Extract from Misquoting Muhammad: The Challenge and Choices of Interpreting the Prophet’s Legacy
by Jonathan A.C. Brown
In the Shariah, offenses were divided into those against God and those against man. Crimes against God violated His Hudud, or ‘boundaries,’ and were offenses whose punishments were specified by the Qur’an and, in some cases, the Hadiths, such as the punishment of certain kinds of theft by amputating a hand, punishing adultery by stoning and sexual slander by lashing.
Because these offenses were affronts against a merciful God, the evidentiary standards were often impossibly high (such as the four witnesses to sexual penetration required to prove adultery). Moreover, the Prophet ordered Muslim judges to ‘ward off the Hudud [punishments] by ambiguities.’ The severe Hudud punishments were meant to convey the gravity of those offenses against God and to deter, not to be carried out. If a thief refused to confess, or if a confessed adulterer retracted his confession, the Hudud punishments would be waived.
This did not entail that the culprit escaped justice. Circumstantial evidence, such as a witness to the theft or finding the stolen good in the thief’s possession, could lead the judge to find him guilty of wrongful appropriation (ghasb). The wronged party could reclaim their possession or receive compensation for its value plus damages entailed. This coexistence of two legal wrongs identical in fact but subject to two very different standards of evidence and punishment is analogous to the relationship between the crime of theft and the tort of conversion in common law. While the first requires evidence of guilt beyond a reasonable doubt and can be punished with prison, the second only needs a preponderance of evidence and carries monetary damages. In cases that fell below the Hudud category in the Shariah, judges regularly assigned lesser punishments such as a beating, prison or public humiliation.
Shariah judges did not perceive applying lighter punishments as compensation for a design flaw in God’s law. Rather, they felt they were obeying the Prophet’s infallible command to find some means to move a crime from the harsh realm of the Hudud to the lower level of offenses that a judge could punish at his discretion. This was a priority for the ulama.
In fifteenth-century Cairo, when the Mamluk sultan’s men caught a royal administrator ’embracing’ a mistress, and the couple confessed to fornicating, the sultan himself took an interest in the impending execution. When the couple then retracted their confession, the senior Shariah judge in Cairo was sent into exile for insisting – correctly, other ulama affirmed – that the, couple’s sentence had to be commuted and that ‘whoever executes them should be executed in turn.’
Extract from Misquoting Muhammad: The Challenge and Choices of Interpreting the Prophet’s Legacy by Jonathan A.C. Brown, pp 180-181