Characteristics of Hudud, The Islamic Criminal Law/sharia

By: Hafiz Firdaus Abdullah¹

^{N.B: Please comment if you discovered any error in translation !}

 
Hudud is one of the important rulings in Islamic shari’ah. It must be uphold and carried out to whatever extent is possible in all Muslim countries, and Muslims must be at peace with it.
I believe the statement above is a known fact to all Muslims. However, the real picture of hudud is still vague to them. 

 Through this article, I will try to explain the basics of hudud in a brief and simple manner. I will emphasize on the characteristics of hudud, so that Muslims and non-Muslims will be able to know and understand it better. At the same time, I will try to add or squeeze in a few explanations about a few baffling aspects of hudud that are usually misunderstood. 

Simply, hudud is executing a sentence to a crime where its form and amount has been stated by Allah in the Qur’an and Rasulullah in the hadith, where the type of crime and ways to prove it has also been fixed by Allah and Rasulullah.Crimes that fall into the category of hudud are apostasy, premarital sex, adultery, sex with the same gender (gays and lesbians) and stealing.
In Islamic fiqh, the sentence to a crime is divided into three categories:

1. Hudud, as mentioned above.
2. Qishash, which is a sentence that is the same as the crime committed. Qishash typically refers to a crime that is committed on the human soul and body. If someone injured the hand of another, then the qishash ruling would be injuring the hand of the offender also. However, the one injured has the choice to either carry out the verdict, ask for monetary compensation, or forgive the one who inflicted the injury.
3. Takzir, which is a sentence to a crime where its form or amount is not stated by Allah or Rasulullah. Sometimes the form and amount is stated, but it is not fixed. Amendments can be made by the judge base on factors of the crime and the criminal, case to case. Takzir is also used for crimes not mentioned by Allah and Rasulullah, or for hudud crimes that are proven in a different way. For example, proving a rape case using a DNA test or proving a swindling case by balancing the companies account.

Characteristics of hudud.
Now I will lay down the basic characteristics of Hudud.

Hudud’s nature is to deter.
The main objective of hudud is not to punish, but to deter man from committing crime. To achieve this objective, hudud is daunting and intimidating, so that man will be frightened of the crime and will stay away from it. This is mentioned by Allah: “These are the limits (hudud) set by Allah, so near them not.” [Surah al-Baqarah, verse 187]
Therefore, if some say that hudud is harsh, then we respond by saying: “True!” To this answer, one must add the explanation that the main objective in hudud is not to punish, but to restrain and deter man from committing crime and offence. 

Hudud does not fall upon those who are insane, ignorant and confused.
Once a Muslim man went to see the Rasulullah in a mosque and said: “O Rasulullah! I have committed adultery.” Rasulullah turned away from the man until the man confessed four times. Then the Prophet called him and asked: “Are you mad?” The man replied: “No.” “Are you married?” The man replied: “Yes.” The Prophet then said: “Take him and stone him.” [Shahih al-Bukhari, hadith no: 6815]
In another narration, Rasulullah asked: “Maybe you just kissed or touched or looked?” [Shahih al-Bukhari, hadith no: 6824]
Based on the questions that Rasulullah asked, it is clear that the mental status of the person must be determined first. Then, verify if the person really knows what is meant by adultery, in order to avoid any confusion.
Based on the questions, it can be concluded that a person who commits a crime when he himself cannot control his own mind, he is exempted from hudud. Other examples besides this are ignorance, confused, young age (children) and asleep.
It is mentioned in some narrations that ‘Umar al-Khatab, the second caliph of Islam did not sentence hudud law on those who committed adultery or premarital sex, because of their ignorance of the crime. 

Hudud ruling only falls on offences done publicly.
Rasulullah said: “Do not come near evil that has been forbidden by Allah, who so ever has, then he should conceal it with Allah’s veil and repent to Allah. This is because whoever does evil in the open and we came to know about it, we will sentence punishment that has been stated by Allah.” [al-Mustadrak of al-Hakim, hadith no: 7615 and it is graded shahih by him and agreed by al-Zahabi]
Besides that, together we should know that in order to sentence hudud, the accuser (plaintiff) must bring forth the number of witnesses required. If the requirements for the witness are not fulfilled, then the accuser himself will be punished. This is, again, to demonstrate that hudud sentences only fall on crimes done publicly and that there are people witnessing it.
Furthermore, by referring to the hadith about how Rasulullah turned away four times from the man who came and confessed to adultery, it can be concluded that sinning is something that has happened in Rasulullah’s time but he did not attempt to spy or scrutinize those who were suspected of it. This is parallel with what he said: “A leader, if he spies for the faults of his people, it would mean that he is destroying them”. [Sunan Abu Daud, hadith no: 4889 and graded shahih by al-Albani]
Rasulullah turned away from the man showing that he does not like to hear confessions of those who commit adultery. In other words, something that has occurred in privacy let it remain hidden. Rasulullah said: “......whoever who has done it, he should conceal it with Allah’s veil.....” It is not encouraged for those who commit offences to go and admit it to the authorities. Instead he should repent, as stated in the continuation of the above mentioned hadith: “..... he should conceal it with Allah’s veil and repent to Allah.”
Back to the case of the man who confessed to adultery to the Prophet, it is said that while being stoned, he ran away because he could not stand the pain. One of the companions of the Prophet chased him and hit him to death using a camel bone. When this event was told to the Prophet, he said: “Why did you not leave the man, maybe he has repent and Allah accepted his repentance.” [Sunan Abu Daud, hadith no: 4419 and graded hasan by al-Albani]
Whoever knows of a crime, he is not encouraged to go and report it to the authorities. Instead, he should go and give advice and counsel those who commit the crime. Rasulullah said: “Whoever covers (a crime) of a Muslim then Allah will cover him in this world and the hereafter.” [Sunan Ibn Majah, hadith no: 2078 and graded shahih by al-Albani]
The Prophet also said: “Forgive hudud crime that has happened between you because if the hudud crime reaches me, is a must for it to be punished.” [Sunan Abu Daud, hadith no: 4376 and graded shahih by al-Albani]
In another narration he said: “Who so ever commits the sins (syirk, stealing and adultery) and is punished for it, then the punishment nullifies the sins for them. And who so ever commits the sins and Allah covers it, then it depends on Allah to pardon them or punish them.” [Shahih al-Bukhari, hadith no: 6784]
To pardon or to punish? Allah, the Most Gracious, Most Merciful would pardon them. The following hadith explains: “Who so ever sins in this world by committing sin and is punished for it, then Allah is Most Just from multiplying the punishment on His servants. And who so ever sins in this world and Allah conceals it, then Allah is Most Noble from inflicting punishment on something that He has pardoned.”[Musnad Ahmad, hadith no: 775 and graded hasan by Syu‘aib al-Arna’uth]

The accused is allowed to defend himself
Rasulullah once said: “Verily, I am only a man. If you bring to me your cases, it could be that one among you can defend himself better than the rest, until I give a decision based on what I have heard. Whoever that (I gave the wrong verdict) till I gave to him what really belongs to another, then do not take it, for what you are taking is a part of the fire of hell.” [Shahih al-Bukhari, hadith no: 7169]
The above-mentioned hadith explains that the accused can defend himself by testifying. Maybe he’s ignorant, maybe he’s confused, maybe he stole because of certain dire circumstances, maybe he killed as an act of self defence and maybe the witnesses are purposely plotting against him and so on. Also based on this hadith emerge defence attorneys, where those accused and do not know how to defend themselves can ask someone else to do so. 

Punishment is only sentenced on the accused if there is no doubts
In a hadith it is narrated: “Avoid from giving hudud ruling as far as you can avoid it.” [Sunan Ibn Majah, hadith no: 2545] It is also said: “Impel hudud law that is based on doubts.” [Bulugh al-Maram, hadith no: 1047]
These hadith is famous among the companions of the Prophet that al-Hafiz Ibn Hajar al-‘Asqalani said in his work Talkish al-Habir, takhrej no: 1755: “It has been narrated by more than one companions (of the Prophet)...”
Even though the degree of the above hadiths is week, its meaning is true and the Muslim scholars have collectively agreed that hudud punishment is not given if the case is vague and doubtful. Imam Ibn al-Munzir said: “The scholars have collectively agreed that hudud law is not accepted based on doubts.” [Stated by ‘Abdullah bin Abdul Rahman al-Bassam in Taudih al-Ahkam min Bulugh al-Maram, volume 6, page 247.]
This characteristic has been taken by the conventional judicial system of today, where the plaintiff must prove without any doubts that the accused is guilty. Whereas the defender must prove that the evidence is vague and doubtful. If doubts still exist in any of the sides, sentence does not fall on the accused. 

Hudud punishment is physical
The biggest difference between hudud punishment and conventional punishment is that hudud punishment is physical, like whipping, cutting of the hand, exile and death. While in conventional punishment, the criminal usually gets sentenced to prison. Sometimes whipping or strokes of rotan is added to the prison sentence, but it is not usual. The big difference between these two styles of punishment is:

1. Physical punishment really gives a big impact and influence on the criminal, whereas prison just eases and comforts them. A criminal would be happy to enter prison, for he obtains shelter and a place to live in, clothes, food and prison mates to socialize with. This is all one big luxury compared to physical punishment.

Furthermore, I once read in a report that some prisoners, once they finish their sentence in prison, commit other crimes as soon as possible so that they can go to prison again. This is because outside prison, he does not have a house to live in, no toilets, no food, no clothes and no one to socialize and make friends with. He is much better of living in prison. That is why to make him eligible for prison, he commits new crime.

1. Physical punishment does not require much cost. The person who whips or cut of hands requires only a small payment or maybe none at all. This is far different from the prison system. I once read in a local newspaper that the cost for maintaining prisons and prisoners is a few million ringgits.
2.  Physical punishment really terrifies people and this helps in deterring them from committing an offence or crime. Prison is not scary at all, in fact it’s as I mentioned above, and in a way it invites people to commit crime.

Based on this, if a new crime or offence is committed that has not been mentioned by Allah or Rasulullah 1400 years ago, the punishment that will be given would be in the form of physical punishment as well.
Some mock and taunt saying that physical punishment is barbaric. We answer: “Yes! It is.” But imagine if you or someone you love is a victim of a crime. You will definitely agree to the physical punishment and not send the criminal on a ‘holiday’ in prison.

The punishment is lessened for the weak
Even though hudud is physical, it does not mean that it is the same for all humanity who have different physical capabilities. The elderly for example will have a lesser form of punishment. During the time of Rasulullah, there was once a small and weak man who committed adultery. When the case was brought to Rasulullah, he ordered the man to be whipped a hundred times. To this decision, the companions said:
“O Rasulullah! Verily, this man is very weak to be given such a punishment, for if we were to whip him a hundred times, we would kill him.” The Prophet answered: “Take a date branch that has 100 stalks on it and whip him only once with it. After that free him.” [Musnad Ahmad, hadith no: 21935 and graded shahih by Syu‘aib al-Arna’uth]
As it can be seen, physical punishment is only lessened based on the person’s physical capabilities. Factors such as ranks, lineage or wealth cannot be used to reduce a hudud ruling. Again during the time of the Prophet, it was asked that someone caught stealing is lessened the punishment. To this request Rasulullah answered:
“Verily the people before you were destroyed for doing hudud on the poor and excluding the nobles. For my soul in His hands, if Fathimah (the daughter of the Prophet) committed the same crime (stealing), her hand will be cut of too.” [Shahih al-Bukhari, hadith no: 6787]

Anti-hudud group vs Hududiyyah
When we talk about hudud, normally we will encounter two different groups of people:
The first is the Anti-hudud Group. They are those who do not understand hudud and so reject it. To them, if hudud is carried out in a country, many of the citizens will be seen walking around with missing hands and scarred backs.
The second group is the Hududiyyah. They are those who do not understand hudud, but want it carried out very much. To them, an Islamic country is a country where its main responsibility is to cut off the hands of thieves and whip adulterous people.
If both groups are given good explanations about hudud and its characteristics, they will definitely change their views and stand regarding hudud. In hudud, justice and blessings that is the basis of Islam can clearly be seen. A country that carries out hudud, will be peaceful, just and blessed. Peaceful because hudud means to deter people from committing crimes and so the rate of crimes will fall. Just and blessed because hudud first observes the reason for the crime and the condition of the person when committing the crime.
Hudud if compared to conventional punishment used nowadays, has many similarities. The main difference is only in the form of punishment, for hudud carries out physical punishment and conventional methods imprison people. When I emphasize on the similarity, I do not mean that Muslims should think that conventional punishment is enough and be happy with it. But what I am highlighting is:

1. Conventional judicial system used nowadays that is considered modern and updated, is actually taken from the Islamic system. Imagine when man 1400 years ago lived in ignorant times and dark ages, Islam has put down the basis for the punishment of a crime. Therefore it is oppression on oneself when the Muslims community do not follow hudud and instead take the conventional ways, which is plagiarized from Islamic heritage.
2. Those who choose conventional punishment, they actually do not understand hudud. Furthermore, they have are petrified of it due to the Hududiyyah group. With good explanations by us, who understand, they will slowly change their perspective on hudud and will support it.

Through this short and simple article, let us become those who understand hudud and its characteristics. Take this article as a beginning for us to learn more about hudud. The motive for this should be true justice and blessing of all mankind, not for certain religion or political parties. If you find in you, characteristics of the Anti-hudud group or the Hududdiyyah, then let us together try to change and correct ourselves.

¹ Originally writen in Bahasa Malaysia, translated by Aliah bt Abdul Rahman (aar_aliahar@yahoo.com) and Rowina Lynne Murray bt. Jeffery Murray (rowinalynne@yahoo.com). Edited by Mohd. Khairul b. Mohamed (khairul@microlink.com.my).

 

The truth about Hudud/sharia punishments

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

Why hudood and sharia are too harsh ?

By Ibn ‘Ashur (d. 1973)
Translated by Mohamed El-Tahir El-Mesawi

Taken from Ibn Ashur: Treatise on Maqasid Al-Shariah

Thus, the aim of the Sharī’ah with regard to the legislation of fixed penalties (Ḥudūd), just retribution (Qiṣāṣ), discretionary penalties (ta’zīr) and injury compensation (urūsh al-jināyāt) is to achieve the following three objectives:

1. To reform the criminal
2. To satisfy the victim
3. To deter the imitator of criminals

(1) The first objective, that is, reformation, refers to the highest objective of the Sharī’ah, which is bringing reform (iṣlāḥ) to every aspect of the daily lives of individuals comprising a society. This we discussed in chapter 12 on the all-purpose principle of Islamic legislation. Thus, God says: “Now as for the man who steals and the woman who steals, cut off the hand of each of them in requital for what they have done, as a deterrent ordained by God: for God is Almighty, Wise” (5:38). Punishing the criminal aims at removing from his soul the evil that incites him to commit crime. This evil mostly becomes more deeply rooted in the criminal when the idea of committing a crime is translated into practice. That is why God has followed the implementation of the ḥadd with the phrase: “But as for him who repents after having thus done wrong, and makes amends, behold, God will accept his repentance” (5:39).

Ḥudūd constitute the maximum possible sentences, for they have been instituted for the most serious crimes. By intensifying these prescribed penalties, the aim of the Sharī’ah is to deter people and remove evil from the offender. Accordingly, when it is proven that a crime has been committed by mistake, the ḥadd punishment is waived. Similarly, if there is the slightest doubt or uncertainty (shubuhah) that could be used in favor of the offender, then the matter is considered on the same level as a mistake, in the sense that Sharī’ah do not apply. Furthermore, if it is revealed that the unintentional offense has been committed owing to extreme negligence to take the necessary precautions, the negligent person shall receive the appropriate disciplinary treatment.

(2) When seeking satisfaction for the victim, we must remember that it is part of human nature to harbor rancor against aggressors and anger against those who wrong us in error. These feelings often push people to take vengeance against their aggressors in a way that always transgresses the bounds of justice. This is because vengeance bursts out of a passionate anger that usually affects people’s rational thinking and blinds them to the light of justice. Thus, when the victim or his relatives and defenders (awliyā’) are capable of retaliating, they will soon do so; otherwise, they will conceal their wrath, thus awaiting the first opportunity for revenge. It is against this that God has cautioned us by saying: “but even so, let him not exceed the bounds of equity in [retributive] killing” (17:33). Under these circumstances, revenge and crime will never end and the social order of the community will never settle on peace and stability. Therefore, it has been the purpose of the Sharī’ah to undertake the task of satisfying the victim and putting an end to the age-old practice of vengeance and counter-vengeance. Hence, the Prophet said during the Farewell Pilgrimage (Ḥajjat al-Wadā‘) “Abolished are also the blood-feuds of the period of pagan ignorance (Jāhiliyyah).”

Likewise, the purpose of giving the victim fair satisfaction takes into account the inclination for revenge that is rooted in human nature. Accordingly, the Sharī’ah has given the relatives of a murder victim (qatīl) the right of guiding the convicted offender (qātil), under the supervision of the judge, by a rope in his hand to the place where just retribution will be inflicted on him, which is known as qawad (retaliation). This is meant to satisfy them to the same extent if they were to take justice into their own hands.

The satisfaction of the victim is more important in the Sharī’ah than the reformation of the offender. Therefore, it carries greater weight when it is not possible to achieve both at the same time. An example is qiṣāṣ, where the reformation of the criminal cannot be achieved, so priority is given to the satisfaction of the victim or his relatives. For this, there is no point in the well-known disagreement amongst the scholars over the question of consent by the heirs entitled to exact qiṣāṣ (awliyā’ al-dam) to a pardon and blood money instead of inflicting retaliation, if the offender’s wealth is sufficient for that. In this respect, Ashhab’s view that the murderer must be forced to pay the blood money is more tenable, contrary to Ibn al-Qāsim’s opinion. That is why they agreed that if some of the relatives of the victim forgive the offender, qiṣāṣ is then cancelled. These factors, of course, do not apply to killing in brigandage (ḥirābah) and assassination (ghīlah), as we shall point out shortly.

(3) The third purpose, deterring imitators, is implied by God’s saying in the Qur’an: “As for the adulteress and adulterer – flog each of them with a hundred stripes, and let not compassion for them keep you from [carrying out] this law of God, if you [truly] believe in God and the Last Day; and let a group of the believers witness their chastisement” (24:2). Thus, Ibn al-‘Arabī said in his book Aḥkām al-Qur’an: “The real interpretation of this is that the execution of the ḥadd deters the one on whom it is implemented, and those who attend and witness it will learn a lesson from it and be deterred by it. Its story will then be on everybody’s lips, thus warning those who come after.”

It thus reverts to the purpose of reforming the community as a whole. This is because the execution of punishment according to established rules discourages perverse people and criminals from satisfying their devilish desires by committing crimes. Likewise, anything that acts as a deterrent constitutes a punishment. However, deterring the general public [other than the offender] must not transgress the limits of justice. Therefore, it has been an aspect of the wisdom of the Sharī’ahthat has laid down the punishment of the offender as a deterrent to others without violating justice. Hence, the Sharī’ah policy in instituting ḥudūd, qiṣāṣ and other types of penalties is meant to deter people from taking criminals as models.

Nevertheless, a pardon (‘afw) by the victim under certain circumstances does not defeat the purpose of deterrence, for it only rarely happens, and therefore it cannot be taken as the main reason for the offender to commit a crime. Consequently, we find that the Sharī’ah does not take into consideration forgiveness in the crimes that do not affect the right of a specific party, such as theft, the consumption of intoxicants, and adultery, because these offences are a violation of the very essence of legislation itself, and so too is brigandage (ḥirābah). As for assassination, no pardon by the relatives of the victim is accepted, owing to its hideousness. However, the repentance of the brigand (muḥārib) before his arrest has been accepted out of concern for peace and security and as a means of encouraging his companions to follow his good example.
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ByAsadullah Ali Al-Andalusi


The punishments required in Islam for certain crimes are often considered "barbaric" by non-Muslims and liberal Muslims alike. However, I believe this is due primarily to a misunderstanding of what the punishments entail and what exactly is being punished.

For example, many consider the punishments for adultery to be extremely harsh (i.e. lashing and stoning), but what many people don't understand is that adultery is not the thing that is actually punished -- rather it's the public display of adultery. This is why four witnesses are required; especially since Islam prohibits entering someone's private property without permission.
In other words, for such a punishment to be enacted, you'd literally have to have illegal sexual intercourse in a public place (enough so that you'd be noticed in full detail by four people).

Now, there are those who will argue that even with such a clarification, the punishments are still "too harsh". Why lash an unmarried couple for public displays of fornication? Why stone a married person for the same? Why not just fine them or jail them for a short amount of time?

But these questions display a lack of moral integrity and virtue when it comes to the issue of public displays of adultery. We are not just talking about the act of illegal intercourse here, but two people having the audacity to make it public -- an open rebellion against the very foundations of society itself (i.e. the family). It is not some innocuous performance done out of ignorance, but a willing protest against all moral decency.

And it's far worse when a married person does it. Not only are they spitting on the institution of marriage itself, but spitting in the face of their own family and children. Adultery is already such a heinous crime that one wonders why someone would have the gall to advertise it to the world. Even murderers and thieves try not to be as conspicuous.
Hence why the punishments are so harsh, because the very act that is being punished is so extreme -- almost inconceivable.

Thus, I think there is a no more fitting statement than "they were asking for it", because when you don't even bother to hide such an indecency then you are literally asking for whatever punishment exist -- no matter whether you perceive it as lenient or harsh.
At that point, neither of these categories matter, because you have agreed to the punishment by virtue of your behavior.