Yaqeen Institute for Islamic Research 0 | Stoning and Hand Cutting: Understanding the Hudud and the Sharia in Islam Stoning and Hand Cutting: Understanding the Hudud and the Shariah in Islam Jonathan Brown 1 | Stoning and Hand Cutting: Understanding the Hudud and the Sharia in Islam that contains within it tremendous Introduction diversity. Just as American law manifests itself as drastically Often the only things people in the different traffic laws or zoning West associate with Islam are codes in different states or locales, stoning and hand chopping. These so too has the Shariah’s application images permeate our culture, from varied greatly across the centuries the trailer of hits like Robin Hood: while still remaining a coherent Prince of Thieves (1991) to straight- legal tradition. to-cable pablum like Escape: Human Cargo (1998) (again, in the The Shariah is drawn from four trailer... ‘If you can’t live by their sources. The first two are believed rules, you might die by them’). by Muslims to be revealed by God There is no better example of how either directly or indirectly: 1) the our society has consistently and revelation of the Quran (which profoundly misunderstood Islam itself, contrary to the claim of a and its tradition of law, known as prominent Trump supporter, the Shariah. Stoning and hand contains relatively little legal chopping do feature in the Shariah, material), and 2) the authoritative but their actual function can only precedent of the Prophet be understood by stepping back Muhammad, known as his Sunna and examining how the Shariah (often communicated in reports conceives of law overall. Only about the Prophet’s words and then can we make sense of its deeds, called Hadith). These two severest corporal and capital sources work in tandem. The punishments, known as the Hudud Sunna is the lens through which the (pronounced Hudood). Quran is read, explaining and adding to it. The Idea of God’s The second two sources are the Law products of human effort to understand and channel the The Shariah is not a law code, revelation of God through the printed and bound in volumes. It’s Prophet: 3) the ways that the early the idea of God’s law. Like other Muslim community applied the broad legal concepts like Quran and the Sunna, and 4) the ‘American law’ or ‘international further extension of this tradition of law,’ the Shariah is a unified whole legal reasoning by Muslim scholars 2 | Stoning and Hand Cutting: Understanding the Hudud and the Sharia in Islam in the centuries since. The human including prayer (and the rules of effort to mine these sources and ritual purity needed to perform it), construct concrete, applicable rules fasting, charity tithes, the from the abstraction of the Shariah pilgrimage to Mecca and hunting is known as fiqh. If Shariah is the and slaughter of animals (about 4 idea and ideal of God’s law, then volumes out of 12). Only then fiqh is its earthly – and thus its would we find recognizable areas inevitably fallible and diverse – of the law such as marriage, manifestation. divorce, inheritance, contracts, property, liability, injuries, etc. There’s More to Law Although they are seemingly the only thing most people know about than Law and Order the Shariah, in a typical book of fiqh less than 2% of the book is A great irony in the ubiquity of devoted to the Hudud crimes and stoning and hand cutting in the their punishments. popular imagination is that these punishments constitute a minuscule Criminal Law in portion of the Shariah. The tradition of law in Islam is the Islam & The West Muslim effort to answer the question ‘What pleases God?’ in In order to understand Islamic any particular situation. As such, criminal law, we have to make sure unlike what we think of as law in we understand what we mean by modern states, the Shariah criminal law in the first place. encompasses every sphere of Most areas of law in the US, Europe human activity. Most of these and elsewhere are civil law, areas would never see the inside of meaning they deal with people’s a courtroom in a Muslim state let rights over and obligations to each alone in the West (though, oddly, other. These include contracts, obscure points in Islamic law do marriage, property, etc. The sometimes come up in cases on government might play a role in freedom of religion). If we were to adjudicating disputes in these areas look at a typical, comprehensive through the infrastructure of courts, book of fiqh (well over a dozen but these are disputes between volumes, usually), we’d find that private parties over wrongs they do the core subjects of the Shariah are each other. the forms of worship in Islam, 3 | Stoning and Hand Cutting: Understanding the Hudud and the Sharia in Islam Crimes are about wrongs done to preponderance of evidence the public, society or state as a indicates that the person is guilty whole, and in most modern states it (i.e., over 50% likelihood), while in is the government that acts to bring a criminal trial the jury must be people who’ve committed them to convinced ‘beyond a reasonable justice. Of course, wrongs to doubt.’ 2 There are different individuals and wrongs to society burdens of proof because of the can coincide. In old (like, very old) differences in punishments for civil English law, if a man murdered and criminal wrongs. Civil wrongs another man in the street, then two are punished by compensation. wrongs had been done. The Criminal wrongs are punishable by murderer had wronged the victim’s incarceration or corporal or even family by killing him, and he had capital punishment. In the West, also wronged the king by violating the notion that judges or juries his ‘peace’, or the overall order of should exercise extra caution in his realm (hence our term finding someone guilty of a crime ‘disturbing the peace’). The comes from canon law (the law of murderer was answerable to both the Catholic Church) in the twelfth aggrieved parties.1 Centuries (and and thirteenth centuries, as does many, many legal turns) later, we the notion of innocent until proven find OJ Simpson on trial for two guilty.3 wrongs: one civil (for wrongful death and the damages this caused The Shariah has remarkably similar the victim’s family), and one features (actually, I think that criminal (murder) for which he was Western canon law was influenced prosecuted by the state. a great deal by Islamic law, just as Western philosophy and science As we all recall, OJ was found were profoundly shaped by Muslim innocent in his criminal trial but scholars in those fields from the liable (i.e., guilty) in his civil trial. tenth to the thirteenth centuries… How could this be if the two trials but that's another issue). Muslim were, in effect, for the same act? jurists didn’t categorize law into Did he commit murder or not? The civil and criminal law, but these two trials produced two different labels are nonetheless useful in results because of different trying to understand the Hudud. standards for meeting the burden of The categories that Muslim jurists proof. In civil cases in the US, the used were those of violations of the jury only has to conclude that the ‘rights of God’ (ḥuqūq Allāh) as 4 | Stoning and Hand Cutting: Understanding the Hudud and the Sharia in Islam opposed to violations of the ‘rights member accidentally, then your of God’s servants’, i.e. human family is owed the compensation beings (ḥuqūq al-ʿibād). The rights value as specified in the Quran and of human beings include the right the Sunna. In such cases, as taught to physical inviolability (in other by the Prophet (peace be upon words, one can’t be killed or him), the job of the judge is to harmed without just cause), the “ensure that all those with rights right to dignity, the right to receive them.”4 property, the right to family, and the right to religion. Violations of the ‘rights of God’ in the Shariah are an important Just as in modern human rights, counterpart to crimes in the these rights are not absolute. They Western legal tradition. Of course, can be infringed upon with just the ultimate ‘right of God’ upon cause. But they belong to all mankind, as explained by the human beings regardless of Prophet (peace be upon him), is for whether they are Muslims or not. If God to be worshipped without someone breaks your toe, smashes partner, and this right extends to into your car or reneges on a other acts of worship as well, like contract they made with you, they giving the Zakat charity. 5 But, owe you compensation because unlike human beings, God is they have violated your rights. eminently beyond the capacity of They owe this even if they didn't any creature to harm. Also unlike intend any of these actions, since human beings, God has “ordained the damage was done and they upon Himself mercy” (Quran 6:54), were the cause. The same applies and promised that His “mercy in American civil law (in both encompasses all things” (Quran Islamic and American law, an 7:156). This element of God’s vast exception would be if you smashed mercy plays a crucial role in the someone’s car because someone other rights of God that Muslim else threw you onto it, which was jurists have identified, namely the out of your control). Along the crimes known as the Hudud.