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HUDUD

Encyclopaedia of Ismailism by Mumtaz Ali Tajddin

The penal law of Islam is called hudud in the hadith and fiqh books. This word is the plural of hadd, which means prevention, hindrance, restraint, prohibition, and hence a restrictive ordinance, or statute, of God, respecting things lawful and things unlawful. In Islamic fiqh, the word hudud is limited to punishments for crimes mentioned in the Koran or the hadith, while other punishments left to the discretion of the jurists are spoken of as ta'zir (chastisement). The word ta'zir is derived from the verb azar means prevent, reform or respect. The verb is used in its first and second meanings in the Koran (5:12, 7:157, 48:9). In the terminology of the jurists, ta'zir is a punishment aimed firstly at preventing a criminal from committing further crimes, and secondly, at reforming him. The Koran laid down the principle from which the ta'zir punishment is said to have deduced.

Chastisement and punishment correspond to several Arabic terms are used in the Koran, i.e., adhab (over 350 times), nakal (4 times), uqaba (26 times), and jaza (over 100 times) with their cognates. The Koran does not use other expressions to convey the same meaning. The word adhab means any type of burdensome pain, nakal means prevent, deter or to give exemplary punishment, uqaba means various forms of punishment, jaza carries the significance of "just deserts" i.e., the deserved consequence of one's action.

It should be pointed out that all violations of Divine limits in a general sense are not punishable; punishment is inflicted only in those cases in which there is violation of other people's right. For instance, neglect of prayers is not punishable. The punishable crimes in Islamic law are those which affect society; and those spoken of in the Koran are murder, dacoit or highway robbery, theft, adultery or fornication (zina) and accusation of adultery. The Koran lays down a general law for the punishment of offences in the following words: "And the recompense of evil (sayyi'a) is punishment (sayyi'a) proportionate thereto, but whoever forgives and amends, he shall have his reward from God" (42:40). Similar instructions as to the punishment of offenders are given elsewhere in the Koran: "And if you punish (aqabtum), then punish (aqibu) with the like of that with which you were afflicted; but if you are patient, it will certainly be best for those who are patient" (16:126); "And he who punishes evil (aqaba) with the like of that with which he has been afflicted (uqiba) and he has been oppressed, God will certainly aid him" (22:60); "Whoever acts aggressively (i'tada) against you, inflict injury (i'tadu) on him" (2:194).

Punishment for murder

Undoubtedly, the greatest crime known to society is qatl, or taking away one's life. It is a crime denounced in the early Meccan chapters: "And do not kill the soul which God has forbidden except for the requirements of justice" (17:33, 6:152), "And they who….do not slay the soul which God has forbidden except in the requirements of justice…..and he who does this shall find a requital of sin; the chastisement shall be doubled to him on the day of resurrection, and he shall abide therein in abasement" (25:68-69).

The punishment of murder is however prescribed in a Medinan chapter: "O'you who believe! retaliation (qisas) is prescribed for you in the matter of the slain; the free for the free, and the slave for the slave and the female for the female, but if any remission is made to any one by his (aggrieved) brother, then prosecution (for the blood-wit) should be made according to usage, and payment should be made to him in a good manner; this is an alleviation from your Lord and a mercy; and whoever exceeds the limit after this he shall have a painful chastisement. And there is life for you in the law of retaliation, O'men of understanding, that you may guard yourselves" (2:178-179).

The word qisas, rendered as retaliation, is derived from qassa meaning he cut it or he followed his track in pursuit, and mutilating for mutilating. The law of qisas among the Israelites extended to all these cases, but the Koran has expressly limited it to cases of murder (fi-qatla). It speaks of retaliation in wounds as being an ordinance of the Mosaic law (5:45), but it is nowhere prescribed as the law for the Muslims, who are required to observe it only in the case of the slain (2:178). In some hadith, it is no doubt mentioned that the Prophet ordered retaliation in some cases of wounds, but this was in all likelihood due to the fact that he followed the earlier law until he received an express commandment to the contrary.

The law of retaliation in murder cases is followed by the word "the free for the free, the slave for the slave and the woman for the woman," which have sometimes been misunderstood as meaning that if a free man has been murdered, a free man should be murdered in his place and so on. The very word qisas, which requires that the murderer should be murdered, and not an innocent man falsify this. The words were meant to abolish an old Arab custom, for the Arabs before Islam used to insist, when the person killed was of noble descent, upon the execution of others besides the murderer. So it was made clear that whoever it might be, a free man or a slave or a woman, the murderer himself was to be slain.

An alleviation is however allowed in case the person who suffers from the death of the murdered man makes a remission, and is satisfied with diya or blood money.

Another case in which blood money takes place of a death sentence is that of unintentional killing. The Koran says: "And it does not behoove a believer to kill a believer except by mistake, and whoever kills a believer by mistake, he should free a believing slave, and blood-money should be paid to his people unless they remit it as alms, but if he be from a tribe hostile to you and he is a believer, the freeing of a believing slave suffices; and if he is from a tribe between whom and you there is a covenant, the blood-money should be paid to his people along with the freeing of a believing slave." (4:92)

Murder of a non-Muslim

It may be here noted that by the hostile tribe, spoken of in the above quotation, is meant a tribe at war with the Muslim state. The murder of a non-Muslim living under a Muslim state or in a friendly non-Muslim state, is punishable in exactly the same way as the murder of a Muslim. The Prophet is reported to have said: "Whoever kills a mu'ahad (a non-Muslim living under the protection of a Muslim state), he shall not perceive the odour of paradise, and its odour is perceivable from a distance of forty years' journey" (Bukhari, 87:29). Thus, even from a purely religious point of view, not the least distinction is made between the murderer of a Muslim and non-Muslim, and therefore any distinction in their temporal punishment is out of question. And where the Koran speaks of a murderer, it always speaks of the murderer of a nafs (person), and not of a Muslim: "Whoever kills any one unless it be for manslaughter or mischief in the land, it is as though he slew all men" (5:32). In fact, the right of non-Muslims in a Muslim state are in all respects on a par with those of Muslims, so much so that Muslims are required even to fight in their defence (Bukhari, 56:174); and the Prophet is reported to have said: "Their property is like our property and their blood is like our blood." According to another report: "The property of the mu'ahads is not lawful for the Muslims." (Masnad, 4:89)

Alleviation of punishment in murder cases

Hadith speaks of cases of murder in which the murderer's intention is doubtful and in these cases too, blood money is to be paid (Abu Daud, 38:18, 25). And where the murderer could not be discovered, blood money was paid from the state treasury (Bukhari, 87:21). There seems no reported case in which the murderer may have been imprisoned in case of unintentional murder, but the alleviation of punishment in such cases is clearly provided for in the Koran. The form of alleviation spoken is the payment of blood money, but the right of the jurist or of the state to give that alleviation any other form is not negatived.

Punishment for decoity

Another crime for which capital punishment may be awarded, is dacoit. In the Koran, dacoit is spoken of as waging war against God and His apostle: "The punishment of those who wage war against God and His apostle and strive to make mischief (fasad) in the land is only this, that they should be put to death, or crucified, or their hands and their feet should be cut off on opposite side, or they should be imprisoned; this shall be as a disgrace for them in this world and in the hereafter they shall have a grievous chastisement" (5:33). It has been accepted by the commentators that dacoits and murderers who create disorder in a settled state of society, are referred to in this verse. The punishment prescribed is of four kinds, which shows that the punishment to be inflicted in any particular case would depend upon the circumstances of the case. If murderer has been committed in the course of dacoit, the punishment would be the execution of the culprit, which may take the form of crucifixion if the offence is so heinous or the culprit has caused such terror in the land that the leaving of his body on the cross is necessary as a deterrent. Where the dacoits have committed excesses, one of their hands and feet may be cut off. In less serious cases of dacoit, the punishment may be only imprisonment.

Punishment for theft

The word satiqa means taking away other's property secretly. Thus, theft is the next punishable crime spoken in the Koran: "And as for the man who steals and the woman who steals, cut off their hands as a punishment for what they have done, an exemplary punishment from God, and God is Mighty, Wise. But whoever repents after his iniquity and reforms himself, God will turn to him mercifully; for God is Forgiving, Merciful" (5:38-39).

The cutting off of hand (qat'i yad) may be taken metaphorically, as in qata'a lisana-hu (lit. he cut off his tongue), which means he silenced him. But even if taken literally, it is not necessary to cut off the hands for every type of theft, and this is a fact, which all jurists have recognized. Qadi Abdul Jabbar has pointed out that a small evil is not called nakal, it becomes so when it has increased considerably and become rampant; consequently the cutting of hand for theft is reserved only for the habitual thieves, who could not otherwise be prevented from repeating the offence (cf. Tafsir al-Kabir, 1:382).

As stated above, in the case of dacoit four grades of punishment are mentioned, ranging from death or crucifixion to mere imprisonment. It is evident that theft is not as serious a crime as dacoit, and hence the minimum punishment for it could not be severer than the minimum punishment for dacoit, which is imprisonment, the next higher being the cutting off of hands. Evidently what is meant is that whereas the maximum punishment for dacoit is death, the maximum punishment for theft is the cutting off of hand. Therefore it is for the judge to decide which punishment will suit a particular case. The state of society may sometimes demand the maximum punishment, even in less serious cases, but there are several circumstances which go to show that the maximum punishment of the cutting off of hand may ordinarily be reserved for habitual thieves:

The minimum punishment for dacoit, having already been mentioned in 5:33 may also be taken as the minimum punishment for the much less serious offence of theft, and this would meet the ends of justice.

The cutting off of hands, being a punishment for the more serious offences falling under dacoit, should also be reserved for the more serious offences falling under theft, and the offence of theft generally becomes more serious when it becomes habitual.

The punishment of cutting of hands, in case of theft, is called an exemplary punishment, and such punishment could only be given in very serious cases, or when the offender is addicted thereto, and the milder punishment of imprisonment has no deterrent effect upon him.

The Koranic verse 5:39 indicates that the object of the punishment is reform, and an occasion to reform can only be given if the punishment for a first or second offence is less severe.

It is true that the cutting off of hands, for even a first crime, is reported in hadith, but this may be due to the particular circumstances of society at the time, and it is for the judge to decide which punishment will suit the circumstances. For instance, according to some hadith, the hand was cut off when the amount stolen was one-quarter of a dinar or more; according to others when it was one dinar or more (Abu Daud, 37:12, Nisai, 46:7). According to another hadith, the hand of the thief was not to be cut off at all when a theft was committed in the course of a journey or on an expedition (Abu Daud, 37:19). The words in Abu Daud are : "I heard the Messenger of God say, Hands shall not be cut off in the course of journey." Probably some other punishment was given in such cases. There are also hadith showing that the hand was not to be cut off for stealing fruit on a tree (Ibid. 37:13). The cutting off of the hand is also prohibited in the case of criminal misappropriation (Ibid. 37:14). When Marwan was the governor of Medina, a certain slave stole young palm trees from the garden of a man, and being caught was imprisonment by Marwan, who intended to cut off his hand. The master of the slave went to Rafi bin Khudaij, who said that he had heard the Prophet as saying that there was to be no cutting off of the hand in the case of theft of fruit, and when Rafi related this to Marwan, the slave was let off (Ibid. 37:13). In another hadith it is stated that when a certain person stole another's mantle valued at 30 dhirams from underneath his head, the owner of the mantle offered that he would sell the same to the person who had stolen it, without demanding immediate payment, and the Prophet approved of this arrangement (Ibid. 37:15). A person guilty of house-breaking was produced before Ali bin Abu Talib. He did not order the cutting of hand, but inflicted the punishment of whipping (Kanz al-Ummal, 3:117). According to Tafsir al-Kabir (3:595), "Ahmad bin Hanbal, Sufian Suawri and Ishaq were of opinion that the hand cannot be cut where fine is imposed."

Punishment for adultery

Adultery and the accusation of adultery are both punishable according to the Koran: "The adulteress and the adulterer, flog each of them, giving a hundred stripes, and let not pity for them detain you in the matter of obedience to God, if you believe in God and the last day, and let a party of believers witness their chastisement" (24:2)

In the case of slave-girls, who are guilty of adultery, the punishment is half of this: "And when they (the slave-girls) are taken in marriage, then if they are guilty of fornication, they shall suffer half the punishment which is inflicted upon free women" (4:25).

These are the only verses speaking of punishment for adultery, and they clearly show that flogging, and not death or stoning to death, is the punishment for adultery. In fact, verse 4:25 precludes all possibility of death punishment for adultery. It speaks clearly of the punishment of adultery in the case of married slave-girls, and says further that the punishment is half the punishment of adultery in the case of free married women. It is generally thought that while the Koran prescribes flogging as a punishment for fornication, i.e., when the guilty person is not married, stoning to death is the punishment for adultery, and that this is based on the Prophet's practice. But the Koran plainly speaks of the punishment for adultery in the case of married slave-girls as being half the punishment of adultery in the case of free married women (muhsanat), and therefore death or stoning to death cannot be conceived of as a possible punishment in case of adultery as it cannot be halved, while imprisonment or flogging may be. Thus the Koran not only speaks of flogging, and not death, as punishment for adultery, but it positively excludes death or stoning to death. Some earliest scholars had alleged that the stoning to death was originally derived from the Torah; others that it had been instituted as part of the Sunnah of the Prophet, while a third group of Muslims had rejected stoning, since, not finding it mentioned in the Koran, they preferred the penalty that was mentioned there. They would be referring doubtless to Koran (24:2): "The adulteress and adulterer, flog each of them, giving a hundred stripes." In his Tafsir al-Kabir (6:214), Fakhruddin Razi records: "All are agreed that the punishment of one hundred stripes is applicable to all types of delinquents."

It should be noted that Koranic teaching emphasizes that Muslims should refrain from abominable thoughts and desires (6:151), thus the adulterous thought (lamam) is not punishable (53:32). The Prophet explained that these are the look in the eye, the desire within the heart and the verbal expressions, which constitutes the preliminaries for sexual intercourse. These are forgiven if they remain unacted upon (Bukhari, 58:65).

Flogging

A few words may be added as to the method of flogging. The Arabic word jald is from the root j-l-d meaning to flog, whip or lash and it appears in the Koran in the form of a command against the culprits (ijlidu at 24:2 and ijlidhum at 24:4). The term jalada signifies he hit or hurt his skin. Jalad (flogging) was therefore a punishment, which should be felt by the skin, and it aimed more at disgracing the culprit than torturing him. In the time of the Prophet, and even for some time after him, there was no whip, and flogging was carried out by beating with a stick or with the hand or with shoes (Radd al-Muhtar, 6:4). It is further stated by the same authority that the culprit was not stripped naked for the infliction of the punishment of flogging; only he was required to take off thick clothes such as would ward off the stroke altogether. According to a report of Ibn Masud and Ahmed bin Hanbal, a shirt or two must be left over the body (Ibid.,6:5). It is further related that it is preferable to give the strokes on different parts of the body, so that no harm should result to any one part, but the face and the private parts must be avoided. (Ibid., 6:5)

Stoning to death

Stoning to death (rajm) as punishment for adultery is stipulated in the hadith, but not in the Koran. The injunction to halve the punishment in certain cases is a clear indication that stoning to death was never contemplated as the punishment of adultery in the Koran. In hadith, however, cases are met with in which adultery was punished with stoning to death. One of these cases is expressly mentioned as the case of Jew and a Jewess: "The Jews came to the Prophet with a man and a woman from among them who had committed adultery; and by his order they were stoned to death near the place where funeral services were held" (Bukhari, 23:61). Further explanation of this incident is given in another hadith where it is stated that when the Jews referred the case to him, he enquired of them what punishment the Torah prescribed in case of adultery. The Jews tried at first to conceal the fact that it was stoning to death, but on Abdullah bin Salm giving the reference, they admitted it and the guilty persons were dealt with as prescribed in Torah (Ibid. 61:25). According to third version, which is most detailed, the Jews who desired to avoid the severer punishment of stoning for adultery said one to another: "Let us go to this Prophet, for he has been raised with milder teachings; so if he gives his decision for a milder punishment than stoning, we will accept it." It is then related that the Prophet went with them to their midras (the house in which the Torah was read), and asked them what punishment was prescribed in their sacred book. They tried to conceal it at first but the truth had to be admitted at last, and the Prophet gave his decision saying: "I give my judgment according to what is in the Torah" (Abu Daud, 37:25)

These reports leave not the shadow of a doubt that stoning was the punishment of adultery in the Jewish law, and that it was in the case of Jewish offenders that this punishment was first resorted to by the Prophet when he came to Medina. It is evident that the Prophet decided several cases of adultery according to the Law of Moses when there was no Koranic ordinance of giving a hundred stripes. The Law of Moses reads: "If a damsel that is virgin be betrothed unto a husband, and a man find her in the city, and lie with her; then ye shall bring them both out unto the gate of that city, and yet shall stone them with stones that they die" (Deut. 22:23). There are other hadith which show that the same punishment was given in certain cases when the offenders were Muslims, but apparently this was before the revelation of the verse (24:2), which speaks of flogging as the punishment for both the adulterer and the adulteress, it being the practice of the Prophet to follow the earlier revealed law until he received a definite revelation on a point. A suggestion to that effect is contained in a hadith: Shaibani says, I asked Abdullah bin Abi Aufa, "Did the Prophet stone to death?" He said, "Yes." I said, "Was it before the chapter entitled the Light (24th chapter) was revealed or after it?" The reply was, "I do not know" (Bukhari, 86:21). The chapter referred to is that which speaks of flogging as a punishment for adultery, and the question shows clearly that the practice of stoning for adultery was recognized as being against the plain injunction contained in that chapter. It is likely that some misunderstanding arose from the incidents, which happened before the Koranic revelation on the point, and that that practice was taken as the Sunnah of the Prophet.

The question seems to have arisen early as to how an adulterer could be stoned, when the Koran prescribed flogging as the only punishment for adultery. Caliph Umar is reported to have said that, "there are people who say, What about stoning, for the punishment prescribed in the Book of God is flogging" (Masnad, 1:50). To such objectors, Umar's reply is stated as follows: "In what God revealed, there was the verse of rajm (stoning); we read it and we understood it and we guarded it; the Prophet did stone (adulterers to death) and we also stoned after him, but I fear that when more time passes away, a sayer would say, We do not find the verse of rajm in the Book of God" (Bukhari, 86:31). According to another version he is reported to have added: "Were it not that people would say that Umar has added in the Book of God that which is not in it, I would have written it" (Abu Daud, 37:23). The argument attributed to Umar is very unsound. He admitted that the Koran did not contain any verse prescribing the punishment of stoning for adulterers, and at the same time he is reported as stating that there was such a verse in what God revealed. In all probability what Umar meant, if he ever spoke those words, was that the verse of stoning was to be found in the Jewish sacred book, the Torah, and that the Prophet stoned adulterers to death. The use of the words "Book of God" (Kitab–Allah) for the Torah is common in the Koran (2:213, etc.) In all likelihood Umar only spoke of rajm as the punishment of adultery in the Mosaic law and he was misunderstood. At any rate he could not have spoken the words attributed to him. Had there been such a verse of the Koran, he would have brought it to the notice of the Companions. How could he say that there was a verse of the Koran, which he would have written down in the Koran, but he feared that people would say that he had made an addition to the Koran.

There is further evidence in hadith itself that Umar himself at least in one reported case, punished adultery with flogging as laid down in the Koran (24:2), and not with the stoning to death. It is related that one of Umar's collectors, Hamza by name, found that a married man who had committed adultery with his wife's slave-girl had been punished by Umar with a hundred stripes, and he referred the case to Umar, and Umar upheld his first decision (Bukhari, 39:1). His own action therefore negatives the hadith which attributes to him the statement that stoning to death as a punishment for adultery was an ordinance contained in the Koranic verse. After a thorough examination of all the traditions, Suyuti came to the conclusion that, "The assertion that a verse about rajm was revealed is based on traditions, which are isolated (ahad) and these cannot supersede the Koranic injunction or cast doubt on its purity" (Itaqan, 2:26).

An explanation is sometimes offered, that such a verse had been revealed but that it was abrogated afterwards, though the ordinance contained in it remained effective. There is no sense at all in this explanation. If the words of verse were abrogated, the ordinance contained in those words went along with them. No ordinance can be given except in words, and if the words are abrogated, the ordinance is also abrogated. If therefore such a verse was ever revealed (for which there is no testimony worth the name), the admission that it was abrogated leaves the matter where it was before its revelation. Mir Waliullah writes in Muslim Jurisprudence and the Koranic Law of Crimes (Lahore, 1982, p. 143) that, "It may be noted that a minority of Muslim jurists have always held the opinion that the only punishment for adultery of all kinds is a hundred stripes and that rajm is based on no authority. Most of the modern Muslim jurists and scholars have expressed the same opinion." Muhammad Iqbal Siddiqi also writes in The Penal Law of Islam (Lahore, 1971, p. 60) that, "The punishment of one hundred lashes alone is prescribed, the word rajm (stoning to death) is nowhere mentioned in the Koran as punishment for zina. Further, the traditions relied on in support of stoning to death are discordant and fail to establish that any such punishment was awarded after the revelation of the Sura al-Noor.""
Accusation of adultery "A false accusation (qadhf) of adultery is punished almost as severely as adultery itself: "And those who accuse free women, then do not bring four witnesses, flog them, giving eighty stripes, and do not admit any evidence from them ever; and these it is that are the transgressors. Except those who repent after this and act aright, for God is Forgiving, Merciful" (24:4-5)

It may be added here that while in ordinary matters two witnesses are required (2:282), in the case of an accusation of adultery four witnesses must be produced. Thus, a case of adultery can be established only on the strongest possible evidence. That circumstantial evidence is accepted is shown by the Koran itself in Joseph's case who, when accused of an assault on the chief's wife, was declared free of the charge on circumstantial evidence (12:26-28). There is also a number of hadith showing that circumstantial evidence was accepted when it led to the establishment of a certain fact.

Drunkenness

The Koran does not speak of any punishment for the man who drinks wine, but there are hadith showing that the Prophet inflicted punishment in such cases. This punishment seems to have been of a very mild type. It however appears that punishment was inflicted only in cases when a man was intoxicated with drink. Thus, it is related that a certain person called Nuaiman or Ibn Nuaiman was brought to the Prophet in a state of intoxication, and it distressed the Prophet, so he ordered those who were in the house to give him a beating, and he was beaten with shoes and sticks (Bukhari, 86:4). Another incident is related in which the person who had drunk wine was beaten with hands and with shoes and with thaub or garments (Ibid. 86:5). Such remained the practice in the time of the Prophet and that of Abu Bakr, and for some time in the reign of Umar, and very mild punishment was inflicted with hands or shoes or ardiya (pl. of rida, being the wrapping garment covering the upper half of the body), but Umar then introduced flogging, giving forty stripes, raising the punishment to eighty stripes, it is added, when people behaved inordinately (atau) and transgressed fasaqu or limits (Ibid. 51:5).

General directions for execution of punishments

Punishment must be inflicted without respect of persons, nor should mediation be accepted in such cases. When, in the case of a certain woman who was guilty of theft, some people sought to intercede on her behalf through Usama, since she came of a good family, the Prophet was enraged and said, "Don't you intercede in the matter of a hadd (punishment)? and then addressed the people in general, saying, Those before you went astray, for, when one of them committed a crime and he was a great man, they would not punish him, and when he was a poor man they would execute the punishment (Ibid. 86:12). But lenience was shown in the execution of punishment when the guilty person showed signs of repentance (Ibid. 86:27). It is strictly forbidden that one man should be punished for the crime of another (Abu Daud, 38:2). Nor is any punishment to be inflicted on a madman or a minor (Bukhari, 86:22). The punishment of the pregnant woman is to be deferred until she has delivered her child. (Sunan by Abu Abdullah Mohammad bin Kathir Qashi, 21:36).

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