FQP14 Fiqh of Penalties – Chapter on Hadd, Fixed Penalties

Hatem al-Haj


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i want to know that he also have you want

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to proceed today inshallah we will go over kita or the book on how dude

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fixed penalties and this is part of our discussion of the penal law or the you know the segment on penalties and islam criminal law and islam

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although most of the crimes are not particularly mentioned here because we are talking mainly about two different types of crimes in this particular segment one of them is equal retribution or pithos and the other one is huddled which are the fixed penalties that have been fixed by the revelation

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but most of the crimes that you would find in any secular law are not included here because for most of these crimes there is a discretionary punishment that is left up to the legislature's or the judiciary's to determine the punishment for those crimes but only the this is like a large a very large segment that is not discussed in detail in the books of felker it is usually given like a chapter which is the chapter of tozier batasia the chapter on discretionary punishments

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so today inshallah we'll talk about it and as we have been doing we are going over falco from lambda which is a hungary manual operated by the mom of anna padana who died in the year 620 after the hydra he wrote you know different books on the combating mass hub

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including you know along the mokena al caffee and the greatest of all and mabuni and we're going over the commentary a little bit of a comparative commentary on his book our lawn

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we're up to the segment on penalties are we finished to the flip of worship we finished the financial transactions we finished the fact of inheritance we finished the de facto family we finished the flap of oaths and vows we finished or the fact of foods and drinks and then we finished the book the fact of oaths and vows and we started the book on penalties we finished the equal retribution which is bizarre and wounds and you know facial wounds and so on and now we're up to the kettlebell or dude or the book of it huddled or fixed penalties and once we finish this segment we will move on to jihad when we come back from ramadan and lower from ramadan is vacation then we'll

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start the book on jihad and then the book on the judiciary and that will be it inshallah and they are smaller in size so hopefully we have only a few months to finish the entire fab so at the moment kodama rahim allah dada said in his book along the under the book of adored or fixed penalties laddie will have to enlarge amakhala in alignment with the hareem what are your pema who ella eman how to enable the hard the punishment is only binding against one who is maganda what means legally liable

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and aware of the prohibition aware of the prohibition no one other than the imam or his deputies authorities may i executed the mmr his deputy is is is a reference to the authorities so the authorities will execute the hub it is not left up to individuals to do so so now we will begin by a little discussion

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about a dude and

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certainly the discussion of dude is a very interesting and exciting discussion whenever people think you know particularly non muslims particularly in the west whenever they think of islam they think of it hadoo the the punishments and muslims also tend to do the same thing you know when muslims think of the law

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when most muslims think of sharia when muslims back home and muslim countries and muslim majority countries because honestly speaking you know muslim majority countries except for one or two do not rule by the sharia necessarily

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And in its entirety. But when we even say that, what do we mean by that? We usually mean that they don't apply the hadoo. Because in most of these countries, most of the laws are actually derived from the Sharia.

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But just the fact that they do not apply the hadoo

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makes it feel to us like they don't rule by the Sharia.

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Is this like warranted?

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justifiable, you know, yes and no. Why? Why is it Why is the Yes or no?

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Yes, it is justifiable because the hadoo seems to be the sticking point between the thesis and antithesis, the western the east, you know, Muslims and non Muslims, particularly the occident. You know, the West, it seems that this is the issue, you know, that that creates most of the controversy.

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And it's seems, for many Muslims, that unless we apply the hadoo, were still under imperial rule, or we are still not completely liberated, we're not completely free. So that is the feeling.

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And the certainly, like, oftentimes feelings are not dispelled by sort of intellectual discourse, because they are feelings. And, you know, like, few studied marital counseling, you would know that feelings are not to be basically intellectualized or rationalized, you just have to address them as feelings.

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And so, so that's why he to a great extent it is yes, the answer is yes. But when you say no, you're also justified to say no, because the hadoo are less than 1% of the Sharia. Well, if you think about this area,

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Sharia is about everything. It's about how you conduct yourself, it is God's prescription for you as an individual for the society at large. But for you as an individual primarily because your relationship is like a religion is about your bilateral relationship with Allah subhanaw taala. So it rules you're basically or it guides

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practice and your your daily lives. From the time you wake up in the morning. Just Just the fact that you went to sleep on your right side, but Syria, you wake up in the morning, or you save a victory that is Syria, you know, you go to the bathroom and make will do Sharia, it's pretty much everything you say Salaam Alaikum, when your way out to your family setting, and everything, then you go to work and then you like you tried to be conscientious and he tried to do your work well, and you're trying to do your work with a sand that is Sharia.

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But like, then it is a reductionist sort of behavior, to think of Sharia as hadoo, then to think that as long as the hadoo are not applied, the Sharia is not applied. So this is something that we have to be aware of we have you have to be aware of, sort of the feelings that you you may validate you, it's not unjustifiable, but at the same time, you will have to really know what is happening here. This area is not just the hadoo, the hardwood are less than 1% of the area. And we're not going to talk about contingencies here and we're not going to talk about whether they have excuse not to or they don't Muslim governments and Muslim legislators and judiciary's, and so on. We're

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This is not a discussion that is that belongs here, or belongs to us. We live in the West, where not basically aspiring to impose the Sharia on anyone and as far as the east and as far as the Muslim majority countries what our attitude towards this should be is pretty simple. The first ism, you know whether you belong to the right or the left of the Muslim spectrum, whether you are on the stricter side or the more sort of liberal side, just defer to them. Please stay quiet, it's not your business.

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So to theorize for them from a distance,

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and basically to accuse them of strictness, extremism or laxity and heedlessness and

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And so on, it is basically very arrogant view and very insensitive inconsiderate.

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And the whole list of just like bad terms.

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I think it is not, it's not your business, it could be your business from an intellectual perspective only, but not basically.

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Think of them

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in any negative way, wherever you belong on the spectrum, and wherever they belong on the spectrum, so it is very unbecoming very unbefitting, of a Muslim youth, a 20 year old Muslim, to basically think about of people that are considered to be people that spend their life trying to normalize Islam to place in the public space, such as, you know, how much edema how, topical visually, and I'm given examples from each case, this is what, you know, where, where I'm from, and I'm aware of those people, and that they may seem to be to the sort of the Muslim youth growing up in America and having sort of this, like,

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identity issue and wanting to look straight into luck, you know, practicing, they may look like to lose and to

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compromising those individuals, you know, like, you know, how to limit our productivity and others. But at the same time, these are the people who spend their lives and sacrifice

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and risk their freedom spent their lives trying to normalize Islam space, a place in the public space, and you will be who you are, and just finished high school and you know, who you are involved in all kinds of things.

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And just became practicing last year, or maybe a couple of months ago. And now we're starting to have like ideas about those people that's just so

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immature is such like a very kind word for them.

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But anyway, so the the idea that the issue of Hadoop, like I said, we will examine it here from an intellectual

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sort of standpoint, because it is important for us as Muslims to be comfortable with Allah with what Allah had legislated without getting met, Rob Baker said, kawada, lamba, dedicatee, Matt, and your Lord, the word of your law that has been fulfilled in truth and injustice, said perfect Akbar. That is truth, you know, about the declarative, descriptive part of the revelation, and the admin and injustice that is justice in common rulings. That's the imperative or the prescriptive part of the legislation, we have to be comfortable with this. Therefore, we do need to study these things. And we need to be aware of them, and we need to be comfortable with them as Muslims, what Muslim

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majority countries will do now is their business, and we defer to them. And when you get into discussions with your compatriots, your country, man, just say to them, I defer to the people and you and they also should defer to them, and should not determine for them what they do with their own countries, because supposedly they are independent countries.

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So so so let's talk about the issue of attitude. What are Hadoop? Hadoop are basically four different punishments. But you know, when it comes to certainty, of Hadoop, we're talking about four different punishments. Two of them were mentioned in Surah. Ada, two of them were mentioned in Surah node. And if you try to remember what the letter is the last surah, of halal and haram that was revealed, so that the node was revealed, you know, in the middle of the madonie period, so like about five to six years after, you know, the header of the Prophet sallallahu wasallam. So the middle of the madonie period and the end of the melody period for Sora to Nora and Sora Anima. Ada,

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what are the two that were revealed in Surah node, you know, sort of as a noun for now and then if you had internet coronas, and it was any Zen it was any political agenda that came out of it and feeling alone can

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occur with so

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many as an Elantra doesn't even almost look at them as any

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other momineen Well, at the end of

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October yatish, are definitely doing some Elina gelada what

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she had done, how would I go?

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So the two that were it's very similar to verse number two and verse number four. Verse number two is about was any as any it was any virginity

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Without having

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you know the foreign a caterer and the foreign caterers flog each one of them 100 times

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don't let sympathy prevent you from

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from applying the rule of Allah subhanaw taala or

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what Allah had prescribed

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and and to the end of the eye and then the other one which is number four it's about people who accuse

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people who accuse mazzani in which Moxon means what

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means apparently chased not necessarily proven, apparently chased people Moxon in this respect, because maximum could mean different things when when it comes to the different rulings, like if you know, but but in this particular respect, it does not mean someone who was previously married.

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You know, in Xena punishment when we talk about Muslim in the difference between Russia and mamasan, then it talks it is it is referring to someone who has been previously married and basically can consummated the marriage. But when we're talking about my son, and in the cause for which is accusation,

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have chase people have fornication. It is about chastity, if someone's chaste, they are more son, apparently Chase, they are Muslim, and apparently chaste means what means that Xena has not been proven against them. And or, and they have not admitted to it. That's it. And then they are apparently Chase. So then that the crime of Casper or levina amount of Santa Maria took advantage of that femenina agenda, but very long shadows and habit, and those who accuse chase women, but it applies to men as well, that it says more women, because that's usually what people have done. But it also applies to men, those who accuse chaste women of fornication and then fail to produce for

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witnesses fail to produce for witnesses, flag them at times, almost like Zener.

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So 180 it's almost you know, like Zener, flagging them at times, and do not ever accept their testimony. And these are the possible and I'm not gonna translate it for you. But these are the physical.

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So so these are the aliens who are unknown and there is there we can go back to them because basically to to establish the punishment for Xena and then in to

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two verses down from this establish an evidentiary standard that is almost an attainable for you know, adult male witnesses seeing you know, the act,

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seeing the male organ into the female organ like the eyeliner stick

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it going into the container, it's a container that is an evidentiary standard that is almost impossible to attain. That's why in the time of the Prophet sallallahu Sallam he was never based the crime was never based on the testimony of four witnesses but rather admission confession.

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So, so so there is something that we want to discuss when we come back to it but the other two verses in Surah didn't matter that talk about the dude the the talk about circle Sarika

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Nico back okay so it was a diorama designed by cassava and a girl and then along Circle Circle Victoria the oma does MB Mecca. McCallum in Allah Allah hockey. So the CIF male or female, then cut off or amputate their hands to be my cassava as recompense or as a punishment for what they have committed MacAllan in Allah and a form of

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punishment from Allah subhanaw taala.

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Well, ours is on Hakeem and Allah is almighty and all wise. So this is one the sebata Sarika study.

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And then the other one in images already know how they want to look for all the fuss about karate

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Kung Fu for dunya karate

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so that

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The sort of the punishment is that what are the you know, how do you wanna for those who rebel against Allah and His messenger

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and spread mischief on earth

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and your katello level these are the highway This is armed robbery high, particularly not not in town, outside in the desert, you know highway banditry, banditry or you know highway robbery and these people used to kill rape and steal

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a mixture of all or some of them

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and they cause immense insecurity, immense insecurity banditry as you know, basically they cut off the roads people need to travel for their various purposes. And once they leave town they are subject to attacks by those highway men. And they were known in our cultures they were known in old places they were known in old cultures banditry, so the punishment for them law seven your potato to be killed Takata demerger, I'm going to have here the hands and feet cut off, cross cut off, you know, so cross, you know, right and left or left and right.

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Men fell off or we won formula in order to be exiled.

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And to be exiled here the scholars would say put them in jail is a form of exile.

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delicate and fizzy and for dunya This is a disgrace for them in this life and for in the hereafter they will have a severe torment or punishment. So these are the four that are mentioned in the Qur'an. So what are the again, the two ones are not in nor are Xena

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and the two in Surah Al Qaeda are a study

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on how Rob

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robber is banditry.

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Sally, is a special type of theft.

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It's not all theft. But anyway, special type of theft and as his accusation

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sort of unproven accusation of fornication like I guess that's the best translation, unproven accusation of fornication.

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If you say I'm liable, it's not it's too too wide

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as Xena is fornication.

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So these are the ones that are agreed on by all scholars by consensus. These are four that's it

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as far as certainty after them one that is accepted by the vast majority of scholars and why did I separate this because some scholars said it's not a hot

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and I'll tell you why. They said it's not a hot that is hot shorebird come

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drinking wine. The Senate is not a hard although there is a report from Anna's that the Prophet sallallahu Sallam flogged someone 40 times for it and Alejo the Allahu also said the Prophet flagged 40 times for it. But when a person was brought to the prophets, Allah selam after drinking the Prophet Solomon, the Hadith of the prophets, our circumstances rebou, Femina, darbuka, Yamuna

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salby, so the Prophet sallallahu Sallam said to beat him, and then they beat him one, they said what I said, so we beat him with our hands or with our, like garments and with our shoes or like footwear, sandals, in fact, so that doesn't look like a sort of a fixed penalty here. So that is why there is this, you know, like little controversy about this, whether it's a fixed penalty, or it's just a punishment.

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And the other fact is that it was not it has not been revealed in the Qur'an. And all of the other hurdles that are agreed on has have been revealed in the PR and they are due to law they are the fixed penalty is determined by a lot. That's not to say the law does not reveal to the profits things but that's not in the Quran, but in the center. But then why is everything else is established in the plan and this one is not. So it is a little bit different from the other hadoo than this would have legal ramifications afterwards. But this is basically number five. And you could pretty much say when it comes to the agreement

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That this is it.

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So what are the other ones that

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drinking Okay, so what are the other ones?

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That that are controversial? There are other hurdles that are controversial. Do you remember that the Maliki said Caitlyn Villa which is treacherous killing is not equal retribution does not belong to equal retribution treacherous killing is when you tell someone Meet me at the cemetery and then you go and kill them or meet me outside town and so on. It involves some deception and some treachery and the mathematic said that this is not a it's not about equal retribution there is no halfway there is no pardoning it is a hard it is a fixed punishment and they have their their proofs but this is not the time for this discussion. So Pac Man v law which is the law

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is one that is

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question mark is the hub or not Now which one ends is had?

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Well, let's go over the word first.

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lewat which has basically sodomy

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wat as basis is is for for the Hanafi is for le marbre hanifa Imam Abu hanifa said you know, of course all of them bikin not all of them, you know, there is even reporting consensus here would be a little bit

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like ludicrous, because, you know, recording consensus is when there is possibility that there was disagreement, there was no possibility of disagreement here. So, but let's also say that by consensus, all of them agreed that it is a crime. But they did not all agree that it is a hub the crime, the amount of honey fuzz is punishable because he said that there is no

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proof from the coroner center that it has a had the crime. So you might have even said that it is punishable by tozzi discretionary punishment. I will use a friend Mohamed said it is like Xena, it is like Xena. And they basically agreed with the majority that it is like Xena, Malik said they are you know they are to be killed regardless is what for in the Maliki method. It's the punishment is severe than Xena because they don't make the distinction between Marsan and unmarshal it is this penalty for both masana and masa. This is the shaft is in the authorize the view and the hang berries in the authorize the view treated just like Xena. So any act of sodomy whether it is with

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between male and male or between male and

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female that is not married to them. Whether whatever it is a female that is married to them in is haram still. But of course it is not punishable by heart.

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Of course it's not punishable by heart. You know, for someone to do this with their wife.

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It is haram

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but it is not punishable by heart. And it shouldn't be punishable by heart, of course.

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So that's the discussion on on the wards

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that they they had so in the Hanban emails have

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in addition to the five if we are like this we're Hanbury here. So in addition to the five, we will add the what not Mariela, because that's a Maliki thing. So we'll keep it out. So we will add the word

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into somebody's mouth.

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Well, we don't even need to make the world a separate category in the humbling method because in all honesty, they just treat it as Xena. They consider it a form of Xena

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So, so then what is the other one that they talked about or they disagreed over what's the other half that they disagreed over? apostasy

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apostasy or read now?

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Well, I'm not going to get into that the whole discussion I have something I have written something or read and whether the punishment of read that can be suspended. So if you

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Put my name, Google my name and apostasy

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and suspend that you'll probably find the document. But I'm not going to get into this discussion I'm not going to talk about, you know, who basically said the thread that is not punishable by death, but like imprisonment and like an FA and others

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for even report even ascribed. So, Alonzo but but the majority of scholars agree that apostasy is punishable, it's a capital crime. That's the majority of the scholars, the Hanafi is the seven was not a capital crime for women, because

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to some, to some extent, they are internalizing that red is that rebellion against the state.

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So why is it not a capital crime for women because women are not going to be violent about it. They're not going to be fighting against you if they left the religion. But during the Prophet sallallahu Sallam It was like, you know, the Muslim mean, and the kuffaar and an ongoing struggle. So when you left, you left the community that is, to some extent, high treason.

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And usually when people left they went to courage. And usually when people left they would be fighting against you. So it looks like the hierarchies internalize this. Although they did not say it but they internalize that and that's why they said for a woman it is not punishable by But anyway, but aside from this if we are talking about the majority and certainly the 100 he's agreed also for men This is a crime it's a it's a capital crime.

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But is it the head and if there is a huge difference between being a habit because it's not subject to negotiation it's not subject to suspension you know, her dude like Sadie has been suspended by all Maria Lauren would like sidecar has been suspended, but this is a suspended suspension that is basically warranted because of circumstantial variables and it is a temporary suspension,

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temporary suspension because of circumstantial variables.

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But if we say that it is a habit that is not subject to discussion, negotiation suspension, and it is not a hard, Honestly speaking, it is not a hard and that's the Hanbury position. The Hanbury position is that apostasy is is a valid punishment, you know, or the order the death penalty for apostasy is a valid punishment that has been prescribed, but it is not hard. And for many reasons, I would say that it's quite obvious that there's not hardly because the Prophet sallallahu Sallam ever

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suspend the establishment of heart after the establishment of proof or the crime. No, you know, once it is once someone

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once the evidentiary standards is reached, or someone admits then no one can suspend a public entity and EBV when some fundamental Maya you know, for gave or pardon to the person that stole their garment. The Prophet sallallahu Sallam said,

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had you done this before you brought him to me? Like why are you too late? You should have forgiven him before you brought him to me. Because now that you have brought him to me, it's not up to me. It's a hard it's a hard of a lie. It's a fixed penalty by Allah subhanaw taala it's not up to me.

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But then when it comes to apostasy, how many people are personifies that during the time of the Prophet Solomon, he loved them

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the apostatized in his face, and he left to them. So that is why we're saying that it is not hard, and that's the position and the hungry mother. So, now, these are the ones that have been, you know, described as producers, whether they are agreed on or almost agreed on,

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almost agreed on.

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Or, you know, controversial or controversial.

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But then it like if you try to put things in perspective,

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these are just

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eight, you know, and everything else is discretionary punishment. And now, let us add a few things now.

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Let's review a few things. So people now like I told you when it comes to what the Muslims should do, will have the Muslim should approach these matters in Muslim majority countries. We are in

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Not certainly imposing the Sharia on anyone here, we are living by the Sharia because it is basically not about the hadoo it's about how we conduct ourselves in our lives. But

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But when I imposing on anyone, as far as Muslim majority countries, we defer to them to decide for themselves they are independent countries and their people should be free to decide for themselves and should not be listening to Muslim minorities in the West, and they should not be listening to the Western gender.

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Do what is good for them after sort of thorough, the, you know,

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discussion or discourse

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and investigation.

00:35:53--> 00:36:02

But from our perspective, we want to be comfortable with what Allah had revealed. And you will see that in the in the archive that I sent you,

00:36:04--> 00:36:09

if you if you think that the hadoo crew that if you think the holodeck crew,

00:36:10--> 00:36:59

whenever you think of anything? How do you ascertain that you're right? And it's not just your feelings, that your impressions that are based on your personal inclinations personal dispositions or culture of dispositions? How do you verify this? How do you know what is right and wrong? Because like, if you know, the very unsophisticated person is the person who feels that whatever they feel is whatever is, which is a crazy idea. And he's a person who's has a little bit of intellectual maturity, would be able to tell you that this is such a crazy idea, you know, to think that what you think is right is right, just because you think it is right, is such a crazy idea. So how do you

00:36:59--> 00:37:10

believe like, you think that this is cruel? How do you how do you prove it? How do you prove this group? How do you prove that is wrong? Yeah. Do you remember the discussion that we had before about

00:37:11--> 00:37:12

what's moral?

00:37:14--> 00:37:19

And we said that, you know, from the virtue, virtue, ethics,

00:37:22--> 00:37:38

Aristotelian virtue ethics, and then we have in the modern moral philosophy, we have two different strands, that deontological and teleological, the ontological is the categorical.

00:37:42--> 00:37:45

And the other one is do utilitarian.

00:37:47--> 00:38:27

Okay, so the categorical they say, that's the kantian, the categorical the deontological, it is basically duty based, this is purpose based, duty based, they say that there are certain things that are just categorically right or wrong. Why is categorically wrong? But how do you? How do you prove this? Kant said, because he has the proven concept universalize it universalize it if you if you do it to others? Would you like it done to you? Would you like everybody doing it? Will it work, if everybody is doing it?

00:38:30--> 00:38:36

Certainly, it will be a problem. You know, if people people people are lying, but can't also

00:38:37--> 00:38:46

can be radical in this in this concept. And the utilitarians can prove the the categorical

00:38:47--> 00:38:57

sort of ethics radical in many concepts. Like if someone you remember the example that I told you before, like a tyrant he's trying like someone,

00:38:58--> 00:39:08

like a poor guy is trying to escape from a tyrant and that tyrant come and you're hiding them. And that tyrant comes and says, you know, where is so and so?

00:39:09--> 00:39:13

You know, and then like, should you lie? Islam tells you, you lie.

00:39:16--> 00:40:00

To save the poor guy from the oppression of the tyrant. Kant says you don't lie, because lying is categorically wrong. So then the utilitarians will be able to like prove, come from here. But generally speaking, he's not all wrong. Because there in Islam, there are certain things that are categorical. Like lefty Martin, sob Effie, if someone tells you, like, do you remember the discussion that we had about, you know, kill so and so, or I will kill you that if you kill them, you still will be killed? Because you should not have listened even if you are about to die? The same? Like what do you remember when we said that this applies?

00:40:00--> 00:40:01

The rape as well.

00:40:02--> 00:40:21

So there are things, certain things that are categorically wrong and there is no excuse for doing it, doing them whatsoever. So it's not all utilitarian, islamically. And it is not all categorical. But the utilitarian ethics will tell you, you know, the greatest good for the greatest number of people.

00:40:22--> 00:40:54

So Hadoop, in this sense, virtue ethics is is about what it is about why you're doing it, if you're doing it for an honorable if you're an honorable person, you will be doing it honorably for honorable purpose and this is what virtue ethics is about. So they say that the same thing could be done by two people, but one of them is virtuous, and one of them is not. And if you stand by the virtuous person, then

00:40:55--> 00:40:59

it will likely be like an honorable act for honorable purpose.

00:41:00--> 00:41:34

Okay, so this is it. And we talked about, you know, GM, and Scrum and we talked about her modern modern philosophy article, the important article, and she said that whether it's this or this any Otterness ethics are to you ought to why, you know, any oddness ethics, so, that is not coming from the Divine Law giver is going to be moot, like, it's just going to be like, you know, art you are to why, so, what if I don't do it, and this was, was truly like,

00:41:36--> 00:41:37

sort of

00:41:39--> 00:41:57

an eye opener for many people. And then after the anscombe, people started to go back to virtue ethics, because this art too, is, you know, finally figured it's not working. But she may have because she was a devout Catholic, she may have been alluding to go back to divine lawgiver.

00:41:58--> 00:42:52

But she was also a virtue ethicist. So if you if you take her dude, now, if you take the Hadoop now and say, let's examine the Hadoop and see if, according to this hadoo that wrong. virtue ethics are meant to be applied by virtuous people for the interest of the society. And they're meant to be applied by people who also value honor and value integrity and value, truthfulness and value all the list of virtues that Aristotle talks about to an extent that has not been matched by any other generation. If you think of Abu Bakr and Omar and Osman and Ali and you think of Tom Hans, these are the people who are meant to apply the hadoo. So according to this, there is no problem with Hadoop,

00:42:52--> 00:43:03

okay, according to the categorical. Okay, now, let's, let's put it put the header to the test according to the categorical ethics of can't universalize

00:43:05--> 00:43:11

you can never you can never use the new universalizing sort of test litmus test

00:43:12--> 00:43:21

litmus paper test by Kant, in the Hadoop because, you know, an equal retribution when someone kills

00:43:22--> 00:43:52

if we like, if you like them or put them in jail, whoever told you that this is not cruel, you know, limiting people's freedom by incarcerating them is cruel, isn't? Well, so you say to Kant, who ever told you? In fact, Peter Moscow's. Peter Moscow's wrote a book called in defense of flagging, in defense

00:43:54--> 00:43:55

of lugging

00:43:57--> 00:44:37

Peter mascus is is like a socialist professor, maybe Professor now of law in some University here in the US, and he was a veteran police officer, and he wrote a book called in defense of flagging, they tell you that flogging is actually kinder to the offenders than imprisonment. It is better for rehabilitation, basically, letting them go back to the society rehabilitated and not further hurting them, and further hurting their chances of reactivation as righteous members of the society.

00:44:40--> 00:44:42

It's an interesting book, I have it.

00:44:43--> 00:44:44

You should probably read it.

00:44:46--> 00:44:51

So you go, you say to Kant, well, whoever told you that

00:44:53--> 00:44:59

these punishments that, you know these punishments are wrong

00:45:00--> 00:45:05

we're not talking about bringing like a like an innocent person and

00:45:06--> 00:45:42

flagging them or anything of that nature someone committed a crime you will have to you will have to punish them okay we are saying that at the individual level that punishment may be better for the rehabilitation of this person at the individual level of the offender itself forget about the society but when you factor in the society it certainly may be much better you know the idea of severe punishment when you factor in the society maybe it's much better

00:45:43--> 00:45:47

in fact so this is the categorical one

00:45:48--> 00:45:51

certainly when you when you tested the hadoo in

00:45:52--> 00:46:03

you know against the utilitarian ethics or just the hadoo according to utilitarian ethics the greatest good for the greatest number the greatest good for the greatest number

00:46:04--> 00:46:07

certainly the huddled would win big time

00:46:09--> 00:46:24

always win big big time because the interest of this is in the interests of the society to increase the severity of punishment and i cited here a study by the policy studies policy studies

00:46:26--> 00:46:27

journal from

00:46:29--> 00:46:37

2000 december 2000 policy studies journal it is a meta analysis by salvia

00:46:38--> 00:46:39


00:46:42--> 00:46:45

the name of the study is putting

00:46:47--> 00:46:48


00:46:50--> 00:46:52

of punishment

00:46:55--> 00:46:56


00:46:57--> 00:46:58


00:46:59--> 00:47:01

the terrorists

00:47:03--> 00:47:04


00:47:06--> 00:47:48

and it basically proves that that that we have two different limbs when when when deterrence package you want to deter crime you want to prevent crime in any society so how do you deter crime how do you prevent crime in any society first of all in islam the first thing that islam does to prevent crime is to establish justice establish justice establish compassion establish kindness to look after the the poor and the needy and all of that but after you have established justice how do you specifically target crime in a community where justice has been established how do you specifically

00:47:51--> 00:47:56

prevent crime it's the two limbs two legs

00:47:59--> 00:48:01

okay this is what

00:48:03--> 00:48:17

the likelihood of getting caught likelihood of getting caught so you improve your search of policing you improve your like forensic investigation so that you catch the offender

00:48:18--> 00:48:30

what about this one severity of punishment so whenever a person commits a crime they're thinking of how am i going to get caught what if i get caught what what happened to me

00:48:32--> 00:48:50

these are the two things if you improve the likelihood of people getting caught you deter crime if you increase the severity of punishment you deter crime now in liberal societies they have been trying to basically like de emphasize the severity of punishment

00:48:52--> 00:48:59

so basically you do a little bit of community time like you rape a woman and burn her we can give you like a few hours of community time

00:49:02--> 00:49:06

and so on but i'm not just this is an exaggeration

00:49:08--> 00:49:40

but but the idea here is like severity punishment and likely getting caught so the people have been under plan downplaying the importance of severity punishment and they're saying that it's mainly about the likelihood of getting caught that's not true so whatever it is likely to get caught but at the end of the day i'll do a little bit of community service well i'll probably rob this bank and you know if i get caught and have to do like you know a few months in prison it's not a bad idea

00:49:42--> 00:49:43

because if i don't get to

00:49:44--> 00:49:45

just be

00:49:46--> 00:49:47

good for the rest of my life

00:49:49--> 00:49:49

so anyway

00:49:53--> 00:49:56

robbing you know the bank may not have been the best example i guess

00:49:57--> 00:49:59

because the banking industry doesn't have the best

00:50:00--> 00:50:01


00:50:04--> 00:50:27

No, by the way, I wanted to say is, is that if you apply utilitarian ethics event that you cannot basically say that the hadoo are wrong based on your utilitarian ethics based on categorical ethics because, again, at the end of the day, you will say to calm someone committed a crime, someone raped a woman, you're not just going to tell them, you know, you know,

00:50:28--> 00:51:00

goodbye, something, what happened, whatever will happen to you is categorically wrong, limiting people's freedom and it's categorically wrong, you know, flagging people is categorically wrong to you. But at the end of the day, we will have to do something and your universe universalization litmus test pay less newspaper test is not going to work here. Because we're not talking about a universal front, we're talking about offenders in, in crimes.

00:51:01--> 00:51:05

And then, as I said, even according to virtue ethics,

00:51:06--> 00:51:38

and it is important that we understand this, you know, it is important that you understand the concept of virtue ethics here, because these hairdos are meant to be applied in a virtuous society, in a society that established justice, in a society that looked out for the poor, in a society where there's a cat is given in a society where baited man is concerned for is mainly concerned for the sort of the unfortunate, and the needy, and so on and so forth.

00:51:39--> 00:51:52

So that is why many of our contemporary scholars say that even in our Muslim societies nowadays, like I was just hearing someone as traditional, as Sheikh Mohammed said, Ramadan, a booty,

00:51:53--> 00:51:54

for instance,

00:51:55--> 00:52:39

very traditional, very conventional scholar, he was saying that if they were to suggest applying the huddle tomorrow, here, and he was from Syria, I would be the first one to oppose it. Because you have not really established that virtual society, where the Hadoop can be applied within the larger context of a virtual society, that should not be taken as an argument against her dude to be just completely canceled. Now, it is an argument against the society that you should get your act together, you should improve yourselves, and you should basically

00:52:41--> 00:53:17

aspire to applying the rest of Islam. So when we talk about the hadoo, when we talk about Muslim countries not applying the hadoo, therefore, they are not ruling by the Sharia, therefore, they're this or that there are bigger problems, because based on that virtue ethics, isn't it also Islamic to have righteous governance? Is it also Islamic to have equity and justice? Is it also isn't it also Islamic? Isn't it also Islamic to have separation of powers? You know, sure, I ruling against it when he was the halifa separation

00:53:18--> 00:53:36

of institutions would that have sort of separation of powers are entities all Islamic things. So the hadoo would need to be applied within the context of the above and to basically

00:53:37--> 00:53:41

skip over all the above. And this won't apply here dude.

00:53:43--> 00:53:58

That will be just the injustice that will be injustice, because it will be a tool in the hands of the powerful to punish the unfortunate and the poor and so on and to you know,

00:53:59--> 00:54:13

subdue them, but in a society where justice is established equal to establish separation of powers and all of these good things that are like it completely Islamic

00:54:15--> 00:54:21

and when there is also compassion and zeca and all of these things, the hadoo will be

00:54:23--> 00:54:30

will have a home a place to be applied and then when they have a place to be applied

00:54:31--> 00:54:46

on the have a place to be applied what is actually meant by and what is meant by it, to remember our discussion about certain node, when we said that, like first two

00:54:47--> 00:54:48

has any It was not it was only

00:54:51--> 00:54:53

a matter of configuring a LAN conductor in an urban area

00:54:55--> 00:54:59

where it established the you know, the flagging for

00:55:00--> 00:55:02

lugging for for vacation.

00:55:05--> 00:55:13

Okay, and we said that in verse four of the same surah, it said, If you do not produce

00:55:14--> 00:55:18

four witnesses, and you accuse someone of fornication

00:55:19--> 00:55:25

and you do not produce for weaknesses, you will be flagged yourself. At times,

00:55:27--> 00:55:33

at times, okay, so what the hell, dude, that the philosophy of the Hadoop

00:55:34--> 00:55:43

it's about deterrence. It's about deterrence. Remember, I told you this before? What is the punishment for usery?

00:55:45--> 00:55:48

What's the punishment for eating pork?

00:55:49--> 00:55:52

Why is there a punishment for drinking wine and no punishment for eating pork?

00:55:57--> 00:56:02

The desire, the desire and desire, no one in his right mind would want to eat bacon.

00:56:04--> 00:56:04

No, I'm sorry.

00:56:07--> 00:56:22

You know, someone may have wanted in the past or something. But But, you know, that the way it smells and tastes just like I had never tasted but I'm assuming from this mill, that it wouldn't be such a great base.

00:56:23--> 00:56:39

But But why? And you know, so the desire, it is deterrence to bring you from, you know, to protect you from human weaknesses. And if you look at all the Hadoop, all the Hadoop, they protect from what what is in lust?

00:56:40--> 00:56:42

What is cause? Cause anger?

00:56:44--> 00:56:50

Because people usually make that accusation when they're angry. What is stealing greed?

00:56:53--> 00:56:56

What is banditry? Everything, you know, they kill and raping them?

00:56:57--> 00:56:58

What is?

00:57:01--> 00:57:03

What's the other? How do you hear

00:57:04--> 00:57:10

Pathan and farmer farmer drinking wine? What is drinking wine addiction?

00:57:12--> 00:57:12


00:57:14--> 00:57:19

Aren't these extremely powerful, you know, basically

00:57:21--> 00:57:33

extremely powerful, powerful influencers of human behavior, lust, anger, greed, and addiction. So the Hadoop are meant to tell you,

00:57:34--> 00:57:48

you know, this crime you deserve for it, and you deserve for it according to whom, according to God, stoning, flagging, cutting off your hand and so on.

00:57:49--> 00:58:29

So that's the terms, but the evidentiary standard was so high, that the punishment is practically you know, hardly applicable. So why would a system do this, you know, make this make it so severe, but raise the evidentiary standard so high, that's not applicable because of the terrorists, because at the end of the day, that's a very the end in your mind, in your mind. That is the punishment. And that will make the crime look worse to you and look, a sort of less

00:58:30--> 00:58:32

attractive to you.

00:58:34--> 00:58:59

But you may say that both of the evidentiary standard being so high, you are preventing justice from being established. No, because as we said before, if it does not meet that evidentiary standard, your is your right is not lost. I did not cut off the hand of the CIF because it did not meet the engineering standards. Sometimes you know, the ambiguities

00:59:01--> 00:59:04

when the Prophet sallallahu Sallam said Dre

00:59:06--> 00:59:11

and her Duda, Anil muslimeen Mustapha Otto

00:59:14--> 00:59:15

for ankama

00:59:17--> 00:59:18

level massage

00:59:19--> 00:59:20

for Hallo

00:59:21--> 00:59:22


00:59:25--> 00:59:27

for in E Mama,

00:59:29--> 00:59:30

can you please

00:59:33--> 00:59:34

fill off Wi

00:59:40--> 00:59:41

Fi your own

00:59:42--> 00:59:43

men and

00:59:44--> 00:59:45


00:59:46--> 00:59:48

fellow hakuba

00:59:50--> 00:59:59

so ward off the huddle punishment, word after huddle punishment from them the mean spirited muslimeen from the huddle Person person as much as you can

01:00:00--> 01:00:01

As much as you can,

01:00:03--> 01:00:23

for it is better for the authorities the Imam No. So if he has any exit the offender has any way out of it, let him go. If the offender has any way out of it, let him go. For it is better for the authorities the air in mercy event or in punishment.

01:00:26--> 01:00:28

The Muslim scholars to the best the heart

01:00:29--> 01:00:53

there are various principles that sprouted out of this and other hobbies that are reported from the Prophet sallallahu Sallam and the companions that are here, dude, Bishop bohat is a principle of fair play. That is one of the most popular principles of fact, at Robert W. Chabot hat. So there are a dude here, Ben Chabot hat.

01:00:55--> 01:01:01

Okay, so word off the Hadoop by ambiguities, ambiguities.

01:01:02--> 01:01:20

If you if you look at the ambiguities posited by the Muslim scholars, in the books of fap, you think this is crazy, you're making the evidentiary standards so hard to reach that, if that thief claims that this

01:01:22--> 01:01:33

sort of item was his, that's enough to that's enough to prove that, to get him off the hook, basically,

01:01:34--> 01:01:37

to claim to have any sort of

01:01:40--> 01:01:44

plausible claim that this item is is

01:01:46--> 01:02:06

for a person to claim that the woman that he was that he had sort of sex with his his wife, even if she denies That's enough, I mean, unless it is known by everyone that it is not his wife, but the simple claim that it is his wife, without proof is enough to get him off.

01:02:08--> 01:02:14

There that there are certain things, you know, according to the HANA fees,

01:02:16--> 01:02:26

the fact that you pay the prostitute gets off, he gets you off the hook. Now, according to the majority, it's too far fetched, and it's just like a, like a bad example.

01:02:28--> 01:02:34

But according to that, you know, or at least some of the Hannity's, I should say,

01:02:36--> 01:02:42

because that is an in contractual relationship. You know, and, and then,

01:02:43--> 01:02:45

but then, you know,

01:02:46--> 01:02:47

armor, the

01:02:48--> 01:03:07

armor, not the hand of his armor when a woman came to him and said, that I was asleep and I have like, you know, I, you know, when I sleep, I'm a deep sleeper, and someone just had sex with me when I was asleep, and I didn't wake up until he was done.

01:03:09--> 01:03:10

And she was pregnant.

01:03:11--> 01:03:13

And all my let her go.

01:03:14--> 01:03:15


01:03:16--> 01:03:17


01:03:19--> 01:03:38

the like, if I if I keep on telling you the examples of of those ambiguity, they're far fetched ambiguities, and the prophets are some of them is the first one to tell them is the first one to tell them just avoid applying the hadoo. They are meant. They are meant to deter people from

01:03:39--> 01:03:44

these crimes, but avoid applying them as much as you can. When my eyes came to the prophet SAW Selim, what did he do?

01:03:47--> 01:04:24

He said to him, I committed Zina, so the profits of the salon turned away from him. And then he came to him from the I committed Zina purify me and the promises are then turned away from him. And then he came and he, until he did it four times. He told them, are you crazy? He said, No, I'm not. He told them. Maybe you just guessed. He said, No, I did not. He told them. Maybe you just talk. He said No, I did not. Until he said, What am I gonna do to you now? So okay, you know, he ordered him to be stone. And then when my eyes fell to the heat of the

01:04:26--> 01:04:38

the rocks or the stones, or the pain and tried to run away, and they did not allow him to run away the block profits or sudden did what? rebuked he told them, You should have let him run away.

01:04:40--> 01:04:41

You know, so what is

01:04:42--> 01:04:55

the idea here is the profit was the first person to apply this. It's not the Muslim jurists who will apply this because the hurdle is so severe, the prophet was the first person to try to apply this himself.

01:04:57--> 01:04:59

And there are so many, so the hadoo

01:05:00--> 01:05:02

we're not meant to basically mean people

01:05:04--> 01:05:09

they are meant to deter they were meant to deter crime and

01:05:11--> 01:05:17

there was like some study that was cited by dr brown

01:05:18--> 01:05:28

and in his article about hadoop he were not the most buddy but like he cites as statistics from

01:05:29--> 01:05:47

the ottoman empire from constantinople under ottoman rule in 500 years they apply they executed for fornication or stolen for fornication one person in 500 years

01:05:49--> 01:05:50

and in

01:05:51--> 01:05:55

in colonial america between 16 08

01:05:56--> 01:06:13

and 7085 50 people were executed for sexual crimes 50 people were executed in less than 200 years in america one in 500 years

01:06:15--> 01:06:22

in constantinople under ottoman rule in colonial america and constantinople so the idea here is

01:06:24--> 01:07:07

that historically speaking that the jurists actually took this hubby's to heart historically speaking the jurist actually took this to heart and they try to apply it to the poor like you know so the maliki's would consider the you know the pregnancy can last five years and some of them say seven years so if someone died and his wife was pregnant after the majority of scholars don't even consider pregnancy to be as like a proof on fortification the maliki's would not consider it if she has any plausible explanation but the majority said even without it is not you know like a single woman being pregnant is not approved that she formulated whatsoever

01:07:10--> 01:07:33

and they're just like you know so many so many such examples so what i'm trying to get at is that this was part of the deterrence package within the legal framework of islam part of the deterrence package the foundation of the society is one of justice and equity

01:07:34--> 01:07:43

and within that foundation within that larger context the hadoo were meant to be

01:07:45--> 01:07:59

deterrents from crime they were not simply symbolic we can say that it's not like they're symbolic that they were never applied no they were applied because if they were never to be applied

01:08:00--> 01:08:32

then they don't cause any deterrence they don't basically but they were applied to but they were rarely applied they haven't been to a standard was high and going back to the point that i wanted to make when you say but how could you deter crime if the evidentiary standard is this high and i got into this to tell you that your seven rights as the victim will not be dropped and punishment would still be imposed by the authorities but it is

01:08:33--> 01:08:48

short of the heart the authorities will come up with a punishment short of the hat not even all muslim scholars said that it is short like short of the hand some of them said it could be worse than the hand

01:08:49--> 01:08:52

but jail time could be prescribed for instance

01:08:55--> 01:09:09

if the if the evidentiary standard was not met jail time could be prescribed so like we really know like that there is so much evidence that the person stole this item

01:09:10--> 01:09:18

because the hadoo they have like extremely stringent evidentiary standard we were not able to establish

01:09:20--> 01:09:59

you know within the hadoop framework we were not able to establish the crime to apply the hat we will apply a nother punishment that is not the hat because it was obvious that the person committed the crime and then the whatever you know all people's rights equal retribution will be established and restitution of people's rights and so on all of that will be established even if we did not even if the evidentiary standard for a harder crime has not been met

01:10:06--> 01:10:12

okay well i guess we should take time off and come back and finish the chapter on