HADITH OF HUDUD AN ANALITICAL STUDY (original) (raw)
2013
There are strict evidentiary requirements that need to be fulfilled before a person can be found guilty in a court of law. The avoidance of infliction of punishment of hudud where there exists a situation called shubhah (doubt) is based on the Hadith of Prophet s.a.w. which says, "Set aside the execution of hudud punishments in cases of doubt (shubhah)." The rule of avoiding hudud due to shubhah not only applies to hudud cases, but it can also be applied in qisas and ta'zir crimes. This is because the main aim of the principle is to maintain justice and to guarantee that the rights of the accused are protected. This paper looks at the meaning of shubhah, its types and discusses how this concept has been used to ensure that the application of punishment is done in a practical manner. This paper also examines the practice of Shari’ah Courts in Malaysia when considering shubhah in the determination of punishment. It is submitted that the existence of shubhah can be used a...
An Attempt to reform Hudud Ordinances
An Attempt to reform Hudud Ordinances, 2016
Hudud ordinances are strongly criticised by the international community due to their harsh, cruel and discriminatory punishments that are in conflict with internationally recognised human rights. Further, their enforcement damages the image and reputation of Islam and Muslims in the eyes of the world and causes them to be viewed as being backward or barbaric. Some of the hudud prescriptions clash with Shariah itself, for despite Shariah’s call to relieve people of any unnecessary burden, Islamic jurists have developed the hudud ordinances in a way that makes peoples’ lives even harder. For example, they have assigned the death penalty for apostasy, though Allah declares that He would hold apostates accountable in the afterlife. This not only contradicts the qur’anic prescriptions concerning apostasy but also ignores Allah’s repeated calls on Muslims to protect life and that He stressed that no one has the right to give or take life besides himself. Remarkably, some of the harshest punishments for hudud crimes, including the death penalty for apostasy, and the stoning to death for adultery are not prescribed by Shariah but have been developed by Islamic jurisprudence. This chapter offers suggestions for a reform of hudud punishment in order to make them compliant with international human rights standards. In contrast to some moderate Muslim scholars who appeal for a complete moratorium on hudud ordinances, it is argued in this thesis that reforming hudud punishment by reconciling them with international human rights laws will be more beneficial on the long term, for if they were simply set aside they could easily be reintroduced at any time. Secondly, a call to abolish them will be a completely unacceptable option to orthodox Muslims and is therefore very unlikely to be considered in those countries that currently practice them. This thesis aims to bridge the gap between Muslim countries that still apply hudud ordinances and, in doing so, violate international human rights law, and those countries that care about the protection of human rights and consequently reject hudud ordinances. The suggestions for reformation provided in this chapter ensure the protection of human rights while providing enough evidence to justify them from an Islamic perspective. This chapter consists of three parts. The first is introductory in nature and explains why hudud ordinances need to be amended. It discusses the purposes of punishment and introduces the widespread contemporary Islamic theory according to which hudud ordinances can be applied in a perfect society only. Further, it discusses the aspect of deterrence, believed by orthodox Muslims to be the main purpose of hudud punishment. It is due to the focus on deterrence that the hudud punishments assigned by Islamic jurisprudence are so harsh and cruel. The chapter points out, further, that even in the Muslim world a paradigm shift can be noted. More and more Islamic scholars now stress the importance of the purpose of rehabilitation and appeal for the end to the use of corporal punishments. The second part of the chapter discusses the legal challenge in respect of amending hudud ordinances. One of the main challenges derives from the Islamic understanding that certain texts, known as ‘definite texts’ (nusus qataiyah), are immutable and cannot be questioned, and that hudud ordinances are part of these definite texts. It is argued that, despite this seemingly insurmountable obstacle, Shariah, known to be flexible enough to suit all times and every environment, indeed provides enough tools and principles that allow its main purpose to be fulfilled, this being to serve the benefit of the people. The principles of necessity and reality, and the principle of doubt are introduced as powerful instruments that allow for exceptions, even in respect of definite texts, if the reality of the life of the people requires so. This chapter suggests a re-reading of the concept of the five indispensables, which aims to protect religion, life, intellect, offspring and property, but in its current interpretation focuses on the protection of religion and thereby violates human rights principles and some of the core values and teachings of Shariah. The chapter also looks at several examples from the Qur'an and the Sunnah that demonstrate that Allah Himself considered the reality of the life of the people, and that the Prophet and his companions and successors applied these principles to suspend hadd punishments, if this was necessary for the benefit of the people. An example from the modern history of Islam shows how the aforementioned principles are applied in the contemporary Muslim community to ease the lives of Muslims. The third and main part of this chapter discusses the hudud punishments individually and develops suggestions to reform them and to bring them into compliance with international human rights standards. It is important to note that this chapter does not suggest changing any of the relevant qur’anic texts, for it is committed to respect the authority of Shariah. As demonstrated in the previous chapter, reforming Islamic law does not mean to ignore or violate Shariah. The Islamic call for reformation is rather an appeal to Muslims to abide by the qur'anic core values, including the protection of equality and life, and to make sure that the teachings of the Qur'an and the correct Sunnah are applied in a way to fit with the reality of life of the relevant Muslim society. As demonstrated in Chapter 5, the Islamic concept of reformation can be understood as a call to cleanse Islamic law, including hudud ordinances, from interpretations that are in conflict with the primary sources of Shariah, its purposes and its core values. When developing suggestions to reform hudud punishment, this part of the chapter employs a twofold approach, since two categories of hudud ordinances can be distinguished. On the one hand, there are those hudud crimes with punishments assigned in the Qur'an and are thus based on texts that are considered as ‘definite’. This category includes the punishment of amputation for theft, flogging for adultery and defamation and ‘execution, or crucifixion, or amputation, or exile’ for the crime of haraba. The second category is represented by the hudud crimes with punishments that have been developed by Islamic jurists in the application of the method of ijtihad, namely the beheading for apostasy, flogging for drinking alcohol and stoning for adultery. For those hudud punishments that have been assigned in the Qur'an, the previously mentioned principles of Shariah, predominantly the principles of reality and necessity are applied. For those hudud punishments that have been developed by Islamic jurists in application of the method of ijtihad, this chapter similarly uses ijtihad when examining the legal justifications employed by early scholars with the aim of developing suggestions for a re-interpretation. This chapter develops — in a religiously and culturally sensitive manner — suggestions for alternative punishments that fit better with international human rights standards and that serve the fulfilment of the purpose of Shariah by securing the benefit of the Muslim community.
The Crime of Hirdba in Islamic Law
This is a Phd thesis submitted to Glasgow Caledonian University, Scotland in 1996. The thesis deals with aggressive crimes in Islamic perspectives including robbery, rape, terrorism etc.
CONCLUSION of REFORMING HUDUD Ordinances
CONCLUSION of REFORMING HUDUD Ordinances, 2016
This thesis has set out to research whether it is possible and legitimate to reform hudud ordinances so that Islamic criminal law can be reconciled with internationally recognised human rights, and if so, how this can be achieved. Islamic criminal law, particularly the hudud ordinances, with their extremely harsh and cruel punishments severely violate human rights. These punishments include beheading for apostasy; stoning to death for adultery; flogging for drinking alcohol, fornication and defamation; amputation for theft; and execution, crucifixion, amputation or exile for the crime of haraba. These kinds of cruel, inhuman and degrading corporal punishments are outlawed by international human rights laws. Hudud ordinances also violate the freedom of religion, opinion and expression and principles of due process and fair trial, and they discriminate against women and non-Muslims. The enforcement of the hudud ordinances also damages the reputation of Islam and Muslims in the world. Countries like Pakistan, Sudan, Saudi Arabia and Brunei Darussalam that practice hudud ordinance are, like most other Muslim countries, signatories of the main human rights documents. By enforcing the harsh and inhuman hudud punishments, they violate international human rights laws. One of the reasons why Muslim countries refuse to subordinate their Shariah-based laws to international human rights laws is that they reject international human rights laws as a western invention, a human-made and humanistic construct and an assault on the Islamic identity. They generally distrust the west deeply and do not approve of the notion of the universality of human rights. They defend the harshness of the hudud punishments, since they believe that deterrence is their main purpose. At the heart of the problem is that orthodox Muslims believe that hudud ordinances cannot be negotiated in any way. They claim that the set of hudud punishments has been divinely assigned and is therefore infallible, mandatory and immutable. This argument is used to block out any attempt to reform hudud ordinances and sees anyone who dares to question any of them as a blasphemer. This claim that the set of hudud punishments is divinely assigned, and thus infallible and immutable, has been refuted in this thesis. It has been pointed out that the hudud ordinances, as developed by Islamic jurisprudence, are not fully compliant and compatible with Shariah, its primary sources, particularly since some of the punishments have no legal basis in the Qur'an or the correct Sunnah. It has been stressed that it is very important to distinguish between Shariah as the divinely assigned rules and regulations recorded in the Qur'an and Sunnah, and Islamic law, for the latter also includes such prescriptions that have been developed by Islamic jurists and that cannot be considered fully divine or infallible since they are based on human interpretations and opinions. It has been argued that it is, therefore, fully legitimate — and even important — to reconsider the hudud prescriptions developed by Islamic jurisprudence, to verify in how far they really reflect the will and the word of Allah as recorded in the Qur'an and correct Sunnah. It has been pointed out that the core values promoted in them, in fact, have much in common with the rights and values protected by international human rights law. It has been demonstrated that reformation is not an assault on Islamic identity but it is in fact an important Islamic concept deeply rooted in the Qur'an and Sunnah. It can be summarised as a call to return to the teachings of the Qur'an and the correct Sunnah, and the Islamic core values and requires that Muslims read them in the context of their own time and environment. In other words, Shariah requires to consider the reality of life and the needs of the people, and allows to interpret its teachings in a way adjusted to their time and circumstances. The declared purpose of Shariah is to serve the benefit of the people and to protect them from harm. The thesis has shown that Shariah — known to be flexible enough to suit all times and every environment — is indeed flexible enough even to reconcile hudud punishment with international human rights law. This is possible by applying the Islamic principle of reality (fiqh al-waqa), the principle of necessity (fiqh al-darurah) and the principle of doubt, all of which have been provided by Shariah as powerful instruments to allow considering the reality of life and to make exceptions from what is generally prohibited if this is necessary to secure the benefit of the people. Based on these principles, this thesis has developed suggestions as to how hudud ordinances can be reformed and reconciled with international human rights laws. All the suggestions made in this thesis consider the reality of life of twenty-first century Muslims, while they remain fully loyal to Shariah. They have been developed in a religiously sensitive manner that respects the authority of Shariah and focuses on its core values and its main purpose, namely the benefit of the people. The main findings of the research will be summarised in the following section.
Principles and Philosophy of Punishment in Islamic Law with Special Reference to Malaysia
Islam and civilisational renewal, 2019
This article advances the theme that the conventional fiqhi articulations of the prescribed hudud punishments show inconsistency with the Qur'an and are, therefore, due for a corrective. Whereas the Qur'an makes repentance (tawbah) and reform (islah) integral to the hudud punishments, the fiqh expositions of these punishments have entirely ignored that aspect of the Qur'an. To carry out this corrective and rectify the hudud theory in the way it is suggested below partakes, we believe, in veritable ijtihad that Muslim jurists and jurisdictions are strongly advised to undertake and implement.
Punishment from Islamic Perspectives
Arbitrariness, unpredictability and instability of the present society are the consequences of alleging and accusing each other, absurdly and misleadingly. It is crucial to stop such felony to rescue standards of living in the society and, to prevent the society from the destroyer blazing of this evil deed. Islam is a perfect religion and helps circumventing all the problems of the society. Therefore Islam is the only religion which punishes with eighty stripes for false accusation. The chastisement is ruled to prevent people from such delinquencies and to keep morality in the society.
Analisis Pemberhentian Hukum Hudud Kerana Pemeliharaan Maqasid Al-Shari’ah
AZKA International Journal of Zakat & Social Finance, 2021
It is often seen that the maqasid regulates the validity of the rule of taklīfī from the point of view of its implementation, so that the maqasid has the ability to stop or maintain the practice of a rule. The Shari'ah rulings are seen as means to maqasid from another perspective, so the validity and existence of maqasid depends on the rules' application. With reference to the implementation of hudud law, the maqasid to be achieved is the preservation of the five main elements (darūriyāt khamsah) as well as the maintenance of general peace contained in the meaning of jalb al-maşlahah. The main purpose of this study is to explain the relationship between Shari'ah rulings and maqasid, in the context of the relationship between mean (wasīlah) and purpose (maqşad), and between small element (juzʾī) and large element (kullī), and its effect in the implementation of rules in general and hudud specifically. This study is based on two main methods, namely inductive data collection method and deductive data
A NEW THEORY ON THE QURAANIC TERM HADD (pl.HUDOOD)
Journal Of Legal Studies And Research, 2020
Although this concept already existed that for the notion of punishments the term Hadd (pl.Hudood) is very feebly defined in Islamic Law. But to point out a deficiency in anything is much easier than to tell why this deficiency occurs and how should it be overcome? According to the beliefs of Abrahamic religions, God is the King of this world and it is agreed principle of English as well as Arabic language that words of King always considered correct and pure and always prevail over the words of a layman. In this research on the basis of opinions of Islamic scholars and in the light of the verses of Quraan i.e words of God, it has been proved that existing concept of the term Hadd (pl.Hudood) is not based on the words of King of this world i.e God but on the words of human being and the term Hadd (pl.Hudood) should not be used as any connection with punishments in Islamic Criminal Law because the King of this world didn't reveal the term Hadd (pl.Hudood) in any sense of punishments like whipping, stoning to death and amputation. The next question arises that if this idea is correct then in which sense the King of this world revealed the term Hadd (pl.Hudood) in Quraan? That's why in the next step an attempt has been made as to what could be possible definition of the term Hadd (pl.Hudood) if this term is to be used in Islamic Law and it was found that in the words of King of this world the term Hadd (pl.Hudood) should not be used in Criminal Law but in Civil Law. The derived definition has been termed as Quraanic definition of Hadd (pl.Hudood).