Advancing, we will be discussing the myths and facts in an aspect of the Sharee’ah— The Islamic penal code and it’s execution (Al Hudood). Our discussion will cover aspects such as:
1: What are the Hudood?
2: How should we understand them and their evidences in the Sharee’ah?
3: What are the common misconceptions and misunderstandings about the Hudood and their evidences?
4: Other related matters.
Sometimes, people may build certain understandings on some texts and claim it to be what the Sharee’ah says, but in reality, it is far from being the correct understanding of Islam. At best, these are myths rather than facts. Students of knowledge especially hold on to certain views without entertaining the possibility of being wrong or that any other correct view can exist. This is usually until he furthers his research on the subject matter and encounters other views and evidences, a gathering of knowledge like this or he engages in an ‘appropriate dialogue’ with other students of knowledge. By this, the sincere student of knowledge realises how limited he is, how wide the ocean of knowledge is and adjusts his opinion not only on the subject matter but also on how to engage flexibly with knowledge in general. A partisan or indoctrinated student on the other hand will find it difficult to unlearn, relearn and accept the ‘truth’— what is proven beyond an iota of doubt.
We will often encounter, in the sayings and writings of the Aimmah (Muslim Intelligentsia) in times past e.g The four Imaams, those who preceeded them, as well as those who came after them, that “Whenever my (ray’i) opinion or statement (qawl) contravenes the Kitaab and Sunnah, then leave that and follow the latter”. While many people use and emphasise the wordings ‘Kitaab and Sunnah’, we should not fail to qualify this with the appropriate adjectival. What we should rather say is ‘The comprehensive understanding’ of Kitaab and Sunnah. To butress this, let us examine the example of the verses which contain the command to amputate the male and female thief. What appears literally in the verse is to ‘cut both of their hands’ but only one who understands the nuances/subtleties (daqeeq) of the Arabic language will realise that what is rather meant is ‘Cut a hand each from both of them’. This speaks to a recent incident where a group of people burnt someone to death on the accusation of blasphemy claiming to defend the honour of the Prophet ﷺ. This is an aberration— a gross misinterpretation and misapplication of Shar’i evidences because when examined thoroughly, much superior evidences will be found in the Sharee’ah which repudiate such interpretations and applications.
Others go further to add ‘fahmu Salaf – Understanding of the Salaf’; and who are the Salaf? In the most widely accepted definition, this constitutes the first three generations of muslims (the first 300 years) who number in their thousands. To establish ‘fahmu Salaf’ on a subject matter, there must be a consensus (Ijmaa’) of the Salaf on such a matter rather than variate or lone report(s)/opinion(s). For example, if a certain member of Halqah Ibn Taofeeq gives his/her opinion on a matter, this cannot be taken to mean the understanding or opinion of Halqah Ibn Taofeeq. Likewise, Ibn Taofeeq himself airing an opinion does not translate to mean the opinion of Halqah Ibn Taofeeq members. This is classically demonstrated in the fiqh of the Madhaahib i.e ‘Imam Maalik says’ is different from ‘The Maalikiyyah say’ (as with the others). The Madhhab may agree or disagree with the Imaam or there might be differences of opinion within the Madhhab… Even when it comes to ‘Silence’, which may fall under Ijmaa’u Sukooti (Consensus by silence), the reason for silence must be taken into cognisance. It may be any of:
1: Fearing the consequences of not remaining silent.
2: Not wanting to oppose and possibly disrespect a senior or elder scholar.
3: Being ignorant of the subject matter.
Therefore, if a person comes to claiming that such and such is the opinion of the Salaf, then probe further to know (with proof):
1: Who amongst them?
2: What status they are of i.e. Sahabi, Tabi’i or Tabi Taabi’i?
3: Whether it is a consensual understanding (Ijmaa’) or,
4: Whether there is ikhtilaaf (differences of opinion).
These points will help achieve a clear understanding, and for the one who studies deeply, they will usually discover a nexus in the opinions (when there are differences). The meeting point(s) can very well be that there is ikhtilaaf and every opinion must be respected. This should guide a da’ee in his utterances and will help avoid misguiding people especially in this age where information (or misinformation) spreads faster than wild fire and it may be too late to retract one’s statement after realising blunders. Although it is an honourable duty and even an obligation to spread the knowledge one has as it is sinful to hoard it, It would be better and more honourable in times of uncertainty or ignorance in a matter to simply say “I don’t know”. This is an indication of being knowledgeable contrary to fearing disrepute from the people. Fearing dishonour, speaking about a matter with little or no knowledge on the other hand is a sign of loving praise and fame— blameworthy qualities to be avoided. A scholar once wrote a book, expounding on the issue, titled: العلماء و علم لا أدري (‘The scholars and the knowledge of “I DON’T KNOW”‘).
It is also a call to attention to da’ees (Islamic callers) that no one is an island, their students or congregation may hold the correct opinion/be more knowledgeable about certain things; and students should not expect any da’ee or scholar to be a ‘know it all’. This is exemplified in the scenario between Allah, the Angels and Aadam (AS) in Suratul Baqarah.
These introductory remarks, although not documented as part of our discussion, are deemed necessary for our chosen topic, a Fiqhi subject matter. They are to lay a foundation for us in properly understanding Fiqh, its evidences and applications.
We shall now begin the discussion proper.
One of the things to know about Hudood is that they are a part of ‘Purifying the soul’. We discussed this in our Halqah centred on Tazkiyatun Nafs. The Hudood are a necessary part of the Sharee’ah for where there is no law, there is no sin and the deterrents help the beleiver to steer clear of the sins (Muhlikaat) thereby increasing his eeman as he does more good deeds (Munjiyaat), purifying his soul and elevating his rank.
Now let us discuss ‘Determining Hudood’.
What is a hadd (plural: Hudood)? In the Arabic language, it means man’u i.e to prevent a person, to hold their hands. In the Sharee’ah, it means عقوبة مقررة بحق الله. They are the legal punishments stipulated by the Sharee’ah. We have explained previously that there are three types of حقوق (huqooq):
1: حقوق الناس مع نفسه- Rights of a person on himself.
2: حقوق الناس مع ربه – Rights of mankind with his Lord.
3: حقوق الانسان أو الناس فيما بينهم – Rights of people between themselves.
The five pillars of Islam are rights of which a person owes Allah and must fulfill them. Owing a debt, for example, is a right of people between themselves. Its fulfilment or defaulting must be accepted or forgiven by the one involved and not Allah. There are as well rights a person owes to himself and yet those that he owes both to Allah and others.
The Sharee’ah lays down certain punishments for defaulting on some of these rights and these are what is referred to as Hudood.
The next thing to discuss are the Maqaasid Al Sharee’ah (Higher objectives of the Sharee’ah). This, on its own, is a wide field that can be treated as a whole course. It is an in-depth aspect of the sciences of the Sharee’ah. Portions of it are studied under Usool Al Fiqh. Anyone conversant with my writing will have noticed that I emphasize it a lot— the reason behind such and such legislation and what is to be achieved by it. The Sharee’ah did not come to give laws without specific purposes and reasons. It is not a militant or tyrant system.
لكل حكم له حكمة أو حكم. عرفتموها أو لم تعرفوها.
For every ruling, there is a wisdom behind it. You either know the wisdom or cannot know it.
And it’s why the jurists say that
ما من حكم إلا و له علة.
There is no legislation in the Sharee’ah which does not have a reason/objective for its legislation.
As this has been well established, it is important to note that these reasons/objectives are not arrived at by mere thinking but by what we have previously mentioned to be the adjectival we should take care and not to leave out i.e ‘The comprehensive understanding’ (of the Kitaab and Sunnah).
It is from these sources themselves that we realise that the Sharee’ah has objectives. For example, the Kitaab (Qu’raan) mentions one of the objectives of solaat as ‘…تنها عن الفحشاء والمنكر’. Regarding sawm (fasting) ‘…لعاكم تتقون’ as is in other legislations like Hajj, Zinaa, etc. In the Sunnah, we learn from the Prophet ﷺ through Ibn ‘Abbass that Maqaasid of zakat-ul-Fitr is ‘طعمة للمساكين و طهرة للصائمين – Provision for the needy and purification for the Fasting Muslims’ (on the day of Eid; additional information from another narration). In this example, if a person pays the zakat-ul-Fitr about two weeks before the stipulated time (and we can find this opinion from some of the salaf and their successors e.g Imam Shaafi’i), has such a person fulfilled the objective stated by the Prophet? !اللهم لا, because it would have been exhausted before the Eid day. In another contention, if a person monetizes the zakat-ul-Fitr and on the stipulated days, will he have fulfilled it? اللهم نعم! because such funds can be budgeted in suitable proportions for feeding needs.
Therefore, in the excercising of rights, in the understanding, and execution of the Hudood, we must always keep the Maqaasid (Higher Objectives) of the Sharee’ah at the back of our minds as they must not fail to be achieved in any case. Where and whenever this is not so, we will inevitably fall into mistakes (and wrongly interpreting the intents of the Lawgiver- Allah). There is ample evidence in the Sunnah which indicate giving recourse to the objectives of the Hudood— to induce the realisation of wrongdoing in the offender and serve as deterrents to others.
The Prophet ﷺ would himself search for excuses to avoid executing the punishments when such cases were reported to him ﷺ e.g the application of the hadd for Zinaa on a Sahabi who reported himself to the Prophet ﷺ:
“It was narrated in Al-Bukhari and Muslim that Anas narrated that he was with the Prophet when a man came to him and said: “Oh Messenger of Allah, I deserve a hadd (corporal punishment) for something I did. So, apply it to me.”
The Prophet did not ask him which punishment he deserved, until the prayer was called for and he prayed with the Prophet. After the prayer, the man returned to the Prophet and repeated his sentence.
The Prophet asked him: Didn’t you pray with us? The man answered: Yes. The Prophet said: “Allah has forgiven you your sin.”
Ibn al-Qayyim commented that this man came in a state of repentance without being asked by anybody, so Allah forgave him and the Prophet did not apply the punishment to him for the crime that he confessed. (See Ibn al-Qayyim, I’lam Al-Muwaqi’in an Rabb Al-‘Alamin, Beirut: Dar Al-Jil, 1973, Vol. 2, p.98.)
And Allah does not derive any pleasure or benefit from punishing the servant. (Suratun Nisaa)
When we look into the Fiqhi terminologies, we will further realise that there is difference between the (the wisdom behind the legislation) حكمة and the علة or سبب (the cause of the legislation). The proper grasp of these terms makes the understanding and application of the Hudood of clearer with the Maqaasid a guiding compass.
This leads us to the third point Which is ‘Protections of the Sharee’ah’.
The Sharee’ah came to establish some matters reffered to as Ad-Darooriyyaat. These are certain matters which are generally agreed to be five, namely:
1:حفظ النفس – Protection of life/soul/self
This point is expressed in verses which liken the killing of a single person to the killing of all human beings and such, whoever is guilty of murder shall receive the death penalty; Whoever kills a believing Muslim intentionally, this recompense is the punishment of Hell.)Suratun Nisaa), stipulating حد القتل. This is also why it makes provisions such as Diyyah – ‘Blood Money’.
2: حفظ الدين – .Protection of Religion
The Sharee’ah seeks to protect the religion from ruin and corruption as well as cleanse it from the unscrupulous behaviours of people. This is why it stipulates a penalty for apostasy (حد الردة ) and the Ahkaam of Jihad.
3: حفظ العقل – Protection of the mind/human intellect.
This is why it prohibits the consumption of alcohol (and other intoxicants).
4: حفظ النسل – Protection of lineage
This is why it prohibits Zinaa and stipulates certain punishments to be meted out on the fornicator and adulterer.
5: حفظ المال – Protection of wealth
This is why it prohibits riba. It also stipulates a punishment for theft and damaging property.
“Understanding the spirit of justice of the criminal law in the Islamic legislation is crucially important for us to realize the underlying reasons behind the contemporary scholar’s decision of halting the execution of major penalties.
The modern Islamic scholars were inspired by the thinking methodology of Umar bn al Khattab, who suspended the punishment for theft during the year of famine. The general command is given in the Qur’an: “The thief, male and female, cut their hands.” (Q5:38). But the Prophet said, “Do not cut in times of drought.” And it is related of him in ahadith that he said, “No cutting hands in times of famine.” Famine is most likely a time of necessity.
As such, the presence of this likelihood was thought to be sufficient to suspend the hadd in deference to the protection of one’s bodily integrity, which is part of the objective (maqsad) of protecting the self (life).”
What then are the types of Hudood?
There are basically seven types generally agreed upon including those explicitly stated in the texts of the Qu’raan and Sunnah. These seven include:
1: حد الزنى – The legal punishments for fornication and adultery.
2: حد القذف – The legal punishments for bearing false witness/giving false testimony/slander in a case of Zinaa.
Testimony is established with evidence and what is considered evidence is that which any iota of doubt cannot overshadow. This is fundamentally ascertained by providing four eyewitnesses. It is interesting to note that during the lifetime of the Prophet ﷺ, four witnesses were never produced against anybody. An equivalent of that is bearing witness against ones self/confession. This establishes the highest certainty, although with certain conditions such as not being under duress. In the Sharee’ah, it is not allowed to torture a person into confession and even after a person confesses against himself without duress, he is reminded of the punishments for the particular misdeed and allowed to rethink his testimony/confession.
In some Arab world where they apply these laws, a person is only invited for an interview over an accusation/conviction and is only arrested after concrete evidence has been found again him. Islam also does not allow ‘set-up’ or collecting evidence in unethical ways to convict a person. Bearing witness must not be done based on conjecture or suspicion but irrefutable proof such as being an eyewitness.
3: حد السرقة – The legal punishments for theft.
4: حد السكر – The legal punishments for drinking alcohol.
The Sharee’ah stipulates no specific punishments but the scholars made Ijtihaad.
5: حد المحاربة – The legal punishments for terrorism/frightening people/robbery.
The punishment here is either amputation of a right hand and left leg or killing.
6: حد الردة – The legal punishments for apostasy.
7: حد البغي – The legal punishments for Blasphemy.
As much as these are agreed upon, there are differences of opinion between the scholars on some details.
The Sharee’ah which, in its protection of rights (حقوق) establishes the Hudood also informs us of the merits in executing them. In a narration of Abdullah ibn Umar, it is reported from the Prophet ﷺ said that: ‘to execute the Hudood is better than rainfall (which serve as blessing) for 40 consecutive days’. The analogy of rainfall used here is contextual as the Arabs consider consecutive and abundant rainfall to be a great blessing because it implies the flourishing of farm produce. In modern times, it is akin to gifting a person millions of naira everyday, for forty days. Allah warns, in Suratul Maidah, against following desires as against what He has legislated.
‘The relevant principle in this regard is that the hudud are to be avoided in cases of doubt. The famous hadith says, “Avoid the hudud for the Muslims as much as you can. If you find a Muslim errant, let him to his way. It is better for the Imam to err in granting leniency and forgiveness than for him to err in punishing someone.”
Also, Umar bn Khattab said, “If I can cancel the hudud due to doubts, I prefer that to going through with the punishment in the face of doubt.” This did not imply that Umar denied the truth of the hadd, nor that he annulled the shari’a. It is simply an indication that applying the shari’a comes with conditions. One of these conditions is the existence of a specific state of affairs. If that state of affairs is not present, the hadd is not to be imposed. This is in fact squarely part of the shari’a, not outside of it.’
The next point to note is that the execution of the Hudood is kaffaarah (expiation) for the one on whom it is applied. This is established in the narration of Abdullah ibn Samit in which the Prophet ﷺ mentions that whoever the Hudood is applied on, it is an expiation for him and who ever is liable but does not confess (and is not caught) and keep his sin secret then Allah will either punish or forgive. This is exemplified in the story of Prophet Musa and his people during a time of drought. When Prophet Musa prayed for rain, Allah informed him that there would be no rainfall until a particular sinner amongst them confesses to his sins. The particular man did not come out but after a while rain began to fall. The people were surprised and Allah informed Prophet Musa that the sinner had repented for his sins in private and He has accepted his receptance .[Tafseer Suratul Hadeed: الم يأن للذين آمنو…]
For this reason, the Sharee’ah also detests ‘tajassus’ (investigating people’s secrets). This act (tajassus) will strip its doer of good deeds on the day of judgement. By deeds, one may be deserving admission into paradise but will not eventually be admitted into it due to acts which strips one of their deeds. This is explained in the ‘Hadith of the Bankrupt’. Allah warns us sternly about this in Suratul Hujuraat.
(یَـٰۤأَیُّهَا ٱلَّذِینَ ءَامَنُوا۟ ٱجۡتَنِبُوا۟ كَثِیرࣰا مِّنَ ٱلظَّنِّ إِنَّ بَعۡضَ ٱلظَّنِّ إِثۡمࣱۖ وَلَا تَجَسَّسُوا۟ وَلَا یَغۡتَب بَّعۡضُكُم بَعۡضًاۚ أَیُحِبُّ أَحَدُكُمۡ أَن یَأۡكُلَ لَحۡمَ أَخِیهِ مَیۡتࣰا فَكَرِهۡتُمُوهُۚ وَٱتَّقُوا۟ ٱللَّهَۚ إِنَّ ٱللَّهَ تَوَّابࣱ رَّحِیمࣱ)
[Surah Al-Hujurat :12]
It is one thing to pray (out of fear) for the ability to perform good deeds. It is another to pray to die upon good deeds. It is yet a different fear (and prayer) for retaining them and they do not go to waste on the day of judgement through such acts as slandering, backbiting and their likes which result from tajassus.
It is not everything that one gists about and this is especially applicable to the womenfolk. I would therefore strongly admonish you to be extremely cautious of what you discuss with others. You may be throwing away your good deeds. If you must gist, let it be about your own self.
This is also why, in relation to tajassus and executing the Hudood, I have previously said:
“In short, the eagerness and the zealotry of tracking people’s pitfalls and ambushing them into confessing for committing major sins for the brutal purpose of spilling their blood cannot be supported by any legislation, divine or human, as such crooked way of thinking only comes from hearts who lost all the meanings of mercy and minds which mentally thrives on bloodshed.”
…Therein is a demonstration of being merciful from Allah in concealing, forgiving and overlooking the fault of a person (like in the case of Prophet Musa and his people during drought) and exposure of man’s weakness and imperfection in continuously holding that fault against his fellow man once he knows about it.
Some people try to play smart…in what way?…, although it is actually not smartness but inferiority complex. They join others in condemning/censuring a person for a particular deed but it is only to hide the fact that they do the same thing or something worse. He tries to exonerate himself… something some people term as:
‘A sinner judging another sinner for sinning differently’
We can always discourage wrongdoing objectively without tarnishing the image of others. This is even more appropriate when we are not ourselves guilty of such or another wrongdoing, we are sincere and we purify ourselves…
So, it is not compulsory that a person confesses his misdeeds publicly especially if they are major sins with hadd punishments. The Sharee’ah does not have a concept like ‘Confession’ (as found in christian doctrine). It is voluntary and we do not track people’s pitfalls (tajassus). The exception is when they seek the counsel of a religious scholar to know the gravity of such sins and how to seek repentance for it might involve transgressing the rights of Allah and/or the rights of others.
Having discussed much about the Hudood, their nature and things associated with them. Now, we shall discuss من يقيم الحدود – Who implements the execution of the Hudood?
Is the hadd to be implemented by just anybody or certain, qualified persons? Is it to be implemented as some miscreants have done by burning a person based on their despicable thinking on the conviction of blasphemy? Some of you have asked me to write an article on blasphemy but I didn’t (and will not) respond as such instances are utterly disgusting and have no place in the Sharee’ah. We ask; did they fulfill the objectives of the Sharee’ah by their actions? In what image have they presented the Sharee’ah to Muslims and non-muslims alike? There are alternate and proper ways of addressing such situations without needing to sound apologetic and people of other faiths will effectively learn and reach the conclusion that truly, the Prophet of Islam is neither to be insulted nor ridiculed no matter where they are— whether in public or private.
We should realise that there is a difference between abstaining from an evil deed because of someone or a group of people and abstaining from such due to the realisation that such did is inherently bad. The former will commit such evil in the absence of those he fears while the latter will abstain whether in their presence or absence. This is why you will find someone dressing or behaving in a certain way because of their spouse but they revert to their old ways once there is a separation owing to divorce, death or certain circumstances (and without any obstacle/challenge). What they are doing is out of fear rather than understanding/conviction.
So, it is not miscreants that are to implement the Hudood. There is a unanimous consensus amongst the scholars that the one to implement this is the حاكم (law court Judge) of the state, region or country. He is to decide whether an accused person in a trial is guilty or not and the judgement to follow. He is deemed innocent until proven otherwise. The Judge is to look into the Sharee’ah as well as the established customary laws of the land in passing judgement.
Therefore, if anyone is found defaulting in any of the حقوق, he is to be handed to the constituted authorities for proper investigation and trial. The Sharee’ah gives no room for ‘Jungle justice’ and regards it as criminal behaviour deserving censure.
Just as I said in this same lecture that “Understanding the spirit of justice of the criminal law in the Islamic legislation is crucially important for us to realize the underlying reasons behind the contemporary scholar’s decision of halting the execution of major penalties…..”
As such, the presence of this likelihood was thought to be sufficient to suspend the hadd in deference to the protection of one’s bodily integrity, which is part of the objective (maqsad) of protecting the self (life).”
So, a lot can be said about the Hudood we have mentioned and we will try to summarises the rest of our points.
Regarding the hadd of zinaa, I will refer you to my article on our website titled:
IS STONING TO DEATH AN ESTABLISHED PUNISHMENT FOR THE MARRIED ADULTERER (click to read)
http://ibntaofeeq.com/is-stoning-to-death-an-established-punishment-for-the-married-adulterer/
In this article, I discussed the usual controversies that trail the matter. I have also cited the practical example of Umar ibn Al-Khattab and the hadeeth of Abdullah ibn ‘Abbass in Saheeh Al-Bukhari and Muslim.
As well, if a person denies committing the sins which require hadd punishments and there is neither evidence nor four ‘eye witness’ cannot be found, then the Hudood cannot be executed on such a person. In a case when there is a confession and/or valid evidence/witnesses, before the hadd is executed, if the offender shows remorse and back out from the execution, then the punishment is no longer executed as the objective has been achieved (as in the case of Mahiz, the Sahabi who was being stoned). So, we must not be extremists by insisting on executing the Hudood no matter the situation. This is also only if the constitution of the land allows for such to be applied.
Another point worthy of note is the issue of ‘Darul Islam diatribe’. We are not in Darul Islam where the provisions of the Sharee’ah are applied 100%. There is no such country on the face of the earth today and therefore we must give consideration to the judicial provisions of the constitution of each land. A typical example is that the death penalty is hardly ever signed by sitting Nigeria governor’s and the offender is rather left to remain behind bars for the rest of his life.
What we must kick against is modernity which cannot be reconciled with the Sharee’ah. Accepting such will make us become apologetic Muslims— one who stammers when the Laws of Allah are to be executed.
Much can be said on each of the Hudood as their fiqh is extensive. We hope at some other time, we will be able to discuss them in detail.
و صلي الله على سيدنا محمد و علي آله و صحبه و سلم.
Being the Transcription of the Halqah held on Sunday, July 24, 2022. Transcribed by Ogundele, AbdulQayyum Afolabi