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Ḥudūd
Ḥudūd are fixed penalties in Islamic law. The Arabic word ḥadd (pl., ḥudūd) means, among other things, prohibition or penalty fixed by God. In Islamic jurisprudence, the term refers to fixed and mandatory punishments for certain offenses mentioned in the Qurʿān and sunnah. This in contrast to the taʿzīr and siyāsah punishments that judge or state officials may mete out at their discretion. According to most schools, the ḥadd offenses include intentional homicide and wounding which can be punished only at the demand of the victim or his heirs. The ḥanafīs and Shīʿah place these offenses in a separate category and restrict the category of ḥadd offenses to those whose punishment is entirely or partially a right of God and cannot be waived by the victim or his heirs. This article will focus on the latter group of offenses. They include the following offenses and penalties:
- Theft, to be punished with amputation of the right hand.
- Robbery, to be punished with banishment for a year if the robbery did not result in loss of property or lives, with cross amputation (e.g., of the right hand and the left foot) if property was taken, with death in case victims were killed, and—according to most jurists—with crucifixion followed by exposure of the body if both property and lives were taken; according to other jurists, the judge may select one of these punishments at his discretion.
- Unlawful sexual intercourse, to be punished with one hundred lashes, if the perpetrator has never had intercourse within a valid marriage, and otherwise by stoning to death.
- Unfounded allegation of unlawful sexual intercourse, to be punished with eighty lashes.
- Drinking alcohol, to be punished with forty or eighty lashes.
- Apostasy, according to most legal scholars to be punished with death after the court has granted a period of reflection and the defendant persists.
Many ḥadd penalties are harsh—amputation of hand or foot, crucifixion, death by stoning—but the jurists have made it very difficult to obtain convictions for such offenses. This is achieved by the use of strict definitions of the offense, high standards of evidence, and the doctrine of uncertainty (shubhah). Strict definitions of the punishable behavior exclude many acts that are similar but fall outside the definition. A case in point is the requirement for a sentence for theft that the stolen goods have a certain minimum value and that the goods have been taken from a well-guarded place. If an act is excluded by the definition, the perpetrator can be punished instead with taʿzīr.
In order to prove ḥadd offenses in court, either a confession or the concurring testimonies of two Muslim male eyewitnesses of good reputation is needed. For the offense of unlawful intercourse four such witnesses are required (Qurʿān 24:4), and they must have seen the act in its most intimate details. Circumstantial or hearsay evidence is not admitted. Only the Mālikīs accept the pregnancy of an unmarried woman as evidence for unlawful intercourse.
Finally there is the doctrine of uncertainty. The sharīʿah lists situations in which it is assumed that the perpetrator might have been unaware of the unlawful nature of his behavior. A ḥadd penalty cannot be applied in such cases. This is true, for instance, if a father steals from his son, or a man sleeps with a woman believing her to be his wife, although the marriage contract is null and void.
Because of these restrictions, the severe punishments for ḥadd offenses were seldom applied, but even if no ḥadd sentence could be pronounced, persons who had stolen or robbed were not automatically acquitted. They could still be punished for such acts, because judges and high officials had the discretionary power to impose punishments for acts that were sinful under the sharīʿah or that threatened the security of the state.
During the nineteenth century, with the advent of colonialism and Western expansion, Islamic criminal law was replaced by Western-style law codes. This happened nearly everywhere, except in some marginal areas, such as the Arabian peninsula. Thus, in Saudi Arabia, Islamic penal law has always been in force and ḥadd penalties are still inflicted today, although only exceptionally. In the second half of the twentieth century, political movements emerged in many parts of the Muslim world which aimed to establish an Islamic state and enforce sharīʿah. In some countries these movements gained power and reintroduced codified Islamic criminal law. This happened in Libya (1972–1974), Pakistan (1979), Iran (1979), Sudan (1983), and northern Nigeria (2000). These new sharīʿah criminal codes include the law of ḥudūd and the Islamic laws of homicide and wounding but also retain the provisions taken from the codes that were previously in force. The enforcement of the severe penalties varied from country to country: in Libya and Pakistan they were not applied at all, and in Sudan and Northern Nigeria only for a few years after their introduction.
The reintroduction of the law of ḥudūd was accompanied by a powerful discourse supporting it. It was presented as a first step toward the Islamic ideal of establishing a genuine and just Islamic state, as an effective way to fight crime and corruption, and as an act of political and cultural defiance of the West. There was apparently little opposition to these laws, but some Muslims have expressed criticism. One argument is that the severe penalties ought to be enforced only in states where social justice prevails and all citizens are free of want. The textual basis for this opinion is a report that Caliph ʿUmar (r. 634–644 C.E.) suspended the application of the ḥadd punishment for theft during a famine. Another criticism is that the new Islamic penal codes are based on classical doctrines whereas they could and should be modernized by ijtihād (independent judgment) or by selecting from the wide range of available legal opinions those that are most suitable to the present times.
See also Criminal Law; Human Rights; and Law, subentry on Legal Thought and Jurisprudence.
Bibliography
- Awa, Mohamed S. El-. Punishment in Islamic Law: A Comparative Study. 2d ed. Indianapolis: American Trust Publications, 1993.
- Peters, Rudolph. Crime and Punishment in Islamic Law: Theory and Practice from the Sixteenth to the Twenty-First Century. Themes in Islamic Law, 2. Cambridge: Cambridge University Press, 2005.
