Islamic Fixed Penalties: Striking Balance between Causes & Results

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Details of Fatwa
Title of FatwaIslamic Fixed Penalties: Striking Balance between Causes & Results
Date of Reply17/Jan/2002
Topic Of FatwaMisconceptions
Question of FatwaAs-Salamu `Alaykum. Nowadays, there is much controversy concerning legal penalties and the application of the Islamic Shari`ah (Law) especially in Muslim countries that have just started implementing it. My question: Is applying legal penalties the main goal of the message of Islam? Should these fixed penalties be applied in a society that is still immature for such legal system? Jazakum Allah khayran.
Name of Mufti IOL Shari`ah Researchers
Content of Reply

Wa `alaykum As-Salamu wa Rahmatullahi wa Barakatuh.

In the Name of Allah, Most Gracious, Most Merciful.

All praise and thanks are due to Allah, and peace and blessings be upon His Messenger.

Dear brother in Islam, we would like to thank you for the great confidence you place in us, and we implore Allah Almighty to help us serve His cause and render our work for His Sake.

In response to your question we would like to say that Islam is a religion that strikes balance between causes and results, rather than merely prescribing penalties. So, each penalty is appropriately proportioned and it loses its justification the moment its cause vanishes.

That’s why Islam is profoundly concerned with forming what may be called “Collective Consciousness” or “Consciousness of the Masses” and this creates some kind of slim sensibility towards carrying out one’s duties even before one is asked to. It also fills one with strong aversion towards all what is bad and things that incite to evil. All this results in an internal sort of self-protection within the society without any interference on the part of law.

Such fixed penalties (hudud) are the commands of Allah and it is obligatory upon Muslims who are living under the Islamic government to establish the hudud. However, they are implemented by the ruling authority, not by individuals. It is the duty of Muslims to see that the ruling authority in their states, are God-fearing people who establish the laws of Allah in all aspects.

It is important to remember that before the implementing hudud, we have to establish the huquq that is the rights of the people. Islam implements certain rights: the right of life, property, freedom, justice, etc. These rights must be established before we talk about punishing people who violate the rules of Allah.

As far as theft is concerned, we notice that Islam takes into consideration all factors that lead to it, that is why it prescribes for Muslims – and non-Muslims if they live in Islamic societies – some sort of a minimum standard of fulfilling individual basic needs, this is called “Sufficiency Level”, i.e. the level that, if reached by a person, he is supposed not to covet what belongs to others.

To this effect, Muslim jurists stipulated some conditions that render one a real thief. Some other jurists maintain that a thief’s hand is not to be cut off unless he has had sufficient provisions, suitable housing, a wife, a servant, and a vehicle!

Jurists stipulated these conditions in the light of Islamic general philosophy that prescribed a right for the poor in the property of rich people. This is also emphasized by stipulating that a Paradise is made forbidden for one who sleeps satisfied while his neighbor feels hungry. Such a noble philosophy also stipulated social solidarity for every citizen so as not to lead him to commit theft. So, if one commits theft despite attaining that “Sufficiency Level”, he will be deemed deviant and wrongdoer and, hence, the society must be protected from his evils.

As far as adultery is concerned, Islam protects its adherents from falling into the thorns of this devilish act through facilitating the procedures of marriage, urging the youth to get married, reducing the dowries and allowing a person to get married only with what he memorizes of the Glorious Qur’an, as a dower.

Also, Islam protects society from what may stir lust such as unveiling, nakedness and all that which may spread debauchery. Moreover, Islam permits polygamy to save the society from adultery. Given all this, if one commits adultery, he thus incurs the major legally fixed penalty called “Hadd”.

To further elaborate, Islam does not hunt for criminal acts in order to subject them to fixed penalties, rather, it puts strict conditions and rules to be met before carrying out the execution of punishment. Thus, we see that it orders that punishment should not be based on mere suspicion or insufficient proofs.

Let’s take for example the legally fixed penalty prescribed for adultery. It is not to be carried out unless after four just witnesses have given testimony that the crime has actually been committed. But, if the witnesses happen to be three (not four as prescribed) they will be presumed as giving false testimony, and thereby be subject to punishment for slander. It may be of good benefit here if we quote the following story: Once `Umar ibn al-Khattab, Commander of the Faithful then, asked `Ali ibn Abi Talib (may Allah be pleased with both of them) saying: “Oh Abu al-Hasan! ‘What if I saw a couple committing adultery and heard them myself; should I carry out the legal penalty (on them)?’ `Ali said: ‘You would need a proof – i.e. bringing four just witnesses – or you would be lashed for slander!’”

This clearly shows that the issue is not just seeking what may prove the crime; rather, a great caution is displayed when it comes to carrying out a fixed penalty. Islam further gives its full weight behind all what may prove the innocence of the accused, as the Prophet (peace and blessing be upon him) has done with the man who came to him confessing adultery. The Prophet (peace and blessing be upon him) said to the man “Perhaps you just touched her; maybe you kissed her; maybe you, etc.” in an attempt to give him the chance to recall his confession. Thus, the Prophet (peace and blessing be upon him) says, “Ward off legal penalties with suspicions.”

Also worth of mentioning here is the story of the Ghamidiyyah woman who committed adultery with Ma`iz and confessed to the Prophet (peace and blessing be upon him). The Prophet (peace and blessings be upon him) ordered her to go back until she delivered her baby; this was just to give her the chance of revoking her confession. When she came back to him, the Prophet (peace and blessings be upon him) refused to carry out penalty on her until the baby was weaned. When she came back to him after weaning, he ordered her to be stoned to death.

As for the saying that the legal penalties are severe and inhumane, let those who claim so imagine the condition of a person whose property is stolen – especially forced robbery – and the degree of the panic and the disaster such a person is afflicted with.

To conclude, the legal penalty for theft is not executed on the part of one who commits it out of necessity. But, if a person commits it while he is not in need, he will be subject to penalty proportional to the crime committed. As for adultery, we remind those who deem such penalty as strict and severe that stoning to death is prescribed only for a married person, for such person has no excuse to do so; he has a wife to fulfill his needs. If she fails to fulfill his needs, he can get married to another. Thus, by committing adultery, he renders himself a deviant and should pay the price of his forwardness.


Allah Almighty knows best.





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