Hudud

This article is about the concept in Islamic law. For the laws in Pakistan, see Hudood Ordinances.

"Hadd" redirects here. For other uses, see HADD (disambiguation).

Hudud (Arabic: حدود Ḥudūd, also transliterated hadud, hudood; singular hadd, حد, lit. "limit, boundary") is an Islamic term referring to punishments which under Islamic law (shariah) are mandated and fixed by God. These punishments were rarely applied in pre-modern Islam, and their use in some modern states has been a source of controversy.

Traditional islamic jurisprudence divides crimes into offenses against God and those against man. The former are seen to violate God's hudud, or 'boundaries'. These punishments were specified by the Quran, and in some instances by the Sunnah. The offenses incurring hudud punishments are zina (unlawful sexual intercourse), unfounded accusations of zina, consuming intoxicants, highway robbery, and some forms of theft. Jurists have differed as to whether apostasy and rebellion against a lawful Islamic ruler are hudud crimes.

Hudud punishments range from public lashing to publicly stoning to death, amputation of hands and crucifixion. Hudud crimes cannot be pardoned by the victim or by the state, and the punishments must be carried out in public. However, the evidentiary standards for these punishments were often impossibly high, and they were infrequently implemented in practice. For example, meeting hudud requirements for zina and theft was virtually impossible without a confession, which could be invalidated by a retraction. Based on a hadith, jurists stipulated that hudud punishments should be averted by the slightest doubts or ambiguities (shubuhat). The harsher hudud punishments were meant to deter and to convey the gravity of offenses against God, rather than to be carried out.

During the 19th century, sharia-based criminal laws were replaced by statutes inspired by European models nearly everywhere in the Islamic world, except some particularly conservative regions such as the Arabian peninsula. The Islamic revival of the late 20th century brought along calls by Islamist movements for full implementation of sharia. Reinstatement of hudud punishments has had particular symbolic importance for these groups because of their Quranic origin, and their advocates have often disregarded the stringent traditional restrictions on their application. In practice, in the countries where hudud have been incorporated into the legal code under Islamist pressure, they have often been used sparingly or not at all, and their application has varied depending on local political climate. Their use has been a subject of criticism and debate.

Hudud is not the only form of punishment under sharia. In other cases involving bodily harm, Islamic law prescribes a retaliatory punishment analogous to the crime (qisas) or monetary compensation (diya), and for other crimes the form of punishment is left to the judge's discretion (ta'zir). Criminals who escaped a hudud punishment could still receive a ta'zir sentence.

Scriptural basis

Hudud crimes are defined in the Quran and the Sunnah.

Quran

The Qur'an describes several hudud crimes and in some cases sets out punishments. The hudud crime of theft is referred to in Quranic verse 5:38:

As to the thief, male or female, cut off his or her hands: a punishment by way of example, from Allah, for their crime: and Allah is Exalted in power.

The crime of "robbery and civil disturbance against Islam" inside a Muslim state, according to some Muslim scholars, is referred to in Quranic verse 5:33:

The punishment of those who wage war against Allah and His Messenger, and strive with might and main for mischief through the land is: execution, or crucifixion, or the cutting off of hands and feet from opposite sides, or exile from the land: that is their disgrace in this world, and a heavy punishment is theirs in the Hereafter.

The crime of intoxication is referred to in Quranic verse 5:90, and hudud punishment is described in hadiths:

O ye who believe! Intoxicants and gambling, (dedication of) stones, and (divination by) arrows, are an abomination, - of Satan's handwork: eschew such (abomination), that ye may prosper.

The crime of illicit consensual sex is referred to in several verses, including Quranic verse 24:2:

The woman and the man guilty of adultery or fornication - flog each of them with a hundred stripes. Let not compassion move you in their case, in a matter prescribed by Allah, if ye believe in Allah and the Last Day: and let a party of the Believers witness their punishment.

The crime of "accusation of illicit sex or rape against chaste women without four witnesses" and a hudud punishment is based on Quranic verses 24:4, 24:6, 9:66 and 16:106, among others Quranic verse.

And those who accuse chaste women and do not bring four witnesses - flog them with eighty stripes and do not accept their witness thereafter. Indeed they themselves are impure.

Hadiths

The sahih hadiths, a compilation of sayings, practices and traditions of Muhammad as observed by his companions, are considered by Sunni Muslims to be the most trusted source of Islamic law after the Quran. They extensively describe hudud crimes and punishments. In some cases Islamic scholars have used hadiths to establish hudud punishments which are not mentioned in the Quran. Thus, stoning as punishment for zina is based on hadiths which narrate episodes where Muhammad and his successors prescribed it. The tendency to use existence of a shubha (lit. doubt, uncertainty) to avoid hudud punishments is based on a hadith that states "avert hadd punishment in case of shubha".

Hudud offences and punishments

Offences subject to hudud punishment include:

• Some types of theft (Sariqa, السرقة). Punished with amputation of a hand;
• War against God, (Moharebeh, Hirabah), and Corruption on Earth (Mofsed-e-filarz). Traditionally defined as banditry or highway robbery (Haraba, Qat' al-Tariq, قطع الطريق). Punished with crucifixion, another form of the death penalty, amputation of the right hand and the left foot, or banishment. Different punishments are applied for different scenarios and there are differences of opinion regarding specifics within and between legal schools.
• Rebellion (Baghi (rebel), pl. Baghat). Withdrawing from the obedience of the Caliph or the Imam is considered a hadd crime according to the prevailing traditional interpretation of the Quranic verse 49:9. There is juristic consensus that the rebels must be exhorted to lay down their arms before loyal troops have a license to fight and kill them.
• Apostasy (Riddah, ردة or Irtidad, ارتداد), leaving Islam for another religion or for atheism, is regarded as one of hudud crimes liable to capital punishment in traditional Maliki, Shafi‛i, and Hanbali jurisprudence, but not in Hanafi and Shi‛i fiqh, though these schools also regard apostasy as a grave crime against the Islamic state and society and prescribe the death penalty for male apostates.

• Illicit sexual intercourse (Zina (الزنا). Includes pre-marital sex and extra-marital sex. Classification of homosexual intercourse as zina differs according to legal school. Although stoning for zina is not mentioned in the Quran, all schools of traditional jurisprudence agreed on the basis of hadith that it is to be punished by stoning if the offender is muhsan (adult, free, Muslim, and having been married), with some extending this punishment to certain other cases and milder punishment such as lashing prescribed in other scenarios. The offenders must have acted of their own free will.

• Unfounded accusation of zina (Qadhf, القذف), punished by 80 lashes.

• Drinking alcohol (Shurb al-Khamr). The Hanafis forbid drinking alcholic beverages other than wine only if it leads to drunkenness, while other schools forbid all alcoholic beverages. Punished by 40 to 80 lashes, depending on the legal school.

There are a number of differences in views between the different madhhabs with regard to the punishments appropriate in specific situations and the required process before they are carried out.

Murder, injury and property damage are not hudud crimes in Islamic Penal Law, and are subsumed under other categories of Islamic penal law, which are:

• Qisas (meaning retaliation, and following the principle of "eye for an eye"), and Diyyah ("blood money", financial compensation paid to the victim or heirs of a victim in the cases of murder, bodily harm or property damage. Diyyah is an alternative to Qisas for the same class of crimes).
• Tazir – punishment administered at the discretion of the judge.

History

Because the stringent traditional restrictions on application of hudud punishments, they were seldom applied historically. For example, aside from "a few rare and isolated" instances from the pre-modern era and several recent cases, there is no historical record of stoning for zina being legally carried out. Criminals who escaped hudud punishments could still be sanctioned under the system of tazir, which gave judges and and high officials discretionary sentencing powers to punish crimes which did not fall under the categories of hudud and qisas. During the 19th century, sharia-based criminal laws were replaced by statutes inspired by European models nearly everywhere in the Islamic world, except some particularly conservative regions such as the Arabian peninsula.

Under pressure from Islamist movements, recent decades have witnessed re-introduction of hudud punishments and by 2013 about a dozen of the 50 or so Muslim-majority countries had made hudud applicable, mostly since 1978. In 1979 Pakistan instituted the Hudood Ordinances. In July 1980 the Islamic Republic of Iran stoned to death four offenders in Kerman. By the late 1980s, Mauritania, Sudan, and the United Arab Emirates had "enacted laws to grant courts the power to hand down hadd penalties". During the 1990s Somalia, Yemen, Afghanistan, and northern Nigeria followed suit. In 1994 the Iraqi president Saddam Hussein (who had persecuted and executed many Islamists), issued a decree "ordering that robbers and car thieves should lose their hands". Brunei adopted hudud laws in 2014.

Enforcement of hudud punishments has varied from country to country. In Pakistan and Libya, hudud punishments have not been applied at all. In Nigeria local courts have passed several stoning sentences for zina, all of which were overturned on appeal or left unenforced.

During the first two years when Shari`a was made state law in Sudan (1983 and 1985), a hudud punishment for theft was inflicted on several hundred criminals, and then discontinued though not repealed. Floggings for moral crimes have been carried out since the codification of Islamic law in Sudan in 1991 and continue. In 2012 a Sudanese court sentenced Intisar Sharif Abdallah, a teenager, to death by stoning in the city of Omdurman under article 146 of Sudan’s Criminal Act after charging her with "adultery with a married person". She was held in Omdurman prison with her legs shackled, along with her 5-month-old baby. (She was released on July 3, 2012 after an international outcry.)

The hudud punishment for zināʾ in cases of consensual sex and the punishment of rape victims who failed to prove the coercion, which has occurred in some countries, have been the subject of a global human rights debate. The requirement of four male witnesses before a rape victim can seek justice has been criticized as leading to "hundreds of incidents where a woman subjected to rape, or gang rape, was eventually accused of zināʾ" and incarcerated, in Pakistan. Hundreds of women in Afghanistan jails are victims of rape or domestic violence, accused of zina, when the victim failed to present witnesses. In Pakistan, over 200,000 zina cases against women under the Hudood laws were under way at various levels in Pakistan's legal system in 2005. In addition to thousands of women in prison awaiting trial for zina-related charges, rape victims in Pakistan have been reluctant to report rape because they feared being charged with zina. The resulting controversy prompted the law to be amended in 2006, though the amended version has been criticized for continuing to blur the legal distinction between rape and consensual sex.

Crucifixion in modern Islam, at least in Saudi Arabia, takes the form of displaying beheaded remains of a perpetrator "for a few hours on top of a pole." They are far fewer in number than executions. One case was that of Muhammad Basheer al-Ranally who was executed and crucified on December 7, 2009 for "spreading disorder in the land" by kidnapping, raping and murdering several young boys. ISIS has also reportedly crucified prisoners.

Requirements for conviction

Illegal sex

Main article: Zina

There are certain standards for proof that must be met in Islamic law for zina punishment to apply. In the Shafii, Hanbali, and Hanafi law schools Rajm (public stoning) or lashing is imposed for religiously prohibited sex only if the crime is proven, either by four male adults witnessing at first hand the actual sexual intercourse at the same time or by self-confession. For the establishment of adultery, four male Muslim witnesses must have seen the act in its most intimate details. Shia Islam allows substitution of one male Muslim with two female Muslims, but requires that at least one of the witnesses be a male. The Sunni Maliki school of law consider pregnancy in an unmarried woman as sufficient evidence of zina, unless there is evidence of rape or compulsion. However, the punishment can be averted by a number of legal "semblances" (shubuhat), such as existence of an invalid marriage contract or possibility that the conception predates a divorce. The majority Maliki opinion theoretically allowed for a pregnancy lasting up to seven years, indicating a concern of the jurists to shield women from the charge of zina and to protect children from the stigma of illegitimacy. These requirements made zina virtually impossible to prove in practice.

If a person alleges zina and fails to provide four consistent Muslim witnesses, or if witnesses provide inconsistent testimonies, they can be sentenced to eighty lashes for unfounded accusation of fornication (qadhf), itself a hadd crime." Rape was traditionally prosecuted under legal categories requiring less stringent evidentiary rules. In Pakistan, the Hudood Ordinances of 1979 subsumed prosecution of rape under the category of zina, making rape extremely difficult to prove and exposing the victims to jail sentences for admitting illicit intercourse. The resulting controversy prompted the law to be amended in 2006, though the amended version is still criticized by some for blurring the legal distinction between rape and consensual sex.

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 in the Quran on theft, 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." Islamic jurists disagree as to when amputation is mandatory religious punishment. This is a fatwa given by Taqī al-Dīn ʿAlī b. ʿAbd al-Kāfī al-Subkī (d. 756/1356), a senior Shafi scholar and judge from one of the leading scholarly families of Damascus: The Imam and Shaykh, may God have mercy on him, said: It has been agreed upon that the Hadd [punishment] is obligatory for one who has committed theft and [for whom the following conditions apply]:

1. [the item] was taken from a place generally considered secure (ḥirz)
2. it had not been procured as spoils of war (mughannam)
3. nor from the public treasury
4. and it was taken by his own hand
5. not by some tool or mechanism (āla)
6. on his own
7. solely
8. while he was of sound mind
9. and of age
10. and a Muslim
11. and free
12. not in the Haram
13. in Mecca
14. and not in the Abode of War
15. and he is not one who is granted access to it from time to time
16. and he stole from someone other than his wife
17. and not from a uterine relative
18. and not from her husband if it is a woman
19. when he was not drunk
20. and not compelled by hunger
21. or under duress
22. and he stole some property that was owned
23. and would be permissible to sell to Muslims
24. and he stole it from someone who had not wrongfully appropriated it
25. and the value of what he stole reached ten dirhams
26. of pure silver
27. by the Meccan weight
28. and it was not meat
29. or any slaughtered animal
30. nor anything edible
31. or potable
32. or some fowl
33. or game
34. or a dog
35. or a cat
36. or animal dung
37. or feces (ʿadhira)
38. or dirt
39. or red ochre (maghara)
40. or arsenic (zirnīkh)
41. or pebbles
42. or stones
43. or glass
44. or coals
45. or firewood
46. or reeds (qaṣab)
47. or wood
48. or fruit
49. or a donkey
50. or a grazing animal
51. or a copy of the Quran
52. or a plant pulled up from its roots (min badā’ihi)
53. or produce from a walled garden
54. or a tree
55. or a free person
56. or a slave
57. if they are able to speak and are of sound mind
58. and he had committed no offense against him
59. before he removed him from a place where he had not been permitted to enter
60. from his secure location
61. by his own hand
62. and witness is born
63. to all of the above
64. by two witnesses
65. who are men
66. according to [the requirements and procedure] that we already presented in the chapter on testimony
67. and they did not disagree
68. or retract their testimony
69. and the thief did not claim that he was the rightful owner of what he stole
70. and his left hand is healthy
71. and his foot is healthy
72. and neither body part is missing anything
73. and the person he stole from does not give him what he had stolen as a gift
74. and he did not become the owner of what he stole after he stole it
75. and the thief did not return the stolen item to the person he stole it from
76. and the thief did not claim it
77. and the thief was not owed a debt by the person he stole from equal to the value of what he stole
78. and the person stolen from is present [in court]
79. and he made a claim for the stolen property
80. and requested that amputation occur
81. before the thief could repent
82. and the witnesses to the theft are present
83. and a month had not passed since the theft occurred

All of this was said by ʿAlī b. Aḥmad b. Saʿīd (probably Ibn Ḥazm, d. 1064). And the Imam and Shaykh added: and it is also on the condition that [the thief’s] confession not precede the testimony and then after it he retracts [his confession]. For if the thief does that first and then direct evidence (bayyina) is provided of his crime and then he retracts his confession, the punishment of amputation is dropped according to the more correct opinion in the Shafi school, because the establishment [of guilt] came by confession not by the direct evidence. So his retraction is accepted.

Disputes and debates over reform

A number of scholars/reformers have suggested that traditional hudud penalties "may have been suitable for the age in which Muhammad lived" but are no longer, or that "new expression" for "the underlying religious principles and values" of Hudud should be developed. Tariq Ramadan has called for an international moratorium on the punishments of hudud laws until greater scholarly consensus can be reached.

Hudud punishments have been called incompatible with international norms of human rights and sometimes simple justice. At least one observer (Sadakat Kadri) has complained that the inspiration of faith has not been a guarantee of justice, citing as an example the execution of two dissidents for "waging war against God" (Moharebeh) in the Islamic Republic of Iran—the dissidents waging war by organizing unarmed political protests. The Hudood Ordinance in Pakistan led to the jailing of thousands of women on zina-related charges, were used to file "nuisance or harassment suits against disobedient daughters or estranged wives". The sentencing to death of women in Pakistan, Nigeria, Sudan for zina caused international uproar, being perceived as not only as too harsh, but an "odious" punishment of victims not wrongdoers.

Among the questions critics have raised about the modern application of hudud, include: why, if the seventh-century practice is divine law eternally valid and not to be reformed, have its proponents instituted modern innovations? These include use of general anesthetic for amputation (in Libya, along with instruction to hold off if amputation might "prove dangerous to [the offender's] health"), selective introduction (leaving out crucifixion in Libya and Pakistan), using gunfire to expedite death during stoning (in Pakistan). Another question is why they have been so infrequently applied both historically and recently. There is only one record of a stoning in the entire history of Ottoman Empire, and none at all in Syria during Muslim rule. Modern states that "have so publicly enshrined them over the past few decades have gone to great lengths to avoid their imposition." There was only one amputation apiece in Northern Nigeria and Libya, no stonings in Nigeria. In Pakistan the "country's medical profession collectively refused to supervise amputations throughout the 1980s", and "more than three decades of official Islamization have so far failed to produce a single actual stoning or amputation." (Saudi Arabia is the exception with four stonings and 45 amputations during the 1980s.)

Among two of the leading Islamist movements, the Muslim Brotherhood has taken "a distinctly ambivalent approach" toward hudud penalties with "practical plans to put them into effect ... given a very low priority;" and in Pakistan, Munawar Hasan, then Ameer (leader) of the Jamaat-e-Islami, has stated that "unless and until we get a just society, the question of punishment is just a footnote."

Supporting hudud punishments are Islamic revivalists such as Abul A'la Maududi who writes that in a number of places the Quran "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." According to Richard Terrill, hudud punishments are considered claims of God, revealed through Muhammad, and as such immutable, unable to be altered or abolished by people, jurists or parliament.

Opposition to hudud (or at least minimizing of hudud) within the framework of Islam comes in more than one form. Some (such as elements of the MB and JI mentioned above) support making its application wait for the creation of a "just society" where people are not "driven to steal in order to survive." Another follows the Modernist approach calling for hudud and other parts of Sharia to be re-interpreted from the classical form and follow broad guidelines rather than exact all-encompassing prescriptions. Others consider hudud punishments "essentially deterrent in nature" to be applied very, very infrequently.

Others (particularly Quranists) propose excluding ahadith and using only verses in the Quran in formulating Islamic Law, which would exclude stoning (though not amputation, flogging or execution for some crimes). The vast majority of Muslims and most Islamic scholars, however, consider both Quran and sahih hadiths to be a valid source of Sharia, with Quranic verse 33.21, among others, as justification for this belief.

Ye have indeed in the Messenger of Allah a beautiful pattern (of conduct) for any one whose hope is in Allah and the Final Day, and who engages much in the Praise of Allah. ... It is not fitting for a Believer, man or woman, when a matter has been decided by Allah and His Messenger to have any option about their decision: if any one disobeys Allah and His Messenger, he is indeed on a clearly wrong Path.

— Qur'an, ^{[Quran 33:21–36]}

See also

• Islamic criminal jurisprudence
• Cairo Declaration on Human Rights in Islam
• Zia-ul-Haq's Islamization
• Hudood Ordinance

Further reading

• Silvia Tellenbach (2014). "Islamic Criminal Law". The Oxford Handbook of Criminal Law. {{cite encyclopedia}}: Unknown parameter |editors= ignored (|editor= suggested) (help); Unknown parameter |subscription= ignored (|url-access= suggested) (help)
• M. Cherif Bassiouni (1997), Crimes and the Criminal Process, Arab Law Quarterly, Vol. 12, No. 3 (1997), pp. 269-286
• Vikør, Knut S. (2005). Between God and the Sultan: A History of Islamic Law. Oxford University Press. {{cite book}}: Invalid |ref=harv (help)
• Peters, Rudolph (2006). Crime and Punishment in Islamic Law: Theory and Practice from the Sixteenth to the Twenty-First Century. Cambridge University Press.
• Wael B. Hallaq (2009). Sharī'a: Theory, Practice, Transformations. Cambridge University Press.

References

• Kadri, Sadakat (2012). Heaven on Earth: A Journey Through Shari'a Law from the Deserts of Ancient Arabia ... macmillan. ISBN 9780099523277. {{cite book}}: Invalid |ref=harv (help)
• Kennedy, Charles (1996). Islamization of Laws and Economy, Case Studies on Pakistan. Institute of Policy Studies, The Islamic Foundation.

External links

• An Islamic legal analysis of the rape laws in Pakistan
• Women's rights in Pakistan - November 17, 2006 editorial in the Washington Times
• Punishment in Islamic Law: A Critique of the Hudud Bill of Kelantan, Malaysia, Mohammad Hashim Kamali, Arab Law Quarterly, Vol. 13, No. 3 (1998), pp. 203–234
• Islamization and Legal Reform in Malaysia: The Hudud Controversy of 1992, Maria Luisa Seda-Poulin, Southeast Asian Affairs (1993), pp. 224–242
• Crimes and the Criminal Process, M. Cherif Bassiouni, Arab Law Quarterly, Vol. 12, No. 3 (1997), pp. 269–286
• Criminal Justice under Shari'ah in the 21st Century—An Inter-Cultural View, Michael Bohlander and Mohammad M. Hedayati-Kakhki, Arab Law Quarterly, Vol. 23, No. 4 (2009), pp. 417–436
• Islamization in Sudan: A Critical Assessment, Carolyn Fluehr-Lobban, Middle East Journal, Vol. 44, No. 4 (Autumn, 1990), pp. 610–623