Ismail Kamdar – Understanding Hudud – Islamic Criminal Law
AI: Summary ©
The Sharia law system is based on the same principles as Muslims apply the law, including strict punishment for crimes such as bribery and shooting. The punishment system is based on user's behavior and does not apply to anything other than criminal activities. The solution for the Huddl-rat is to reduce punishment and maintain a public order, which is a wholesome life for people. The solution for the fatwa is to reduce punishment and maintain a public order, which is a wholesome solution for people.
AI: Summary ©
We'll be talking about misconceptions
about the Sharia, about Allah's law.
The biggest misconception
is
the
status
and
the application of what is called the,
the Islamic criminal law system.
Right? Nowadays, if you bring up the word
Sharia
in front of,
non Muslims,
the first thing I think of is, oh,
you wanna cut off people's hands and sold
people to death. And that that's all Sharia
is today. They they can't imagine it to
be anything beyond,
some harsh criminal
law. Right?
So I'm just going to put the microphone
off.
Just put a feedback on this.
K. So
this concept
of hoodooed, what we want to discuss today
is just to answer a few simple questions.
Is this such a concept?
Yes.
Right?
What are these ulud?
How did these scholars understand and apply them?
How were they applied historically?
And why do they exist? I'm gonna try
and answer 5 questions in 25 minutes.
I just wanna start by saying that
there's a lot of stereotypes,
false stereotypes about Islam that exist today because
of Western media,
and this is something found even in children's
cartoons. I'll give you one example. Right? But
30 years ago, the famous Aladdin cartoon was
made. Right? And in the starting, the princess
takes the apple and gives it to a
child and the shop owner grabs her and
grabs her sword to chop off her hand.
And this is given as a portrayal of
how Muslims deal with criminals.
Everything about that scene is false.
Every single thing about that scene is false.
It's not the shopkeepers' right to chop off
anyone's hands. Nobody's hands gets chopped off for
stealing apples.
Right? There there there's a there's a system
in place. There's a judicial system in place.
There's a judge. There's a court yearning. There
are conditions that have to be met. This
is a way of making Muslims look barbaric.
And over and over again, you see these
stereotypes in movies. You see these stereotypes in
TV shows. You hear these stereotypes of, you
know, western news pundits talking about how Muslims
will chop everybody's heads off. This is a
misunderstanding
of the law of Islam.
So to begin,
is there such a concept in Islam as
chopping off the hands of thieves and stoning
the adulterer
and executing the rebel?
We say, yes,
there is. This concept is there. It is
in the law.
It does technically exist as a law. Allah
says in the Quran, the male and female
thief amputate their hands. He says the male
and female lububil sinah lash them a 100
times. These things are in the Quran. They
are in the sunnah. They are agreed upon
by all 4 madhhabs. They exist.
Right? They are called Hududullah,
the boundaries of Allah Subhanahu Wa Ta'ala. That
there are certain boundaries if you exceed them,
there is a harsh worldly penalty for exceeding
those boundaries.
But what is misunderstood today
is when do they apply, how do they
apply, and why do they exist. Right? This
is what we must understood today. And this
is because
when we think of law today, we think
of a system where if someone commits a
crime, you know, the government opens a book,
they see a law, and they apply it
to that crime. Right? And we imagine, like,
every law as it is stated is as
it will be applied. So if people hear
that
a thief's hand is amputated,
they imagine anyone who steals is going to
get their hand amputated.
But in reality, when you study the actual
Sharia,
only 1%
of people who steal would actually have this
punishment,
maybe less than 1%
because there are so many stringent conditions have
that have to be met for this punishment
to actually be carried out. In the case
of Sinan,
the conditions are so strict that really
0% of people today who commit sinah would
ever face the punishment.
Right? So what are the hudul?
The hudul, which are the boundaries of Allah
Subhana Wa Ta'ala,
are certain legal penalties
mentioned in the Quran and Sunnah and agreed
upon by the scholars as being the most
severe punishments in the Sharia for certain crimes.
They are very few. There's only
between 5 to 8 crimes that have a
criminal punishment in the Sharia. 5 to 8
is difference of opinion. Right? The ones that
are agreed upon is drinking alcohol,
accusing someone of zina, committing zina,
stealing,
and murder. Actually, murder is categorized separately, I
think, as false punishment.
Right? The last one is rebellion.
Right? These 5, there is a read upon
that there's a very harsh penalty in the
Sharia for them. However,
these harsh penalties are very rarely carried out.
When you open the books of Feq,
you'll find number 1. Number 1, the books
of Islamic law, less than 5%
of the book focuses on this topic.
Meaning, this topic that people think is the
Sharia
is less than 5% of the Sharia.
Right? If you open a book of fiqh
I actually did this yesterday. I opened a
book of fiqh and it was about 8
volumes long
and only about 20 pages in the last
volume is dedicated to this topic.
Meaning, this is like the smallest chapter of
faith. It's like almost an afterthought
compared to everything else. When you study Sharia,
you actually need to study how to pray,
how to be clean, how to fast. You
learn about marriage. You learn about divorce. You
learn about business. You learn about Hajj. This
is Sharia. Right? This is the bulk of
the Sharia.
Why what we are talking about here is
a very small part of the Sharia. Number
2, when you study these things, so for
example, if you open the famous Hanafi book
of fiqh,
al Khidai
to the chapter on Sarika, on chopping off
the hand of the thief,
the very first statement mentioned there one of
the very first statements mentioned there is we
will not apply this punishment as far as
possible.
This is the first thing mentioned in a
hundred b book of pick. That this is
the punishment,
and our job is not to apply it
as much as possible.
And this you'll find standing across all of
the madadees.
There is a hadith where the prophet sallallahu
alaihi wasallam said that
the job of the judge is to prevent
these punishments from being applied.
And so the way Fiqh evolved over time,
so many conditions were attached towards abrogating the
hand of the thief or stoning the adulterer
or
even lashing the person who commands zina before
marriage, that these things were almost never carried
out to such an extent that in the
500 year history of the Ottoman Empire,
the stoning of the altar happened once,
once in a 500 year period.
Why?
Why does it why is it like this?
Well,
to understand why it is like this, you
have to understand law in a different sense
of how we understand it today. You see,
historically,
most communities didn't have police.
Most communities didn't have prison systems.
What will happen? Somebody steals, some people will
see them, they're grabbing, they're taking to a
judge.
It's it's a community that's handling it. Right?
And the judge that will decide what's given
to them.
And to deter people from committing crimes,
the punishment that is listed for that crime
is very severe.
This isn't only in Islam, by the way.
Before modernity, this was the case with British
law. This was the case with most countries,
with China. Most laws were very severely in
terms of what's written in the book.
But in terms of what's actually carried out
on the ground,
that individual may be given a much lesser
punishment.
So what these scholars of fiqh came up
with is called the tawlir system.
Tawlir
means,
discretionary punishments.
So when you study Islamic criminal law, you
study 3 levels of criminal law. You study
the hudood, the boundaries of Allah, which is
what what is mentioned here. And what you
study in the hudood is that your job
as aqadi is to never apply this as
much as possible.
Only in a worst case scenario will you
ever apply these laws. Right? This is what
you actually study when you study fiqh and
you study this chapter of gudud. That these
laws exist. Try your best. Never have to
ever have to do this to anyone. Then
the next level is.
Kesos means equivalent punishment. Somebody harm someone, the
other person has the right to retribution.
This includes murder. This includes if somebody chopped
off somebody's nose or fingers. There is a
equivalent punishment that they can take the person
to court and get justice. And then the
third level is the avail. This is where
most of Islamic criminal law
takes place. The Azeel means there's no set
punishment. The ruler or the judge decides what
the punishment is going to be.
Right? And this is the bulk of our
actual criminal laws. This is what will happen
in an actual Islamic land.
In an actual Islamic land,
the law stated
in the column of of the country is
that the thief's hand will be amputated. This
is the law of the land.
But 99.9%
of the time, when the thief is brought
before the court, he will receive a lesser
punishment.
They left up to the judgment of the
judge. So for example,
let's go back to the example we mentioned
in the beginning. Somebody stole that apple. They
gave it to a poor person.
What do you think will happen to them
in an Islamic court?
Nothing.
Literally nothing. They'll be forgiven or they may
have to pay the price of the apple
or they may they may even tell their
shopkeeper why don't you give me the salazar.
Right? Nothing could happen to them. Okay. Somebody
went to a shop and stole a few
cell phones.
What will happen
to them? The judge will look at the
value of the phones. He'll ask the person
who was stolen from what do you wanna
do about it, and then he will come
up with a discret discretionary punishment, a tazil.
This could be 3 days in jail, could
be 5 days in jail, could be 10
lashes.
It's up to him. He decides what the
punishment is.
Right? And so for the bulk of our
history,
thieves were subjected to a lesser punishment
and very very rarely would the full force
of the law ever be applied to anyone.
It was the same with zina. Right? If
somebody committed zina, historically,
nobody was punished for sinah in this way
for very simple reason.
Sinah is a private sin
committed in the in the most private of
places where no one's ever gonna know it
happened.
And for the punishment that's lit written in
the law to be applied,
there has to be 4 pious eyewitnesses.
What is the chance of the being 4
pious eyewitnesses to an act of xenon?
For the bulk of history, 0%.
It never happens. Right? We all know that
if people do this, they do it when
nobody's watching, when there's no chance of getting
caught. Right? So a 100% of cases in
most countries and most most situations,
the law will not apply. Furthermore, there is
a high punishment that counters this. What's a
high punishment?
If somebody accuses somebody else of zina without
4 witnesses,
the person making the accusation will be lashed
80 times and their testimony will never be
accepted in court again. So nobody will even
bring these things to court.
So why do we have 2 opposing laws
like this?
Number 1,
the hard punishment for Zina being so severe
makes people realize the sin of hate is
in.
Right? Number 2, the hard punishment for accusing
someone of zina being so severe means this
thing never goes to court. It's left as
a private sin between that person and Allah
Subhanahu Wa Ta'ala. So, historically,
how will the Hudud be carried out? Well,
historically, these existed as laws in books that
everybody knew about, everything that was a way
off, but they were very rarely actually carried
out in the court system to such an
extent that in the time of the Hudhaqah
Rasheedin, nobody was stoned. Right? And Omar al
General had to actually verbally remind people that
this law exists, but even the people who
forget the law exist because they're not carrying
out the law. Right? That he actually the
narration of Uhura He said, I'm afraid people
are gonna forget that this law exists.
And he says, this law exists, and and
he said that it is from Allah and
it is from the prophet, and it's agreed
upon by the Sahaba. Why would Omar al
Qara y'all have to say this? Because never
in his life can he ever apply the
law. It's simply a law that's in the
books and only apply in worst case scenarios.
And that's my final point.
My final point here regarding,
when is the hoodoo actually applied?
The hoodoo would only apply in worst case
scenarios. What would be a worst case scenario?
In the case of amputating the hand of
a teeth, it would have to be a
professional thief who stole something extremely valuable
from a safe place,
and he had no excuse for stealing.
And it is been proven without the shadow
of a doubt that he stole it.
Right? There's absolutely no excuse for stealing it.
Then and only then will the full force
of the law be brought upon that person.
And one of the maxims of faith governing
all of this is that even if there
is a slightest doubt, you cannot cut cut
off his hand. Even if there's a slightest
doubt, you cannot apply the death penalty to
someone. And the the scholars would bring up
a very important verse of the Quran here.
They would say that listen, if you are
93%
sure that this person committed zira and you're
1% doubtful whether he committed zira, do not
apply the death penalty because Allah said in
the Quran, Quran, whoever kills a believer intentionally
will be jahannam forever. Don't kill people. Even
if you have a 1% doubt that a
person is innocent, don't kill them. Even you
have a 0.1%
doubt that a person is innocent, don't kill
them. So these laws exist and these laws
are there and you find them in all
of the mud hauls. But historically,
they were never actually carried out except in
worst case scenarios. In the case of zina,
you have to be a public zina
and you have to be 2 people doing
the worst of actions in public in front
of pious people.
This is now not a private sin anymore.
This is now public immorality. This is now
spreading indecency in the world, and this is
what brings about the severest punishment of Allah
Subha Hamdi Wa Ta'ala in this world. And
so this is why I say the Hududah
only carried out in worst case scenarios, which
means even living under Sharia, you can go
through your whole life without ever seeing these
punishments applied because that's how strong
the,
the restrictions on these punishments are
The final question
is why?
Why have a law that you don't apply?
Right? Why is there in the Sharia a
law of stoning the adulterer if we don't
ever stone the adulterer? Why is there a
law of amputating the hands of a thief
if we try our best to never amputate
the hands of a thief? To understand this,
I'll give you the example of a school.
Imagine a school that's trying to curb plagiarism.
So they pass a law that anybody caught
plagiarizing
will be expelled
And in the 1st week of school,
5 kids are caught plagiarizing.
And then they come towards the principal, the
principal hears their case and they suspend them
for 2 weeks.
Did they break the law? I mean, did
the school break their own rules by suspending
these children for 2 weeks instead of expelling
them?
Technically, they didn't.
You see, the rule
that you will be expelled exists so people
don't commit the crime. But if people committed
that crime,
you don't want to ruin the entire future
and higher education over one mistake,
so you're going to find a lesser punishment
for those individuals.
Maybe they still caught plagiarizing a 3rd, a
4th, and a 4th time, they're only gonna
apply the full force of the law on
them.
The sharia operates in a similar way.
Allah Subha'anahu Wa Ta'ala has sent very severe
worldly punishments
for certain sins.
But these severe punishments exist, number 1, as
a psychological
deterrent against that sin. Because when someone is
alone in private and there's nothing stopping them
from stealing or
committing zina or murdering someone or drinking alcohol,
knowing that they can be executed or lashed
orders
may serve as a psychological
deterrent against that sin. It may serve. Right?
At the very least, it is a reminder
to them that this is such a major
sin that is one of the only 5
sins that Allah mentioned such a punishment for.
So this could this makes this sin bigger
in our mind. If you look at the
modern world, for example, people don't even consider
zinai sin anymore. It's so rampant. It's so
normalized.
Right? But when when you have a law
like this, people think twice, like, to see
something serious. This is something you could actually,
you know, be publicly punished for. It's it's
not something,
we're taking a chance a chance about. And
so what happens is because this law exists,
people,
stay away from these sins. Right? So you'll
find under Sharia,
there's very little stealing.
Right? They're like, krima the the actual amount
of people who would steal are very few.
And usually it's just the desperate people who
are hungry. Right? And in that case, there's
much lesser punishment and sometimes no punishment for
them.
Likewise,
zina is
reduced to something private that people don't even
know happened.
So number 1, it is a psychological
deterrent against them.
Number 2,
it makes the punishment that the person actually
receives
more digestible to that person.
Meaning,
going back to our example, imagine somebody got
caught in school plagiarizing
and now in their mind they're stressed out,
they're going to get expelled.
And the principal tells them, you're suspended for
2 weeks.
How would they feel?
They feel relieved that they're going to get
expelled. It's the same psychological principle.
Imagine somebody gets caught stealing under Sharia and
in their mind, my hands are gonna get
chopped off. And they come before the court
and the and the policy tells them you're
going to jail for 5 days.
They will happily and willingly accept 5 days
in jail because in their mind, they're like,
at least my hand didn't get chopped off.
So it makes all of the other punishments
that actually apply
much more bearable and tolerable to the actual
criminal,
than,
than if that if that was the only
law in place. Right? Now what happens in
our society, the only law in place is
that you go to jail if you steal.
So a lot of people are like, you
know what? I'm gonna get free housing and
DSCV and Internet and free food. I just
you know, going to jail sounds like a
good thing. Right?
So it there's no actual deterrent against these
crimes.
Right? But when the when the punishment is
listed as something that's severe, there's a deterrent
against the crime. And when the actual punishment
is carried out, people actually believe.
And
so there are basically three reasons why these
laws exist. Number 1, as a psychological
deterrent against sin.
Number 2,
is
to make the punishment
more
palatable to the person who is being punished,
when they're given a lesser punishment.
And number 3, to prevent public evil.
To prevent public indecency.
Because what happens when you have a strict
law system is that nobody is stealing in
public, nobody is murdering in public,
nobody is committing zina in public, nobody is
doing these crimes publicly.
If something happens, it happens in secret.
And so public order is maintained,
public decency is maintained,
and the community
as a whole remains wholesome.
And if anybody has some sin or some
weakness, it's taking place in private where it's
a private matter between them and Allah, If
Allah wants to forgive them, he will forgive
them.
And so this maintains a public order where
that that the life of people in public
is a wholesome life, free from all of
these evils. And so these are why these
things exist. So this is the concept of
hoodood
and
in reality,
the way it should be applied
is that
the police's job is to ensure that, number
1, the Hudula only apply in worst case
scenarios.
Number 2, that the criminal is able to
reintegrate into community
and and and live a better life. So
Islam's law system is not about punishing the
criminal but about reforming
people. There's a big difference between Islam and
and other law systems that we don't wanna
punish people.
We want to bring people closer to Allah
Subhanahu Wa Ta'ala. And this is why a
lesser punishment is given and sometimes even the
punishment is counseling.
Right? Many a times, the tazee punishment is
actually counseling.
And finally,
the law
exists, but it's not something that's applied in
general. It's something that's used more as a
psychological deterrent against that specific crime. And so
this is how we should understand it, this
is how we should explain it, and really
many of the countries today that claim to
have Sharia law, they're not doing it properly.
They're not following the system.
Right? They're not
meeting all of these conditions
and this is why we need more education
on this topic and we need to discuss
this topic more often. Next week, inshallah, we'll
talk about another aspect of Sharia that is
greatly misunderstood in our time and that is
the concept of the fatwa.
What is a fatwa? What What is its
power? Is it binding? Is it non binding?
There's too many misconceptions. There's too much misunderstanding.
Inshallah, we will cover that in next week's
good
grant us the correct understanding of the religion.