The Islamic penal code: What do Qur’an, hadith and Muslim interpreters say?

2nd October 2018

Last month, two Malaysian Muslim women were canned in public following a conviction for homosexuality. This repugnant and humiliating treatment of homosexual people is perhaps rare in Malaysia. Yet, similar corporal punishments are repeatedly implemented by some states and non-state actors. The most shocking example of this practice is the horrific photos of a man having his hand amputated for theft and spies crucified in the streets of Syria in 2014 by Daesh.

If you think that corporal punishments is something that took place only in the past, or that the reporting of such penalties is a sensationalist media exaggeration, cynically deployed to attract attention, these examples proves you are wrong. The practice of these politics is far from obsolete. In some parts of the world, they have not lost its appeal with the progress of time. In fact, the long term goal and real motive behind the bloodshed carried out by many violent Islamists is to ensure that these punishments are revived and strictly implemented in accordance with a literalist interpretation of the words of the classical Muslim jurists during the formative period of Islamic law.

Corporal punishment (Hudud) has become an essential yardstick used by the violent and non-violent political Islamists to either legitimise or delegitimise a particular ruling regime. The test they apply is their position on the application of hudud. For example, the renowned Islamist Mufti, Yusuf al-Qaradawi could not deny that the shari’a is harmony with the Western laws. Yet, he used the hudud as a key issue on the platform of al-Jazeera as a weapon, with which to delegitimise the existing ruling political systems. Al Qaradawi put it as follows:
“The secular laws are in accordance, in most cases, with the shari’a. However, they are different in regards to criminal, penal or punitive legislation codes, which include hudud and punishment. Hudud are the truly sanctioned punishment of Allah.”

Sayyid Qutb, one of the most prominent ideologues of various jihadist movements argued in his book “Milestones”, that the application of hudud is the factor that distinguishes between Muslims and non-Muslims, between the House of Islam and the House of Kufr. It follows, so it is argued, that those who apply the hudud are the true Muslim and those who do not are un-Islamic.

This factor may explain why some state and non state actors are keen to implement these punishment in public. Simply put, their political legitimacy hinges upon the strict application of these punishment.

Historically, the application of hudud came to an end after the collapse of the Ottoman Empire in 1924. Nonetheless, such punishments are still implemented by countries like Iran, Saudi Arabia, Sudan (during the rule of Numeri), Afghanistan (during the rule of the Taliban), Mauritania, Somalia (in some areas which are under the Islamic courts) and finally in Syria and Iraq (during the rule of Daesh).

What, then, is hudud?

Broadly speaking, classical jurists identified five “crimes” and their “punishment” from their understanding of Qur’an and hadith as follows:

  1. Fornication Zina: the punishment is death by stoning for a married free man or women, 100 lashes for an unmarried youth and 50 lashes for slaves, whether married or unmarried.
  2. Theft: amputation of the right hand (for the first offence) and other hands or foot for repeated theft.
  3. Highway Robbery: encompassing two crimes: murder and theft, punishable by crucifixion.
  4. False accusation of fornication: 80 lashes for free men and 40 for slaves.
  5. Drunkenness: 80 lashes.

Notably, although there is some disagreement as to the manner in which the various offences are categorised, it is unquestionable that homosexuality does not fall under any category of hudud. The majority opinion restricts the number of such punishments to five.

While it is true that some of the punishments listed in 1-4 above are mentioned in the Qur’an or the hadith, certain interpretations of those particular passages of the Qur’an and hadith reflect the literalist approach of some classical jurists which guided their position as to what constitutes a “crime” or “punishment”. However, the literalist method of reasoning is but one school of interpretation, and it differs significantly from the holistic, non literalist and contextualist approach of the modern Muslim jurists of both the past and the present.

How should Muslims scholars interpret and apply the law? In the modern context, how can a new Muslim generation reconcile their understating of their sacred text with with the modern context of human rights? Are they reconcilable? If so how?

These are the very questions that will be addressed in my next upcoming report: Hudud in the human rights age.