Justice and the Laws of Allah: Responding To Some Allegations On Hudud

 

 

JUSTICE AND THE LAWS OF ALLAH : RESPONDING TO SOME ALLEGATIONS TOWARDS HUDUD

 

 

 

There have been a number of people who have been questioning the justice and fairness behind the laws of Allah, in particular the huduud. These questions have taken form of accusations. However, the problem with the questions are that usually they use the standard of ‘justice’ which is irrelevant, or that they misunderstand the hudud. So, therefore, let us discuss about this issue.

 

HUDUD IN ISLAM

“Hudud” refers to penal prescriptions which have already been set by the Shari’ah and are the rights of Allah.[1] Included among the hudud are Sariqa (theft), Zina (fornication and adultery), Qadzf (unfounded accusation of zina), hirabah (armed robbery or unlawful warfare), baghi (rebellion), khamr (drinking intoxicants), and riddah (apostasy).[2]

This means that there are clear unequivocal daleel from the Qur’an and Sunnah prescribing hudud, unlike ta’zir which is up to the government. For example, the hudud of Sariqa is clearly set in the Qur’an, Surah Al-Maidah ayat 38:

وَالسَّارِقُ وَالسَّارِقَةُ فَاقْطَعُوا أَيْدِيَهُمَا جَزَاءً بِمَا كَسَبَا نَكَالًا مِنَ اللَّهِ ۗ وَاللَّهُ عَزِيزٌ حَكِيمٌ

“[As for] the thief, the male and the female, amputate their hands in recompense for what they committed as a deterrent [punishment] from Allah . And Allah is Exalted in Might and Wise.”

PS: note how Allah ends the ayat with His Names Al-‘Aziiz and Al-Hakiim: this emphasizes the Might and Wisdom of Allah in prescribing this punishment.[3]

Of course the hudud can only be enacted by the legitimate government, and there are four requirements for it to be imposed upon a person: the perpetrator is a mukallaf (adult and sane), did not commit it under compulsion, understands that such act is a crime, and that it has been proven without any doubt.[4] Note that this is part of the Shari’ah of Allah, Surah Al-Maidah ayat 44, 45, and 47 notes that those use other than the laws of Allah is either kafir, fasiq, or dzaalim. The ulama have ruled in a consensus (ijma) that, based on these ayats and also other ayats, a person who denies the obligation to apply the Shari’ah and believes that there are other laws better than what Allah reveals, is a kafir.[5]

 

ALLEGATIONS OF INJUSTICE

There are a few allegations which are very strange. Some obviously stem out of ignorance, others may be due to misunderstandings. The general response is that it is impossible for the Laws of Allah to be unjust, especially ones which are explicitly and unequivocally prescribed in the Shari’ah (not prescribed by ijtihad).

But then I know that answer is not satisfactory for many. So, let us discuss the issues.

 

Allegation 0: The Hudud Is Cruel and Unjust!

This is the main critic towards hudud. Essentially it argues that criminalization against acts which are allegedly ‘private matters’ (such as zina) are unjust, or that they are cruel (such as sariqa). This type of critic usually says that “hudud does not fit with modern standards”.

However, the main problem towards this kind of critic is: who’s standard of justice and cruel are we using? What makes their standard of justice and cruelty better than the others?

 

It is important to first mention the ancient Greek “Euthyphro’s Dilemma”: Is something morally good because God commands it, or does God command it because it is morally good?

This dilemma is commonly cited by atheists because either way it seems to point a flaw in the concept of God. If something is morally good because God commands it, then this is tyranny. If God commands something because it is morally good, then there is a higher law binding God –which means that He is not The Almighty.

The Islamic answer to this dilemma is: God is good.[6] As is one of the Asmaul Husna: Al-Barr, The Source of All Goodness and Righteousness. Therefore, He commands nothing but goodness. As stated in Surah Al-A’raf ayat 28:

قُلْ إِنَّ اللَّهَ لَا يَأْمُرُ بِالْفَحْشَاءِ ۖ أَتَقُولُونَ عَلَى اللَّهِ مَا لَا تَعْلَمُونَ

“Say, ‘Indeed, Allah does not order immorality. Do you say about Allah that which you do not know?’”

Aside from Al-Barr, Allah is also The Most Just. His Names include Al-‘Adl and Al-Muqsith. Allah further says in Surah Yunus ayat 44:

إِنَّ اللَّهَ لَا يَظْلِمُ النَّاسَ شَيْئًا وَلَٰكِنَّ النَّاسَ أَنْفُسَهُمْ يَظْلِمُونَ

“Indeed, Allah does not do dzulm the people at all, but it is the people who are committing dzulm themselves.”

(PS: note that dzulm is injustice, and the opposite of justice)

Therefore, the simple reality is that justice is whatever is in accordance with what Allah prescribes. Consequently, whatever is already within Allah’s prescription, that is the standard of justice. Even when sometimes we do not understand it. As Allah says in Surah Al-Baqarah ayat 216:

وَعَسَىٰ أَنْ تَكْرَهُوا شَيْئًا وَهُوَ خَيْرٌ لَكُمْ ۖ وَعَسَىٰ أَنْ تُحِبُّوا شَيْئًا وَهُوَ شَرٌّ لَكُمْ ۗ وَاللَّهُ يَعْلَمُ وَأَنْتُمْ لَا تَعْلَمُونَ

“But perhaps you hate a thing and it is good for you; and perhaps you love a thing and it is bad for you. And Allah Knows, while you know not.”

Remember, the evolving standards of good and bad in the society is about the development of human knowledge. Humans are awesome but have limited faculties, therefore their knowledge is always limited and depends to their historical-social-political context. The argument “does not fit our time” might apply to rules made by mankind.

Allah does not have the above weakness. He is Allah, Creator of all in existence, the Alknowing and Almighty, and he is the universal standard and it makes no sense that there are any better ideas.

How arrogant can a human be if they have an opinion against the Word of Allah, and thinks that he is right above Allah?

 

Allegation 1: Rape and Qadzf

There are some who fear that rape victims will have extreme difficulty to prove their accusation because of the four-witness requirement which is very difficult. Then, when they fail to provide four witnesses, the rape victim will be guilty of Qadzf punishment. Therefore, according to this allegation, the law itself is an injustice.

This is unreasonable for the following reasons:

1. Even if it is true that the rape victim must provide four witnesses (which is not true, is explained in next point), failing to do so is not automatic Qadzf. Why? Because Qadzf is a separate crime of hudud which must also be proven. Remember that to apply hudud there must be no doubt. If the allegation towards the rapist has some merit but not enough to satisfy the four-witness requirement, surely it is enough to become doubt towards the guilt of the rape victim of Qadzf!
2. Rape is not the same as zina. While part of it contains an act of unlawful sexual intercourse (i.e. zina), but the addition of compulsion towards the victim makes it a different crime.[7]
3. There is no hudud for rape, so it is in the area of ta’zir.[8] Note that ta’zir (and any hudud other than zina, actually) does not require four witnesses!

 

Allegation 2: Witness Requirement of Zina and Mutashabihat
There are some who accuse the four-witness requirement to prove zina is unreasonably high. Their basis was that, in Surah Yusuf, there was an allegation of zina towards Prophet Yusuf a.s. by Zulaikha. In that story, and all that was needed was to prove guilt or innocence was the location of the rip on Prophet Yusuf’s clothes.

Then, one of the proponents of this allegation, then said that ‘this story is mutashabihat, so is unclear’.

This is a very strange allegation for a number of reasons:

1. All prophets bring the message of tawheed, but did all of them bring laws? Was Prophet Yusuf a.s. among them?
2. Even if so. Remember that different prophets bring different laws depending on their time, and Prophet Muhammad s.a.w. annuls all that comes before him.[9]
3. Pay attention to the story. The demand of looking at Prophet Yusuf’s clothes: was this the law of Allah or the law of the Egyptian ruler at the time?
4. The claim that this story is a ‘mutashabihat’ basis for laws of evidence is a perfectly correct claim. This is precisely why we should not even use it! There are so many other (endless) hikmah of the story of Prophet Yusuf a.s., and the ruling on law of evidence is not one of them.

On the other hand, the four-witness requirement for zina is muhkamat! See Surah An-Nur ayat 4, very clear and explicit:

وَالَّذِينَ يَرْمُونَ الْمُحْصَنَاتِ ثُمَّ لَمْ يَأْتُوا بِأَرْبَعَةِ شُهَدَاءَ فَاجْلِدُوهُمْ ثَمَانِينَ جَلْدَةً وَلَا تَقْبَلُوا لَهُمْ شَهَادَةً أَبَدًا ۚ وَأُولَٰئِكَ هُمُ الْفَاسِقُونَ

“And those who accuse chaste women and then do not produce four witnesses – lash them with eighty lashes and do not accept from them testimony ever after. And those are the defiantly disobedient,”

How strange is this allegation?

 

Allegation 3: Sariqa and Non-Muslim Sanction for Theft

There are those who say that Sariqa is not fair because it only applies for Muslims. Therefore, the hand of the Muslim will be amputated, while a non-Muslim will only be jailed, despite both committing the same crime.

This is one of the most nonsensical allegation I have heard. It is clear from Surah Al-Maidah ayat 38 as cited above how the prescription of sariqa as hudud is from Allah directly, and explicitly cites Allah’s Asmaul Husna: Al-Aziz and Al-Hakim, Mighty and Wise!

Of course, ideally perhaps similar crimes should be punished the same way, but same as what? It should be the non-Muslims that should be given the punishment of Sariqa, if they really wanted justice! The injustice should be attributed to the non-Muslim punishment.[10]

Indeed, it is as Allah said in Surah Yunus ayat 44 cited above. It is not Allah who committed injustice, it is them who decided to stay in the path of kufr and not do what Allah commands them to do.

 

Allegation 4: Sunnah is Only Encouraged (The Case of Ar-Rajam, but works for others)

Some say that Ar-Rajam is not Islamic because it is not in the Qur’an. Then when it is told to them that it is in the Sunnah,[11] they say that “Sunnah is something that is good if we do it, but it is okay if we do not do it.”

This is also a ridiculous statement for a number of reasons:

1. Even if “Sunnah is something that is good if we do it, but it is okay if we do not do it.” is a correct statement (which is not, will be explained in the next point), why don’t we strive to do what is good even if it is not compulsory?
2. These people are confused of the meaning of ‘Sunnah’, and mixing between contexts. In terms of Fiqh, it is true that ‘Sunnah’ means ‘good if we do it, okay if we don’t do it’.[12] However, in ushuluddin terms, ‘sunnah’ means everything that comes from Prophet Muhammad s.a.w (what he said, did, and let be).[13]

Sometimes the Sunnah (ushuluddin context) can be compulsory (wajib, not sunnah, in fiqh context).[14] For example, the Qur’an does not mention that we must recite Surah Al-Fatihah during shalat. We find that in the sunnah. Reported in Sahih Bukhari (756) and Sahih Muslim (394), Ubada bin As-Samit r.a. narrated that Rasulullah s.a.w. said:

لاَ صَلاَةَ لِمَنْ لَمْ يَقْرَأْ بِفَاتِحَةِ الْكِتَابِ

“Whoever does not recite Al-Fatiha in his prayer, his prayer is invalid.”

So do you really want to say “it is good to recite Al-Fatihah in shalat, but if not then it is okay.”?

In the case of Rajam, the Sunnah (ushuluddin) is not something encouraged (sunnah, fiqh) but compulsory.

 

1. From the Sunnah pertaining Ar-Rajam, it can be seen that the ruling is truly from the Qur’an. However, by the Wisdom of Allah, naskh (abrogation) happens. Sometimes the passage remains but ruling is abrogated, sometimes both the passage and ruling is abrogated, and sometimes –like this case of Ar-Rajam—the passage is abrogated but not the ruling.[15]

Note also that the prescription of Ar-Rajam has achieved ijma (consensus) of the fuqaha.[16] Remember that ijma is prescribed among the three main sources of Islamic law. Its in the Qur’an, you find it in the sunnah, and it is also ijma. What more to deny?

 

Allegation 5: Prioritizing Justice and/or Tarbiyah

This point is not a bad allegation per se, but it can become one if we are not careful. It is one that, I think, is subject to ijtihad. The argument goes that applying the hudud should not be the priority, because it cannot be done in case of injustice or when the society is not ready. This point is based upon Fiqh al-Awlawiyat of Shaykh Yusuf Al-Qardhawi, where he argues that there may be large mudharat if one suddenly focuses too much on the hudud and forgetting others aspects while the society is not ready.[17] He says the enemies of Islam could easily attack us with this.

Further, there are precedence by Umar ibn Al-Khattab r.a. to suspend the implementation of the hudud of Sariqa when there was a draught. This may show that there is some level of flexibility depending on the situation.

While the general idea may have some merits, there must be some important points addressed. As mentioned much earlier in this article, the implementation of hudud is compulsory based on the Shari’ah and there is no difference of opinion. Even Shaykh Al-Qardhawi mentions this too, [18] so its no joke. The following are some points that would need to be emphasized in order to think in the framework of Fiqh al-Awlawiyat:

1. Shaykh Al-Qardhawy does explain how one must not emphasize too much on hudud and forgetting the rest. However, likewise, it works the other way round too: do not emphasize too much on everything else and forgetting hudud.
2. From the case of Umar ibn Al-Khattab r.a. suspending sariqa, remember that it was not a question of whether the laws was in force or not. The law of sariqa was already applicable, only the implementation was suspended and it was temporary due to the shubhat (doubt) caused by the draught. Remember that the requirement to be free from doubt is also based on the Shari’ah.
3. As the maxim of fiqh goes “necessity is determined by the extent thereof”,[19] which part of the hudud must be suspended would depend on the situation at hand. For example, when there is a serious problem of economic welfare then maybe the hudud of Sariqa can be suspended temporarily. But what about the others?

Every Islamic nation has laws against insurgency and robbery with no problem –> Why not implement Hudud of baghi and hirabah?

Most Islamic nations do not have such a great demand of khamr or zina amongst the Muslims anyway –> why not implement the hudud of khamr and zina?

What is the excuse for those?

 

1. To be worried about insults and accusations against the enemies of Islam is not really a legitimate concern. As Allah says in Surah Al-Maidah ayat 54:

يَا أَيُّهَا الَّذِينَ آمَنُوا مَنْ يَرْتَدَّ مِنْكُمْ عَنْ دِينِهِ فَسَوْفَ يَأْتِي اللَّهُ بِقَوْمٍ يُحِبُّهُمْ وَيُحِبُّونَهُ أَذِلَّةٍ عَلَى الْمُؤْمِنِينَ أَعِزَّةٍ عَلَى الْكَافِرِينَ يُجَاهِدُونَ فِي سَبِيلِ اللَّهِ وَلَا يَخَافُونَ لَوْمَةَ لَائِمٍ ۚ ذَٰلِكَ فَضْلُ اللَّهِ يُؤْتِيهِ مَنْ يَشَاءُ ۚ وَاللَّهُ وَاسِعٌ عَلِيمٌ

“O you who have believed, whoever of you should revert from his religion – Allah will bring forth [in place of them] a people He will love and who will love Him [who are] humble toward the believers, powerful against the disbelievers; they strive in the cause of Allah and do not fear the blame of a critic. That is the favor of Allah ; He bestows it upon whom He wills. And Allah is all-Encompassing and Knowing.”

Imam Al-Sa’di explains in his tafseer that what it means to not fear the blame of a critic is that a true believer will not fear the critic of the makhluq because he wants the praise of Allah.[20] In fact, Imam Jalaluddin Al-Suyuthi in his tafseer commented that worrying about the critics of the kuffar is a characteristic of the munafiq![21]

This is why even Shaykh Al-Qardhawi is not per-se worried about the critics because of the critics themselves. Rather, he puts this under the discussion on whether to prioritize Shari’ah law or TARBIYAH. So the true question is whether or not the ummah is resilient enough to face these critics.

An Islamic nation must evaluate carefully the condition of their ummah. Because there may be some nations who already have good Islamic education in their society, therefore their awareness towards their religious obligations are high. Maybe there are many people who disobey anyways, but it is not due to the lack of knowledge of the law rather it is mere fusuuq.[22] Yet, their nations do not apply the hudud. What is the excuse?

 

EPILOGUE

There are no allegations that can truly prove that the hudud is wrong or bad or unjust. Even the possible scenarios where the hudud can be suspended, are also based on standards applicable under the Shari’ah. As mentioned, the justice of Allah is the highest and most universal justice.

So let us not make dzulm upon ourselves. There is no need to justify the shortcomings of our Muslim governments or leaders. If it is a weakness we must admit it as a weakness, never be proud of that weakness and consider it a homework for us all. Failing to apply the hudud due to certain circumstances may be ijtihadiyyah or fusuuq, but denying it is kufr, and all this lies in the intention.

So, this is something to think about.

 

 

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REFERENCES

[1] See: Shaykh Abdul Qadir Awdah, Al-Tashri Al-Jina’i Al-Islami, 127, dan Shaykh Shalih al Fawzan, Al-Mulakhkhas Al-Fiqhi 2/521

[2] Ibid Al-Tashri, 634-663, also Shaykh As-Sa’di, Manhaj al-Salikin, 239-244

[3] See Sahih Tafsir Ibn Kathir, 3/119

[4] Al-Mulakhkhas, 2/522-523

[5] Shaykh Abu Shubaib has compiled 200 fatwas from the ulama across different eras and different madzhabs which indicate this ruling and how it is ijma. See: Abu Shuhaib Abdul Aziz bin Shuhaib Al-Maliki, Aqwaalu Aimmah Wa Du’at Fi Bayaani Riddati Man Baddala Shari’ah Ninal Hukkam Ath-Thughat (Ilmway (Online), 2000), http://www.ilmway.com/site/maqdis/MS_9234.

[6] Shabbir Akhtar, The Qur’an and the Secular Mind. Abingdon: Routledge, 2008, p.99

[7] This is similar to theft, where if a person steals someone else’s property then it is sariqa. But when he commits theft with force and weapons it is no longer sariqa but has become hirabah

[8] This is the practice of Saudi Arabia who practices the Hanbali school of fiqh. Rape is a crime of ta’zir, and is punishable by death.

[9] There is a consensus on this matter. See: Shaykh Al-Uthaymeen, Sharh Usul Thalatha, 20.

[10] Note that in a true Islamic State, the non-Muslims (dhimmis) are administered by themselves. So if they make up their own punishment for crimes, and it is different from what Allah prescribes, who’s fault is it?

[11] In Sahih Bukhari (6830) and Sahih Muslim (1691a), Umar ibn Al-Khattab r.a. said:

إِنَّ اللَّهَ قَدْ بَعَثَ مُحَمَّدًا صلى الله عليه وسلم بِالْحَقِّ وَأَنْزَلَ عَلَيْهِ الْكِتَابَ فَكَانَ مِمَّا أُنْزِلَ عَلَيْهِ آيَةُ الرَّجْمِ قَرَأْنَاهَا وَوَعَيْنَاهَا وَعَقَلْنَاهَا فَرَجَمَ رَسُولُ اللَّهِ صلى الله عليه وسلم وَرَجَمْنَا بَعْدَهُ فَأَخْشَى إِنْ طَالَ بِالنَّاسِ زَمَانٌ أَنْ يَقُولَ قَائِلٌ مَا نَجِدُ الرَّجْمَ فِي كِتَابِ اللَّهِ فَيَضِلُّوا بِتَرْكِ فَرِيضَةٍ أَنْزَلَهَا اللَّهُ وَإِنَّ الرَّجْمَ فِي كِتَابِ اللَّهِ حَقٌّ عَلَى مَنْ زَنَى إِذَا أَحْصَنَ مِنَ الرِّجَالِ وَالنِّسَاءِ إِذَا قَامَتِ الْبَيِّنَةُ أَوْ كَانَ الْحَبَلُ أَوْ الاِعْتِرَافُ

“Verily Allah sent Muhammad (ﷺ) with truth and He sent down the Book upon him, and the verse of stoning was included in what was sent down to him. We recited it, retained it in our memory and understood it. Allah’s Messenger (ﷺ) awarded the punishment of stoning to death (to the married adulterer and adulteress) and, after him, we also awarded the punishment of stoning, I am afraid that with the lapse of time, the people (may forget it) and may say: We do not find the punishment of stoning in the Book of Allah, and thus go astray by abandoning this duty prescribed by Allah. Stoning is a duty laid down in Allah’s Book for married men and women who commit adultery when proof is established, or it there is pregnancy, or a confession.”

 

[12] Imam Shawkani, Irshadul Fuhuul, 32

[13] Shaykh Muhammad Jamaluddin Al-Qasimi, Qawaa’idut Tahdits, 62

[14] Which is why in Surah An-Nisa ayat 59 it is said that it is compulsory to follow the command of Prophet Muhammad s.a.w. because sometimes he does command things.

[15] Shaykh Al-Uthaymeen, Ushul Fiqih, 87-89

[16] Imam Ibn al-Mundzir Al-Naisaburi, Al-Ijma’, 163

[17] Shaykh Yusuf Al-Qardhawy, Fiqih Prioritas, 282-283

[18] Ibid, 87, and his other book titled State in Islam, 141-169, he elaborates very thoroughly on the obligation

[19] ‘Abdul Karim Zaydan, Synopsis on the Elucidation of Legal Maxims in Islamic Law, 2015, IBFIM, 81

[20] Imam As-Sa’di, Taisirul Karimirrahman fi Tafsiri Kalamil Mannan, on Surah Al Maidah ayat 54

[21] Imam Jalaludin Al-Mahalli and Imam Jalaludin Al-Suyuthi, Tafsir Al-Jalalayn, also on Surah Al-Maidah ayat 54

[22] Which may be caused (among other causes) by the lack of strict laws!