1) Hudud (Penalties) in Contemporary Legal Discourse .2) Everyone needs Someone

1) Hudud (Penalties) in Contemporary Legal Discourse

On Sunday, January 2, 2011, Sh eik h Yusuf Al-Qaradawi, president of t h e International Union for Muslim Sc h olars (IUMS), was interviewed by Al Jazeera c h annel program As h -S h ari`a h wa Al-Haya h (S h ari`a h and Life). T h e interview's main th me was "Hudud in Contemporary Fiqh ."

From time to time, t h e question of hudud (fixed penalties in t h e Islamic S h ari`a h ) and their application in t h e modern world raises debates in Muslim and non-Muslim societies. W h ile mainstream Muslims regard t h e rig h t application of h udud as an integral part of S h ari a h , ot h ers see it as a controversial issue t h at s h ould be open to ijti h ad (personal reasoning) on t h e part of contemporary sc h olars.

S h eik h Qaradawi, w h o is known for h is vast and deep knowledge of S h ari `a h and its essential objectives, wonderfully and distinctively dealt wit h t h is t h orny topic in h is recent interview on Al Jazeera. In t h e following lines, t h e main points discussed during t h e interview are reviewed.

Historical Background

For more t h an 14 centuries Muslims h ave resorted to S h ari `a h as a means to govern t h eir lives until t h e Western occupation forces invaded Muslim lands. At t h at time, t h e occupiers c h anged t h e laws by force, so it was natural t h at peoples and reformers in Muslim countries foug h t to restore t h e rule of S h ari`a h , as t h ese countries were mainly Muslim-majority ones.

S h eik h Qaradawi calls for applying S h ari`a h w h ile bearing into consideration t h e c h anges in time, place, and people t h emselves, as t h ere are old jurisprudential rulings t h at are not valid in t h is modern world. S h ari`a h is valid for all times and places; h owever, t h e application of S h ari`a h needs ijti h ad on t h e part of qualified sc h olars w h o consider t h e c h anges in today's world w h ile h aving deep knowledge of t h e tenets of S h ari `a h .

S h ari`a h and Hudud

S h ari`a h cannot be divided; it s h ould be dealt wit h as a w h ole. In t h e Qur'an, out of 6,236 verses, only 10 address t h e topic of h udud directly. T h ese verses were revealed late during t h e mission of Prop h et Mu h ammad (peace and blessings be upon h im). T h e h udud laws mentioned in t h e Qur'an are 4 -or 5 if t h e one of qisaas (retaliation) is added-. T h ese 5 h udud address qisaas, adultery, qad h f (false accusation), h iraba h ( h ig h way robbery), and t h eft.

In order to realize t h e actual volume of h udud compared to t h e rest of Islam, many sc h olars divide Islam into creed, acts of wors h ip, morals, manners, and laws. T h e laws are divided into civil, economic, family, commercial, criminal, constitutional, international relations laws, and so on.

So w h y do people focus only on one part of t h e criminal law and ignore t h e rest of S h ai`a h and Islam? T h is is because some people — even among Muslims — see t h is part as a group of distinguis h ing laws of Islam, because t h ese laws are essentially different from t h ose foreign or man-made laws. Moreover, t h is is because h udud are t h e apparent part of S h ari`a h to people, t h oug h h udud alone are not enoug h for a t h oroug h application of S h ari `a h itself. 

However, if t h e laws related to banning usury or collecting zaka h (prescribed alms) are applied, many people will t h ink t h at t h e ruler is not applying S h ari `a h so long as h udud are not applied.

Apart from t h is, t h e p h rase h ududu Alla h mentioned in some verses of t h e Qur'an is even related to issues like divorce and marriage. Here, t h e term h udud refers to t h e features and limits t h at distinguis h w h at is permissible from w h at is forbidden concerning jurisprudential rulings.

Hudud in t h e Qur'an and Sunnah

T h ere are clear-cut h udud establis h ed by t h e Qur'an as mentioned above, wit h regard to qisaas,qad h f, h iraba h , and t h eft. T h ere are also t h e zanni (speculative) h udud, w h ic h were establis h ed by t h e Sunna h , suc h as t h e penalty for drinking wine. Some sc h olars said it is 40 las h es; ot h ers said it s h ould be 80 las h es, w h ile some ot h ers, like Al-B uk h ari and At-Tabari, said t h ere is no penalty for drinking wine but only ta`zeer (or ot h er less punis h ment). adultery,

S h eik h Qaradawi notes t h at h e goes for t h e last opinion, so t h e punis h ment could be w h ipping, imprisoning, or imposing fines.

One of t h e speculative h udud is also t h e one for apostasy, w h ic h was establis h ed by t h e Sunna h . T h ere are many h adit h s, as well as some references in t h e Qur'an, on killing apostates. However, `Umar ibn Al-K h attab asked an apostate to repent. Also, Imam An-Nak h `iy and Imam At h -T h awry are of t h e opinion t h at apostates s h ould continuously be asked to repent. Moreover, t h e stoning penalty for a married adulterer was referred to in t h e Sunna h , not in t h e Qur'an.

Applying Hudud Is Not a Problem

Alt h oug h t h e late Syrian prime minister and great man of law Faris Al-K h oury was a C h ristian, h e was one of t h e figures most ent h usiastic about applying S h ari`a h . T h e problem is not wit h t h e application of h udud, but it h as to do wit h t h e misapplication of t h em; t h at is, applying t h em wit h out meeting t h eir conditions. T h e Prop h et (peace and blessings be upon h im) prepared t h e society before applying h udud. He applied t h e w h ole of Islam: He performed t h e Prayers, collected zaka h from t h e ric h , and distributed it among t h e poor, stressing t h e importance of social solidarity. He also provided jobs for t h e unemployed. Generally speaking, h e made an Islamic life. In t h at case, t h e t h eft penalty could be applied.

But h ow can h udud be applied w h en people are unemployed, h ungry, sick, orp h aned, and h omeless? Islam s h ould be establis h ed in suc h aspects first, and t h en if someone steals, suc h an act of t h eft is because of t h e evil inside h im or h er.

`Umar ibn Al-K h attab did so by suspending t h e t h eft penalty during t h e Starvation Year, as people were stealing because of need and h unger. W h en a ric h man came to `Umar complaining t h at h is slaves were stealing, after pondering and investigating t h e matter and knowing t h at t h is master h ad not met t h e needs of h is slaves, `Umar told h im, "Go meet t h eir needs first or I'll cut your h ands off." So, social justice s h ould be applied, and people's needs s h ould be met, and conditions s h ould be considered in order to apply h udud. Ot h erwise, h udud may be used as a pretext to oppress people by t h eir rulers.

Moreover, sometimes some individuals steal millions and billions and h udud are not applied to t h em as t h ey are politically empowered and ric h . In t h e same time, h udud are applied to t h e weak and t h e poor. Here, imbalance takes place.

Hudud Are Not t h e Ultimate Goal

Anot h er point is t h at w h en someone commits a crime related to h udud, t h e aut h orities s h ould not start wit h applying t h e penalty, but any ot h er way out s h ould be soug h t. A rule, w h ic h Muslims agree upon, says, "Let doubt suspend h udud." Many jurists widen t h e range of doubt based on t h e following h adit h related by Al-Hakim and As-Suyuti:

"Refrain from enforcing h udud on Muslims as muc h as you can. If you find a way out for a Muslim, let h im (or h er) go, as it is better for t h e imam (ruler) to wrongly forgive t h an to wrongly punis h ."

Islam is not keen on punis h ing people. Punis h ments are for abnormal people, w h o constitute a small portion of society. However, if t h ese people are not punis h ed, corruption will prevail. T h ere is a h adit h t h at says,

"A penalty applied on eart h is better for people t h an rain falling upon t h em for 30 or 40 mornings." (A h mad)

T h is is because t h ere is no benefit in receiving rains and growing crops w h ile t h ieves are allowed to steal w h at h ardworking people s h ould h arvest.

Conditions and Restrictions of Applying Hudud

Alla h h as prescribed h udud to deter and purge t h e wrongdoers. Hudud deter t h ose w h o commit crimes and prevent t h em from committing t h em again; t h ey furt h er discourage ot h er people from committing crimes.

Some people say t h at t h e h udud are h ars h . In fact, h ars h ness is sometimes required for reform. Anot h er point is,w h at is t h e alternative for h udud? T h e alternative in man-made laws is imprisonment, w h ic h does not deter criminals; Some criminals sometimes repeat t h eir evil acts even more s h ockingly after gaining more experience from t h eir fellow criminals in jails. 

Islam's p h ilosop h y of applying h udud wit h regard to adultery, for example, does not h ave to do wit h t h e act of adultery itself – w h ic h is a forbidden act of course due to many reasons -. T h at p h ilosop h y rat h er h as to do wit h t h e doer's committing h is or h er act publicly, as it is known t h at t h e adultery penalty is applied only w h en four just people (wit h acceptable testimony) witness t h e evil act of illegal sexual intercourse, or w h en t h e adulterer confesses four times before a judge t h at h e or s h e h as committed t h at act. In t h at case, t h e defendant s h ould be informed of t h e penalty before h e or s h e confesses.

Moreover, t h e four witnesses must be just, and t h e judge must make sure t h at t h ey are not lying to h im. If any of t h ese conditions are not met, t h e penalty cannot be applied. In t h at case, t h e adulterer may h ave t h e c h ance to repent wit h out receiving t h e penalty.

Anot h er condition for applying h udud is t h e removal of all dubieties. For example, if someone steals an amount of money from Bayt Al-Mal (t h e Treasury), h e or s h e s h ould not receive t h e prescribed penalty (namely, cutting off t h e h is/ h er h and). T h is is because some sc h olars say t h at t h e doer of t h is act already h as a s h are of t h at public money as h e or s h e is one of t h e Muslims. However, if t h e penalty of t h eft is not applied, anot h er lesser punis h ment s h ould be inflicted on t h e doer.

However, w h en all dubieties are removed, t h ere still remain conditions for h udud to be applied:

1-     A defendant's committing a crime by free will w h ile knowing t h at t h is act or crime is illegal

2-     A defendant's publicly committing a crime or confessing to committing it.

Ijti h ad and Application of Hudud

T h ere are differences among sc h olars wit h regard to t h e application of some h udud. For example, t h ere are differences relating to t h e meaning of cutting off  a t h ief's h and, t h e accurate place of cutting, and t h e amount or number of stolen stuff t h at deserves t h e penalty. T h is is natural because jurisprudential details differ, but t h e basic rulings are agreed upon.

So, if someone steals somet h ing t h at exceeds a certain amount, t h e penalty is applied. Based on t h at, if someone steals somet h ing less t h an suc h a certain value or somet h ing to eat, t h e penalty is not applied. T h e amount of stolen money s h ould be significant enoug h for t h e penalty to be deserved, and t h is can be subject to ijti h ad in our modern time. But generally speaking sc h olars agree t h at a t h ief's h and s h ould be cut off exactly at t h e wrist.

It is natural t h at t h ese jurisprudential differences open t h e door for contemporary ijti h ad, w h ic h must be open in order to apply S h ari `a h . T h ere are many examples of issues t h at need contemporary ijti h ad. For example, t h ere is a h adit h t h at says, "A Muslim s h ould not be killed in qisaas (equality in punis h ment) for killing a disbeliever" (Al-B uk h ari). So, s h ould a Muslim be killed if h e or s h e kills a D h immi (a non-Muslim living under t h e protection of t h e Islamic State)? Abu Hanifa h and h is companions say, "Yes," as disbeliever in t h e h adit h refers to t h e disbelievers fig h ting Muslims, not D h immis. T h is ruling was applied during t h e Abbasid and Ottoman calip h ates as t h ese calip h ates ad h ered to t h e Hanafi Sc h ool of T h oug h t.

Anot h er example is t h e diyya h (blood money) — s h ould it be t h e same amount of money for bot h Muslims and D h immis killed? S h ould it be t h e same amount for men and women killed? I am for paying an equal amount, because Almig h ty Alla h says in t h e Qur'an (Pay blood money to t h e family of t h e slain.) (An-Nisaa' 4:92)  T h us, Almig h ty Alla h does not differentiate between a man and a woman. Moreover, in qisaas, a man is killed w h en h e kills a woman. So, we s h ould open t h e door for ijti h ad in suc h issues. 

Islamic vs. Secular Penal Laws

T h e majority of secular laws are in accordance wit h S h ari `a h laws, except for penal laws (t h ose relating to h udud and qisaas). However, t h e essence of t h e relation between t h e Islamic system and t h e secular ones is one of separation. T h is is because secular systems represent p h ilosop h ies t h at are different from Islam's.

For example, t h e secular system does not punis h adulterers as it views t h eir act as a rig h t to please t h emselves. It also does not punis h h omosexuals as it views t h eir act as a personal rig h t. W h ile it does not forbid usury, Islam sees usury as a matter t h at deserves waging war against t h ose practicing it. So t h e Islamic and secular p h ilosop h ies are different in suc h a way t h at t h ey do not complement one anot h er.

T h ere mig h t some sort of integration between t h ese two kinds of systems concerning some civil laws, but t h is does not mean t h at t h e application of secular laws equals t h e application of S h ari `a h , as any system must be adopted along wit h its p h ilosop h y.

Possibility of Applying Hudud Today

It is supposed t h at w h en t h e elements of a crime are complete, h udud s h ould be applied. However, if t h ese elements are not present, t h en ta`zeer s h ould be applied. Ta`zeer is to be applied by t h e aut h ority of t h e imam or judge. Applying h udud is t h e rig h t of t h e state. Consequently, no group in any place h as t h e rig h t to apply h udud to a group of people away from t h e aut h ority of t h e state.

Hudud may be suspended until t h ere is an Islamic life compre h ensively establis h ed, wit h all conditions guaranteed. If t h ese conditions are met in a certain case, h udud must be applied.

T h ere are countries t h at apply h udud nowadays like Saudi Arabia , Iran , and Sudan . But t h e question is, do t h ey apply h udud properly? T h is needs to be discussed in detail.

Contributer Mostafa Al-Khateeb is an editor in OnIslam.net's Shari `ah section. He was a moderator of IslamOnline.net's Discussion Forums and an editor in IOL's Living Shari`ah section. He holds a BA from the Department of English, Cairo University , and holds a two-year translation diploma and a two-year diploma in Islamic studies.

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2) Everyone needs Someone

People need people and friends need friends
And we all need love for a full life depends

Not on vast riches or great acclaim,
Not on success or on worldly fame,

But just in knowing that someone cares
And holds us close in their thoughts and prayers-

For only the knowledge that we're understood
Makes everyday living feel wonderfully good,

And we rob ourselves of life's greatest need
When we "lock up our hearts" and fail to heed

The outstretched hand reaching to find
A kindred spirit whose heart and mind

Are lonely and longing to somehow share
Our joys and sorrows and to make us aware

That life's completeness and richness depends
On the things we share with our loved ones

and friends.
                                                by Helen Steiner Rice