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Final Copy of the Thesis June 2Nd, 2011 with Slight Changes Repentance as a Legal Concept Item Type Electronic Thesis; text Authors Hemeidah, Ahmad Al-Saiid Zaki Publisher The University of Arizona. Rights Copyright © is held by the author. Digital access to this material is made possible by the University Libraries, University of Arizona. Further transmission, reproduction or presentation (such as public display or performance) of protected items is prohibited except with permission of the author. Download date 30/09/2021 08:41:53 Link to Item http://hdl.handle.net/10150/144591 REPENTANCE AS A LEGAL CONCEPT by Ahmad Al-Saiid Zaki Hemeidah ______________________________________ Copyright © Ahmad Al-Saiid Zaki Hemeidah 2011 A Thesis Submitted to the Faculty of the DEPARTMENT OF NEAR EASTERN STUDIES In Partial Fulfillment of the Requirements For the Degree of Masters of Arts In the Graduate College THE UNIVERSITY OF ARIZONA 2011 2 STATEMENT BY AUTHOR This thesis has been submitted in partial fulfillment of the requirements for an advanced degree at the University of Arizona and is deposited in the University Library to be made available to borrowers under rules of the Library. Brief quotations from this thesis are allowable without special permission, provided that accurate acknowledgment of the source is made. Requests for permission for extended quotation from or reproduction of this manuscript in whole or in part may be granted by the copyright holder. SIGNED: _________________________________________ Ahmad Al-Saiid Zaki Hemeidah APPROVAL BY THESIS DIRECTOR This thesis has been approved on the date shown below: __________________ ______________ _April 25 th , 2011_ Scott C. Lucas Date Associate Professor of Near Eastern Studies 3 TABLE OF CONTENTS LIST OF TABLES…………………………………………………………………….. 5 LIST OF ILLUSTRATIONS………………………………………………………….. 6 ABSTRACT…………………………………………………………………………… 7 CHAPTER 1: INTRODUCTION……………………………………………………... 8 1.1 Context and statement of the problem………………………………………….. 8 1.2 Objectives and scope of the study………………………………………………. 10 1.3 Review of Literature...………………………………………………………….. 13 1.3.1 Repentance and brigandage………………………………………………… 14 1.3.2 Repentance and theft……………………………………………………….. 16 1.3.3 Repentance and qadhf……………………………………………………… ……. 17 1.3.4 Repentance Paradigms…………………………………………………….. 18 1.3.5 Legal tradition on repentance…………………………………………........ 21 1.4 Methodology…………………………………………………………………..... 29 1.5 Conclusion……………………………………………………………………..... 30 CHAPTER 2: REPENTANCE AND BRIGANDAGE (HIRABA)…………………… 32 2.1 Definition of brigandage……………………………………………………….. 33 2.2 Fixed punishment for brigandage………………………………………………. 35 2.3 Mitigating impact of repentance………………………………………………... 39 2.3.1 Evidence……………………………………………………..……….……. 45 2.4 Liability of repentant convicts……………..…………………………………… 52 2.4.1 Evidence………………………………………………………………........ 61 2.5 Conditions for the validity of convicts’ repentance……………………………. 67 2.6 Repentance and other crimes…………………………………………………… 73 2.7 Conclusion……………………………………………………………………… 79 CHAPTER 3: REPENTANCE AND THEFT………………………………………… 84 3.1 Definition of theft………………………………………………………………. 86 3.2 Fixed punishment for theft……………………………………………………… 86 3.3 Mitigating impact of repentance ………………………………………………. 88 3.3.1 Evidence…………………………………………………………………… 94 3.4 Liability of repentant convicts………………………………………………….. 101 3.5 Conditions for the validity of convicts’ repentance…………………………….. 101 3.6 Conclusion ……………………………………………………………………… 103 CHAPTER 4: REPENTANCE AND ACCUSATION OF FORNICATION (QADHF)……………………………………………………………………………… 106 4.1 Definition of qadhf ……………………………………………………………… 108 4.2 Fixed punishment for qadhf……………………………………………………… …… 109 4 TABLE OF CONTENTS — Continued 4.3 Mitigating impact of repentance ……………………………………………….. 111 4.3.1 Evidence……………………………………………………………………. 124 4.4 Scope of validity of repentant convicts’ testimony……………………………... 135 4.5 Conditions for the validity of convicts’ repentance…………………………….. 137 4.6 Conclusion………………………………………………………………………. 140 CHAPTER 5: CONCLUSION………………………………………………………… 143 APPENDIX A: AUTHORS AND BOOKS (ALPHABETICAL)…………………….. 148 REFERENCES………………………………………………………………………… 152 5 LIST OF TABLES TABLE 1.1, Islamic theory of rights………………………………………………….. 13 TABLE 1.2, Repentance paradigms in Islamic criminal law ………………………… 18 TABLE 1.3, Repentance paradigms in Islamic criminal law………………………….. 20 TABLE 1.4, Mitigating impact of repentance upon the fixed punishments for brigandage, theft, and qadhf ………………………………………………………………………… 23 TABLE 2.1, Mitigating impact of pre-arrest repentance upon the fixed penalties for brigandage……………………………………………………………………………... 33 TABLE 2.2, Fixed penalties for brigandage, according to al-Shafi‘i…………………. 36 TABLE 2.3, Mitigating impact of pre-arrest repentance upon the penalty of alternate cutting of hands and feet in the fixed punishment for brigandage…………………….. 42 TABLE 2.4, Mitigating impact of repentance upon the fixed penalties for brigandage……………………………………………………………………………... 44 TABLE 2.5, Mitigating impact of pre-arrest repentance upon the fixed penalties for brigandage…………………………………………………………………………….. 45 TABLE 2.6, Liability of pre-arrest repentant brigands for murder and robbery……… 53 TABLE 2.7, Liability of pre-arrest repentant brigands for murder and robbery……... 55 TABLE 2.8, Liability of pre-arrest repentant brigands for murder and robbery……... 56 TABLE 2.9, Mitigating impact of repentance upon the fixed punishments for theft, fornication and consumption of intoxicants..………………………………………….. 74 TABLE 3.1, Mitigating impact of repentance upon the fixed penalties for theft……… 85 TABLE 3.2, Mitigating impact of repentance upon hand-cutting in the fixed punishment for theft………………………………………………………………………………… 90 TABLE 3.3, Mitigating impact of repentance upon hand-cutting in the fixed punishment for theft………………………………………………………………………………… 91 TABLE 4.1, Mitigating impact of repentance upon the fixed penalties for qadhf… …. 107 TABLE 4.2, Mitigating impact of repentance upon rejection of future testimony in qadhf …………………………………………………………………………………… 115 TABLE 4.3, Mitigating impact of repentance upon rejection of future testimony in qadhf …………………………………………………………………………………… 116 TABLE 4.4, Textual analysis of Q. 24:4-5…………………………………………… 129 TABLE 4.5, Textual analysis of Q. 24:4-5…………………………………………… 131 6 LIST OF ILLUSTRATIONS FIGURE 1.1, Repentance paradigms in Islamic criminal law………………………… 21 FIGURE 1.2, Repentance paradigms in Islamic criminal law………………………… 21 FIGURE 1.3, Mitigating impact of repentance upon the fixed punishments for brigandage, theft, and qadhf …………………………………………………………… 24 FIGURE 2.1, Mitigating impact of pre-arrest repentance upon the fixed penalties for brigandage…………………………………………………………………………….. 44 FIGURE 2.2, Liability of pre-arrest repentant brigands for murder and robbery…….. 55 FIGURE 2.3, Mitigating impact of repentance upon the fixed punishments for theft, fornication and consumption of intoxicants…..……………………………………….. 75 FIGURE 3.1, Mitigating impact of repentance upon the fixed penalties for theft.......... 85 FIGURE 3.2, Mitigating impact of repentance upon hand-cutting in the fixed punishment for theft…....................................................................................................................... 90 FIGURE 4.1, Mitigating impact of repentance upon the fixed penalties for qadhf ….. 107 FIGURE 4.2, Repentance paradigms in Islamic criminal law………………………... 112 FIGURE 4.3, Repentance paradigms in Islamic criminal law………………………... 113 FIGURE 4.4, Mitigating impact of repentance upon rejection of future testimony in qadhf …………………………………………………………………………………… 115 7 ABSTRACT This thesis assesses the mitigating impact of repentance upon the fixed punishments for brigandage ( hiraba ), theft, and the accusation of fornication ( qadhf ) under Islamic law, focusing on classical sources of Qur’anic exegesis ( tafsir ), law ( fiqh ), and legal theory ( usul al-fiqh ). It examines and compares the opinions of jurists and exegetes who are not affiliated with a school of law as well as jurists who belong to any of the eight legal schools—namely the Hanafis, Malikis, Shafi‘is, Hanbalis, Zahiris, Zaydis, Imamis, and Ibadis. This thesis demonstrates that the mitigating impact of repentance upon the fixed punishments for brigandage, theft, and qadhf constitutes a case of casuistry as jurists do not assign legal significance to the concept of repentance in all of these three cases. Furthermore, the legal tradition on the mitigating impact of repentance upon fixed punishments shows a high degree of commonality that transcends school affiliation and theological orientation. 8 CHAPTER 1: INTRODUCTION 1.1 Context and statement of the problem The concept of repentance is usually addressed in the field of Sufism rather than law as it basically signifies a matter between a person and his Lord rather than a matter between him and the state. Several scholars have discussed repentance from an ethical perspective in their works that are related to spiritual ethics, such as al-Ghazali (d. 505 /1111) 1 in his Ihiya’ ‘Ulum al-Din and Ibn al-Qayyim (d. 751/1349) 2 in his al-Tawba wa al-Inaba . As an ethical concept, repentance basically refers to returning to God after committing a wrongdoing through regret, confession, and asking God for forgiveness and mercy—as demonstrated by Adam and Eve when they repented to God of eating from the forbidden tree by saying: “O our Lord! We did an injustice to our own selves. We would definitely be among the losers if You do not forgive us and have mercy on us” (Q. 7:23).3 As an ethical
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