This is part of our #Projek101 series, where we breakdown otherwise complicated concepts to their fundamentals, in particular to an audience with no familiarity with Islam. Any questions or suggestions? Feel free to email us at firstname.lastname@example.org!
The recent controversy surrounding the possible establishment of hudud laws in Kelantan has generated debates and questions. But what does “hudud” mean exactly, and how important of a component is it for Islamic Law?
This guide will offer brief answers in hope to offer some clarification on the matter. It will begin by explaining basics on terms that have inevitably been included in the discussion such as fiqh, shariah and Islamic Law.
1. What is Islamic Law?
Islamic Law refers to a set of rules – for governance and personal conduct – that are inspired and founded on:
1) The Qur’an – God’s words as they were revealed to Muslims via Muhammad as their messenger.
2) The Sunnah – a collection of historical narratives and testimonies that document the actions, deeds and lifestyles of Muhammad that Muslims are to emulate as good conduct.
Muslims are to turn to both, in that order, for commands, indications, examples and precedents for what ought to be done in everyday life.
The judgments and rules in Islamic Law are the product of Usul al-Fiqh. Literally Usul al-Fiqh means “the roots of Islamic Law” but as a practice and discourse Usul al-Fiqh refers to the methodology of law making in Islam.
It is a very theoretical discourse, since the Qur’an and the Sunnah themselves do not provide any methodology of interpretation, beyond certain indications. Thus, one can expect many methodologies for Islamic Law out there, with their varying approaches and accounts on how to formulate the best rules in the name of Islam.
2. What’s the difference between fiqh and “the shariah”?
The Shariah (literally meaning “the path to the watering place”) refers to a total way of life that is guided and inspired by Islamic law.
Because it is tied to laws, the Shariah includes commands prohibitions, but it is important to note that beyond this the Shariah has a comprehensive practical meaning.
That is to say, an Islamic way of life is to manifest in our overall character – in our behaviors, attitudes and state of mind – and in our interpersonal and social relations. This is what is meant when Muslims say that they want to live in accordance with the Shariah.
Thus, when Malaysian Muslims ask if a practice –be it a policy, social behavior, act, or habit – is “mengikut sharak”, what is in effect asked is the extent to which that practice is deemed by Islamic Law as a factor or obstacle in the formation of a way of life that is reflective of the Shariah.
3. Okay, so what does “hudud” mean?
In Islamic Law, hudud (literally meaning “limits”) refers to punishments that are prescribed by God in the Qur’an.
After our discussion of fiqh and the shariah, it should be clear that hudud does NOT refer to any methodology or theory to produce new laws (usul al-fiqh).
Hudud also does NOT refer to a way of life for individuals or society (shariah).
The scope of hudud lies only on punishment based on what is prescribed by the Qur’an.
Hudud then, as punishment, is a subject to be thought about and interpreted. It is somewhat inaccurate to describe them as “laws”. At best, it’s a penal code.
So it is not itself the foundation or goal of Islamic law. It is not even the primary concern of Islamic law, as what the headlines recently are read to imply.
4. If hudud punishments are implemented, does that mean the Qur’an will set the standard of punishment for all crimes?
No. The Qur’an only prescribes punishments for four crimes: theft, adultery, slander against chaste women who cannot produce four reliable witnesses and highway robbery.
Punishments not mentioned in the Qur’an do not fall under hudud laws and can be negotiated under the scope of tazir laws, which cover punishments that are not “fixed” in the Qur’an.
5. Okay, so how severe are the punishments that are prescribed?
Thieves are to have their hands cut off (Al-Ma’idah:38 – 39), adulterers are to be flogged with a eighty lashes (An-Nur:2&5), slanderers of chaste women who cannot produce four reliable witnesses are also to be flogged (An-Nur:4&5), and highway robbers are to be crucified, their limbs cut off, or banished (Al-Ma’idah:33).
In the spirit of fair inquiry, let us consider this in a larger context: The Qur’an has over six thousand verses. There are less than 10 verses that discuss punishment.
6. But what about drinking wine and apostasy?
The Qur’an does not prescribe any punishment for drinking wine or apostasy.
7. Are those punishments mandatory?
Not unless the criminal repents for his or her crime.
What is clear consistent in each of the above passage in the Qur’an is that once the punishment is announced, the criminal is immediately given the option, and encouraged, to repent for the crime and reform their behavior. Once repentance is made the criminal is completely forgiven and thus should not be punished.
The reminder that God is Forgiving and Most Merciful is also stated in each of the above passages.
8. Are the penalties prescribed under the pretext of hudud fixed and permanent?
Scholar of Islamic Law, Mohammad Hashim Kamali, in An Introduction to the Shariah (Ilmiah Publishers, KL, 2006) offers his analysis and verdict of the issue:
“Our investigation of the Qur’anic usage of hadd and hudud reveals that the terms are used in a more flexible sense which are not even confined to the context of crime but occur in reference, for example, to divorce in the event when the spouses “fear they cannot keep to hudud Allah”, implying the limits of correct conduct in marriage (Al-Baqarah: 229) and in reference also to devotional acts and ibadat when the text speaks in praise of those who observe the hudud Allah (At-Tawbah: 12) and in reference also to atonement (kaffarat) (Al-Mujadila: 3-5). Indeed the Qur’an shows little concern to enforce the hudud Allah through the modality of fixed and mandatory punishment. The whole idea of hudud in the sense of fixed penalties is, in other words, a juristic construct of a latent origin that stand at odds with a holistic reading of the text.”