The Hadd Laws - Some Thoughts on Modern Interpretations or Original Meanings
(The Theft Penalty, The Stoning for Zinah Controversy)
By
Sr Ruqaiyyah Waris Maqsood
We now know far more about the causes of crime, the limits of culpability and guilt. We know that poverty, bad parenting, a sense of injustice, racial discrimintion, chemical imbalance in the human body, a bad neighbourhood and bad social environment can all be contributing factors that turn a human being toward crime. If there were no police, prisons, forensic science or knowledge about DNA 14 centuries ago, the type of punishments needed to be severe anough to serve as deterrents. Since then, God has taught us more about crime, its causes, the methods of its inverstigation, the limits of guilt and the much wider range of possible punishments.
The granting of more human penalties for theft than hand-cutting could be based on the case of Abbas b. Mirdas who protested that the Prophet had only granted him four camels from the spoils when he should have had more. The Prophet ordered Ali to go and cut out his tongue. Despite his protests, Ali insisted that he would only carry out what he had been ordered to do. He took him to the animal enclosure and picked out a hundred camels for him. Ibn Mirdas then realised what the Prophet had meant, and refused to take them. (Kitab al-Irshad, Shaykh al-Mufid, p.102).
Many modern scholars, both Sunni and Shi’ite, suggest the cutting of the yad (meaning hand or power) could also be interpreted as cutting off the thief’s power to steal by removal from society (ie.imprisonment), or by creating a society in which theft is unnecessary.
· Muslims feel it is disrespectful to speak ill of the Prophet’s Companions, but for the sake of ijtihad they should be acknowledged as fallible human beings and not saints that may not be criticized.
· It follows that if they could be fallible, so could the founders of the legal schools and their interpretations, which were based upon when they lived and the degree of their knowledge.
· Muslims should concentrate on what Allah and the Prophet recommended, to promote what was common to all people, the absolute ethics upon which they do not differ, even if they take different routes to prove and interpret them. These shared ethics are the real and only guarantee upon which people can build a strong relationship among the extended human family.
Some claimed the rajm verse was revealed in Surah 33, and was supposed to have said:
‘Do not detest your ancestors, for it is infidelity to do so. If an adult man or woman commit adultery, stone them without exception as a chastisement from God. God is Mighty and Wise.’
This verse was said to have been commented on by Umar when he was made Caliph, because he was worried that the practice of stoning might be abandoned, since it no longer existed as part of the Qur’an.
‘I confirm that the penalty of rajm be inflicted on those who commit illegal sexual intercourse, if they are already married and the crime is proved by witnesses or pregnancy or confession.’ (Bukhari 8.816).
However, if this rajm verse had ever existed it must have been abrogated, for it is certainly not part of the Qur’an as we now have it – which is the final word of Allah, not to be changed, added to or subtracted from – with Allah Himself pledging to guard it and keep it from mistakes (Surah 15.9). If a command which was supposedly still in force had ‘gone missing’ from the text, it would hardly matter since hundreds of Muslims knew the entire Qur’an by heart and could promptly have supplied the passage – but it was never replaced in the holy text.
The penalty laid down for zinah in Surah 24.2-3 is flogging, and the refusal of permission for Muslims to marry any of those guilty of acting lewdly:
‘The woman and the man guilty of zinah, flog each of them with a hundred stripes: let not compassion move you in their case in a matter prescribed by Allah if ye believe in Allah and the Last Day: and let a party of the Believers witness their punishment. Let no man guilty of zinah marry any but a woman similarly guilty, or an unbeliever, nor let any but such a man or an unbeliever marry such a woman: to the believers such a thing is forbidden.’ (Surah 24.2-3)
It is unlikely that anyone who had been stoned to death would be contemplating remarriage.
Yet the revelation simultaneously attached to the crime of zinah (and this crime alone) nearly insurmountable restrictions as regards evidence. A person could not be found guilty of adultery without
· four eye witnesses to the actual sexual penetration,
· the witnesses had to be adult, sane and of upright character, not children or people whose right-mindedness could be questioned, or people of dubious morality.
· furthermore, if their evidence was obtained by violating a defendant’s privacy, it was inadmissible.
These are obviously very difficult requirements to fulfil, since adulterous intercourse is virtually always performed in secret and privacy. With such restrictions, the aim in general must have been to encourage good morals but to prevent punishment for this offence, virtually limiting conviction to cases where the two parties committed the act in public, in the nude – thereby making it an issue of public indecency rather than private sexual conduct. Thus, while the revelation condemned extramarital sex as an evil, it also apparently authorized a Muslim judge to condemn only when it was committed so openly that four people saw the offending couple without invading their privacy and nothing less. Anyone who gave false witness, or made slanderous accusations without proof, should himself or herself be flogged.
No other law had this stringent requirement of four adult, sane witnesses who could identify the accused with certainty. There were NO cases in the Prophet’s entire lifetime based on the evidence of witnesses as laid down in the Qur’an.
These days use may be made of DNA testing, as well as witness testimony.