Often the only things people in the West associate with Islam are stoning and hand chopping. These images permeate our culture, from the trailer of hits like Robin Hood: Prince of Thieves (1991) to straight-to-cable pablum like Escape: Human Cargo (1998) (again, in the trailer… ‘If you can’t live by their rules, you might die by them’). There is no better example of how our society has consistently and profoundly misunderstood Islam and its tradition of law, known as the Shariah. Stoning and hand chopping do feature in the Shariah, but their actual function can only be understood by stepping back and examining how the Shariah conceives of law overall. Only then can we make sense of its severest corporal and capital punishments, known as the Hudud (pronounced Hudood).
The Idea of God’s Law
The Shariah is not a law code, printed and bound in volumes. It’s the idea of God’s law. Like other broad legal concepts like ‘American law’ or ‘international law,’ the Shariah is a unified whole that contains within it tremendous diversity. Just as American law manifests itself as drastically different traffic laws or zoning codes in different states or locales, so too has the Shariah’s application varied greatly across the centuries while still remaining a coherent legal tradition.
The Shariah is drawn from four sources. The first two are believed by Muslims to be revealed by God either directly or indirectly: 1) the revelation of the Quran (which itself, contrary to the claim of a prominent Trump supporter, contains relatively little legal material), and 2) the authoritative precedent of the Prophet Muhammad ﷺ, known as his Sunna (often communicated in reports about the Prophet’s ﷺ words and deeds, called Hadith). These two sources work in tandem. The Sunna is the lens through which the Quran is read, explaining and adding to it.
The second two sources are the products of human effort to understand and channel the revelation of God through the Prophet (peace be on him): 3) the ways that the early Muslim community applied the Quran and the Sunna, and 4) the further extension of this tradition of legal reasoning by Muslim scholars in the centuries since. The human effort to mine these sources and construct concrete, applicable rules from the abstraction of the Shariah is known as fiqh. If Shariah is the idea and ideal of God’s law, then fiqh is its earthly—and thus its inevitably fallible and diverse—manifestation.
There’s More to Law than Law and Order
A great irony in the ubiquity of stoning and hand cutting in the popular imagination is that these punishments constitute a minuscule portion of the Shariah. The tradition of law in Islam is the Muslim effort to answer the question ‘What pleases God?’ in any particular situation. As such, unlike what we think of as law in modern states, the Shariah encompasses every sphere of human activity. Most of these areas would never see the inside of a courtroom in a Muslim state let alone in the West (though, oddly, obscure points in Islamic law do sometimes come up in cases on freedom of religion). If we were to look at a typical, comprehensive book of fiqh (well over a dozen volumes, usually), we’d find that the core subjects of the Shariah are the forms of worship in Islam, including prayer (and the rules of ritual purity needed to perform it), fasting, charity tithes, the pilgrimage to Mecca and hunting and slaughter of animals (about 4 volumes out of 12). Only then would we find recognizable areas of the law such as marriage, divorce, inheritance, contracts, property, liability, injuries, etc. Although they are seemingly the only thing most people know about the Shariah, in a typical book of fiqh less than 2% of the book is devoted to the hudud crimes and their punishments.
Criminal Law in Islam and The West
In order to understand Islamic criminal law, we have to make sure we understand what we mean by criminal law in the first place. Most areas of law in the US, Europe and elsewhere are civil law, meaning they deal with people’s rights over and obligations to each other. These include contracts, marriage, property, etc. The government might play a role in adjudicating disputes in these areas through the infrastructure of courts, but these are disputes between private parties over wrongs they do each other.
Crimes are about wrongs done to the public, society or state as a whole, and in most modern states it is the government that acts to bring people who’ve committed them to justice. Of course, wrongs to individuals and wrongs to society can coincide. In old (like, very old) English law, if a man murdered another man in the street, then two wrongs had been done. The murderer had wronged the victim’s family by killing him, and he had also wronged the king by violating his ‘peace,’ or the overall order of his realm (hence our term ‘disturbing the peace’). The murderer was answerable to both aggrieved parties.[1] Centuries (and many, many legal turns) later, we find OJ Simpson on trial for two wrongs: one civil (for wrongful death and the damages this caused the victim’s family), and one criminal (murder) for which he was prosecuted by the state.
As we all recall, OJ was found innocent in his criminal trial but liable (i.e., guilty) in his civil trial. How could this be if the two trials were, in effect, for the same act? Did he commit murder or not? The two trials produced two different results because of different standards for meeting the burden of proof. In civil cases in the US, the jury only has to conclude that the preponderance of evidence indicates that the person is guilty (i.e., over 50% likelihood), while in a criminal trial the jury must be convinced ‘beyond a reasonable doubt.’[2] There are different burdens of proof because of the differences in punishments for civil and criminal wrongs. Civil wrongs are punished by compensation. Criminal wrongs are punishable by incarceration or corporal or even capital punishment. In the West, the notion that judges or juries should exercise extra caution in finding someone guilty of a crime comes from canon law (the law of the Catholic Church) in the twelfth and thirteenth centuries, as does the notion of innocent until proven guilty.[3]
The Shariah has remarkably similar features (actually, I think that Western canon law was influenced a great deal by Islamic law, just as Western philosophy and science were profoundly shaped by Muslim scholars in those fields from the tenth to the thirteenth centuries… but that’s another issue). Muslim jurists didn’t categorize law into civil and criminal law, but these labels are nonetheless useful in trying to understand the hudud. The categories that Muslim jurists used were those of violations of the ‘rights of God’ (ḥuqūq Allāh) as opposed to violations of the ‘rights of God’s servants,’ i.e., human beings (ḥuqūq al-ʿibād). The rights of human beings include the right to physical inviolability (in other words, one can’t be killed or harmed without just cause), the right to dignity, the right to property, the right to family, and the right to religion.
Just as in modern human rights, these rights are not absolute. They can be infringed upon with just cause. But they belong to all human beings regardless of whether they are Muslims or not. If someone breaks your toe, smashes into your car or reneges on a contract they made with you, they owe you compensation because they have violated your rights. They owe this even if they didn’t intend any of these actions since the damage was done and they were the cause. The same applies in American civil law (in both Islamic and American law, an exception would be if you smashed someone’s car because someone else threw you onto it, which was out of your control). Along the same lines, according to the rights of human beings in the Shariah, if someone steals your phone from you, they owe you either the return of your phone or its replacement value. If someone kills your family member accidentally, then your family is owed the compensation value as specified in the Quran and the Sunna. In such cases, as taught by the Prophet ﷺ, the job of the judge is to “ensure that all those with rights receive them.”[4]
Violations of the ‘rights of God’ in the Shariah are an important counterpart to crimes in the Western legal tradition. Of course, the ultimate ‘right of God’ upon mankind, as explained by the Prophet ﷺ, is for God to be worshipped without partner, and this right extends to other acts of worship as well, like giving the zakat charity.[5] But, unlike human beings, God is eminently beyond the capacity of any creature to harm. Also unlike human beings, God has “ordained upon Himself mercy” (Quran 6:54), and promised that His “mercy encompasses all things” (Quran 7:156). This element of God’s vast mercy plays a crucial role in the other rights of God that Muslim jurists have identified, namely the crimes known as the hudud.
What are the Hudud?
The concept of hudud in Islamic criminal law is not found in the Quran, though it is referred to in hadiths considered authentic by Muslims.[6] Ḥudūd in Arabic is the plural of ḥadd, meaning limit or boundary. The Quran mentions the “limits of God” several times, warning Muslims of the sin of transgressing them and that they should not even approach them (Quran 2:187). But nowhere does the phrase appear in the clear context of labeling certain crimes (see Quran, 2:229, 4:14, 58:4, 65:1, though 4:14 is followed by a discussion of sexual impropriety).
As the famous scholar Ibn Taymiyya (d. 1328) noted, definitions for the categories of crimes (and their corresponding punishments) in Islamic law were the products of human reason and not scripture.[7] Early Muslim jurists probably inherited the concept of a category of crimes called hudud from references to it made by the Prophet ﷺ and the early generations of Muslims. Muslim scholars have agreed that the hudud include: adultery/fornication (zinā), consuming intoxicants (shurb al-khamr), accusing someone of fornication (qadhf), some types of theft (sariqa), and armed robbery or banditry (ḥirāba). Muslim schools of law have disagreed on whether three other crimes should be included as well: public apostasy (ridda), sodomy (liwāṭ) and assassination/premeditated murder for purposes of robbery (ghīla).[8]
What is in common among the hudud crimes is that their punishments are specified in the Quran or Sunna and that they are considered to be violations of the rights of God.[9] Of course, some of the hudud are also violations of the rights of humans as well. Sariqa (the hudud-level of theft, see below), qadhf (sexual slander) and ḥirāba (armed robbery, banditry) are obviously violations of people’s rights to life, property and/or dignity.
The scriptural commands that specify these hudud punishments are, in summary:
Zinā: The Quran commands that men and women who engage in fornication be lashed 100 times (Quran 24:2), and hadiths add that if the person is single and has never been married then they should also be exiled for a year.[10] The Hanafi school of law does not accept the additional punishment of exile because it does not deem the hadiths in question strong enough evidence to alter the Quranic ruling. It was agreed upon by all the Muslim schools of law that the Quranic punishment referred to here was for unmarried people. Married men and women guilty of adultery are punished by stoning, as demonstrated in the Sunna of the Prophet (peach be upon him).[11]
Sariqa: the Quran specifies that the thief, male or female, should have their hand cut off “as a requital for what they have done and as a deterrent ordained by God” (Quran 5:38).
Qadhf: The Quran commands that anyone who accuses someone of adultery and does not provide four witnesses to the alleged act should be lashed 80 times and should never again have their testimony accepted (Quran 24:4).
Shurb al-Khamr: Though the Quran prohibits drinking wine (khamr) and intoxication, the punishment for drinking comes from the Sunna. The most reliable hadiths state that the Prophet ﷺ would have a person lashed 40 times for intoxication, but the caliphs Umar and Ali subsequently increased this to 80 after consultation with other Companions.[12]
Ḥirāba: This crime is understood to be set out in the Quran’s condemnation of “those who make war on God and His Messenger and seek to spread harm and corruption in the land.” The Quran gives it the harshest punishment in Islam: crucifixion and/or amputating hands and feet (Quran 5:33). The vast majority of Muslim scholars have held that this verse was revealed after a group of men brutally blinded, maimed and murdered a shepherd and then stole his camels. The Prophet ﷺ ordered the killers punished in exactly the same way.[13] Yet prominent scholars were skeptical of reports that he had actually ordered the murderers’ hands or feet cut off.[14] This disagreement between the punishments ordered by the Quran and by the Prophet ﷺ may have been because the Prophet ﷺ’s order came before the verse was revealed,[15] but the ambiguity is generally understood as illustrating that the ruler/state has discretion in deciding the proper punishment for ḥirāba.[16]
The hudud do not cover what most legal systems would consider the most serious part of criminal law: murder. But this does fall within what we can term Islamic criminal law. Although the Quran and Sunna conceptualize murder, accidental killing, as well as physical injuries done to others, as private wrongs against individuals and their families, from the time of the Prophet ﷺ it was the state that oversaw these disputes and carried out punishments. These were violations of the rights of people, but they also touched on the realm of public order and violence, which was the territory of the ruler.[17] Since cases of homicide were brought by the victim’s kin (much like in the West until the nineteenth century), the state (in the person of the judge or governor) would be responsible for bringing cases for victims with no kin, on the basis of the Prophet’s ﷺ saying that “The authority (sulṭān) is the guardian of those who have no guardian.”[18] The state also often took responsibility for compensating victims and their families when the guilty party could not be identified.[19]
God’s Mercy and Applying the Hudud Punishments
Violations of people’s rights have to be restituted because those people have suffered actual damage or loss. God, on the other hand, is not actually harmed by violations of His rights. In the case of the rights of God, it is God’s mercy that defines Islamic legal procedure. Only an adult Muslim of sound mind and who is aware that one of the hudud acts has been prohibited by God and still intentionally engages in it is even theoretically liable for the punishment.[20] In this regard, the hudud crimes differ from violations of the rights of people, such as accidental manslaughter or accidentally damaging someone’s property, where intention is not required and children’s families are liable the for damage they cause.
The central principle in the application of the hudud punishments is maximizing mercy. This was formulated clearly in a hadith attributed to the Prophet ﷺ that was also echoed by prominent Companions, among them his wife Aisha and the Caliphs Umar and Ali. The best attested version states, “Ward off the hudud from the Muslims as much as you all can, and if you find a way out for the person, then let them go. For it is better for the authority to err in mercy than to err in punishment.”[21] Within a century of the Prophet ﷺ’s death Muslim scholars had digested this hadith into the crucial legal principle of ‘Ward off the hudud by ambiguities (shubuhāt).’[22]
Some might argue that this doctrine was developed by Muslim jurists in the generation after the life of the Prophet ﷺ to remedy the Quran’s harsh punishments. In other words, they inherited a regime of severe punishments and maybe they thought they needed to find some way out of applying them. Or one might argue that the Prophet himself ﷺ preached warding off the hudud if at all possible because he was uncomfortable with the punishments revealed in the Quran.
But neither of these theories could be correct. The establishment of a harsh regime of punishments alongside a nearly unreachable standard of proof occurs together within the Quran itself. The Quran ordains that those who commit adultery should be lashed 100 times, but just one verse later it states that anyone who accuses someone of adultery without four witnesses to the act is punished with 80 lashes for slander.[23] Why would a message seeking to establish an order of law set up harsh punishments but then make them almost impossible to apply? We will discuss this later, but now let’s turn to the ambiguities (shubuhāt) that Muslim jurists elaborated to avoid applying the hudud.
The Muslim jurists who developed the massive and diverse body of fiqh took the Prophet’s command to ward off the hudud very seriously. Some of the procedural safeguards were found in the Quran itself, such as the requirement for four witnesses to zinā. A significant number were added in the hadiths. In the most famous case (there are six known instances) of the Prophet ﷺ ordering a man stoned for adultery, the man comes to the Prophet ﷺ and confesses his sin. The Prophet asks him if he is crazy, and when he continues to insist the Prophet ﷺ suggests that perhaps he only kissed the woman.[24] In order to prevent witnesses from assuming sex was occurring when perhaps the couple was just embracing or lying on top of one another, the Prophet ﷺ required the witnesses to testify that they’d seen “his penis enter into her vagina like an eyeliner applier entering into its container.”[25] Because the man who confessed, Māʿiz, insisted on confessing four times to the Prophet ﷺ, the majority of Muslim scholars require all confessions of zinā to be done four times. Anything less cannot be punished by the hudud.[26]
Based on the same case of Māʿiz, jurists agreed that even someone who had confessed to zinā could retract that confession at any point and no longer face the hudud punishment. Finally, even external signs such as pregnancy were not considered proof that zinā had occurred in the opinion of the majority of Muslim scholars. For example, if a woman’s husband had been away for years, he could have been miraculously transported to be with her.[27] Or she could have been raped. The one school that did consider pregnancy determinative proof of zinā (assuming the woman didn’t claim she had been raped) allowed the possibility that a woman could be pregnant for up to five years. Normally in the Shariah such miraculous or fantastic claims would carry no weight in legal matters. But as possible ambiguities to prevent application of the hudud, they were accepted.[28]
This immense allowance for ambiguities in ruling on sexual offenses can be seen most clearly in the Hanafi school of law, which was the official school of the Ottoman Empire. When prostitutes and their clients were caught, they were not tried for zinā due to the (admittedly outlandish) ambiguity that prostitution was structurally similar to marriage; both were exchanges of sexual access for money (in the case of marriage, the groom’s dowry payment).[29] This is not because Muslim scholars had any sympathy for prostitution or a low regard for marriage, but rather because they hunted for any possible ambiguity to avoid implementing the hudud.
In the case of sariqa, the strict definition of the crime laid out by the Sunna explains why I’ve been so reluctant to translate it as theft. Sariqa is only a very specific kind of theft. First, hadiths specify that a thief would only have their hand cut off stealing something over a certain value.[30] In another hadith, as well as in the practice of the Companions, we are told that an accused thief should be prompted two or three times to deny that he stole.[31] In court procedure, what this means is that, even if the thief is caught red-handed, with the usual number of witnesses (two) testifying that they saw him steal, all the thief has to do is claim that the item was his, and enough ambiguity would be established to make hand cutting out of the question.[32] On the basis of an instance in which a man stole a cloak from under a sleeping man’s head, jurists concluded that only something stolen from a secure location (ḥirz), a concept determined by local custom and conditions, merited the hudud punishment.[33] The Prophet ﷺ also exempted acts of misappropriation done blatantly in the open.[34] In the end, the list of requirements that Muslim scholars agreed on to eliminate all ambiguities reaches (see Appendix Requirements for Amputation for Theft from al-Subki). As a result, as described by scholar Rudolph Peters, it is “nearly impossible for a thief or fornicator to be sentenced, unless he wishes to do so and confesses.”[35]
This system of making it virtually impossible to implement the hudud punishments through ambiguities characterized the hudud crimes of intoxication and, to a lesser extent, sexual slander as well. Someone who smells of alcohol would not be liable for the hudud punishment. Even someone who was seen drunk and vomiting up wine was not subject to the hudud punishment according to most Muslim jurists because he could have drunk the wine accidentally.[36] Since Muslim scholars have disagreed a great deal about what constitutes an intoxicant, the approach to applying the hudud punishment has been to follow Imam Shafi’s position that “people are only punished based on certainty.”[37]
