd. It is an eternal, everlasting specification. It is not allowed for any of the rulers, judges or councils of representatives or anyone else to effect any change in it, either by adding or subtracting from them. These are the punishments for the seven crimes that we mentioned. We cited the wisdom of this from the tongue of Imām Walīullāh al-Dihlawī (Allāh have mercy on him).
The second are those that the Sharī‘ah has not specified an amount or nature, but has deferred its specification to the ruler of each era and region who will choose for the criminal whatever punishment he is inclined to that is suitable for deterring him. Deterrence in such crimes will differ based on the difference in the criminal and the difference in the circumstances of the crime and the difference in the environments in which the crime was perpetrated. It is part of the wisdom of Islāmic legislation to not specify a permanent, unalterable punishment for them so that the matter does not become restricted for the ruler and he is not compelled to be harsh in something that requires leniency nor leniency in something that requires harshness. Hence, the jurists have mentioned that ta‘zīr is not limited to hitting. Rather, it can be by hitting and can also be by slapping, pressing the ear, and can also be by harsh words, and by the Qāḍī looking at him sternly. See al-Baḥr al-Rā’iq (5:40).
Malik al-‘Ulamā’ al-Kāsānī (Allāh have mercy on him) said in Badā’i‘ al-Ṣanā’i‘ (6:64):
“Some of our elders arranged ta‘zīr according to the categories of people. They said: Ta‘zīrs are done to four categories of people: the nobles, namely chiefs and executors; the greater nobles, namely those of ‘Alawī heritage and religious scholars; those in the middle; the lower class; and the base. Ta‘zīr of the greater nobles is by merely informing them, that is, the Qāḍī sends his secretary to him to say: ‘It has reached me that you do such-and-such.’ Ta‘zīr of the nobles is by informing them and summoning them to the door of the Qāḍī and speaking to them face-to-face. Ta‘zīr of those in the middle is by informing them, bringing them to the court and imprisonment. Ta‘zīr of the lower class is by informing them, bringing them to the court, hitting them and imprisonment. The aim of ta‘zīr is to deter, and the degrees of people are according to these categories in terms of deterrence.”
Is it Permissible to Specify the Ta‘zīr (Discretionary Punishment) by Law from the Government?
Furthermore, the specification and quantity of the punishment in ta‘zīr is left to the discretion of the Qāḍī. Practice has remained upon this throughout the centuries in the Islāmic lands. However, today the governments feel a need to specify the quantity of punishments for crimes of ta‘zīr, which is a result of the proliferation of corruption in this time and the change in the character of the Qāḍīs. This wide tolerance in the discretion of the Qāḍī may encourage him to take bribes, commit a crime, or be harsh where leniency is demanded or vice versa, and not maintain equality between the criminals of the same kind. So can the government restrict the scope of discretion of a Qāḍī, and specify from its side the punishments for crimes which do not have a specific limit? The views of the scholars of our time have differed regarding this.
Some scholars say the government has no power to bring about restrictions in the discretion of the Qāḍī in ta‘zīr or to specify by legislation from its side the punishments for crimes of ta‘zīr, because then there would remain no difference between ḥadd and ta‘zīr, and it will cause the benefit based on which ta‘zīr was left to the discretion of the Qāḍī to be lost.
However, what is preferred according to us is that there is nothing preventing the government from bringing restrictions to the discretion of the Qāḍī when it considers there to be benefit in this. It may specify punishments for crimes which do not have a specific limit in Sharī‘ah. It is best to leave a range within the boundaries of which the Qāḍī can implement his discretion. For example, he says: “Whoever enters the property of another without any prior or subsequent permission will be punished with imprisonment for a period that does not fall short of a month and does not exceed a year.” In such a case, the discretion of the Qāḍī will be narrowed, in that it will be necessary for him to punish the criminal with imprisonment for a period not less than a month nor more than a year. But he will have discretion between a month and a year, so he will punish criminals in between this range in accordance with the difference in the circumstances of the case and the difference in the gravity of the crime. The permissibility of this is indicated by several indications:
1. Specifying the punishment for ta‘zīr is left, in point of origin, to the discretion of the Ruler, not the Qāḍī, as stated by several jurists. See, for example, Fatḥ al-Bārī (12:73), Kitāb al-Ḥudūd, Bāb al-Ḍarb bi ‘l-Jarīd wa ‘l-Ni‘āl. It is only deferred to the Qāḍī in his capacity as representative of the Ruler. Since the original decision lies with the Ruler, and he is the one that delegates it to the Qāḍī, it is permissible for him to delegate a specified amount from that and hold back an amount.
2. It is established in some ḥadīths that the Prophet (Allāh bless him and grant him peace) specified punishments in some crimes that do not have a specified limit in Sharī‘ah. For example, al-Tirmidhī (no. 1487) related from Ibn ‘Abbās from the Prophet (Allāh bless him and grant him peace) that he said:
“When a man says to another: ‘Oh Jew’, strike him twenty times, and when he says: ‘You effeminate’, strike him twenty times.”
“He was one who prayed ṣalāh, a worshipper, he fasted [continuously] for sixty years, and was not prolific in narrating ḥadīths.”
“acceptable in ḥadīth”,
Similarly, it is established in several ḥadīths that the Prophet (Allāh bless him and grant him peace) ordered the fornicator to be exiled. This exile is not ḥadd according to the Ḥanafīs but ta‘zīr, but it was a specified punishment via the Ruler for criminals of a certain kind. Similarly, it is established in the ḥadīth of ‘Ubādah ibn al-Ṣāmit (Allāh be pleased with him) that the Prophet (Allāh bless him and grant him peace) ordered lashing with stoning for an adulterer. Lashing for the adulterer is ta‘zīr according to some jurists and this is also a punishment specified via the Ruler.
3. It is established according to the Ḥanafīs that the punishment of a sodomite is not ḥadd, but despite this, they specified some punishments for him, for example: being thrown off a mountain, or imprisoned in a dark, smelly room until he dies. It is evident this is specifying the punishment for a crime that does not have a fixed ḥadd in Sharī‘ah according to them.
As for what some scholars have raised as an objection to this, namely that after specification there will remain no difference between ḥadd and ta‘zīr, this is not accepted, because specifying the punishment of ta‘zīr by government law does not transform ta‘zīr into ḥadd as it is not an eternal specification of Sharī‘ah, but rather is a specification by a specific country at a particular time. Freedom remains in the hand of every government to alter this specification whenever it wishes to whatever it wishes. This is distinguished from the ḥudūd of Sharī‘ah that are specified via the Lawgiver. These are eternal, everlasting specifications and there is no scope for a government to alter them by law from its side.
Based on this, what some have claimed that “the permissibility of specifying punishments via the government will lead to losing the benefit for which ta‘zīr was legislated” is repelled. This specification is not a specification of Sharī‘ah, but holds the position of a change for each period. It is permissible for every government to alter it when the interest changes. Hence, the benefit for which ta‘zīr was legislated is not lost.
This view that we discussed is the view that my father, ‘Allāmah Muftī Muḥammad Shafī‘ (Allāh have mercy on him), preferred in his Tafsīr, Ma‘ārif al-Qur’ān (3:116-7), under the explanation of Sūrah al-Mā’idah, at the statement of Allāh (Exalted is He):
“The punishment of those that war against Allāh and His Messenger is…” (5:33).
2. Punishments are a Deterrent
Furthermore, the punishments that Islām has legislated in ḥudūd and qiṣāṣ are not aimed at merely punishing the criminal, but is aimed also at being a lesson and deterrent for others. Allāh (Exalted is He) said: “Cut the hands of the male and female thief, as recompense for what they have earned and as a deterrent from Allāh.” (5:38) Based on this, the punishments of ḥudūd have been made severe so the skins of other criminals crawl and they are deterred from committing crimes and offenses. Based on this, the Islāmic Sharī‘ah has recommended the ḥudūd be carried out in full-view of people and in the presence of the public. Allāh (Exalted is He) said about the male and female fornicator: “Let a group of the believers witness their punishment.” (24:2)
Hence, the Islāmic Sharī‘ah does not like these punishments be carried out in prison cells out of sight from people as is done in the English system. Rather it wants the public to see them with their eyes so it becomes a lesson for them and a cause of crimes being reduced in society.
Similarly, the Islāmic Sharī‘ah does not like the punishment of imprisonment being increased, as is done in our time. Increasing in this punishment leads to other harms and transforms prisons into shelters for criminals where criminals learn from each other how to commit further crimes. The expenses of these prisons become a heavy burden on the Muslim treasury. Hence, imprisonment was not stipulated as the punishment for any of the crimes that are punished by ḥudūd.
The Islāmic Sharī‘ah rather prefers punishments being corporal, either for it to cause pain or to cause humiliation. Amputating the hands and feet and impaling are deterrents that cause pain.
The punishment of lashes in ḥudūd is humiliating, though it does not cause pain to the degree of amputating and stoning. Based on this, the jurists have required that the whip does not have knots and the lasher does not raise his hand above his head and distributes the beating over the whole body and avoids the face and private area and strikes him with moderate strength. All of this is because the actual purpose of this punishment is humiliating the criminal in front of people and for it to become a deterrence for those around him. Causing pain and torment is secondary to this primary objective. The Sharī‘ah does not aim at annihilating him with this punishment.
3. Ḥudūd are Warded Off Based on Doubts
Just as Islām has legislated severe punishments for ḥudūd, it has also ordained strict preconditions for its implementation. Ḥadd is not carried out on any person until his crime is established before the Qāḍī like the light of day without any strong or weak doubt. It is not permissible to carry out the ḥadd for as long as there is doubt, even if weak, on the crime being committed, so that this severe punishment does not befall someone underserving. It is reported from ‘Ā’ishah (Allāh be pleased with her) from the Prophet (Allāh bless him and grant him peace) that he said:
“Ward off ḥudūd from the Muslims as far as you are able. If there is a way out for him, release him. It is better the Ruler errs in pardoning than he errs in punishment.”
The Messenger of Allāh (Allāh bless him and grant him peace) said: “Ward off ḥudūd based on doubts.”
“It is more beloved to me to neglect ḥudūd based on doubts than to carry them out based on doubts.”
Indeed this is a great principle Islām has affirmed at a time in which punishments were ruled for people based merely on a lottery and other guesswork and at a time when the displeasure of the Ruler over a person was sufficient to rule he be executed and skinned and his limbs be amputated. Islām was probably the first to affirm the principle of warding off punishments based on a doubt in the location [of the crime] or in the action [itself]. This is not the place to go into detail. Its place is the books of Fiqh. Then, other legal systems adopted this principle, such that it is now enshrined in the law of every country that the benefit of doubt is credited to someone suspected of crime.
4. The Difference between Ḥadd and Ta‘zīr in Regard to Doubt
Some jurists have mentioned that a doubt causes the ḥadd to fall away, but not ta‘zīr. Ta‘zīr is established even with doubts. See for example: al-Ashbāh wa ‘l-Naẓā’ir by al-Suyūṭī (1:123), under the principle al-ḥudūd tandari’u bi l-shubuhāt and Sharḥ Adab al-Qāḍī by al-Ṣadr al-Shaḥid (2:180; 2:284)
Some people misunderstand what is meant by this and assume that ta‘zīr is permissible even if there is doubt over it being proven that the crime was committed. The matter is not so. The reality is that a doubt is of two types: the first is something that prevents an overpowering judgement that the suspect had carried out what is not lawful for him. The second is what does not prevent that. For the first category, ḥadd and ta‘zīr are equal. This type of doubt causes ḥadd and ta‘zīr both to fall away. For example, two witnesses testify against a man that he kissed a strange woman at a certain time in a certain location and two other witnesses testify that at that very time he was in another city such that it was not possible for him to have met that woman, and the truth of one of the two proofs over the other does not occur to the Qāḍī and both possibilities are equal to him, causing a strong doubt that the suspect committed this crime. Such doubt will cause the ta‘zīr to fall away, and it is not permissible for the Qāḍī in such a case to punish the suspect with a ta‘zīr punishment. Rather, he must release him until something that gives him an overpowering judgement that the suspect committed the crime appears to him.
As for the second category of doubt, it is a technical doubt over the definition of ḥadd being realised. This is the doubt that the jurists have termed “a doubt in the location” or “a doubt in the action”. For example, someone who has intercourse with the female slave of his son or the female slave of his wife based on the assumption that it is lawful for him, or he marries his maḥram on the assumption that it is lawful for him. Even though it is established definitively that he has perpetrated something not lawful for him, there is a technical doubt in the definition of “fornication” being met and necessitating ḥadd. Such a doubt will cause the ḥadd to fall away, but not ta‘zīr.
Similarly, if a man stole an item from another, and there is doubt over the item being secure, such a doubt will cause the ḥadd to fall away, but it will not cause ta‘zīr to fall away, as it is proven he committed something unlawful for him. Whenever the jurists say that a doubt does not cause ta‘zīr to fall away, what they mean is this type of doubt not the first, because the statement of the Prophet (Allāh bless him and grant him peace):
“It is better the Ruler errs in pardoning than he errs in punishment”
Takmilah Fatḥ al-Mulhim, 2:225-33