Mohammed Abed al-Jabri "Avoid the hudud Penalties when in Doubt" *
Since the modern Arab Awakening, which soon swept across the entire Muslim world, with the efforts of Jamal al-Din al-Afghani (d. 1897CE) and Muammad ‘Abduh (d. 1905CE), the Muslim masses have used the slogan of ‘application of Islamic shariah´ to propound to the masses, the alternative which they hoped would take them to the enjoyment of a free and honourable life.
Every member of the Muslim masses, all over the world, aspires to the day when Islamic shariah will be applied in a manner that can remove political and social injustice, realize freedom and dignity for the human being, and pave the way to good deeds and noble conduct in order for these principles to become the bases of life in Islamic society, nay, in the whole of human society.
The Muslim ummah, and many Muslim intellectuals, have consciously realized that the ideal Islamic life cannot be achieved except under exceptional situations, and probably not before the end of human life on earth. Therefore, the perfect application of shariah and justice is linked to the advent of the ‘awaited mahdi (al-mahdi al-muntathar). This idea of the awaited mahdi has a profound significance. It indicates that the application of Islamic shariah, namely, the realization of the Islamic Utopia,will remain relative in worldly time, the time of human systems of government, and that it will not be complete until the advent of the awaited mahdi, who will realize, directly and comprehensively, the divine will on earth.
I believe this is the idea which guided the people of authority in Islam, since the time of the Prophet, whether they were caliphs, kings, jurisprudents or any other personage who had a say in the application of al-shariah. I am also of the opinion that they all believed that applying the divine shariah by humans over humans, who are inherently imperfect, cannot be done except in a relative manner. This relativity gives Islamic life its meaning, because if perfection is reached, neither life nor laws would have any meaning.
Relativity, then, is the feature that marked the application of Islamic shariah cross the ages, since the rise of Islam. The Qur´an, which includes the principles and rulings of this shariah, was not revealed all at once. It was revealed in portions and stages, over a period of 23 years. Consequently, the application of shariah rulings was relative, in that sense, even at the time of the Prophet. It was gradual and in stages; as a ruling would be textually specified, another one would come to complete or adjust that ruling, as if the first were a precursor to a final ruling. Such has been the relativity, from the death of the Messenger up to our present day, characterizing the application of Islamic shariah. Naturally, there were degrees in that relativity.
At the time of the four Raashidun (Orthodox) Caliphs, the application of shariah was probably between 80 and 90 per cent [complete], but that fell markedly in later ages. After the first century of Islam, people felt that al-shariah was no longer in effect, so there was a public outcry for its application. The people in charge, who had genuine religious sentiment and noble character, became aware of the necessity of applying al-shariah gradually, step by step, as if Islam were in the beginning of its [first] appearance.
This is what was on the mind of the ‘fifth’ righteous Caliph, Umar ibn Abdal-Aziz, when his son, Abd al-Malik,inquired of him one day, ‘Why don’t you apply the rulings, infull? By God, it does not concern me if rage were to boil over against you and me in the pplication of what is right.’ That is, in simple terms: ‘why do you not apply shariah fully, come what may?’ Umar replied, ‘Do not be in a hurry, my son! Allah condemned wine twice in the Qur´an, before He prohibited it the third time. I fear if I were to confront people with what is right all at once, they might reject it all at once. That would be disastrous.’ This is one view. Another aspect is that the application of Islamic shariah does not mean applying penalties only, such as amputating the hand of the thief, for instance. There are other principles and judgments that must be applied too, like the principle of ‘consultation’ (shura) in political life; the principle ‘poverty is almost tantamount to blasphemy’ in social and economic life; the principle ‘are those equal, those who know and those who do not know’ (39, ‘al-Zumar’, 9) in intellectual life; and the principle ‘people are equal, like the teeth of a comb’ in the various fields of life, etc. I believe that the application of these principles must come before the application of certain hudud penalties of al-shariah, especially the penalty of theft. The removal of objective reasons which prompt theft is a necessary condition to ascribe the responsibility to subjective reasons alone. It is well known that penalties are not an end in themselves, but a means to deter destructive, selfish, subjective tendencies; those which undermine the interest of the community and the nation.
Moreover, the application of penalties is systematized and governed by a Prophetic hadith which says, ‘Avoid hudud penalties when in doubt’. This has be come a basic principle in Islamic legislation. Another Prophetic hadith which is even stronger and more indicative states: ‘Avoid penalizing Muslims as much as you can. If you can find a way out for the Muslim, let him go free. It is better for the Imam to commit a mistake in issuing a pardon than to make one indecreeing a penalty. ’The fuqah realizing the significance of this hadith, enlarged the scope of doubt wherein a hudud penalty is dropped to the point of saying, ‘The mere assertion of doubt in a case where the criminal deserves the hadd penalty is enough to drop that penalty without the need for confirmation.’ The matter does not end at this point. Our fuqaha, especially the four major ones, made active endeavours in ijtihad in the question of hudud penalties, of which I shall mention a few in regard to theft.
They stipulated that the stolen object should be of a certain value before the hand of the thief is amputated. Some put the threshold at the value to three dirhams (Imam Malik and the fuqaha of the Hijaz). Others restricted the value to ten dirhams (the fuqaha of Iraq). The difference is a matter of exchange rates, as each party assessed the value in his own country, in accordance with the value of the theft that led to amputation at the time of the Prophet. It was also said that if a group of people stole property, where each person’s theft was up to the limit of penalty, then no one of the group is to be penalized by amputation, in reference to the principle of ‘numerous hands may not be amputated where al-shariah specifies the amputation of one hand’.
They also stipulated that stolen property should have been protected by the owner, in a manner that makes it difficult to steal. In that they relied upon a hadith which says,‘No amputation applies to a [theft] from suspended fruit or a flock by a mountain side.’ This means that a person is not penalized if he only helps himself to some fruit from an orchard that belongs to someone else or from a flock of sheep grazing by a mountain side, in an open area, because protection is not provided here. The fuqaha disagree about the means of protection, though they agree that a locked door to a house constitutes protection. They also agree that a person who steals from a house which is not of joint occupancy should not have his hand amputated until he leaves the house. They disagree about the house of joint occupancy. Some say that a thief’s hand is amputated if he is one of the inhabitants, provided he exits the house, whereas others say there is no amputation unless he leaves the house [without intent to return]. Imam Malik believes no amputation is
due when one takes away any jewellery or clothing from a child, because a child is unable to protect what he has. All the eponymous founders of the four major madhabs and their followers applied the principle of ‘Avoid when in doubt’. They said that a king’s strong suspicion suspends the hadd penalty. A slave who steals his master’s property is not to have his hand amputated. Neither is the spouse who steals the other’s property nor a father who steals his son’s property, according to Imam Malik. Al-Shafii says neither the major nor minor line of progeny is to be severed – that is to say there is no hand-amputation for one who steals from his father’s, grandfather’s or great grandfather’s property or from his son’s, grandson’s or great grandson’s property. Abu Hanifah extended that to the maternal relatives and the next of kin: mother, sister and all relatives among whom marriage is not permitted in Islam. The fuqaha disagree about the case of stealing from the public treasury (bayt al-mal), or from war booty. But they agree that when one steals something for which his hand is amputated, and he repeats the theft, he is not penalized similarly on the second occasion. They also specify the testimony of two just witnesses to prove the theft,or the confession of the thief if he is a free man. If he is a slave, they disagree about the acceptability of his confession.
Naturally, the removal of the amputation penalty due to the emergence of doubt does not automatically acquit the accused. The dropping of punishment, whether in the case of theft, adultery, wine-drinking or defamation, means dropping the special type of penalty textually prescribed (amputation of the hand, lashing, etc.) which is called the ‘Right of God’. Yet, there is the public right (haqq al-´am) which entails other penalties, such as imprisonment, when the accused is not proven innocent, as a form of chastisement. This means that all the rulings issued by fuqaha in the past, and by the courts of Islamic states at present, are Islamic rulings, where al-shariah was applied as a corrective or means of chastisement, i.e. are lative application.
But the full application of the ruling by the execution of the textually prescribed penalty would serve as a reminder to ‘avoid hudud penalties when in doubt’, and would make an impartial judge think long before making a decision. The judge may be compelled to find imprisonment a sufficient punishment, especially in the case of theft, since the equitable Islamic society in which there is no excuse for stealing, under pressure of need, is non-existent. It is well known that Umar bin al-Khattab suspended the hadd penalty of theft in the year of famine. If we add to this that suspicions and doubts in our age are so numerous and so many-sided, as a result of the complexity of modern life with its multiple drives and motives, it would be possible to say that resorting to punitive measures such as imprisonment and fining may become a necessity. But when we add to this the ‘political’ doubts, the penalties would be confounded with political motives and objectives; and that constitutes doubt beyond all doubt!
Note
* The term hadd connotes ‘boundary’ or ‘limit’ and the hudud penalties of Islamic shariah are the most severe and reserved for grievous sins and crimes such as the amputation of the hand for theft. The title of the chapter is taken from Prophetic hadith which commend the suspension of the hudud penalties when there is doubt about a case and the avoidance of their application to the extent possible as their severity correlates to their deterrent value. It is worth noting that according to the Qur´an and the hadith, Muslims are obliged to uphold the law and to apply the hudud penalties as a facet of the implementation of al-shariah. This consideration led numerous Arab and Muslim countries to hesitate or refrain from signing Western initiatives such as‘The Universal Declaration of HumanRights’ – not because there was a lack of concern for human rights, but because certain of the hudud penalties were proscribed by these declarations.
Mohammed Abed al-Jabri
source: "Democracy, Human Rights and Law in Islamic Thought"
CHAPTER 12
"Avoid the hudud Penalties when in Doubt"1
