Posts Tagged ‘Ambiguities/Shubuhat’

Sharia’a Punishments of Islam 

April 3, 2019

The central principle/theme in the application of the hudood punishments is maximizing mercy. This was formulated clearly in a hadith of the Prophet ﷺ that was echoed by the prominent Companions, such as, his wife Aisha and the Caliphs Umar and Ali. The best-attested version states, “Ward off the hudud from the Muslims as much as you all can, and if you find a way out for the person, then let them go. For it is better for the authority to err in mercy than to err in punishment.” Within a century of the Prophet’s death, Muslim scholars had digested this hadith into the crucial legal principle of Ward off the hudud by ambiguities/doubts (shubuhāt)”

In Qura’an there are only four {Hudood} punishments prescribed/enforced by Allah Himself, whereas the rest are left to man (Qazi/Judge) to administer and apply. [penal laws]

1) Theft.

2) False accusation against a chaste woman.

3) Drinking alcohol.

4) Adultery. {Q, 24:2}

NOW AS FOR the man who steals and the woman who steals, cut off the hand of either of them in requital for what they have wrought, as a deterrent ordained by God: 48  for God is almighty, wise. (Q, 5:38)

And to those who accuse chaste women [of adultery], 6  and then are unable to produce four witnesses [in support for their accusation], flog them with eighty stripes; 7  and ever after refuse to accept from them any testimony since it is, they who are truly depraved”- (Q, 24:4)

O You who have attained to faith! Intoxicants, and games of chance, and idolatrous practices, and the divining of the future are but a loathsome evil of Satan’s doing: 105  shun it, then, so that you might attain in a happy state! (Q, 5:90)

Shurb al-Khamr: Though the Qur’an prohibits drinking wine (khamr) and intoxication, the punishment for drinking comes from the Sunna. The most reliable hadiths state that the Prophet ﷺ would have a person lashed 40 times for intoxication, but the caliphs Umar and Ali subsequently increased this to 80 after consultation with other Companions.

“The woman and the man guilty of adultery or fornication flog each of them both with 100 stripes; let not the compassion move you in their case in a matter prescribed by Allah If you believe in Allah and the Last Day; and let a party of believers witnesses their punishment”         (Q, 24:2)

Muslim schools of law have disagreed on whether three other crimes should be included in hudood category as well: public apostasy (ridda), sodomy (liwāṭ) and assassination/premeditated murder for purposes of robbery (ghīla). 

Ḥirāba(Fisad fil Ard—corruption in the land) This crime is understood to be set out in Qura’an for the condemnation of “those who make war on God and His Messenger and seek to spread harm and corruption in the land.” Qura’an declares the harshest punishment–for those who cause chaos/corruption in the land–: crucifixion or amputation of one hand and one opposite foot; of all involved in the group, regardless of the level of participation. (Qur’an 5:33).

It is but a just recompense of those who make war on God and His apostle, 43 and endeavor to spread corruption on earth, that they are being slain in great numbers, or crucified in great numbers, or have, in result of their perverseness, their hands and feet cut off in great numbers, 44  or are being [entirely] banished from [the face of] the earth: such is their ignominy in this world. 45  But in the life to come [yet more] gruesome suffering awaits them.

First three hudood acts; though willfully committed; may partially be influenced by some circumstantial compulsions; beyond one’s control, such as poverty, suspicion, or depression, etc., adultery is sure an outcome of one’s continual and deliberate flouting of the continence and precepts of morality. Hence, the punishment for it is also the harshest. For those who are unmarried, it is 100 lashes and banishment from society {of the male only} for one year. (hadith) For those who are married,  Rajm– stoning till death. [incontrovertible evidence, proof, such as pregnancy, or confession is pre-requisite].

Punishment has to be meted out without any compassion/leniency towards the culprits and in public for its optimal deterrent effect.

The punishment for adultery was revealed piecemeal; initially, a softer one; wherein repentance was permissible (Q, 4: 15-16).  Adulterous woman was to be confined within the house, deprived of husband’s company in the bed, a necessity of four trustworthy witnesses of the crime and resultant hurt (a light infliction of harm) OR until Allah prescribe a way for them. (Q, 4:15)

Then Surah Al-Noor 24:2 was revealed.

Finally; the 100 lashed and banishment of the unmarried and stoning (Rajm) of the married (Through the Hadith & Sunnah of the Prophet).

NoteIn the beginning; the quantity and type of harm to be inflicted etc. was left to the discretion of the judge.

What is in common about the hudood crimes is that; their punishments have been specified in the Qur’an or Sunna, they are considered to be violations of the rights of God and that; no one—even the king or the ruler– has the right to alter, abate or abolish them.

Note: In Qura’an, adultery is the only crime where a woman has been mentioned before man. In Qura’an, a masculine gender is the main addressee whereas feminine gender is considered included by implication.

A logical reason for mentioning women here first is that; women are overly compassionate and impressionable toward their physique. The evil of adultery is so impudent that; initiation from a woman would be the result of an extremely brazen behavior, for she is endowed with instinctive shyness and protection of her chastity. 

It is worth noticing here that; where the punishment is severe, the conditions about the proof are also tough and the slightest doubt would remit the punishment out of Hudood ambit. A judge then would have the jurisdiction to decide the case under (tazir) penal laws prescribed in Sharia’a/Fiqh.

A false accuser or witness whose evidence has been rejected is liable for punishment of 80 lashes. (#2 above).

NOTE: If there are four HONEST, EQUITABLE and JUST witnesses not available but less than four, or not willing to testify, the crime can still be reported by the witness (s) to be dealt with by the Judge under penal law; awarding the punishment based on circumstantial imperatives, as he deems fit, in the light of sharia’a/fiqha.

The punishment for false accusation does not fall in the category of “Hadd” as this is the right of the falsely accused. It shall be awarded [80 stripes] only if the accused demands its enforcement. She/He may forgive the accuser or not demand its implementation at all, thereby giving up her/his right.

The accusation of adultery, between Husband and wife, although falling under the doctrine of “Hudood”, has been SPECIFICALLY dealt with under a sub-doctrine of “LIA’AN—CURSE of ALLAH” {where either one of them is unable to neither produce 4 witnesses nor keep quiet}.[Q, 24:6]

The spirit and intent of the Islamic laws are, the compassion and mercy, therefore the benefit of the slightest doubt would go to the accused.

Islamic injunctions are based on pre-emption; therefore, it promulgates the laws to (nip the crime in the bud) stem the crimes before they take place. Women, therefore, are required to cover themselves appropriately, not be ostentatious and thumping while walking. Men are also required to keep their gaze down and not cast an eye on women. Proscription for a man and a woman to be together in the absence of a third person/guardian. One should not enter a house without permission.

Apart from Hudood, there are two more categories under which punishments may be administered in Islam.

Tazir (or ta’zir, Arabic) Penal-Law refers to punishment, usually corporal, that can be administered at the discretion of the judge or the ruler of an Islamic State.

Qisas (equal retaliation) — an alternate of which is “Diya” (Arabic: دية‎; plural diyāt, Arabic: ديات‎), often called blood-money–in Islamic law, is the financial compensation paid to the victim or the heirs of a victim in the cases of murder, bodily harm or property damage.

O you who believe! retaliation is prescribed for you in the matter of the slain; the free for the free, and the slave for the slave, and the female for the female; but if any remission is made to anyone by his (aggrieved) brother (relatives), then (the demand for the bloodwit) should be made according to usage, and payment should be made to him in a good man­ner; this is an alleviation from your Lord and a mercy; so whoever exceeds the limit after this, he shall have a painful chastisement” (Q,2:178).

“And there is life for you in the retali­ation, O men of understanding, that you may guard your-selves (against evil)” (Q, 2:179).

LIFE FOR LIFE/QISAS

Murder is not a crime that takes place at the hands of sound individuals; surely the murderer suffers from some psychological disorder (sickness/disease). We witness and understand that for the purpose of protecting a body, the diseased part of that body is amputated. Therefore, eliminating such blood-shedding individuals from society is akin to severing a harmful limb to safeguard the life and the society at large.

NOTE:

Western canon law was influenced/shaped a great deal by Islamic law (sharia’a), just as the Western philosophy and science were profoundly shaped by Muslim scholars from the tenth to the thirteenth centuries.

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