What is meant by Hudud?

Posted by M ws On Friday, September 23, 2011 6 comments
The origins and obligations of Sharia law

Sharia is the body of Islamic religious law based on the Qu'ran and the words and actions of the prophet Mohammed and his followers.

In the West, Sharia has become synonymous with the brutal punishments meted out in Islamic states, but the majority of laws are to do with everyday issues, ranging from personal hygiene to banking.

Hard line Muslim leaders claim that Sharia is eternal and can never be changed, while moderates argue that it is not a strict set of laws but should be open to interpretation.

Sunni and Shia Muslims follow different schools of thought in interpreting the Sharia laws, but all Muslims are required to live according to Sharia wherever they are.

Islamic countries such as Saudi Arabia and Iran have implemented Sharia as the legal system of the country, but in Britain it has no legal standing, despite the introduction of Sharia-compliant banking and food.

Examples of obligatory laws

• Earnings must be lawfully obtained

• Food must be halal

• Personal hygiene must be of a very high standard

• Couples must have a full bath in flowing water after intercourse

• The body must be covered modestly

• Prayers must be said five times a day

• Believers must fast during Ramadan


By Clare Dwyer Hogg and Jonathan Wynne-Jones, The Telegraph

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Sharia is an Arabic word meaning "the right path". The Sharia comes from the Qu'ran, the sacred book of Islam, which Muslims consider the actual word of God. The Sharia also stems from the Prophet Muhammad's teachings and interpretations of those teachings by certain Muslim legal scholars.

Muslims believe that Allah (God) revealed his true will to Muhammad, who then passed on Allah's commands to humans in the Koran.

Since the Sharia originated from Allah, Muslims consider it sacred. Between the seventh century when Muhammad died and the 10th century, many Islamic legal scholars attempted to interpret the Sharia and to adapt it to the expanding Muslim Empire.

The classic Sharia of the 10th century represented an important part of Islam's golden age. From that time, the Sharia has continued to be reinterpreted and adapted to changing circumstances and new issues. In the modern era, the influences of Western colonialism generated efforts to codify it.

Following Muhammad's death in A.D. 632, companions of the Prophet ruled Arabia for about 30 years. These political-religious rulers, called Caliphs, continued to develop Islamic law with their own pronouncements and decisions. The first Caliphs also conquered territories outside Arabia including Iraq, Syria, Palestine, Persia, and Egypt.

As a result, elements of Jewish, Greek, Roman, Persian, and Christian church law also influenced the development of the Sharia.

Islamic law grew along with the expanding Muslim Empire. The Umayyad dynasty Caliphs, who took control of the empire in 661, extended Islam into India, Northwest Africa, and Spain. The Umayyads appointed Islamic judges, kadis, to decide cases involving Muslims. (Non-Muslims kept their own legal system.) Knowledgeable about the Koran and the teachings of Muhammad, kadis decided cases in all areas of the law.

Following a period of revolts and civil war, the Umayyads were overthrown in 750 and replaced by the Abbasid dynasty. During the 500-year rule of the Abbasids, the Sharia reached its full development.

Under their absolute rule, the Abbasids transferred substantial areas of criminal law from the kadis to the government. The kadis continued to handle cases involving religious, family, property, and commercial law.

The Abbasids encouraged legal scholars to debate the Sharia vigorously. One group held that only the divinely inspired Koran and teachings of the Prophet Muhammad should make up the Sharia. A rival group, however, argued that the Sharia should also include the reasoned opinions of qualified legal scholars. Different legal systems began to develop in different provinces.

From this very brief history of the Islamic empire and the development of the Sharia, some scholars argue that the Sharia evolved over time and transformed to meet the needs to society during their respective times. In other words, the Shariah was not static but dynamic.

Other scholars argue that the Sharia was already present during the time of the Prophet and was already fully developed by the time the Prophet died. In other words, this was what was laid down by the Prophet and merely continued after the Prophet died (meaning, the Sharia did not evolve or transform over time). This argument is to support the theory that the Sharia came from God and was not ‘invented’ by man over hundreds of years following the death of the Prophet.

In an attempt to reconcile the rival groups, a brilliant legal scholar named Shafiee systematized and developed what were called the "roots of the law". Shafiee argued that in solving a legal question, the kadi or government judge should first consult the Koran. If the answer were not clear there, the judge should refer to the authentic sayings and decisions of Muhammad. If the answer continued to elude the judge, he should then look to the consensus of Muslim legal scholars on the matter. Still failing to find a solution, the judge could form his own answer by analogy from "the precedent nearest in resemblance and most appropriate" to the case at hand.

This clearly shows that even the scholars themselves could not agree on whether the Sharia is God’s law or man’s creation based on interpretation of the Koran and the teachings (examples) of the Prophet.

There are five laws under the Sharia law. Basically, these are:

1. ibadah (ritual worship)
2. mu'amalat (transactions and contracts)
3. adab (morals and manners),
4. i'tiqadat (beliefs)
5. 'uqubat (punishments).

There are three categories of crimes in Sharia law. These are:


1. qisas
2. hudud
3. tazir.

Qisas involves personal injury and has several categories: intentional murder (first-degree), quasi-intentional murder (second-degree), unintentional murder (manslaughter), intentional battery, and unintentional battery.

A qisas offense is treated as a civil case rather than an actual criminal case. If the accused party is found guilty, the victim (or in death, victim's family) determines the punishment, choosing either retribution (qesas-e-nafs), which means execution in the case of intentional murder, imprisonment, and in some cases of intentional battery, the amputation of the limb that was lost; or compensation (diyya) for the loss of life/limb/injury.

The sharia judge (or, in modern sharia systems like those of Iran or Iraq, the state) can convict for and legally punish only qesas crimes on his own authority. However, the state itself may prosecute for crimes committed alongside the qisas offense. If the victim's family pardons the criminal, in addition to the sharia punishment he would normally receive a tazir prison sentence (such as ten to twenty years in prison) for crimes such as "intentional loss of life", "tazir assault and battery" "disturbance of the peace", and so forth.

The second category of crimes is hudud (or hadd). Hudud crimes are crimes whose penalties were laid down by the Qu'ran and are considered to be "crimes against God". The hudud crimes are:

1. adultery (zina), which includes adultery, fornication, incest/pedophilia, rape, and pimping
2. apostasy/blasphemy
3. defamation (meaning false accusation of any of these things)
4. sodomy/lesbianism (or sodomy rape)
5. theft
6. use of intoxicants (alcohol/drug use)
7. "waging war against God and society" (rebellion)

Hudud, therefore, is merely one part of the very broad laws that come under the Islamic Sharia. However, this appears to be the only focus for debate, in particular in Malaysia.

Thus, the current brouhaha about Hudud is only a small part of a very vast Sharia system. In reality, we already have the Shariah in Malaysia. The only thing we do NOT have yet is the Hudud part of Sharia.

Upon closer inspection, the ISA is worse than Hudud. Under the ISA you can be detained BEFORE you commit a crime. That is why the ISA is called a 'preventive law'. Under the Shariah you CAN'T be punished for a crime you have not committed yet. The Sedition Act, Criminal Defamation, etc. are more draconian than Hudud by far.

If we compare apples to apples, there are many elements of the Sharia which are fairer than common laws, and vice versa of course. So we can't say Hudud is better or common law is better. It all depends on specifics. Maybe the one bone of contention is the punishment for theft (hand cutting). If we resolve that one needling issue then the rest is not that much an issue.

Are we opposed to Hudud because it is 'ISLAMIC LAW" OR BECAUSE IT IS UNJUST?

What if it was not called Hudud or Sharia but called 'Common Law'? Would it be acceptable then? For instance, if the Parliament amends laws that decree the punishment for the crime of corruption is firing squad (like China) but it is not called Shariah/Hudud would that be acceptable?

What if Parliament passed a law that the punishment for rape is castration? But this is NOT Islamic law and the word Hudud would not appear. Would many support it then? I would!

Can we disagree that rapists and murderers should not be punished? In fact, many feel Hudud is not even severe enough and they want it more severe. What many do not realise is that the hand cutting punishment is not an automatic thing. The criminal must first be assessed as to why he or she stole. And if it is because of poverty, then instead of cutting off the thief's hand, he or she has to be put under welfare and be taken care of by the state. In fact, the head of the welfare department instead would be punished for neglecting the poor and destitute that resulted in them having to steal to survive.

The issue is the word ISLAM in that law of Hudud, which, as you can see, is a SMALL part of the Sharia.

So what is really happening in the debate? Is hudud being used again by DSAI to curry favor with PAS and as a leverage against DAP to bargain for seat allocation? He expresses his PERSONAL opinion, and then claims he will consult PKR on it later (read more here).

We cannot afford to be battling on such issues and lose sight of the REAL BATTLE before us - winning the next GE! Politics and religion do not mix. Religion should not be used as a subject for political debates or policy decisions. Nip the problem in the bud before this issue brings about the downfall of PR! Let's keep our focus and fight the real enemy!

I suppose, this is Malaysia for you. Malaysians would debate till the cows come home about the Internal Security Act (ISA) whereas the ISA is just one small part of many things that is wrong with the Malaysian justice system and the Malaysian judiciary.

Written by Raja Petra Kamarudin and Masterwordsmith

*This post was written as a result of a discussion on hudud via Skype chat on 23rd September from 5pm to 7.30pm. Masterwordsmith acknowledges with grateful thanks the guidance and input of RPK on this topic. 
___________________
Further reading:
 

1. Stoning Women to Death in Iran and Afghanistan


2. RAINY DAY WOMEN in THE STONE AGE

6 comments to What is meant by Hudud?

  1. says:

    frans This is revealing!!

    Hudud is actually a more dimensional law-system with different angles. Especially the example of theft is very interesting.

    In case the employer is payfing his employee far too little. Consequently the employee is stealing his "boss". The employer will be hold responsible for the act of his employee?

    By the way I guess introduction of Hudud is not realistic in short term because it should be facilitated by the Government which should provide the potential, professional staff. Moreover it appears to me that Hudud is not so simple because it is more dimensional. Other law-system (Roman) is quite simple codification: You did this wrong....consequently you get this punishment,

    But anyway I read this article with captivating interest with the remark I let some political remarks for what it is. It would be more sophisticated that the article was restricted only to the Hudud.

  1. says:

    pak yeh My take on hudud is as per... http://warongpakyeh.blogspot.com/2008/11/hardying-and-softyang-of-islamic-law.html

  1. says:

    Captain Obvious Dear masterwordsmith,

    It was during the Siege of Baghdad when Hulegu Khan razed Baghdad to the ground, Abbasid Caliphate crumbled thus the ending of Islamic Golden Age and the rise of fundamentalism in Islam, which sadly, persists till the present days. And what make it worse it is the mass indoctrination with moral relativism, materialism, and selfishness on the common people which I think are the real killers. However, I do believe Sharia is open to discussions and can be liberal in its interpretations.

    Concerning the issue, politics and religion do not mix so should religion be personal and it's the best we can all agree on. What about placing more emphasis on ethics, it's practical and it applies across regions and religions. Surely there will be confusion in the details but it can easily sort out through discourses. So the discussion yet to be had now is what the common ethical principles are. Just a thought ;)

    As for DSAI sigh... his usual-lacking-in-aptitude-nature has become so REMARKABLE!

    Cheers!

  1. says:

    walla If a muslim commits a crime on a nonmuslim or vice-versa, will the case still be heard in both courts in an islamic state? After all if a nonmuslim is excused from following syariah law, then s.he will have to follow some other law to be heard in some other court. Vice versa for muslims.

    What if then the respective judges' decisions differ materially? What if both judges are also muslim as is mostly so these days, and the case has political connotations causing them not to recuse themselves because they have been politically promoted to their posts and like their perks?

    We already have compassion issues on the disposal of corpses and apostasy than to see judges make their personal great escapes to adjudge fairly by counting on technicalities.

    Our multi-faith society is already complex enough; we shouldn't have to divide the races further down a religious fault line drawn by some who are doing so just because they themselves were trained in Cairo or Mecca and not Istanbul.

    I am sure there are enough legal minds in PAS to do a simple test: embed syariah statutes in the presently applied secular laws and then see how they can be applied in real-world situations in the present secular courts; how will the presiding judge decide in each scenario and what will be the quantum of justice meted?

    They may just find that things won't be so easy to do after all and that already has a precedent for, perception-wise, the rakyat have already grated enough teeth on the way our judges of muslim faith have abandoned their wiggy oath to uphold justice based on the type of law as applied in the present courts.

    You may even wonder how they will respond to the question of what will happen to our neighbours, the 200 million Indonesian muslims, in their afterlife. Will they suffer more because they don't observe the syariah discipline as rigorously as us which implies our muslim believers will suffer less even though they have looked askance at the rampant non-observance of just one of the obligatory laws - earnings must be lawfully obtained?

    But then again if Syaiful didn't bathe after intercourse, non-observance of the other prominent obligatory law would not negate his oath-taking in the mosque. So it seems, doesn't it?

    Given such problematic philosophical paradigms which would have required more sober assessment of matters, one is therefore puzzled by what has happened to Pakatan in just two weeks which needn't have happened. Why did it stir the hornet's nest?

  1. says:

    walla 2/2

    It was already on a winning roll after the Sarawak elections and with the Bersih 2.0 rally. Left to its own devices, Barisan would have continued to shoot off the rest of its own toes without prompting from the Opposition. Yet Mat Sabu has to rake up something which Umno with all its powers over the mainstream media could use to make the armed forces bristle at the aspersion - even when none was intended. Especially when Pakatan has no ammo to defend itself. This was followed by PAS raising the huddud law matter, knowing full well that GE11 was because half the voters couldn't stand the thought of an islamic national state even when the other half couldn't stand the thought of another round of mahathir bin somebody. Now to cap the lunacy, we have Anwar Ibrahim saying he supports application of huddud law - while he meant it for muslims solely, christian voters in the Barisan fixed deposit states of Sabah and Sarawak who have been swinging towards Pakatan would now come to a stop midway and say aloud, "whiskey tango foxtrot?" Why also give the impression that Pakatan doesn't have the malay voters when it does?

    Pakatan must always remember - when you only have water pistols against Barisan's katyusha's, you need to stay focus on your strategic objectives. And if your frontlines are less educated than your more educated technocrats in the backoffice, realize the former will be setting themselves up as target practice clay pigeons for the Umno snipers in the bushes if they don't listen to their more temperate and strategic colleagues.

    Stay focused on the electoral rolls and election process. These must be cleaned up to YOUR satisfaction BEFORE the next general elections. Otherwise you fall into the Umno bear-trap and fail the rakyat.

    It has been said that WW2 was fought with guns and bombs but WW3 will be fought with sticks and stones. You won't even get that after GE13 if Barisan wins big. Does anyone think they will allow the same weaknesses to take them into GE14? Enough of their warchest has been accumulated to buy up those Pakatan candidates after GE13.

    One chance only in the whole history of this nation. Looks like it's blown.

    This post, for Pete.

  1. says:

    patches Perhaps that's the way it is meant to go. Especially in reference to Walla's 2/2 comment. Here we are gearing up to convince everyone else to vote in GE13 for the change that we all want for Malaysia by putting a new government in place, even if the new government will be made up of clowns and inexperienced ministers. By some strange hand of providence, the Opposition does not believe that silence is golden and instead of working quietly to strengthen their unity, they are each trying to outshine the other. Oh well, they only have themselves to blame if the outcome of GE13 goes in favor of BN and woe indeed to us Malaysians.

    Thank you again MWS and RPK for the insight into Hudud and Syaria laws. So many of us don't really know its true rules and just because it is Islamic, many object. Perhaps if PR wins GE13, they should incorporate the Hudud laws into our Common Laws. I think we need a strict government and a new court of law, especially after 22 years of Mahathir's influence.

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