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Monday, 14 July 2014

Hudud - punishment or goals?

If Kelantan and Brunei were to focus first on promoting the goals of hudud rather than the punishments, all citizens – Muslims and non-Muslims – might rally around such an agenda.

RETIRED Chief Justice of Malaysia Tun Abdul Hamid Mohamad made the point that the goal of criminal law is not to punish but to prevent prohibited acts, establish public order and administer justice.

Punish­ment is merely a tool used to achieve that goal.

“A tool is not a goal,” he added.

So, too, is the case in Islamic law. The hudud punishments are not ends in themselves, but a tool to achieve goals.

What are the goals of the hudud, and how did jurists identify them?

The goal of the hadd punishment for terrorism and killing innocent civilians is to protect life.

The goal of the hadd punishment for theft is to protect property.

The goal of the hadd punishment for adultery is to protect family and clarity of lineage.

The goal of the hadd punishment for slander is to protect dignity.

The goal of the hadd punishment for apostasy is to protect religion.

And the goal of the hadd punishment for consuming alcohol is to protect intellect. (There are strong reasons to question the authenticity of the hudud punishments for apostasy and consumption of alcohol, which were imputed from the hudud punishments for treason and slander respectively, but I will examine these particular problems with the juristic construct in a separate piece.)

As the most serious punishments, the hudud indicate that these goals are of the utmost importance, both to God and to humankind.

Islamic jurists identified these six goals of the hudud as the objectives of God’s law (maqasid al-Shari`a).

They recognised that all of God’s commandments (shar`) could be classified as protecting one of these six categories: life, dignity, property, family, religion or intellect.

The objectives of God’s laws are not specific to Islam. Because the Quran states that God sent a messenger to every community to provide guidance on right and wrong (10:47), Islamic jurists regard the objectives of God’s law as universal human rights needed and desired by all people.

Regardless of religion, culture, or nationality, all people tend to want a long and healthy life; a sense of dignity and honour; property and wealth; love, intimacy, and a family life; the freedom to practise their beliefs; and the ability to engage in whatever intellectual or other pursuits that bring them joy and happiness.

The six objectives of God’s law are also God’s objectives for all humanity, which the law seeks to protect and to further.

The goals of the hudud therefore define the “common good” (al-ma`ruf).

The Quran defines the best society (khayra ummah) as one that commands the common good and forbids the common wrong, and believes in God (“ta’muruna bil-ma`ruf wa tanhawna `an il-munkar wa tu’minuna billah,” 3:110).

For this reason, many Muslim scholars assert that the best society is one that promotes the objectives of God’s law, helping its citizens thrive in body, mind, and spirit.

“God’s law seeks to protect and promote these objectives,” points out International Institute of Advanced Islamic Studies CEO Prof Mohammad Hashim Kamali, “and it validates a variety of measures to that end”.

Excellent healthcare, free schooling and scholarships for higher learning, education on moral behaviour and ethical decision-making, financial assistance for the poor, and loans for new small businesses would all be measures that would command the common good.

By the same token, hudud defines forbidden actions not just by Islamic law but in practically all societies.

Murder, terrorism, theft and slander are universally considered crimes; religious oppression, adultery and reckless behaviour induced by alcohol are reprehensible, if not also crimes.

The nature and degree of punishment may vary but all societies tend to agree that these offences constitute the common wrong.

Implementing hudud punishments alone, or as mandatory, will not in itself make Kelantan more just, or “more Islamic”.

In Nigeria, Pakistan, and Sudan, implementing mandatory hudud punishments has not created “more Islamic” societies.

According to Tun Hamid’s research, “They have not achieved the desired objectives of a better society, peace, tranquillity, and an improved level of justice.”

Prof Kamali points out that simply implementing hudud punishments as an isolated aspect of Islam, and not as part of a holistic approach that encompasses the broader Quranic vision of justice, does not necessarily create an Islamic state.

An Islamic state would command the good, not just forbid the wrong, and would fully implement the Quranic and Prophetic directives on mercy, repentance, and reformation. Caliph Umar ibn al-Khattab’s ruling to suspend the hadd punishment for theft during famine reflects this crucial balance, and led to the legal principle that “necessity allows the prohibited” (al-darurah tubih ul-mahzurat).

Based on this precedent and legal principle, many Muslim scholars, including Yusuf Qaradawi, Muham­mad al-Ghazali and Saleem al-`Awwa, argue that an Islamic state must first help its citizens meet their hudud-based rights at the two highest levels of need determined by Muslim jurists (daruriyyat and hajiyyat) before applying the hudud penalties.

We are, after all, told to command the common good and forbid the wrong – not the other way around.

By commanding the good first, there will be less inclination to resort to wrong, more opportunities for repentance and reformation, and less need for maximum punishments.

If Kelantan and Brunei were to focus first on promoting the goals of the hudud rather than the punishments, all citizens – Muslims and non-Muslims – might rally around such an agenda.

Which Kelantan would be more Islamic: a Kelantan where more crimes are committed and hudud punishments are imposed, or a Kelantan where fewer crimes are committed and hudud punishments are not imposed?

> Editor’s note: This article is the third in a special series for Ramadan, a month when Muslims are urged to deepen their understanding of their faith by reading and studying the Quran. In this spirit, this series is intended to help the reader fathom what hudud is and help reduce division between faith communities on this issue. The views expressed here are the writer’s own. Imam Feisal would welcome any questions readers may have. Please write to imamfeisal@thestar.com.my.

Tags / Keywords: Religion , Nation , Imam Feisal Abdul Rauf , hudud


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