HADITH OF HUDUD AN ANALITICAL STUDY (original) (raw)
Related papers
Hudud Punishments in Islamic Criminal Law
European Scientific Journal, 2014
Islam is more than a religion, it encompasses faith, culture, law and the social order. Islam proposes a society of righteousness and justice. Criminal behaviour is not tolerated in the Islamic order of society. Criminal behaviour is breach of God's sovereignty, hence stiffer penalties are prescribed. This paper examines hudud punishments in Islamic penal system, and agitates for the reformation of Islamic criminal jurisprudence. While it is reasonable to punish offenders, and violators of normative principles, it is the opinion of this paper that punishments that are prescribed in municipal penal code should at least conform to international criminal jurisprudence.
Law and Punishment in Islam: The Ideal Concept of Hudud and Its Practices
Komnas Perempuan, 2017
This book tries to present a theological view of Islamic law and to explain that the reality of Islamic law is not monolithic. The diversity of opinions on the implementation of Islamic law which cannot be reduced into a single form makes it very important to be known by public and the state officials amidst the emergence of strong aspiration to implement the Islamic criminal law as a ‘positive law’ in Indonesia. In particular, this book explains in depth the theory of hudud, the purpose of punishment in Islam, and the implementation of flogging in the context of Islamic studies, which would help bring justice and prosperity for people.
In defense of the codification of the Islamic Law of Hudud into the Law of Pakistan
Islamic law has three types of punishments for criminal offences: fixed punishment, which is called Hudud, retaliation, which is called Qisas, and discretionary punishment, which is called Tazir. Hudud, fixed punishments, are predetermined by Allah the Almighty and his last Prophet Muhammad (Peace be upon him) in the Holy Quran and in the Sunnah of Prophet Muhammad (Peace be upon him. Hudud punishments are used mainly for five crimes: adultery, false accusation of adultery, theft, drinking liquor, and apostasy. The fifth President of Pakistan, General Muhammad Zia-ul-haq, introduced Hudud codified laws in Pakistan in 1979 for four of the criminal offences: Zina (adultery), false accusation of adultery, drinking Khamr (alcohol), and theft. No law was promulgated for the offence of apostasy; rather, one ordinance was introduced on the regulation of whipping, which was later repealed by the Pakistani parliament in 1996. Secular groups advocate for the complete abrogation of Hudud law from the judicial system of Pakistan in the name of the protection of women, but the basic purpose of these groups is to spread licentious behavior in a Muslim society. Hudud law actually protects men and women from false accusations of adultery, it also protects them from unlawful fornication and from drinking Khamr; which leads to adultery and other harmful offences. During the rule of the tenth President Pervez Musharaf, in 2006, the Pakistani government repealed many provisions of the Zina and Qazf Ordinances through the Protection of Women Act. But the Government of Pakistan did not change anything in the theft and drinking Khamr Ordinances, which is a clear-cut indication that the amendments to the Zina and Qazf Ordinances were made to portray a liberal image of Pakistan while opening the door for adultery and related acts in Pakistan. The changes in the Hudud laws are discussed in detail in this article. It is true that the law of Hudud needs procedural changes. But that does not mean that we should abrogate the whole law of Hudud and its punishments, fixed by Allah the Almighty and his last Prophet Muhammad (Peace be upon him) from the judicial system of Pakistan. The author recommends that rather than making different ordinances of Hudud, a Hudud chapter should be added to the existing Pakistan Penal Code of 1860 to get rid of the procedural difficulties. If a survey were to be conducted today in Pakistan, the majority would vote in favor of implementing Hudud Law in the Islamic Republic of Pakistan. Law is made to control the behavior of a society. If the majority of the population is happy with a law, one group of people cannot be given the right to snatch the voice of the general public and impose their verdict on the majority of the people.
Quilliam Religious Reform Series 5, 2020
This week, inspired by the Saudi announcement that they will abolish flogging as a form of criminal punishment, Quilliam have published a new paper on the Hudood. The Hudood are the classical corporal and capital punishments in medieval Islam, including lashing/flogging, amputation of hands/arms/feet/legs, stoning to death, beheadings, crucifixion and other forms of execution. This paper considers: (i) the theological-jurisprudential basis of corporal and capital punishment (Hudood) under Islamic Law/Ethics (Sharia), (ii) the Islamic case for the abolition of Hudood, and (iii) the significance of the issue to islamist groups from ISIS and Al Qaeda to the Jamaat-e-Islami, Muslim Brothers, Khomeinists and islamists of other persuasions, whether Sunni or Shia, Salafi or Sufi. We stress that the Ottoman Tanzimat reforms of the mid-19th century, passed by the Ottoman Caliph and Sultan after backing from their senior Sharia scholars including the Grand Mufti, had already repealed the classical hudood punishments. We also propose a jurisprudential framework for the replacement of hudood laws based on the classical Islamic jurisprudential principle of ta’zir or discretionary punishments for crime.
Hudud Ordinances according to the Four Sunni Schools of Jurisprudence
Hudud Ordinances according to the Four Sunni Schools of Jurisprudence, 2016
This chapter discusses the hudud ordinances according to the four main Sunni schools of jurisprudence, namely the Hanafi, Maliki, Shafei and Hanbali schools. The first part of the chapter discusses the legal prescriptions of hudud ordinances according to the four Sunni schools. The section starts by pointing out the different views as to which crimes should be considered to be part of hudud ordinances. Interestingly, the four schools disagree on the exact number of crimes to be part of the set of hudud ordinances, even though they all share the understanding of hudud ordinances as a specific and perfect set of divinely prescribed crimes and punishments. While the Hanafi school believes that the set of hudud ordinances consists of five hudud crimes and their punishments, the Shafei school holds to seven crimes, and the Maliki school to eight. Amongst Hanbali scholars different views are found. Some hold to seven crimes, others to only five. This chapter will, therefore, first give an overview of the differing lists of hudud crimes held by the four Sunni schools and explain the main reasons that led to the different views. It follows with a discussion of each one of the hadd crimes individually. The purpose of this is to compare the diverse views on the ordinances according to the four Sunni schools and explore the legal prescriptions articulated by these schools. A special focus will be on the different opinions and regulations concerning each crime’s definition, the punishment meted out for it, and the legal requirements for a suspect to be convicted. The chapter aims to demonstrate that there are so many different opinions held by the four Sunni schools — several of which even contradict the Qur'an — that the notion that hudud ordinances refer to a divinely prescribed and thus perfect and infallible set of punishments, can hardly be maintained. By exposing these weaknesses of the hudud ordinances, the chapter aims to demonstrate the necessity to amend and reform them. The second part of the chapter looks at the practical application of hudud ordinances in the Muslim world. It starts by giving an overview over the development and the geographical distribution of the four Sunni schools. It looks, then, at four representative countries that apply hudud ordinances fully in the entire country, namely Saudi Arabia that fully applies the Hanbali school of jurisprudence, Pakistan as a representative of the Hanafi school, Sudan that applies the Maliki school and Brunei Darussalam that has just started implementing hudud ordinances according to the Shafei school of jurisprudence. The focus will be on their national criminal law and the international concerns regarding human rights violations in these countries.
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.
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.