It’s a gruesome scene – the victim is buried waist and sometimes chest high, the sentence is pronounced and the stoning commences. Until recently, there were fewer than 14 recorded cases of stoning for adultery in Islam’s 1400yr history. In the late 20th and 21st century, we have seen a return of this element of hudood, why?

The last century witnessed the age of the colonial powers, an age that oversaw the dividing and conquering of Muslim lands. The conquerors brought with them wealth and innovation, but they also brought many immoral customs and practices that were anathema to the Muslim mind.

Over time and through weakness, the Muslims assimilated the kuffar mentality and predilection for disobedience, and the things once considered haram were now indulged in without shame or regret.

Yet, Allah’s light could not be extinguished and amid the turmoil and subjugation arose brave mujaahideen who fought and overcame their oppressors. And as these righteous believers sought to please Allah, their first act was to expunge the kufr of the kuffar from their lands.

Their tool was the Divine Shariah, a moral, ethical and penal code by which any society could be transformed from a sinful abode to a land of righteousness.

And like any emerging society the transformation was not without difficulty. There were those who so loved the ways of the kuffar that they became a danger to societal harmony, morality and cohesion.

Thus, we have witnessed a resurgence in the application of the hudood, as the old is washed away and a new order appears. We pray that as the truth of Islam settles in the hearts of the Muslims that the old ways of the colonialists will also give way to righteousness and cleanliness, and that the revolution continues unimpeded so that Islam may once again reign.

Role of Punishment in Islamic Law

Traditionally it is said that the Shari’ah is divided into five main branches-I’tiqadat (beliefs), ‘ibadah (ritual worship), adaab (morals and manners), mu’amalat (transactions and contracts) and ‘uqubat (punishments). The Shari’ah protects and defends life, property, honour, religion and intellect. Hence the penal system is absolutely vital in guaranteeing these fundamental ‘human rights, as it is “the defence system in any society” which “upholds the values and preserves the institutions of that society” otherwise “the entire fabric of society will crumble” as “it is on the proper and most effective administration of law that a society is moulded into what it should be”. Therefore the Islamic penal system is just one of many branches of Shari’ah and it will be unfair for a critic, as it is done in the rubric of this essay, to single out some aspects of its penal policy in isolation to judge the merit or de-merit of the Islamic law without looking at the “context of its total scheme – its conceptual basis, primary objectives and goals and overall framework”.

The concepts of crime and punishment in the Shari’ah were tailor made “to bring about the kind of society and moral order that the religion of Islam foresaw”. In fact there are arguments to suggest that Islamic punishments are only applicable and enforceable in a just and proper Islamic state where the socio-economic and political systems are fully operating according to Shari’ah. There is a saying that “you can bend the necks but you can’t change the hearts”- so punishment alone cannot ensure compliance with the law or solve the problem of crime. In an Islamic state, punishment follows a long series of prohibitory and reformatory steps where all efforts are made to engender attitudes of contempt for crime and eliminate all the root ’causes’ of crime and to create a healthy crime-free environment. Even then punishment is not meted out for all breaches of the Shari’ah but only certain specifically defined crimes with strict conditions “because of their bearing upon…the establishment of peace and order”.

It has been argued by many renowned jurists and criminologists that “it is an essential requirement for a ‘viable’ legal system to be inclusive of both fixed and variable elements in its penal postulates”. Islam, being cognisant of human conditions, provides for this when it divides its penal penalties in three categories.

The first and most severe type of punishments are known as the hudood (singular haad) meaning a thing which restrains or prevents since a punishment “prevents a man from doing crimes”. However, it is a strictly defined penalty which is mentioned in the Qur’an or the Hadith and it includes adultery, fornication, false imputation of unchastity (qadhf), drunkenness, armed robbery, sedition and apostasy, though there are some disagreements on whether one or two are technically described as ‘hudood’. Because of “the decisive nature of haad, its severity and its exactness and its strictness in the rules of evidence”, it has “considerably limited the severest penalties”.

The second category of punishment, known as qisas (equitable retribution), is inflicted for deliberate killing or wounding of a person. Unlike haad, the penalty could be waived by the victim or his heir in lieu of blood-money (diya), but for unintentional homicide or wounding there is no retribution and only compensation is paid. The Qur’an teaches that: “And for you in equitable retribution there is Life, 0 people of understanding, that you may ward off evil” (2: 179).

The third category of punishment is known as ta’zeer (discretionary punishment) and it is “a sentence or punishment whose measure is not fixed by the Shari’ah” neither as to the offence nor the penalty. It helps to meet varying circumstances (e.g. if a definitional element is short in a haad offence) and the punishment that was generally inflicted in the past was whipping, though other alternatives such as a warning, fines and imprisonment could be given, but the quantum of punishment for ta’zeer is generally much below that of haad (e.g. ten lashes).

‘Lashing’

The word ‘lashing’ has strong negative connotations and sounds like the vicious slashing and the more appropriate synonyms would be whipping and flogging. Among the hudood punishments, the offences of fornication, slander and drunkenness carry the penalty of flogging and it could also be prescribed for a number of ta’zeer offences. As the first two are’ Sexual Offences’, I shall deal with them under ‘Stoning’ because they are connected with adultery.

Practically, for the Westerner, drunkenness is the most likely offence that invokes the penalty of flogging and so I will mention it in some detail.
The Qur’an strictly orders the believers to shun intoxicants as “it is the handiwork of Satan” (5:90) and it will ‘divert’ the believers from the “remembrance of Allah” (5:91) and the Hadith goes even further to condemn all acts associated with alcohol such as drinking, buying, selling, transporting and brewing. Drinking is rampant in Western societies even though “the greatest cause of ‘violent’ crime in the West is alcohol” Almighty Allah, in His Perfect Wisdom, has prohibited alcohol not only for its “evil effects on the body and the society, but also for their evil moral” consequences.

The Islamic penal policy is not to create opportunities for crime and then to punish the culprit, but it aims at eliminating the very root cause of crime. There is a saying “prevention is the best cure” and if we can eliminate alcohol from society, then we can eliminate or at least substantially reduce the rate of crime. That is why “in true Islamic societies there is virtually no drunkenness with its associated catalogue of crimes” such as homicide, physical assault, domestic violence, reckless driving, vandalism and rape. “Islam punishes before there is the chance for a serious crime to be committed” and thereby it stops public nuisance and safeguards people’s lives, honour, intellect and property. Alcoholism is a widespread disease and no human solutions are apparent as a result of which even Westerners have admitted that “for recovering alcoholics, Islam is a more effective ‘cure’ than the Betty Ford clinic”.

Lord Scarman, the well-known British judicial champion of civil liberties, writes that “it is important to a civilised system of justice to have humane values at all levels of its administration” and Islam provides for this. Flogging in Islamic law is “not just a savage beating inflicted capriciously according to the whims of brutal guards” but it is done “with control, in accord with justice and in the kindest possible way in the circumstances” to the extent that one English writer says that “the best comparison for Islamic flogging is the caning of children at school”. Even the President of the International Court of Justice at the Hague in 1967 declared that “certain types of offences call for severe chastisement, and flogging in the case of such offences cannot be regarded as cruel, inhuman or degrading”.

During the time of the Holy Prophet (saw), drunkards were generally beaten with shoes but at the time of the second Khalifah Umar the punishment for drinking was fixed to 40 lashes or eighty lashes for the more mischievous drunkards. People are not given the haad punishment for drinking alcohol in their homes in privacy, but at least two witnesses are required to bear witness to the act of drinking and it has to be proven that it was consumed by a mature person voluntarily without any compulsion. A person is only punished with flogging if all the definitional elements of the crime are proven and it is attested by reliable evidence.

Even with respect to flogging at the time of sentencing, certain conditions and restrictions are imposed; the punishment should not be inflicted by vicious executioners and it should not be carried out in severe hot or cold weather. It is also prescribed that the whip be of medium size, the flogging is done with average intensity and it should not be inflicted on the naked body nor on the head, face and private parts and the whipping should not cause any wound and it should be distributed evenly in various parts of the body and not only on the same parts. Such is the humanity of punishment in Islam even when it prescribes ‘deterrent’ punishments for major offences such as fornication, slander and drunkenness!.

‘Stoning’

This is the most severe of all the punishments that exist in Islamic law and, just like the case of treason nowadays under English law, it is extremely rare in practice as during the last fourteen centuries of Islamic history only “fourteen cases of stoning could hardly be numbered in all that time”. Considering this extreme rarity, it is totally dishonest and unfair for a critic to single out stoning in order to judge not only the Islamic penal system but also the structure of the entire Islamic law in general as it is done in the rubric of this essay.

Islamic law aims to ensure the stability of society from its very base – the family – which is the ‘nucleus’ of society that breeds society’s values and holds together the various institutions in society. “The family, is thus, the cradle of the individual and the cornerstone of society” In Islam, marriage is not only encouraged but also made obligatory to ensure the continuity of the family “in the interest of the preservation of the human race and the stability of human civilization”. Chastity is highly esteemed as a supreme virtue in Islamic societies, though it is not an ideal in the West where immorality is rampant and flirting has become the part and parcel of life.

In the West, the institution of marriage has significantly declined and nearly half of the marriages end up in divorce. The family has broken down resulting in much tension and the disintegration of other institutions in society and the rate of crime has steadily risen to epidemic proportion. The root ’cause’ of all these is zina – the unlawful sexual union between a man and a woman who are not married to each other. Zina is the breach of the greatest ‘trust’ that a man and a woman can ever have and it leads to disastrous consequences such as breakdown of family ties, depression, domestic violence, child abuse, rape60 and “the AIDS epidemic as a result of promiscuous sexual activity in direct contravention of Divine law”. That’s why John Major’s “Back to Basics” campaign was geared toward restoration of family values in order to reduce the crime rate and to maintain social order.

Zina is the most deadliest of all social crimes and “Islam puts an end to all those factors that ‘allure’ a man to zina or provide occasions for it” The Qur’an condemns zina not with the words “La Tazanu” (Do not commit adultery), as in the Pentateuch “Thou shall not commit adultery”, but with the words “La Taqrabuz zina” (Do not go near adultery)…thus blocking all possible ‘paths’ leading to that act”. That is why in Islamic societies, there is the segregation of the sexes and the Qur’an orders both men and’ women to “lower their gaze” (24:30-1) and for women to wear the Hijab so that “they may be recognised and not molested” (33:59) as it is better for the purification of the hearts of both the sexes (33:53).

To eliminate the root cause of zina, Islam also takes other large scale precautionary and prohibitory measures such as developing God-consciousness, repugnance to sin and the belief in accountability, in every stage of education and it also encourages “early marriage and provides aid from the Public Treasury for those who wish to get married yet cannot afford to do so”. Islamic societies, for this reason, will also not tolerate lures, mixed parties, pornography and the like which is likely to arouse the passion and disturb family relations because after all, according to the Qur’an, “Man is created weak” (4:28). Islam also very strongly condemns false imputation of zina on another person (qadhf) as the Qur’an declares: “As for those who slander chaste women and produce not four reliable witnesses, then stripe them with eighty lashes and never accept their testimony thereafter” (24:4). Thus slander of this kind is dealt with severely as it seriously affects and damages self-confidence and strains family relations. Islam is never prepared to accept the kind of gossip that are so frequently found in the tabloid papers and the scandal – mongers are punished severely with eighty stripes.

Despite all the lawful channels provided, if a person transgresses the limits beyond all bounds of decency to commit zina in ‘public’, then Islam provides severe chastisement to safeguard the family and to save society from corruption and destruction and the punishment acts as a strong ‘deterrent’ to others. For fornication between unmarried couples the penalty is 100 lashes and for adultery between married couples the penalty is stoning to death (rajm). Even then the haad punishment is not prescribed for the mere commission of zina, but other definitional elements of the crime has to be satisfied; only that kind of adultery is punishable by stoning which is committed intentionally by a free person who is both mature and sane, the accused must be committed to a marriage and has had intercourse with his lawful spouse, the accused must have committed zina voluntarily without compulsion and the act of zina must be attested by four honest, reliable and trustworthy witnesses who must have all seen the act of penepration and all four witnesses must be ‘unanimous’ in every stage of the act including minute details (if statement of one witness is contradictory to the others, then all four witnesses will be given the haad punishment of 80 stripes for slander)

Such is the strict legal technicalities that has to be understood before the haad of stoning is carried out on adulterers and these facts are not highlighted by the West when condemning the punishments for zina. All the above mentioned conditions have to be met, before the haad is imposed which is very hard to do. Especially the question of witnesses is the most difficult aspect of all – the necessity of a minimum of four witnesses, as opposed to other haad offences where two are sufficient, who must be devout (the testimony of a fasiq, a person who lies or breaks any of the major prohibitions of Islam is inadmissible), the unanimous description of the act of penetration and other minute details by all four witnesses and the fear of receiving the haad penalty for slander on the part of witnesses greatly reduce the chance of conviction for the adulterers as the required evidence is “so strong and complete as to be practically impossible to obtain”. That is why during the life of the prophet, “it was not possible to prove…one single case of adultery” 68 and “during 1400 years of the Muslim era only fourteen cases of adultery have been recorded” – hence “punishment by stoning has remained what it always was”, harsh in principle, “but extremely rare in practice”.

‘Mutilating’

Mutilating means “to deprive a person of an organ of the body” and like ‘lashing’, it too has some negative connotations and I would prefer the alternative ‘amputating’. In Islamic law, its application is only confined to the hudood punishments for armed robbery and theft, except of course that it might be applicable to the retributory punishments of qisas. For all practical purposes, the punishment of ‘cutting off’ the hand is generally invoked for the offence of theft and so I will mention it in some detail.

In Britain, most of the recorded crimes involve theft and a burglary is committed every twenty four seconds. Property is something which people hold very dearly and often spend their whole lives in acquiring, and the Shari’ah seeks to protect the people’s rightful ownership to property and thereby ensure the stability of family and reduce violence, vandalism and frustration. The punishment for theft in Islamic law must be seen in the context of the ‘Social Security’ system of the Islamic Welfare State.

“Islam aims at creating a society in which none is compelled by the force of circumstances to steal”. Rights and duties are reciprocal in Islam and “no duty is ever imposed on man without his being granted a corresponding right”.

In an Islamic state, “every individual is entitled to social security collected from various sources, including the obligatory collection of zakat” and “the basic needs of all citizens are adequately met” because according to a saying of the prophet, every son of Adam is entitled to food, clothing and shelter. “It is only after the state discharges its own duty that it can impose the penalty on a thief, who selfishly intrudes on the rights of others despite being provided with all the basic amenities of life. Hence “if a citizen is forced by circumstances (e.g. poverty)…the society will be considered at fault and no hadd punishment will be given to the accused”. It was in this light that the second Khalifah Umar, who was well known for his “strict rigidity in enforcing the rules of Shari’ah”, waived the cutting off the hand for theft during a period of famine.

Having looked at the socio-economic context of the amputation of hand for theft, it is also necessary to look at the ‘legal’ technicalities. A strong ‘deterrent’ punishment for theft is justified because “it is fear of consequences as world-wide human experience proves, that keeps in check the very natural tendency, almost inherent in human nature, to stealing and thieving”. The punishment may appear to be harsh “to some hypersensitive Western reader” who are swayed by false sentiments, but “the hand is cut off for the preservation of society” as the Gospels record Jesus as saying: “If your hand causes you to sin, cut it off. It is better to enter life maimed than with two hands to go to hell” (Mark 9:43) However, under Islamic law, the type of theft (sariqah) that invokes the haad punishment is very restrictive in scope and is more akin to ‘burglary, and unlike English law, it does not include pickpocketing, shoplifting, mugging, forgery and deception, obtaining pecuniary advantages without payment and handling stolen goods.

Even with that restrictive definition of theft, “all elements of the crime must be committed by one person” and all the definitional elements of theft must be there such as the following: 1) it is committed intentionally by a sane and mature person who is not driven by force of circumstances (e.g. poverty) 2) the property must lawfully belong to another and have some value, that the value of the stolen property reaches a minimum value of 3 or 10 dirhams and the property must have been taken from a sufficiently ’safe’ place or proximity suitable for the safety of the object and 3) the act of stealing must be attested by at least two witnesses who physically saw the crime being committed.

By looking at the socio-economic and legal contexts of the amputation of hand for theft, the ‘deterrent’ nature of the punishment for theft could be better appreciated. In one sense, it could be said that the amputation of hand is the ‘maximum’ penalty for theft because all the definitional elements of the crime has to be satisfied and even when it is carried out it is done humanely and “amputation in an actual Islamic state with an Islamic penal system is (extremely) rare” in practice. Professor Muhammad Qutb writes that “punishment for theft has been executed only six times throughout a period of 400 years is a clear evidence that such punishment was primarily meant to prevent crime”. As we do not have a proper Islamic state, the practices in some Muslim countries should be looked at with skepticism and put under strict legal scrutiny as “the cutting off of a hand for theft is applicable only within the context of an already existing, fully functioning ’social security’ scheme”

‘Islamic law is barbaric’?

The word barbaric was originally used by the Greeks for ‘foreigners’ to express the strange sound of their language. Later, this word was used to describe people who are ‘uncivilised, primitive, rough, uneducated, brutal, cruel, blood-thirsty and merciless’ as opposed to being ‘advanced, civilised, cultured, humane and compassionate, It is true to say that not a single synonym of ‘barbaric’ is applicable to the Islamic penal system.

On the contrary, humane values lie at the heart of the criminal justice system in Islam and all the antonyms of ‘barbaric’ are truly descriptive of the Shari’ah. The object of punishment is not to relentlessly hunt down wrong-doers for retribution, but to see that peace, right and order are restored and this could be illustrated by the fact that the Islamic penal system almost wholly “lacks police, prisons and professional executioners”. The hudood may appear to be harsh in the eyes of those who have been swayed by false sentiments, but human experience shows that if a punishment was to act as ‘deterrent’, then it has to be severe and exemplary. “Life cannot be safe if the habitual criminals are left unfinished” and it is better to be severe to one and save many than to be unnecessarily lenient and thereby destroy many and put the lives of millions of others at risk.

The deterrent punishments in Islam on the surface appears to be harsh, but it is only meant for “such incorrigible offenders who stand as real obstacles in the healthy growth of human society” and “in fact, it was a vital instrument in the dynamics of building a new social order” and it radically abolished and amended the pre-Islamic systems where inhumanity and vengeance was the order of the day. Prisons in Western societies are miserably failing its people and apart from being living hell, prison destabilises people and often has a “destructive effect on the personality” Home Office statistics in Britain shows that longer sentences do not prevent reconviction and in fact 50% males and 35% females get convicted within two years after coming out of prison. Hence “if the results do not tally with the main object, it means that the laws of punishments are quite imperfect” Thus, it is not true to say that prison is the more appropriate punishment for theft rather than the amputating of hand and if reducing the crime rate is the objective, then certainly the choice will be the Divine law – you just have to compare the crime statistics of Saudi Arabia and America and judge which one is better.

Sentences may appear to be severe in Islam, “but still more strict and severe are the ‘procedures’ laid down to be observed before a man may be convicted” and the Holy Prophet said: “Avoid the hudood as much as possible. Wherever there is even a mild chance, release him, for releasing by an error on the part of the judge is better than to punish anyone with error” (Tirmidi and Ibn Majah). Islam also teaches that “no bearer of a burden shall bear the burden of another” (6:164), it guarantees the accused immunity from ‘malicious prosecution’ (unlike in the UK) due to strict rules of evidence, it strongly advocates the equality of all before the law and in the realm of qisas (equitable retribution) it teaches that “let him not exceed in the matter of taking life for he is aided” (17:33). Such is the humanity taught by Islam 1400 years ago!

We have dealt with the humane values that Islam stresses even at the time of sentencing. For example, in the case of flogging, several conditions and restrictions are imposed ranging from the type of stick to who inflicts the punishment to where it should hit! In actual practice, very “few haad punishments were prescribed”. On the other hand, if we look at the inhuman atrocities of the West it is beyond count and Professor E.F.M. Durbin, after describing the inhuman and cruel treatment that has been inflicted by the ‘progressive’ countries of the West concluded by saying that “such large-scale brutality has rarely been witnessed, I am thankful to say, in the previous history of the World”. Therefore, “Islam is a package deal which Muslims are bound to follow and if the progressive modern cultured societies can ‘tolerate’ mass killing indiscriminately with atom bombs, then certainly they can tolerate the amputation of the hands, flogging or stoning to death for certain ‘heinous’ crimes i.e. sacrifice of a few individuals for the sake of the society as a whole”.

‘Islamic law is outdated’?

Outdated means’ old fashioned, obsolete and unfashionable’ and it is applicable to something which is ‘out of date’, and to raise this objection against Islamic law doesn’t make sense. The Shari’ah is a ‘living law’ today, as it was 1400 years ago, among the Muslim masses across the globe, though it may not be implemented in its totality. I think the critic is not trying to pinpoint any particular ‘weaknesses’ of Islamic law but is simply saying that the Shari’ah is too old and therefore we should forsake it for the latest modern trend.

There is nothing such as ‘modernism’ in Islam as Islam is forever modern, progressive and dynamic because human trends show that what is modern today becomes obsolete tomorrow. The Shari’ah emanates from Allah the All Wise who, being well aware of human conditions, has revealed a law (5:48) that is “perfectly universal and applicable to all nations” for all times. “It is not a system of law to be judged and evaluated as ‘good’ or ‘bad’ in accordance with the changing views of the population or the policies of the state” and therefore the Shari’ah is radically different from “the ordinary law in which the legislative authority is free to explain and comment on the law introduced by it which it can freely amend, cancel or withdraw”.

If the aim of the law is to control unacceptable human behaviour and to reduce the rate of crime, then there has to be an element of permanence so that it may be easily recognised by the citizens who after all, are the ones who are bound to follow the law (English law teaches that ‘ignorance of law is no defence’). But man-made laws change all the time according to changing “social attitudes” so much so that actions that were once regarded as ‘detestable’ and ‘heinous’ crimes (such as abortion, suicide, prostitution, homosexuality and adultery in England) are now regarded as ‘legal’ and normal under the same laws! Such is the nature of human laws which cannot fully comprehend human nature or predict the future and is constantly changing so much so that if I buy a law textbook today, it may not be valid for tomorrow.” Islamic law, therefore, does not recognise the liberty of (human) legislation, for it would be incompatible with the ethical control of human actions and, ultimately, of society”.

That is why man-made laws have miserably failed and the rate of crime has reached epidemic proportion as Allah says that “it may happen that you hate a thing which is in fact ‘good’ for you and it may happen that you love a thing which is in fact ‘bad’ for you” (2:216). “Islamic law is at once static as well as dynamic” as a result of which it has attracted people of all nations over the last 1400 years and yet “kept the social fabric of Islam compact and secure through the ages” and “this law shall be as responsive to the urges of a progressive society in the present and the future as it has been in the past”. So it’s about time that the fallible Occidental homo sapiens change their ‘fashionable’ attitudes of contempt for Islamic law so that they may be assured of their spiritual and material well being and create an ordered crime free society based on justice.

Source: Defend the Case of Islam

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1. Stoning – A bitter pill
2. 185 Charges of Rape – Why Ireland needs Shariah
3. Understanding Democracy and its ruling in the Shari’ah.
4. The Evil Effects of Adultery
5. Morality Offenders Caned