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Hudud

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This article is about hadd. For HADD, see Calcific tendinitis. For the Hudud ordinances in Pakistan, see Hudood Ordinance.

Template:Fiqh-Cri Hudud (Arabic, also transliterated hadud, hudood; singular hadd, حد, literal meaning "limit", or "restriction") is the word often used in Islamic literature for the bounds of acceptable behaviour and the punishments for serious crimes. In Islamic law or Sharia, hudud usually refers to the class of punishments that are fixed for certain crimes that are considered to be "claims of God." They include theft, fornication and adultery (zina), consumption of alcohol or other intoxicants (khamr), and apostasy (see apostasy in Islam).

Overview

Hudood is one of four categories of punishment in Islamic Penal Law[1]:

  • Qisas - meaning retaliation, and following the biblical principle of "an eye for an eye."
  • Diyya - compensation paid to the heirs of a victim. In Arabic the word means both blood money and ransom.
  • Hudud - fixed punishments
  • Tazir - punishment, usually corporal, administered at the discretion of the judge

Hudud offenses are defined as "claims of God," and therefore the sovereign was held to have a responsibility to punish them. All other offenses were defined as "claims of [His] servants," and responsibility for prosecution rested on the victim. This includes murder, which was treated as a private dispute between the murderer and the victim's heirs. The heirs are given the right to forgive the murderer, or demand compensation (see Diyya) or demand execution of the murderer (see Qisas).

Hudud offenses include:[2]

In traditional Islamic legal systems, there were very exacting standards of proof that had to be met if hudud punishments were to be implemented. [citation needed]

There are minor differences in views between the four major Sunni madhhabs about sentencing and specifications for these laws. It is often argued that, since Sharia is God's law and states certain punishments for each crime, they are immutable. However, with liberal movements in Islam expressing concerns about hadith validity, a major component of how Islamic law is created, questions have arisen about administering certain punishments. Incompatibilities with human rights in the way Islamic law is practised in many countries has led Tariq Ramadan to call for an international moratorium on the punishments of hudud laws until greater scholarly consensus can be reached.[4]

It has also been argued that the Hudud portion of Sharia is incompatible with humanist or Western understanding of human rights. For example a Washington Times editorial called Pakistan's Hudood ordinance:

a set of laws passed in 1979 in response to pressure from hardline Islamic political groups that odiously punished rape victims while making it difficult to convict the perpetrators. [1]

Punishments

In brief, the punishments include:

  • Capital punishments - by sword/crucifixion (for highway robbery with homicide), by stoning
  • Amputation of hands or feet (for theft and highway robbery without homicide)
  • Flogging with a varying number of strokes (for drinking, zina' when the offenders are unmarried or not Muslims, and false accusations of zina')

The hudud punishment for theft was carried out on several hundred individuals, including Christians, during the first two years when Shari`a was made state law in Sudan between 1983 and 1985 and then was withdrawn from application but not from the law. Flogging for morals charges have been carried out since the codification of Islamic law in Sudan in 1991 without withdrawal from application. Although there were sentences of stoning for adultery during this period, none has been carried out.

Requirements for conviction

Only eye-witness testimony and confession were admitted. For eye-witness testimony, the number of witnesses required was doubled from Islamic law's usual standard of two to four. Only free, adult Muslim men are eligible to testify in hudud cases. (In non-hudud cases the testimony of women, non-Muslims and slaves could be admitted in certain circumstances). A confession had to be repeated four times, the confessing person had to be in a healthy state of mind, and he or she could retract the confession at any point before punishment.

However, while these standards of proof made hudud punishments very difficult to apply in practice, an offender could still be sentenced to corporal punishment at the discretion of the judge (see tazir), if he or she was found guilty but the standards of proof required for hudud punishments could not be met.

Adultery

The punishment of adulterers under Islamic law is stoning (Rajm). It is not mentioned in the Qur'an but "derives its authority from hadith literature references which are imputed by many," according to Kemal A. Faruki.[5] There are certain standards for proof that must be met in Islamic law for this punishment to apply. In the Shafii, Hanbali, Hanafi and the Shia law schools the stoning is imposed for the married adulterer and his partner only if the crime is proven, either by four male adults eyewitnessing the actual sexual intercourse at the same time or by self-confession. In the Maliki school of law, however, evidence of pregnancy also constitutes sufficient proof.[6] Scholars such as Fazel Lankarani and Ayatollah Sanei hold that stoning penalty is imposed only if the adulterer has had sexual access to his or her mate.[7][8] Ayatollah Shirazi states that the proof for adultery is very hard to establish, because no one commits adultery in public unless they are irreverent.[9] For the establishment of adultery, four witnesses "must have seen the act in its most intimate details, i.e. the penetration (like “a stick disappearing in a kohl container,” as the fiqh books specify). However they may be charged with indecency and immoral behavior. If their testimonies do not satisfy the requirements, they can be sentenced to eighty lashes for unfounded accusation of fornication." [10]

Theft

Malik, the originator of the Maliki judicial school of thought, recorded in The Muwatta of many detailed circumstances under which the punishment of hand cutting should, and should not, be carried out. Commenting on the verse regarding theft in the Quran, Yusuf Ali says that most Islamic jurists believe that "petty thefts are exempt from this punishment" and that "only one hand should be cut off for the first theft."[11] Maududi also agrees that petty theft is exempt, although he admits that jurists disagree as to the exact dividing line.[12] In Shi'a law, the penalty for the first theft is interpreted as the severing of the four fingers of the right hand based on hadith authentic to them,[13] and this penalty will be applied only if the thief is adult, sane, has stolen from a secure place, was not under compulsion or misery, and does not repent before the crime is proved, among other conditions.[7][14]

Explanations for punishments

John Esposito explains that some Muslims justify these punishments in general terms because they punish crimes that are "against God and a threat to the moral fabric of the Muslim community." He observes that Islamic law provides strict regulations regarding evidence in cases involving these crimes, and that false accusations are seriously punished.[15] Esposito also observes that Muslim reformers have argued that "these punishment were appropriate within the historical and social contexts in which they originated but are inappropriate today and that the underlying religious principles and values need to find new expression in modernizing societies."[16]

William Montgomery Watt believes that "such penalties may have been suitable for the age in which Muhammad lived. However, as societies have since progressed and become more peaceful and ordered, they are not suitable any longer." Gerhard Endress, professor of Islamic Studies at Ruhr University, states that at the time of advent of Islam, several social reforms happened in which a new system of marriage and family, including legal restrictions such as restriction of the practice of polygamy, was built up. Endress says that "it was only by this provision (backed up by severe punishment for adultery), that the family, the core of any sedentary society could be placed on a firm footing." [17]

See above section on adultery for an examination of the requirement of proof of same.

Commenting on the verses related to amputation of the limbs of thieves, Maududi writes that "here and at other places the Qur'an merely declares that sodomy is such a heinous sin... that it is the duty of the Islamic State to eradicate this crime and... punish those who are guilty of it." [18]

There is a movement among some modern liberal Muslims to "re-interpret Islamic verses about ancient punishments," in the words of Professor Ali A. Mazrui. He states that the punishments laid down fourteen centuries ago "had to be truly severe enough to be a deterrent" in their day, but "since then God has taught us more about crime, its causes, the methods of its investigation, the limits of guilt, and the much wider range of possible punishments."[19]

See also: Criticism_of_the_Qur'an § Severe_punishments

See also

Further reading

  • Muhammad Ata Alsid Sidahmad, The Hudud: the seven specific crimes in Islamic criminal law and their mandatory punishments. ISBN 983-9303-00-7
  • Chris Horrie C. and Chippindale P. What Is Islam? Virgin Books, 2003. ISBN 0-7535-0827-3

References

  1. ^ The Constitution of Iran : politics and the state in the Islamic Republic / by Asghar Schirazi, London ; New York : I.B. Tauris, 1997 p.223-4
  2. ^ Between Vision and Reality: Law in the Arab World, Guy Bechor, IDC Projects Publishing House, 2002. pp. 105-110
  3. ^ Joseph Schacht, An Introduction to Islamic Law (Oxford: Clarendon Press, 1973), pp. 178-181
  4. ^ Tariq Ramadan discusses his call for a moratorium on Hadud
  5. ^ Faruki, Kemal A. (1983). Voices of Resurgent Islam (ed. John Esposito). Oxford University Press. p. 286. ISBN 0-19-503340-X.
  6. ^ Buba Iman. "Safiyatu's conviction untenable under sharia". Jenda: A Journal of Culture and African Women Studies. 1.2 (2001). ISSN 1530-5686.
  7. ^ a b "On Capital Punishments". Official website of Grand Ayatollah Fazel Lankarani.
  8. ^ "Resaleye Touzih al-Masayel". Grand Ayatollah Saneyi.
  9. ^ "Shamime Rahmat". Official website of Grand Ayatollah Shirazi.
  10. ^ Encyclopedia of Islam, Zina
  11. ^ Ali, Abdullah Yusuf (2004). The Meaning Of The Holy Qur'an (11th Edition). Amana Publications. p. 259. ISBN 1-59008-025-4.
  12. ^ Sayyid Abul Ala Maududi (2000). The Meaning of the Qur'an, Volume 2. Islamic Publications. p. 451.
  13. ^ Selection of Tafsir Nemooneh, Grand Ayatollah Makarim Shirazi, p. 28, volume 1, on verse 5:38
  14. ^ "Noor Malakoote Quran". Ayatollah Haj seyyed Muhammad Hussein Tehrani.
  15. ^ Esposito, John L. (2002). What Everyone Needs to Know About Islam. Oxford University Press. pp. 150, 151. ISBN 0-19-515713-3.
  16. ^ Esposito, John L. (2002). What Everyone Needs to Know About Islam. Oxford University Press. p. 151. ISBN 0-19-515713-3.
  17. ^ Gerhard Endress, Islam: An Introduction to Islam, Columbia University Press, 1988, p.31
  18. ^ Sayyid Abul Ala Maududi (2000). The Meaning of the Qur'an, Volume 2. Islamic Publications. pp. 48–52.
  19. ^ Mazrui, Ali A. "Liberal Islam versus Moderate Islam: Elusive Moderation and the Siege Mentality". Retrieved 2006-07-03.

Sharia and Islamism in Sudan: Conflict, law and social transformation, Carolyn Fluehr-Lobban, 2011. London: I.B. Tauris.

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