RE-THINKING HUDOOD LAWS
By Asghar Ali Engineer
Islam and human rights is much debated issue and most of the scholars agree that Islam not only conforms to the norms of human rights but also is precursor in this field. Anyone who objectively and dispassionately studies the relevant Qur’anic verses will be easily convinced of this position. But many practices among Muslims raises many questions which have to be satisfactorily answered in the light of today’s human rights norms. The hudood laws as enforced in many Muslim countries today give rise to this dilemma.
The hudood laws are undoubtedly based on the Qur’anic pronouncements but are as much result of human interpretations and human reasoning. This applies to whole corpus of Shari’ah laws and hence Shari’ah laws should not be treated as immutable. But most of our ‘ulama do not agree with this and continue to treat these hudood and shari’ah laws as immutable despite there being provision for ijtihad. Everyone theoretically agrees that ijtihad is not only permissible but is also desirable but no one dares to attempt itihad. It is thought to be socially and politically risky.
There are many reasons for this. The Muslim world is socially quite backward and intellectual levels of common people are not high. Medieval way of thinking persists among Muslims throughout the Muslim countries though a section of Muslim intelligentsia is in favour of social change and hence desires ijtihad. But since overwhelming number of Muslims cannot rise to those intellectual standards they resist any change and vehemently oppose any change.
Since we live in a globalised world any development in Islamic world finds blazing headlines in the world media and Islam and Islamic laws are criticised as vocative of human rights. For example Maryam Laval from Nigeria was awarded death sentence by stoning on the charges of adultery. This was butt of harsh criticism in the world media and also human rights activists throughout the world demanded withdrawal of the sentence. The Nigerian Government ultimately withdrew the sentence. Many Muslim countries enforce such sentences and attract criticism. Hence there is need for re-thinking hudood laws in the light of overall philosophy and approach of the Qur’an.
The Qur’an mentions punishments for murder, for theft, for robbery for false accusations against a chaste woman and for zina (i.e. rape, fornication and adultery). These are called hudood laws in the Shari’ah terminology. No punishments have been prescribed for other offences or crimes in the Qur’an. Even there is no mention of stoning the adulterer or adulteress to death. This was pre-Islamic practice, which found its way in the Islamic Shari’ah in the post-Qur’anic period.
Also, one should not take one verse on hudood punishment and apply it for evolving the law. One has to adopt proper methodology of understanding the Qur’anic approach. One also has to keep in mind the situational context of the Qur’anic pronouncements as well as its transcendental norms. A law cannot be based entirely either on situational context or on transcendental norms. One has to find a balance between the two. And a law so evolved should not be treated as permanent in as much as it has situational element and should keep on evolving with changing time in keeping with transcendental norms and values.
Thus it will be seen that no law can ever be perfect. Even divine will has to take situational context into account while guiding people living in a concrete historical situation. However, it also exhorts man being through His prophets or messengers to transcend the given historical situation. Thus a prophet guides his people keeping concrete historical situation as well provides them with norms and values to transcend the given situation. One has to study not only laws and legal pronouncements but also the values on which these laws are based and give more importance to these values than to a concrete legal opinion given by a jurist keeping these values as well as given situation into account.
Thus before we proceed further we will have to take into account what are fundamental values of the Qur’an? A careful study of the Qur’an will show that there is great emphasis on four values: ‘Adl (justice), ihsan (benevolence), rahmah (compassion) and hikmah (wisdom). Any hudood law or any other law for that matter cannot ignore these basic values of the Qur’an. The spirit of these values runs throughout the Qur’an.
‘Adl is so basic to the Qur’an that it does not approve of an iota of deviance from it. Any deviation is construed as zulm. Thus the Qur’an says, “ O you who believe, be maintainers of justice, bearers of witness for Allah, even though it be against your own selves or (your) parents or near relatives – whether he be rich or poor, Allah has a better right over them both. So follow not (your) low desires lest you deviate. And if you distort or turn away from (truth), surely Allah is ever Aware of what you do.”
I think this verse of the Qur’an is very basic to the legal philosophy of the Qur’an. This verse foresaw the modern approach to legislation. Thus it will be seen that Qur’an is refreshingly modern in its legal philosophy. In that era in which Qur’an was revealed the very idea of justice was very different. To favour ones own tribe, ones own people, ones own relatives, ones own race was considered quite just. No rich or powerful person could ever do justice to the poor.
The Qur’an, on the other hand, emphasised justice even it goes against ones own self, ones own parents, ones own tribe or against the rich and favoured the poor. This was very rigorous norm for justice laid down by the Qur’an and this norm was accepted only from twentieth century onwards and now of course it is considered as integral to human rights philosophy. No law Islamic or otherwise will be Qur’anic in spirit unless it conforms to this standard of the Qur’an.
Qur’an also makes justice an integral part of taqwa’ (pious behaviour or God fearing behaviour). “Do justice”, the Qur’an says, “that is nearer to observance of your duty to Allah.” (5:8). But the prevailing norms of justice in medieval times could not be completely ignored by the Muslim jurists. Thus despite their transparent sincerity and commitment to Islam, they could not completely transcend their own situation. And hence their legal pronouncements cannot be termed to be perfect and immutable. No human deductions, even if from divine scripture, can be treated as perfect for all ages to come. One must construct and reconstruct in a continuous process our thinking taking the divine injunctions as our basis.
Also, one should remember that the Qur’an was revealed in certain concrete historical circumstances, not in social vacuum. The Qur’an takes existing social reality into account but also transcends the given situation. For future generations it is transcendence, which is more important. Our theologians often ignore the transcendental dimension of the Qur’anic teachings and get stuck in what is given and never able to transcend and treat the given itself as divine and immutable. This is the problem with all the hudood laws developed in the early Islamic history. Drastic social changes have taken place ever since and it is high time we take new social realities into account and reformulate the hudood laws. The relevant Qur’anic injunctions and all verses on the subject have to be studied carefully and an attempt has to be made to understand divine intention in finality.
The punishments like cutting off of hands for theft or stoning adulterer or adulteress to death existed before advent of Islam and the Qur’an retained them but also exhorted the believers to stress reforming rather than punishing. Islah and tauba are more important than mere punishment. Punishments are meant for unrepentant and hardened criminals not for any and everyone. One also has to take circumstances of the crime into account. The Qur’an makes, for example, generalised statement like cut off hands without dealing with specifics of the crime and it is for the jurist to evolve a law with proper codification taking all the verses into account and also taking into account whether one should interpret words literally or allegorically.
For example the verse 5:38 about cutting off hands is followed by the verse 5:39 which stipulates, “But whoever repents after his wrongdoing and reforms, Allah will turn to him (mercifully). Surely Allah is Forgiving, Merciful.” Thus emphasis here is on reforming and repentance and this is possible before the punishment like cutting off hands is brought about.
Thus before meeting out such drastic punishment all possible efforts should be made for reforming the offender so that he does not repeat the crime and also extenuating circumstances will have to be taken into account as to why the person was compelled to commit the crime. The Qur’an lays repeated emphasis on justice thus implying that one has to establish a just socio-economic system before implementing such harsh punishments.
Thus once basic needs of all in the society are met by setting up just socio-economic system, if one commits crime out of greed, it deserves harsher punishment. However, without setting up such a just system it would be a zulm to cut off hands of a thief who was forced to commit theft out of severe need. That is why Hazrat Umar suspended the punishment for cutting off hands during the period of famine. Also, in another case the Prophet (PBUH) reprimanded the owner of the orchard rather than punishing the child when he complained to the Prophet (PBUH) that the child had stolen fruits from the tree when the Prophet found out that he was paying almost starvation wages to the child.
A crime committed out of need should be distinguished from one committed out of greed. Most of the crimes committed by influential people of society fall under that category of greed and yet they are hardly ever punished whereas small people who commit crime out of need are promptly punished. The whole philosophy behind these hudood punishments has to be properly understood before mechanically implementing them as often done in many Muslim countries under pressure from the “ulama.
It is also important to note that one should read all the verses on hudood punishments before coming to any conclusion about the nature of the punishment. Take cutting off hands, for example. Does it mean really cutting off the hands of a thief physically? If we take another verse of similar nature in the Chapter on Yusuf i.e. 12:31 which says, “So when she heard of their device, she sent for them and prepared for them a repast, and gave each of them a knife and said (to Joseph): Come out to them. So when they saw him, they deemed him great, and cut their hands (wa qatta’ana aydiyahunna) (in amazement), and said: Holy Allah! This is not a mortal. This is but a noble angel.”
Obviously here the words wa qatta’ana aydiyahunna does not mean they literally cut their hands but that they injured their hands. If we similarly read the verse 5:38 it would not mean cut off hands of thieves but symbolically injure their hands so that they remember it and do not repeat the crime in future. It should not mean cutting off the palm of the thief and render him afflicted for life.
Also, we must read it in conjunction with the verse 5:33 wherein the minimum punishment for dacoity is imprisonment (aw yunfauna in al-ard). Thus when the minimum punishment for dacoity is imprisonment how can the punishment for a lesser crime i.e. theft could be cutting off hands. Thus the word qat’a should be interpreted not literally but differently. In Arabic when they say qata’a lisanahu it does not mean they cut off his tongue but it means they silenced him.
At the most qat’a yad could be taken as an exemplary punishment for a very serious crime and ordinarily such punishment should not be inflicted for less serious crime. Instead efforts should be made, as pointed out above, to reform the person. It is also important to note that in Islam one cannot demand duty without conceding corresponding rights. Thus if it is duty of an individual not to steal, it is his right to have all his physical and intellectuals need met by the society to lead a dignified life by affording him appropriate opportunities.
Unfortunately the Islamic world has interpreted this verse quite mechanically and have not read it along with other verses on this subject and neither have they tried to seen it in the overall context of the Islamic philosophy and values as pointed out above. Thus there is need to revise the law particularly in the modern context where human dignity and human rights have central place.
Another debatable had punishment is stoning the adulterer or adulteress to death which is known as rajm punishment. The Qur’an of course does not mention this punishment at all. The Qur’an mentions only flogging for zina. Thus we read in the 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 God, if ye believe in God and the last Day: And let a party of the believers witness their punishment.”
In Arabic the word zina means both adultery as well as fornication as there are no separate terms in Arabic. The ‘ulama maintain that here the punishment of flogging prescribed is for fornication and not for adultery. And that for adultery the punishment is rajm i.e. stoning to death. In fact stoning to death was the punishment in the Jewish law. According to Bukhari (23:61) this punishment of rajm was given by the Prophet to a Jew and a Jewess and others were prescribed before the revelation of this chapter.
That Islam never meant to prescribe rajm is clear from the verse 4:25, where it is stated expressly that the punishment for adultery in the case of slave-girls, when they are married, is half the punishment which is inflicted on free married women. But if the Qur’an meant to inflict stoning to death how could it have been halved? The Kharijites also concluded from the verse 4:25 that punishment both for adultery and fornication is same i.e. flogging and not stoning.
But strangely enough many ‘ulama maintain that there was a verse in the Qur’an prescribing rajm but it was eaten by a goat and could not be included in the compilation. I think this is very dangerous line of argument. This way we are exposing the Qur’anic text to not being final and others could argue that other verses were deleted. One should not take this route at all. Moreover nowhere else the Qur’an prescribes stoning as punishment.
There is unanimity on the fact that one has to produce four witnesses who have witnessed the act of penetration before such punishment could be inflicted on the guilty. Now it is impossible to produce four witnesses to have seen the act of penetration (not simply of being together) and hence whole thing generally depends on self -confession. Very few persons will confess to the crime.
This creates very peculiar situation – a man generally escapes by denying having had committed zina and gets exhonerated but this is not possible for women, particularly if she gets pregnant and does not have marital status at the time of rape. Thus she is automatically implicated and sentenced. Because of this mostly women who are being implicated and punished for adultery in the Muslim countries.
This is serious anomaly in the law as it is applied in the Muslim countries and has to be urgently remedied. Women are often victims of rape (not of adultery or fornication) but she cannot prove rape as here are no four witnesses. This is totally unjust and instead of punishing the rapist such a law punishes the victim. The law should be such as to be just as justice is very central to Islam.
There is urgent need to bring about reform in this law as it operates in Muslim countries. First of all death punishment for adultery is not warranted as it is not mentioned in the Qur’an and there is no unanimity as far as hadith literature on the subject is concerned. As pointed out above the law should be enacted in the spirit of the four fundamental values of the Qur’an i.e. justice (‘adl), benevolence (ihsan), compassion (rahmah) and wisdom (hikmah). The law, which does not reflect these values will not be able to produce desired results. Instead it will boost up crime rate.
Also, today due to spread of education on one hand, and increased awareness of human rights on the other under democracies (and to an extent even under non-democratic regimes) women’s rights have assumed much greater importance. No law which is unjust to women – and present hudood laws are unjust to women – can be sustained. Human dignity is of seminal importance under human rights regime but in Muslim societies women, more often than not, are treated as lesser citizens and tend to be unequal before the law, especially in matters of hudood laws.
Since more often than not, women are victims of rape relevant law must be applied very sensitively and with attitude of justice and compassion. But it has been observed that while applying hudood laws women are treated quite harshly and men, often guilty of committing rape are set free. It should be otherwise. The relevant Qur’anic verses clearly indicate that incidence of adultery and rape should be stopped. If the law is harsh on women and soft on men this can never be realised. It should be harsh on men and soft on women. In patriarchal societies men tend to be aggressors.
If these changes were brought about it would be quite in keeping with divine intention as divine intention is to do justice with weaker sections of society as the Holy Scripture declares in the verse 28:5. The moral dynamics of society, according to the Qur’an, is derived from struggle between what the Qur’an calls mustad’ifin (weaker sections) and mustakbirin (powerful sections) and of course the Qur’an is on the side of mustad’ifin. The Shari’at laws cannot be simply based on one verse prescribing punishment but has to be seen in the total perspective of the Qur’anic philosophy. Our jurist so far confined their understanding of these verses only to these prescriptive verses.
Thus whole methodology of formulating Shari’ah laws has to be rethought. We must come out of the old framework of the Shari’ah laws and a new paradigm has to be evolved. Our jurists are unable to challenge the old paradigm developed by early jurists of the classical period. Today only those jurists who combine knowledge of Qur’an and hadith with that of modern society can play useful role. It is wrong to maintain that what was evolved by classical jurists is as sacrosanct as the Qur’an itself.
A new philosophy of jurisprudence matching with that of the Qur’an, on one hand, and with that of modern society needs to be evolved. The Qur’anic values are highly relevant in all ages but their applications needs to be updated from time to time to maintain their relevance. The traditional jurists have failed to do that. We, therefore, greatly need new jurists who could fully appreciate the Qur’anic value system and modern needs and bring about conformity between the two.
Visit Dr. Engineer’s site at http://ecumene.org/IIS/csss.htm