Misconception about Hudud (Prescribed Punishments)

Some claim that the Islamic punishments (Hudood) are cruel and barbaric, and transgress human rights.

Reply to the Misconception about Hudud (Prescribed Punishments)

All societies have a system of punishment for serious criminal offences. The modern system uses prolonged prison terms, but many criminal and social science experts have observed that jail time is not a successful deterrent, and that it most often leaves a sense of loss and uselessness for the criminal, and general maliciousness towards the system perceived as unjust. Also the victims often do not believe that true justice has been served. Many controversies exist about appropriate terms and sentencing. Not to mention the expenses in maintenance of a huge system of prisons and related facilities.

To begin, we must mention that the system of criminal punishments in Islam is part and parcel of the entire just and equitable Islamic system of life, which allows equal opportunity and provides for the welfare of all the citizens, not leaving any pretext for criminal activity.

Crime in Islam is divided into two categories:

1) Crimes that have prescribed punishments according to Shari'ah laws. These crimes include apostasy and blasphemy, murder and manslaughter, assault, fornication and adultery, robbery, theft, drinking alcohol and intoxicants, false accusation of adultery or other immoral acts, aggression against people, etc.

2) Crimes that do not have a definite punishment according to Shari'ah laws. The legal authority sets the punishments for such crimes according to the public interest of Muslims and the Islamic society. These types of punishments are known as "Ta'zeer (reprimands).

Crimes that have a definite punishment according to Shari'ah laws are further divisible into two categories. The first category refers to that which involves the victim's personal rights, such as murder, manslaughter, assault and slander. The punishments of these offenses maybe reduced if the plaintiff drops the charges, or he may accept the blood money in cases of murder, manslaughter, and assault. The second category refers to punishments for violating the Commands of Allah and other prescribed Shari'ah injunctions. These crimes include drinking alcohol, fornication and theft. Penalties for such crimes once brought before the authorities and confirmed, cannot be dropped even if the plaintiff drops the charges.

The rules in application of the Hudood, (capital and corporal punishments) of the Islamic Shari'ah are to ensure justice. For instance, these punishments are applicable only for crimes committed seriously violating the five essential necessities of human life (religion, life, mind, honor and progeny and wealth). They are only applicable upon a competent and sane adult confirmed by confession or trustworthy and competent testimony. The punishments may be dropped in case of suspicion or insufficient evidence of the crime, as it is reported from the traditions:

Stop the Hudood, punishment when there are suspicions (about evidence and mitigating circumstances).
Reported by Dthahabi and others with an unreliable chain of narrators, and more probably it is the saying of Abdullah ibn Mas'ood as al-Baihaqi mentioned.

The objective of executing these harsh punishments is to teach exemplary lessons to the criminal elements of the society. They act as proven and successful deterrents against the temptations towards committing criminal acts, and therefore protect the rights of all individuals consequently; the entire society enjoys peace and security. For example, if someone knows that he may be struck with the same force cutting the skin and breaking the bone in return for his crime, would he be inclined to go ahead with his assault?

In addition to the worldly temporal penalties, criminals are also advised to beware of the eternal punishment of Allah in the Hereafter for committing crimes. All individuals in the Islamic society who break the laws and Islamic regulations would be subjected to such severe penalties. There are certain individuals in every human society who would not be disciplined except with corporeal punishments. We notice that Islam determines a suitable penalty for every crime because Allah the Wise and Omniscient knows intimately all realities about the human soul and various types of His creatures.

Hiraabah

Hiraabah includes highway robbery, killing as a result of robbery, breaking into residential or commercial areas with weapons and intimidating innocent residents with weapons. It literally means waging warfare within the society.

The stipulated punishment for Hiraabah is based on the verse of the Qur'an:

The punishment of those who wage war against Allah and His Messenger, and strive with might 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 grievous punishment is theirs in the Hereafter; Except for those who repent before they fall into your power: in that case, know that Allah is Oft-Forgiving, Most Merciful.
(5:33-34)

This punishment is applied variously according to the nature and intensity of the crime, with leeway for the authority to apply the punishment to suit the crime. If the robber kills and seizes the money, the punishment may be killing and crucifixion. If he takes money and threatens but does not kill or assault, the punishment may be amputation of his hand and leg. If he kills the victim but does not take his money, he may be executed as in murder. If he frightens innocent residents but does not kill any of them, he may be exiled, which is actually imprisonment according to some scholars.

Murder and manslaughter

The punishment of Qisas (execution) is legislated for premeditated murder as a just and suitable penalty for taking life unjustly. Qisas acts as a successful deterrent to prevent murder. Allah the Exalted says in the Glorious Qur'an:

O you who believe! The law of equality is prescribed to you in cases of murder: the free for the free, the slave for the slave, and the woman for the woman
(2:178)

If the family of the victim pardons the killer, the capital punishment will be dropped. If they accept the blood money, the punishment is also dropped. Allah says in the Glorious Qur'an:

But if any remission is made by the brother of the slain [his heir or guardian], then grant any reasonable demand, and compensate him with handsome gratitude.
(2:178)

Robbery and Theft

Allah set the penalty of cutting the hand as a penalty for theft. This is based on the verse in the Glorious Qur'an:

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. Full of Wisdom.
(5:38)

The amputation of the hand is based on very specific conditions and circumstances. First, the item stolen must be over the set limit of value. Second, the stolen item must be under proper protection. Third, if the accusation of theft is only a suspicion, or if the reason for theft is hunger due to acute poverty, in such a case the hand of the thief will not be amputated and his case for welfare and assistance will be assessed. Theft is a very serious crime which if left without proper punishment may become a widespread phenomenon threatening the social and economic life of the community. Thieves may confront resistance, prompting them to commit other crimes like manslaughter and assault. If a thief realizes that his hand would be cut off because of his theft, he will definitely either hesitate or desist from his crime

Fornication and adultery

Islam prescribes the punishment of flogging for those that have never been previously married and are guilty of fornication. Allah commands in the Glorious Qur'an:

The woman and the man guilty of fornication flog each of them with a hundred lashes: let not 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 the believers witness their punishment.
(24:2)

As for the previously married male or female who commit adultery, the punishment applied to them is stoning to death. This punishment is only applicable and executed when specific conditions are met. A married male or female is stoned to death in either of the following two cases: confession or the testimony of four eyewitnesses. Open and clear confession entails that no compulsion or force is exerted to obtain a confession. The sentence is not executed after the first admission of guilt. The confession will become effective only if it is repeated four times or in four different meetings or court sessions. The judge may say something to the effect, "It could be that you just kissed, hugged and touched without penetration. This is to leave the door wide open for withdrawal of the original confession. This practice is based on the Sunnah of the Prophet when the various confessors insisted repeatedly that they had actually committed adultery, and when one was proved pregnant as a result.

The second situation requires four just witnesses. These four just and fair witnesses must be known as truthful in their statements and conduct. The four witnesses must confirm observation of the actual intercourse directly, meaning that the four witnesses testify that they actually saw penetration of the male's penis into the female's vagina. Such a situation is truly rare and only observed when the two parties are openly committing such an illegal act of indulgence, showing no respect to the laws, honor and dignity of the society. Adultery and fornication (from a purely Islamic perspective) are not considered, as in secular law, to be merely a personal prerogative and private affair. It is considered an infringement on the rights of the society (especially honor of the family of the woman) because there are many harmful effects and consequences. It demoralizes the social values and principles of the society in general. It leads to the spread of venereal diseases. It leads to abortion. It leads to illegitimate children without proper care from parents. Mixing of the lineage occurs when a child is attributed to a person other than his real father. A child maybe deprived of the honor of being attributed to his real father. It causes problems in inheritance whereby those who are not entitled to inheritance may become heirs and those who are entitled may not get any of the inheritance. Furthermore, a person may even marry out of ignorance someone permanently forbidden to him to marry, such as a sister, a niece or an aunt, etc. It is truly a crime to these innocent children to deprive them of the guardianship of parents and family as well as an honorable identity, which may lead to physiological and social illness and instability. For a child a mother and father are essential for peace of mind, shelter, security, support and happiness.

Slander

Public flogging is the prescribed punishment for false accusation of fornication or adultery. Allah the Almighty states in the Glorious Qur'an:

And those who slander chaste women, and produce not four witnesses, (to support their allegations), flog them with eighty lashes; and reject their evidence ever after: such are wicked transgressors.
(24:4)

The purpose of establishing and executing this punishment is to protect the honor and reputation of the innocent. Unpunished false accusation is a vice that generates retaliatory behavior, vengeance and even assault or murder. The Islamic Shari'ah prescribes this severe punishment against the offender if he does not produce confirmed evidence as a proven deterrent to eradicate this from the society. Islam does not stop at the physical punishment for this crime but requires that the future testimony of someone confirmed for false accusation is not to be accepted since he or she is a confirmed liar. If the slanderer fully repents to Allah and improves his entire behavior, then the situation may be reviewed.

Intoxicants

Man is free to eat and drink of the wholesome legal food and drink within the confines set forth by Allah . All types of intoxicants are prohibited since not only that they harm the person's body, mind and family but also harm the moral fabric of the society at large. Intoxicants are called, "the mother of all evils or vices' because they lead to other sins. Islam sets the punishment of flogging for public intoxication and traffickers. Lashing is the prescribed punishment in Islam in order to eradicate the use of such harmful substances and ensure the protection of wealth, and mental and physical health. Some of the negative effects and the consequences resulting from the abuse of alcohol and drugs include the tendency towards other crimes like murder, assault, fornication, adultery, rape and incest under influence of the abused substances. An alcoholic or drug addict becomes a useless member in the society, unable to hold productive employment. An addict may do any immoral act to get the illegal drugs by stealing or committing a crime. Serious health hazards and epidemics may be caused by alcohol and drug addiction, as substantiated by medical and labor studies. Much wealth, resources and time is wasted with serious harms to the community and the society in general. Since the alcoholic or addict temporarily loses his mind, under the drugs or alcoholic influence he may become criminally dangerous, a situation Islam does not tolerate.

All the above punishments in Islam are to preserve human rights and dignity of law-abiding citizens and they are a demonstration and illustration of the absolute divine wisdom and justice. A general ruling in Shari'ah is that the punishments should be commensurate to the size and type of the sin. For instance Allah states in the Glorious Qur'an:

The recompense for an injury is an injury equal thereto (in degree).
(42:40)

Allah also states in the Glorious Qur'an:

And if you punish then punish them with the like of that with which you were afflicted. But if you endure patiently, verily, it is better for the patient ones.
(16:126)

The just punishment of the crime is an equal measure, but as a mercy Islam leaves the door open for either acceptance of blood money as a compensation or pardon and forgiveness insofar as the personal rights and injuries are concerned. Allah explains in the Quran:

And We ordained therein for them: "Life for life, eye for eye, nose for nose, ear for ear, tooth for tooth, and wounds equal for equal." But if anyone remits the retaliation by way of charity, it shall be for him expiation. And whosoever does not judge by that which God has revealed, such are the Dhâlimûn (polytheists and wrong-doers -- of a lesser degree).
(5:45)

Pardoning is encouraged as Allah the Most Merciful states in the Glorious Qur'an in one case:

Let them forgive and overlook, do you not wish that Allah should forgive you? For Allah is Oft-Forgiving, Most Merciful.
(24:22)

And Allah the Most Forgiving says in the Glorious Qur'an:

But if a person forgives and makes reconciliation, his reward is due from Allah.
(42:40)

Islam does not aim to retaliate from a sinner nor imposes severe punishment just for the sake of being harsh and severe. The objective of the punishment is to protect human rights and preserve respect for law and order through strict justice and exemplary deterrents. The overall aim is to maintain the peace and tranquility and to warn everyone to think twice before he or she begins to commit their evil crime. If a murderer realizes that he will be killed for killing a person, and a thief realizes that his hand is going to be cut off for his theft, and a fornicator realizes that he is going to be lashed publicly, and an adulterer realizes that he is going to be stoned, and a slanderer realizes that he is going to be also lashed publicly, they will all think seriously before they commit their intended crimes. The fear of the punishment holds the perpetrator back from the crime and consequently the society becomes more secure, safe and peaceful. The Almighty Allah states in the Glorious Qur'an:

And there is (a saving of) life for you in Al-Qisâs (the Law of Equality in punishment), O men of understanding, that you may become Al-Muttaqûn.
(2:179)

The answer to the objection that these stipulated punishments in Islam are exceptionally cruel is simple. Since all agree that crimes are extremely harmful to the society, that strict measures must be taken to counter them, and that the people who commit them must be punished, the only problem remains in determining the best, most just and effective punishments for reducing the crime rate. This entails a comparison between Islamic law and the man-made secular laws, between the punishments mentioned above and the system of lengthy terms of imprisonment with all their negative consequences on the victims, criminals and the society in general. Islamic punishments are just, easy, universal, practical and logical when examined closely because they give the criminal the exact taste of the pain he inflicted on the victim and against the moral basis of the society. Allah knows best His creation and what is truly the just punishment and effective deterrent to crime. Logic and justice demand significant recognition of the rights of the victims. Their rights should not be made insignificant through being lenient to the criminals. A cancerous organ must be removed if it cannot be cured, as is the case with the physical body in order to save the rest of the entire body.

It may be noted that often the media propagates a distorted image about Islam, Muslim society, and the Shari'ah law. By this propaganda one may think that Islamic punishments are applied and executed on a daily basis. The truth is that throughout the Islamic history the instances where the punishment of execution, stoning to death and amputation, were recorded and applied are not many. For instance the cases of stoning were rare and usually based on the request of the sinners who confessed their crimes and expressed their desire to receive the punishment in order to purify themselves from the sin they committed, in this world and meet Allah sinless in the Hereafter. The case with the other punishments is similar.