Hudud

By Author: Ibrahim Machiwala Lodhi
Total Articles: 463
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The penal law of Islam is called hudud in the hadith and fiqh books. This word is the plural of hadd, which means prevention, hindrance, restraint, prohibition, and hence a restrictive ordinance, or statute, of God, respecting things lawful and things unlawful. In Islamic fiqh, the word hudud is limited to punishments for crimes mentioned in the Koran or the hadith, while other punishments left to the discretion of the jurists are spoken of as ta'zir (chastisement). The word ta'zir is derived from the verb azar means prevent, reform or respect. The verb is used in its first and second meanings in the Koran (5:12, 7:157, 48:9). In the terminology of the jurists, ta'zir is a punishment aimed firstly at preventing a criminal from committing further crimes, and secondly, at reforming him. The Koran laid down the principle from which the ta'zir punishment is said to have deduced.

Chastisement and punishment correspond to several Arabic terms are used in the Koran, i.e., adhab (over 350 times), nakal (4 times), uqaba (26 times), and jaza (over 100 times) with their cognates. The Koran does not use other expressions to convey ...
... the same meaning. The word adhab means any type of burdensome pain, nakal means prevent, deter or to give exemplary punishment, uqaba means various forms of punishment, jaza carries the significance of "just deserts" i.e., the deserved consequence of one's action.

It should be pointed out that all violations of Divine limits in a general sense are not punishable; punishment is inflicted only in those cases in which there is violation of other people's right. For instance, neglect of prayers is not punishable. The punishable crimes in Islamic law are those which affect society; and those spoken of in the Koran are murder, dacoit or highway robbery, theft, adultery or fornication (zina) and accusation of adultery. The Koran lays down a general law for the punishment of offences in the following words: "And the recompense of evil (sayyi'a) is punishment (sayyi'a) proportionate thereto, but whoever forgives and amends, he shall have his reward from God" (42:40). Similar instructions as to the punishment of offenders are given elsewhere in the Koran: "And if you punish (aqabtum), then punish (aqibu) with the like of that with which you were afflicted; but if you are patient, it will certainly be best for those who are patient" (16:126); "And he who punishes evil (aqaba) with the like of that with which he has been afflicted (uqiba) and he has been oppressed, God will certainly aid him" (22:60); "Whoever acts aggressively (i'tada) against you, inflict injury (i'tadu) on him" (2:194).

Punishment for murder:
Undoubtedly, the greatest crime known to society is qatl, or taking away one's life. It is a crime denounced in the early Meccan chapters: "And do not kill the soul which God has forbidden except for the requirements of justice" (17:33, 6:152), "And they who.do not slay the soul which God has forbidden except in the requirements of justice..and he who does this shall find a requital of sin; the chastisement shall be doubled to him on the day of resurrection, and he shall abide therein in abasement" (25:68-69).

The punishment of murder is however prescribed in a Medinan chapter: "O'you who believe! retaliation (qisas) is prescribed for you in the matter of the slain; the free for the free, and the slave for the slave and the female for the female, but if any remission is made to any one by his (aggrieved) brother, then prosecution (for the blood-wit) should be made according to usage, and payment should be made to him in a good manner; this is an alleviation from your Lord and a mercy; and whoever exceeds the limit after this he shall have a painful chastisement. And there is life for you in the law of retaliation, O'men of understanding, that you may guard yourselves" (2:178-179).

The word qisas, rendered as retaliation, is derived from qassa meaning he cut it or he followed his track in pursuit, and mutilating for mutilating. The law of qisas among the Israelites extended to all these cases, but the Koran has expressly limited it to cases of murder (fi-qatla). It speaks of retaliation in wounds as being an ordinance of the Mosaic law (5:45), but it is nowhere prescribed as the law for the Muslims, who are required to observe it only in the case of the slain (2:178). In some hadith, it is no doubt mentioned that the Prophet ordered retaliation in some cases of wounds, but this was in all likelihood due to the fact that he followed the earlier law until he received an express commandment to the contrary.

The law of retaliation in murder cases is followed by the word "the free for the free, the slave for the slave and the woman for the woman," which have sometimes been misunderstood as meaning that if a free man has been murdered, a free man should be murdered in his place and so on. The very word qisas, which requires that the murderer should be murdered, and not an innocent man falsify this. The words were meant to abolish an old Arab custom, for the Arabs before Islam used to insist, when the person killed was of noble descent, upon the execution of others besides the murderer. So it was made clear that whoever it might be, a free man or a slave or a woman, the murderer himself was to be slain.

An alleviation is however allowed in case the person who suffers from the death of the murdered man makes a remission, and is satisfied with diya or blood money.

Another case in which blood money takes place of a death sentence is that of unintentional killing. The Koran says: "And it does not behoove a believer to kill a believer except by mistake, and whoever kills a believer by mistake, he should free a believing slave, and blood-money should be paid to his people unless they remit it as alms, but if he be from a tribe hostile to you and he is a believer, the freeing of a believing slave suffices; and if he is from a tribe between whom and you there is a covenant, the blood-money should be paid to his people along with the freeing of a believing slave." (4:92)

Murder of a non-Muslim:
It may be here noted that by the hostile tribe, spoken of in the above quotation, is meant a tribe at war with the Muslim state. The murder of a non-Muslim living under a Muslim state or in a friendly non-Muslim state, is punishable in exactly the same way as the murder of a Muslim. The Prophet is reported to have said: "Whoever kills a mu'ahad (a non-Muslim living under the protection of a Muslim state), he shall not perceive the odour of paradise, and its odour is perceivable from a distance of forty years' journey" (Bukhari, 87:29). Thus, even from a purely religious point of view, not the least distinction is made between the murderer of a Muslim and non-Muslim, and therefore any distinction in their temporal punishment is out of question. And where the Koran speaks of a murderer, it always speaks of the murderer of a nafs (person), and not of a Muslim: "Whoever kills any one unless it be for manslaughter or mischief in the land, it is as though he slew all men" (5:32). In fact, the right of non-Muslims in a Muslim state are in all respects on a par with those of Muslims, so much so that Muslims are required even to fight in their defence (Bukhari, 56:174); and the Prophet is reported to have said: "Their property is like our property and their blood is like our blood." According to another report: "The property of the mu'ahads is not lawful for the Muslims." (Masnad, 4:89)

Alleviation of punishment in murder cases:
Hadith speaks of cases of murder in which the murderer's intention is doubtful and in these cases too, blood money is to be paid (Abu Daud, 38:18, 25). And where the murderer could not be discovered, blood money was paid from the state treasury (Bukhari, 87:21). There seems no reported case in which the murderer may have been imprisoned in case of unintentional murder, but the alleviation of punishment in such cases is clearly provided for in the Koran. The form of alleviation spoken is the payment of blood money, but the right of the jurist or of the state to give that alleviation any other form is not negatived.

Punishment for decoity:
Another crime for which capital punishment may be awarded, is dacoit. In the Koran, dacoit is spoken of as waging war against God and His apostle: "The punishment of those who wage war against God and His apostle and strive to make mischief (fasad) in the land is only this, that they should be put to death, or crucified, or their hands and their feet should be cut off on opposite side, or they should be imprisoned; this shall be as a disgrace for them in this world and in the hereafter they shall have a grievous chastisement" (5:33). It has been accepted by the commentators that dacoits and murderers who create disorder in a settled state of society, are referred to in this verse. The punishment prescribed is of four kinds, which shows that the punishment to be inflicted in any particular case would depend upon the circumstances of the case. If murderer has been committed in the course of dacoit, the punishment would be the execution of the culprit, which may take the form of crucifixion if the offence is so heinous or the culprit has caused such terror in the land that the leaving of his body on the cross is necessary as a deterrent. Where the dacoits have committed excesses, one of their hands and feet may be cut off. In less serious cases of dacoit, the punishment may be only imprisonment.

Punishment for theft:
The word satiqa means taking away other's property secretly. Thus, theft is the next punishable crime spoken in the Koran: "And as for the man who steals and the woman who steals, cut off their hands as a punishment for what they have done, an exemplary punishment from God, and God is Mighty, Wise. But whoever repents after his iniquity and reforms himself, God will turn to him mercifully; for God is Forgiving, Merciful" (5:38-39).

The cutting off of hand (qat'i yad) may be taken metaphorically, as in qata'a lisana-hu (lit. he cut off his tongue), which means he silenced him. But even if taken literally, it is not necessary to cut off the hands for every type of theft, and this is a fact, which all jurists have recognized. Qadi Abdul Jabbar has pointed out that a small evil is not called nakal, it becomes so when it has increased considerably and become rampant; consequently the cutting of hand for theft is reserved only for the habitual thieves, who could not otherwise be prevented from repeating the offence (cf. Tafsir al-Kabir, 1:382).

As stated above, in the case of dacoit four grades of punishment are mentioned, ranging from death or crucifixion to mere imprisonment. It is evident that theft is not as serious a crime as dacoit, and hence the minimum punishment for it could not be severer than the minimum punishment for dacoit, which is imprisonment, the next higher being the cutting off of hands. Evidently what is meant is that whereas the maximum punishment for dacoit is death, the maximum punishment for theft is the cutting off of hand. Therefore it is for the judge to decide which punishment will suit a particular case. The state of society may sometimes demand the maximum punishment, even in less serious cases, but there are several circumstances which go to show that the maximum punishment of the cutting off of hand may ordinarily be reserved for habitual thieves:

The minimum punishment for dacoit, having already been mentioned in 5:33 may also be taken as the minimum punishment for the much less serious offence of theft, and this would meet the ends of justice.

The cutting off of hands, being a punishment for the more serious offences falling under dacoit, should also be reserved for the more serious offences falling under theft, and the offence of theft generally becomes more serious when it becomes habitual.

The punishment of cutting of hands, in case of theft, is called an exemplary punishment, and such punishment could only be given in very serious cases, or when the offender is addicted thereto, and the milder punishment of imprisonment has no deterrent effect upon him.

The Koranic verse 5:39 indicates that the object of the punishment is reform, and an occasion to reform can only be given if the punishment for a first or second offence is less severe.

It is true that the cutting off of hands, for even a first crime, is reported in hadith, but this may be due to the particular circumstances of society at the time, and it is for the judge to decide which punishment will suit the circumstances. For instance, according to some hadith, the hand was cut off when the amount stolen was one-quarter of a dinar or more; according to others when it was one dinar or more (Abu Daud, 37:12, Nisai, 46:7). According to another hadith, the hand of the thief was not to be cut off at all when a theft was committed in the course of a journey or on an expedition (Abu Daud, 37:19). The words in Abu Daud are : "I heard the Messenger of God say, Hands shall not be cut off in the course of journey." Probably some other punishment was given in such cases. There are also hadith showing that the hand was not to be cut off for stealing fruit on a tree (Ibid. 37:13). The cutting off of the hand is also prohibited in the case of criminal misappropriation (Ibid. 37:14). When Marwan was the governor of Medina, a certain slave stole young palm trees from the garden of a man, and being caught was imprisonment by Marwan, who intended to cut off his hand. The master of the slave went to Rafi bin Khudaij, who said that he had heard the Prophet as saying that there was to be no cutting off of the hand in the case of theft of fruit, and when Rafi related this to Marwan, the slave was let off (Ibid. 37:13). In another hadith it is stated that when a certain person stole another's mantle valued at 30 dhirams from underneath his head, the owner of the mantle offered that he would sell the same to the person who had stolen it, without demanding immediate payment, and the Prophet approved of this arrangement (Ibid. 37:15). A person guilty of house-breaking was produced before Ali bin Abu Talib. He did not order the cutting of hand, but inflicted the punishment of whipping (Kanz al-Ummal, 3:117). According to Tafsir al-Kabir (3:595), "Ahmad bin Hanbal, Sufian Suawri and Ishaq were of opinion that the hand cannot be cut where fine is imposed."

Punishment for adultery:
Adultery and the accusation of adultery are both punishable according to the Koran: "The adulteress and the adulterer, flog each of them, giving a hundred stripes, and let not pity for them detain you in the matter of obedience to God, if you believe in God and the last day, and let a party of believers witness their chastisement" (24:2)

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