Hudud

Scriptural basis

Hudud crimes are defined in the Quran and the Sunnah. These are considered to declare that a sovereign Muslim state has the obligation and responsibility to punish hudud crimes as "claims of God", but that all other offences are "claims of [his] servants" where responsibility for prosecution rests on the victim.

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 where the Quran specifies the hadd crime but does not state the punishment, Islamic scholars have used hadiths to establish the hudud punishment. Some of these are,

Narrated 'Aisha: The Prophet said, "The hand should be cut off for stealing something that is worth a quarter of a Dinar or more."

Anas b. Malik reported that a person who had drink wine was brought to Allah's Apostle. He gave him forty stripes with two lashes. Abu Bakr also did that, but when Umar (assumed the responsibilities) of the Caliphate, he consulted people and Abd al-Rahman said: The mildest punishment (for drinking) is eighty (stripes) and 'Umar their prescribed this punishment.

Narrated Abu Hurayrah: The Prophet said: If he is intoxicated, flog him; again if he is intoxicated, flog him; again if he is intoxicated, flog him; if he does it again a fourth time, kill him. AbuDawud said: And there is a similar tradition of Umar ibn AbuSalamah, from his father, on the authority of AbuHurayrah, from the Prophet (peace be upon him): If he drinks wine, flog him if he does it so again, a fourth time, kill him.

Narrated Jabir ibn Abdullah: A man committed fornication with a woman. So the Apostle of Allah ordered regarding him and the prescribed punishment of flogging was inflicted on him. He was then informed that he was married. So he commanded regarding him and he was stoned to death.

Other offences and non-hudud punishments

There are minor differences in views between the four major Sunni madhhabs about sentencing and specifications for these laws. In the matter of Baghj , unlike other hadd crimes, verse (49:9) suggests that the accused violator of the Islamic law be counseled, and various fiqhs differ on the required process before punishment is handed out.

These are not hudud crimes, in Islamic Penal Law, and are punished other categories of Islamic punishments.

Murder (as opposed to murder during robbery), in Islamic law, is treated as a private dispute between the murderer and the victim's heirs. The heirs of the victim(s) may have no claims, or may be awarded the right to forgive the murderer, or demand compensation (see Diyya) or demand death of the murderer (see Qisas). The heirs may have no claims in cases where the accused "justifiably kills the victim" such as in cases where the murder victim was engaged in illicit sex, blasphemy or apostasy from Islam. Honor crimes, where a Muslim woman is killed by her family or relatives because her sexual behavior brought dishonor to the family, is treated as a civil matter. Similarly, bodily harm and property damage, are considered as a non-criminal, civil dispute between two parties.

The other categories of Islamic punishments are:

Punishments

Hudud punishments include:

Post 1977

In the late 20th century, the trend in Muslim countries has been to re-introduce hudud laws. By 2013 approximately 12 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.

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 victims for failure to present four male Muslim witnesses in cases of rape, are the subject of a global human rights debate.

The requirement of four male witnesses before a 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, there has been a severe reluctance to even report rape because the victim fears of being charged with zina.

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

In Kelantan, Malaysia permits only Muslim eyewitness testimony and confession as evidence. Circumstantial and forensic evidence (e.g. fingerprints, ballistics, body fluids, DNA etc.) is rejected in rape and other hudud cases: only eyewitnesses or confession are acceptable for conviction in hudud crimes. However, indirect evidence such as pregnancy in the accused are acceptable sufficient evidence of zina, in certain cases. Hudud crimes require four male witnesses, all providing a consistent testimony. A confession must be repeated four times, and he can retract the confession at any time during the trial.

Illegal sex

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 and Shia law consider pregnancy in an unmarried woman, or contested pregnancy in case of married woman, as sufficient evidence of zina. If a woman such as a rape victim or uninvolved person alleging zina fail to provide four consistent Muslim witnesses, he or she can be sentenced to eighty lashes for unfounded accusation of fornication." The requirement of four upstanding male Muslim witnesses to provide evidence for rape has been criticized as making it difficult for rape victims to achieve justice.

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.