Punishment, Penalty, and Practice: Reinterpreting the Islamic Penal Code (Hudood)

1st May 2020

Quilliam International has today published a report that considers the theological basis of corporal and capital punishment under Islamic Law, its abolition, and the significance of the issue to Islamists from Al Qaeda to the Muslim Brotherhood. Set out below is the executive summary of the report. 

You may read the report in full, here.

Sheikh Usama Hasan, an author of the report, will be discussing these issues in a free webinar, at 6 pm on Tuesday 5 May 2020. The webinar may be viewed at that time, by clicking this link

The announcement of the General Commission for the Supreme Court of the Kingdom of Saudi Arabia in April 2020 that it is to end flogging as a form of punishment is a milestone in the development of Islamic jurisprudence. This was no mere humanitarian reform. Rather, it is a significant marker of a key shift from Islamist perspectives. In this paper, we seek to explain the significance of this reform, and its plausible theological basis.  

The hudood are key theological elements that have been central to the recruitment efforts of both violent and non-violent islamists. Hudood is a branch of classical jurisprudence, literally meaning “the limits”, which refers to capital and corporal punishment. Specifically, hudood refers to punishments that include flogging, amputation, stoning to death, crucifixion and causing physical injuries according to the law of talion (qisas). Across the full spectrum of non-violent and violent islamist groups, all have used this concept as a yardstick to claim that governments and regimes in Muslim-majority countries that do not implement hudood are un-Islamic. The duty of these overwhelmingly non-state actors is therefore to oust such governments and restore the hudood

Classical Islamic jurisprudence recognised that the hudood punishments were extremely severe, and ascertained that certain human rights are fundamental: the hudood were harsh precisely in order to defend those rights and underline their importance. This was one argument of the approach to Islamic ethics and law known as Maqasid, or the higher objectives of the Sharia.  That approach to Sharia was developed by the greatest authorities of Islamic jurisprudence since the very beginning, and has helped Muslims to interpret the Sharia in an evolving and context-specific manner, dependent upon time, place and the nature of each societal context. This is a process that continues today. But for some islamist groups, the long-established flexibility of classical jurisprudence has been replaced by a new, inflexible and excessively-literalist approach to scripture. This approach extends to readings and interpretations of the hudood punishments, insisting on their literal application whilst forgetting their essential  meaning.

We end our paper with a summary of contemporary jurists’ approaches to the hudood, all of them inspired by the spirit of the Maqasid school. We argue that the Qur’anic texts related to hudood punishments all emphasise deterrence and punishment in dealing with crime, while encouraging repentance, forgiveness and rehabilitation, including the waiving of punishments. This approach mirrors modern criminal justice systems which include elements of deterrence, punishment and rehabilitation. We also show that modern Muslim jurists endorse the replacement of medieval corporal and capital punishments with alternatives such as imprisonment, fines, restorative justice and community-based approaches. In essence, the medieval punishments such as amputation, flogging and crucifixion are mentioned in the Qur’an, albeit with exhortations towards justice and forgiveness, because those were the standard punishments at the time of the Qur’anic revelation. Requiring medieval punishments today would be like insisting that Muslims wage war using horses: since war-horses are mentioned in the Qur’an.

On the basis of the Maqasid approach to Sharia that itself promotes human rights and the honouring of international agreements which Muslim-majority states have signed, we show that Islamic jurisprudence supports the evolution, modification and repeal of hudood laws because these are now outdated and contradict the essential Islamic principles of justice and mercy. We stress that the Ottoman Tanzimat reforms of the 19th century already repealed the classical hudood punishments.  We also propose a jurisprudential framework for the replacement of hudood laws based on the classical Islamic jurisprudential principle of ta’zir or discretionary punishments for crime.