The Misconception about Hudud
Reply to the Misconception about Hudud
Third: The application and execution of Hudood, legal punishments according to Islam, is a cruel and barbaric act. Also, it transgresses the human rights.
Let us illustrate first that crime and murders in Islam are divided into two categories as follows:
Crimes that have a definite punishment according to Shari'ah laws. These crimes are: killing, adultery, theft, drinking alcohol, false accusation with adultery or other immoral acts, aggression against people, rejecting Islam after being Muslim and fighting against Muslims or causing threat and harm them in their society.
Crimes that do not have a definite punishment according to Shari'ah laws. The Muslim executive head is given the authority to set the punishment for such crimes according to the public interest of Muslims and the Islamic society. These types of punishments are known as reprimands.
Crimes that have a definite punishment according to Shari'ah laws, however, are further divisible into two categories as follows:
It refers to punishments which involve crimes of personal rights such as: killing, attacking a man and causing one of his limbs or organs to become disabled or falsely accusing someone with adultery. The penalties of such offenses maybe reduced if the plaintiff drops the charges. The punishments for such crimes will be Tazeer, which is a disciplinary punishment, decided by the ruling authority. Such punishment serves the interest of the Islamic society.
This refers to penalties, which involve violating the Commands of Allah and other prescribed Shari'ah injunctions. These crimes are drinking alcohol, fornication and thefts. The penalties for such crimes will not be dropped even if the plaintiff drops the charges.
Let us review some basis used for applying Hudood, capital punishment in the Shari'ah:
Capital punishment is applicable to an adult, sane and matured individual.
Capital punishment would be dropped in case of suspicion or insufficient evidence of the crime. This is based on the Hadith of Allah's Messenger (peace and blessings of Allah be upon him):“ Stop the Hudood, capital punishment by entertaining [lawful and supported] suspicions”.
Capital punishment, according to Islam, is applicable only against crimes committed toward the five dire necessities of man in life.
Capital punishment is confirmed by confession. However, it is possible to withdraw a confession. Only males' testimonies are acceptable in cases of capital punishment.
The essential objective of establishing such punishments is to teach a lesson to criminals not to do anything that may create horror to the Islamic society. No infringement, of any type, may be practiced against the rights of all individuals of the Islamic society. Therefore, such penalties act as a protective measure to ensure these rights. Consequently, the entire society will enjoy peace and security.
In addition, although Islam threatened people by heavenly punishment in the Hereafter for committing all types of crimes, it does not inflict worldly penalty as well. 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 any human society who would not be disciplined except by applying force on them to stop all their evil acts against the society. Thus, we notice that Islam determines a suitable penalty for every crime. Qisas, killing the killer, is a just and suitable penalty against a person who kills others. The Almighty Allah states about this penalty the Glorious Qur'ân Sura al-Baqarah (The Cow) 2:178 the meaning of which is translated as:“ Oh 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, the woman for the woman”.
However, if the family of the victim pardoned the killer the capital punishment will be dropped. This is based on the verse in the Glorious Qur'ân Sura al-Baqarah (The Cow) 2:178 the meaning of which is translated as:“ 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”.
Furthermore, Allah (subhanahu wa ta'ala) set the penalty of cutting the hand as a penalty for theft. This is based on the verse in the Glorious Qur'ân Sura al-Maidah (The Table) 5:38 the meaning of which is translated as:“ 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”.
Islam, however, does not apply or execute the cutting of the hand except based on very specific conditions and circumstances. First, the theft must be within the set limit. Second, the stolen item must be under lock and proper protection. Third, if the theft situation is only a suspicion, or if the reason for theft is a real and justified hunger [or real poverty], in such a case, the hand of the thief will not be amputated. Moreover, the theft is a very serious crime in the society. If theft spreads in the society, the entire members of the community will be threatened. Not a single individual would feel safe in his community. A secure community is essential to enable its members to enjoy a decent and honorable life. After stealing, a thief may confront resistance. This will prompt him to commit another offense, like murder. Similarly, he may rape a woman during the course of his offense. Therefore, such a serious crime must be dealt with properly and firmly. Hence, if a thief realizes that his hand would be cut off because of his theft, he may either hesitate or stop his theft. Consequently, the wealth and safety of the community would be secured.
Islam, further, has prescribed a specific penalty called Hirabah [a specific punishment which will be explained in the following example] for crimes committed under the threat of weapon. Examples of Hirabah are: road blocking to rob the passers by, killing, breaking into peaceful residential areas, and even frightening and intimidating innocent residents. The stipulated punishment is based on the verse of Qur'ân Sura al-Maidah (The Table) 5:33-34 the meaning of which is translated as:“ The punishment of those who wage war against Allah and His Messenger, and strive with might and main 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 heavy 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”.
Punishment is applied according the nature and intensity of the crime. If the thief kills and grabs the money of the victim, the punishment will be killing and crucifixion of the thief. If the thief takes the victim' money only, but does not kill the victim the thief's hand will be cut off. If a thief kills the victim but does not take his money the thief will be killed. If the thief frightens innocent residents but does not kill any of them such a threatening person must be exiled from his home country.
Moreover, Islam prescribes lashing punishment against bachelors who commit fornication. This is based on the verse in the Glorious Qur'ân Sura al-Noor (The Light) 24:2 the meaning of which is translated as:“ 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”.
As for the married male or female, who commit adultery, stoning to death is the punishment applied to him. This punishment is only applicable and executed when specific conditions are applied and met. A married, male or female, is stoned to death in either of the following two:
Open and clear confession:
No compulsion or force is exerted to obtain a confession from the criminal. Besides, the sentence is not executed after the first confession or open admission of the guilt. The confession will become effective only if it is repeated four times, in four different meetings or court sessions. A judge in all such sessions and at every confession turns his face away and throws it expressing his dislike with it. In fact, the judge may offer some terms, phrases or words that discourage the confessor and make him review his confession. The judge may say something to the effect, 'It could be that you just kissed the other person, or physically touched, but not actually committed an illegal act of adultery. Alternatively, you may have only hugged the other person without actually have a full intercourse. All that is to leave the door wide open for them to withdraw their original confession. This is based on the Sunnah, traditions of the Prophet (peace and blessings of Allah be upon him), which he did when the Ghamidi woman insisted that she has actually and firmly, committed an act of illegal adultery and was pregnant as a result of this intercourse. Thus, in case of insisting on the confession of the doers, the stoning will take place. Even then, if the stoning is taking place and the person who is stoned runs away in order to escape such an attempt is interpreted as a withdrawal of their confession. In such a case, the stoning punishment will be relinquished.
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 a true observation of the actual intercourse directly (this means that the four witnesses actually have seen the male's penis in the female vagina). Such a situation is 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 Islamic society. Similarly, in case of suspicion only, the stoning punishment will not be inflicted, as we pointed out earlier. This is based on the Hadith of Allah's Messenger (peace and blessings of Allah be upon him):“ Stop the application of capital punishment in case of suspicion”.
Adultery and fornication is not a personal prerogative or a private behavior. It is, indeed, an infringement on the rights of the Islamic society. There are many results and consequences for such immoral act. The following are only few of such consequences:
Demoralizes the social values and principles of the society and its members. Consequently, it leads to the spread of venereal diseases and possibly innocent individuals of the society may contract such dangerous diseases.
Mixing of the lineage. A child maybe attributed to a person other than his own father, or a child maybe deprived the honor of being attributed to his real father. In addition, this will entail a serious problem in inheritance. Those who are not entitled for inheritance may become heirs and those who are entitled may not get any of the inheritance. Furthermore, a person may, possibly, marry a spouse who might have been permanently forbidden to him to marry [such as a sister, a niece and aunt, etc.].
Creating a class of individuals who are deprived of the sympathy of parents, lineage and family as well as an identity of family belonging. This may lead to serious physiological diseases and instability. Consequently, this may also lead to a severe social deviation and disorders that could affect the entire society at large. Fatherhood and motherhood for a child are like a country. There they seek peace, shelter, security, support and happiness.
Moreover, Islam set lashing as a punishment for false accusation of others for fornication or adultery. The Almighty Allah states in the Glorious Qur'ân Sura al-Noor, (The Light) 24:4 the meaning of which is translated as:“ And those who launch a charge against chaste women, and produce not four witnesses, (to support their allegations), flog them with eighty lashes; and reject their evidence ever after: for such men are wicked transgressors”.
The purpose, Allah (subhanahu wa ta'ala) knows best, of establishing and executing this punishment is to protect and maintain good morals in the society and protect the intactness of the privacy of the innocent individuals. False accusation is a drastic social problem that must be treated and eliminated from the society. Human dignity is invaluable. Anyone who attempts to encroach generates retaliatory behavior. In some instances, such a false accusation may lead to a murder, killing the person who instigated the trouble. Therefore, Shari'ah prescribes such a serious punishment against the offender if he does not produce a substantial and true evidence.
All types of punishments in Islam confirms the preservation of human rights in mind and in demonstration and illustration of the divine justice and fairness.
Islam does not stop at the physical punishment only, but it goes a step further to physiological punishment as well. The false testimony of accusation, for instance, will not be accepted. It is described as corrupt, deviant and wicked act against Shari'ah. The only concession to this practice is to see that the accuser has fully repented to Allah (subhanahu wa ta'ala) and improved his entire behavior. Again, all this is done to ensure the preservation of human rights, Allah (subhanahu wa ta'ala) knows best.
Similarly, Islam set a punishment against the all types of intoxicants and traffickers. Drinking alcohol or using any type of illegal drugs is also punished according to Shari'ah by lashing as well. Man is free to eat as he likes and drinks as he wishes, and dresses as he wishes, but within the confines set forth by Allah (subhanahu wa ta'ala). Allah has forbidden certain types of meat, for instance, all types of alcoholic beverages and indecent clothes that cause social and moral problems in the society. Islam prohibits a Believer to eat the flesh of a dead animal, the blood of the living beings, the pork meat and animals that are slaughtered for the sake of deities, other than Allah (subhanahu wa ta'ala). There is no set punishment for this type of crime or disobedience to the Commands of Allah (subhanahu wa ta'ala), but who commits such acts must repent fully and wholeheartedly to Allah and withdraw completely from such unlawful acts and practices. However, if a person is caught doing such illegal acts openly and publicly, a suitable disciplinary punishment is applied against him in a way that serves the public interest of the Islamic society. Man is also restricted to drink and take or use all types of intoxicants that do not harm his body, mind and family alone, but it exceeds that to harm the society at large. Therefore, wine, or liquor of all types, is called, 'The mother of all evils or vices', according to Islam. Lashing alcholist is a prescribed punishment in Islam in order to limit the use of such harmful substances. Its intent is to ensure the protection of human being and his essentials: wealth, mind, and body. Also, it is oriented to efface the perilous impact, moral, economic, criminal and social, from the Muslim society. We may list below some of the negative effects and the consequences resulting from the abuse of alcohol and drugs:
A drunk may commit fornication, adultery, or even rape against incest, unconsciously and under the alcoholic or drug influence.
A drug addict becomes a useless member in the society. An addict may do any immoral act to get the illegal drugs by stealing or committing a crime.
Serious health hazards are caused to the druggists, which are substantiated by current medical specialists.
Wealth and time are wasted, which causes serious harms to the community and the society.
The society is deprived from the potentials and the faculties of the addicts. This by itself is an encroachment on the rights of the society.
The addict, temporarily, looses his mind and faculties. This situation may lead to very tragic circumstances. A person who is under the drugs or alcoholic influence may become barbaric in his attitude and behavior. Islam does not tolerate, accept or even condone such animalistic behavior for its society members.
Islam, therefore, decides a very broad and general ruling in Shari'ah that prescribes the punishment commensurate to the size of the sin. The Almighty Allah states in the Glorious Qur'ân Sura al-Shura (The Consultation), 42:40 the meaning of which is translated as:“ The recompense for an injury is an injury equal thereto (in degree)”.
Additionally, the Almighty Allah states in the Glorious Qur'ân Sura al-Nahl (The Bees) 16:126 the meaning of which is translated as:“ And if you do catch them out, catch them out no worse than they catch you out”.
Islam, however, does not impose the application of these punishments. It rather leaves the door open for pardon and forgiveness insofar as the personal rights and injuries are concerned. The Almighty Allah states in the Glorious Qur'ân Sura al-Noor (The Light) 24:22 the meaning of which is translated as:“ Let them forgive and overlook do you not wish that Allah should forgive you? For Allah is Oft-Forgiving, Most Merciful”.
Additionally, the Almighty Allah states in the Glorious Qur'ân Sura al Shura (The Consultation), 42:40 the meaning of which is translated as:“ But if a person forgives and makes reconciliation, his reward is due from Allah”.
Islam does not aim to retaliate from a sinner. Islam does not impose sever punishment for the sake of being harsh and severe against Believers. The main and essential objective of the punishment is to preserve the rights of Believers in the Islamic society. Further, it seeks to maintain peace and tranquility and warns every evil practicing individual or evil instigator to think twice before he/she commits their evil act against the society. Islam also aims at warning every person who may think of committing crimes of such kinds threatening the members of the society to think twice before they do them. Islam also aims at purifying the Islamic society from all criminal activities. If a murderer realizes that he/she will be killed for killing a person, and if a thief realizes that his hand is going to be cut off for his theft, and if a fornicator or adulterer realizes that he is going to be lashed, publicly, and if a false accuser realizes that he is going to be also lashed publicly, they will all think seriously before they commit their intended crimes. Thus, the Islamic society becomes more secure and safe. The Almighty Allah states in the Glorious Qur'ân Sura al-Baqarah (The Cow) 2:179 the meaning of which is translated as:“ In the law of Equality there is (saving of) Life to you, Oh you men of understanding; that you may restrain yourselves”.
One may object that some of these stipulated punishments in Islam are cruel. The answer to this objection is simple: 'All people agree that such crimes are extremely harmful to the society. Additionally, all agree that these crimes must be countered and the people who commit them should be punished. However, we should compare the fact whether these Islamic punishments are more effective in reducing the crime rate in the Islamic society or the man-made laws?
Islamic punishments may appear cruel to an onlooker who looks at its face value. However, they are just, practical and logical punishments when closely examined. Islamic punishments are, with Allah's help, sufficient to wipe out all types of crimes from the Islamic society. Logic, before offering kindness to the criminal, demands not to overlook or forget the rights of the attacked people. A corrupt, and rotten or defective organ must be amputated from the society, as it is the case with a defective organ of the body in order to save the rest of the body.
It may be noted that anti-Islamic media provide distorted image of Islam and Islamic society. It states, for instance, that Islamic society is a barbaric and savage society. It also claims that its judicial and penal systems are cruel. In addition, this media shows that members of the Islamic society are characterized with permanent physical defects, without hands, arms and with opposite leg. or people who are lashed on a daily basis, in public. One may also think that Islamic punishments are applied and executed on a daily basis. It is, however, worth pointing out that, throughout the Islamic history, there are only few instances where the punishment of stoning to death were recorded and applied. These instances were rare and based on the request of the sinners who confessed their crimes and they express their personal desire to receive the stoning punishment. The individuals who committed such crimes wished to purify themselves from such destructive sins. All other Islamic punishments are also the same.
تحمَّلتُ وحديَ مـا لا أُطيـقْ من الإغترابِ وهَـمِّ الطريـقْ
اللهم اني اسالك في هذه الساعة ان كانت جوليان في سرور فزدها في سرورها ومن نعيمك عليها . وان كانت جوليان في عذاب فنجها من عذابك وانت الغني الحميد برحمتك يا ارحم الراحمين
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