Understanding Hudud and Tazir – Concept of Mercy and Compassion in Islamic Law - Part II

The concept of Mercy and Compassion in Hudud.

The first part of the blog pertained to punishments and penalties (Tazir) at the discretion of the Qazi (the judge) within the Sharia. This second part relates to Hudood i.e. punishments that are divinely mandated and explains how mercy and compassion abound therein. 

Hudud Crimes  

Ḥudud in Arabic is the plural of ḥadd, meaning limit or boundary. Hadd means “the limits prescribed by Allah (SWT).”

Hudud laws are based upon the Quranic pronouncements and are considered to be violations of the Allah’s (SWT) “boundaries”. Hudud crimes do not suffer from either inconsistency or inadequacy.  They have fixed punishments because they are divinely ordained and are mentioned in the Holy Quran and in some instances inferred from the hadiths.   

Hudud prescriptions include the penalties for crimes such as murder, theft, robbery, false accusations against a chaste woman and zina (fornication and adultery).

No judge has the authority to change or reduce the punishment for these serious crimes which are:

1.       Zina (Adultery/fornication)

2.       Defamation (Qadhf - false accusation of fornication) 

3.       Some forms of theft (Sariqa)

4.       Alcohol-drinking (Shurb al-khamr)

5.       Armed highway robbery (Hirabah)

These Muslim schools of law have occasionally differed on whether two other crimes should be included in hadd: apostasy from Islam (Ridda), and rebellion against a lawful Islamic ruler.

The Shafi’i’ school of thought consider bodily harm as hadd and Maliki school of thought considers rebellion (baghy) and apostasy (ridda) as Hudud offences.

Compassion is far more Superior to Punishment

Sections of the media quite often allege that accused under Islamic law, are punished even if is there is flimsy evidence or limited proof. However, the reality couldn’t be farther from truth.

Although corporal punishment is intrinsic to Hudud, the fact is that the Islamic judge can only impose the drastic penalty only after abiding by jurisprudential norms like a confession by the accused or the testimony of the credible witnesses. The usual number of witnesses is two, but in the case of adultery four witnesses are required. 

Islamic law doesn’t depend upon circumstantial evidence to establish the commission of the Hadd offence. In fact, under the Hudud offenses, the proof requirements for imposing punishment are stringent, highly technical, and require solid proof. If and when, there is no confession to a crime by the accused or not enough witnesses present, the Islamic law requires the Hadd crime to be punished as a lesser Tazir crime.

Take for instance, theft (Sariqa). Theft would be considered an Hadd offense if the thief has stolen something from a place of custody. A thief who enters through an unlocked door can’t be punished under Hadd because the unlocked door implies that concerned property was not in a place of custody. Moreover, if a poor person steals food out of need; he/she can’t be punished with the hadd penalty. Islamic law makes it mandatory to take circumstances of the crime into account.

Islamic law provides various means by which an offense may be condemned and the offender rehabilitated.

Notwithstanding the prescription for corporal punishment under Hudud; the Holy Quran has always urged believers to put more emphasis on reformation (Islah) and repentance (Tauba) rather than punishment per se.

For instance, the Quranic verse (5:38) about amputating the hands is followed by the verse which says, “But whoever repents after his wrongdoing and reforms, indeed, Allah will turn to him in forgiveness. Indeed, Allah is Forgiving and Merciful.” ~ Surah Al-Ma'idah 5:39

In short, Islamic law provides various means by which an offense may be condemned and the offender rehabilitated.

Holy Prophet’s (PBUH) Mercy on Hudud Matters

The Hadiths go to show that the Holy Prophet (PBUH) time and again, avoided resorting to punishments, and even explicitly discouraged implementing harsh penalties in several circumstances. One cannot overlook the Holy Prophet’s (PBUH) overflowing compassion, mercy and generosity for people.

The Holy Prophet (PBUH) maintained that the primary purpose of the penalties was the expiation of sins and reduction of the penalties received in the Hereafter.

Narrated 'Ubada bin As-Samit: We were with the Holy Prophet (PBUH) in a gathering and he said, “And whoever among you fulfils his pledge, his reward is with Allah (SWT); and whoever commits something of such sins and receives the legal punishment for it, that will be considered as the expiation for that sin, and whoever commits something of such sins and Allah (SWT) screens him, it is up to Allah (SWT) whether to excuse or punish him." ~ Sahih al-Bukhari 6784

Abu Huraira reported the Allah's Apostle (PBUH) as saying: “The servant (who conceals) the faults of others in this world, Allah (SWT) would conceal his faults on the Day of Resurrection.” ~ Sahih Muslim 2590

The Holy Prophet (PBUH) maintained that the primary purpose of the penalties was the expiation of sins.

The central principle in the application of the Hudud law is maximizing mercy. Narrated Hazrat Aisha (RA) that the Holy Prophet (PBUH), said: "Avert the legal penalties from the Muslims as much as possible, if he has a way out then leave him to his way. For it is better for the authority to err in mercy than to err in punishment of the innocent." ~ Jami at-Tirmidhi Hadith 1424

Thus, the crucial legal principle is to “temper the Hudud in the event of doubts” (shubuhat).

Examples from the Holy Prophet’s (PBUH) life

The late Indian reformist-writer and social activist, Dr. Asghar Ali Engineer, cites historical cases which illustrate this:

Once, a child labourer stole fruit from the employer’s orchard. He was caught red-handed and brought to the Holy Prophet (PBUH) by the employer demanding strict punishment of cutting off his hand. The Holy Prophet (PBUH) found out that the child was underpaid and suffered pangs of hunger, which ultimately led him to steal fruit. Rather than punishing the child, he reprimanded the owner for underpayment and made it obligatory for him to provide sufficient food to him until he grew up.  

The crucial legal principle is to “temper the Hudud in the event of doubts” (shubuhat).

Similarly, a Hadd penalty was suspended under the governance of the second Islamic caliph, Hazrat Umar (R.A), who refused to amputate the hand of a person who stole as there was famine going on during that period. An offense that is committed out of dire need should be distinguished from one committed out of greed.

Allah’s (SWT) Mercy Defines Islamic Law

A careful study of the Holy Quran shows that the Holy book stresses on four fundamental values: ‘Adl (justice), ihsan (benevolence), rahmah (compassion) and hikmah (wisdom). Thus, Islamic law adheres closely to the fundamental enunciations of the Holy Quran. All said and done, it is Allah’s (SWT) mercy that sets the metes and bounds of Islamic jurisprudence.