by Dr. Ali Shehata
The Prescribed Punishments – Hudood Laws
Crimes that fall under this category are defined as legally prohibited acts for which God has commanded a specific, predetermined punishment. These punishments have certain distinguishing features that set them apart from others. Among them are the following:
1. These punishments can neither be increased, nor decreased.
2. These punishments cannot be pardoned or waived by the judge, the political establishment or the victim after their related crimes have been brought to the attention of the judiciary. It is possible for the victim to pardon the criminal if the crime was only personal in nature (only affected the victim and without societal ramifications, like theft from the victim’s store for example), and only before it is brought before the court. The Prophet Muhammad stated, “Forgive one another in matters of prescribed punishment for if the matter reaches me [and is confirmed] then the punishment must then be carried out.” [Abu Dawood and Nasaa’ee]
3. These punishments are the “right of God,” meaning that the legal right involved is of a general nature where the greater welfare of society is considered.
The crimes that fall under the jurisdiction of the fixed punishments are: theft, false witness, fornication/adultery, apostasy, the use of intoxicants (drugs or alcohol), highway robbery and terrorism (which includes rape). A detailed discussion of all of these crimes and their fixed punishments is well beyond the scope of this introductory book. Yet, due to the frequent questions, and misconceptions, that have often surrounded the prescribed punishments for theft, adultery and rape; these three topics will be discussed below.
Theft
Theft is defined in Shari’ah as secretly taking the wealth of another party from its secure location with the intention of assuming possession of it. Thus it is a predatory act, well premeditated, and hence, must be distinguished from petty theft.
There are conditions that must be met before an act of theft mandates carrying out the specified Islamic punishment, which is to have the hand amputated. These conditions are:
1. The stolen property must be completely taken into the thief’s possession after being removed from a secured location from the premises of the victim.
2. The stolen property must be movable.
3. The stolen property must be something that people generally ascribe value to and should not be something that people customarily overlook. This particular requirement is one which is commonly abused by overzealous so-called “Shari'ah” councils in certain rural and uneducated parts of the world who will wrongly punish someone for stealing something with a nominal value.
If these conditions are met in the absence of any doubt, or necessity due to extreme poverty (which would then prevent carrying out the punishment), it becomes mandatory to amputate the hand of the thief from the wrist joint if the crime is brought to the attention of the judiciary*. This is based on God’s words:
The thieves, male and female, amputate their hand. {5:38}
* Forgiveness is a major theme permeating all aspects of Islam, so should the victim of a robbery or theft choose to forgive the thief before any charges are pressed (before the crime is brought to the attention of the judiciary), then the punishment would not be carried out.
Discussion of the Severity of Punishment for Theft
The common reaction in westernized societies today is that the cutting off of the hand is “cruel and unusual” or “barbaric”. Consider the following perspective though. In western culture, the thief’s hand is not cut off, but instead the thief is “cut off” from society itself. This occurs initially with the thief being sentenced to prison, perhaps for a long time, where they often struggle with multiple fears—rape, solitary confinement, beatings and so forth. Afterwards, they are also cut off by social stigma and the loss of civil liberties. The western punishment may in fact be more “cruel and unusual,” since the thief will have a criminal record that will follow him throughout his lifetime endeavors be they jobs, marriage, the loss of the right to vote in certain states or even restricted travel in other cases—despite having served their time for the crime.
In contrast, the Shari’ah punishment instantly clears the thief of his sin, both before God and before society. The Prophet pbuh instructed his followers to accept back into society, in all respects, those people who had received their punishment and to allow them to continue to play a positive role in the community. A person’s record shouldn’t follow him around and people should not condemn him afterwards, upon the order of the Prophet who forbade condemnation of the criminal. In fact, they are in some cases praised for their courage to purify themselves of their sin in this world despite the difficulty of the ordeal.
'Umar bin Al-Khattab narrated: “During the lifetime of the Prophet, there was a man called Abdullah and he used to make God’s Messenger laugh. The Prophet lashed him because of drinking alcohol. And one-day he was brought to the Prophet on the same charge and was lashed again. On that, a man among the people said, ‘May God curse him! How frequently he has been brought to the Prophet on such a charge!’ Upon hearing this, the Prophet said, ‘Do not curse him, for by God, I know that he loves God and His Messenger.’” [Bukhari]
Abu Huraira narrated: “A drunk was brought to the Prophet and he ordered him to be lashed. When that drunk had left, a man said, ‘What is wrong with him? May God disgrace him!’ God’s Messenger then said, ‘Do not help Satan against your Muslim brother (with such words).’” [Bukhari]
Ubada ibn as-Saamit narrated: “I gave the pledge of allegiance to the Prophet with a group of people, and he said to us, ‘I take your pledge that you will not worship anything besides God, you will not steal, you will not kill your children, you will not slander others, or spread false statements about them, and you will not disobey me in anything good. Whoever among you fulfills the obligations of this pledge, his reward is with God. And whosoever commits any of the above crimes and receives his legal punishment in this world, that will be his expiation and purification. But if God screens his sin, it will be up to God to either punish or forgive him according to His wish.’ Abu Abdullah then added, ‘If a thief, or any person upon whom any legal punishment has been carried out, repents after his hand has been cut off, then his legal testimony well be accepted.’” [Bukhari]
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