HUDUD. Classical Islamic law divides the punishment for crimes into two categories: hudud (sg., hadd;
lit., “limit” or “prohibitions”) are mandatory punishments imposed for crimes against God, and ta`zir (“deterrence”) are punishments at the discretion of the qad i (judge). The traditional crimes for which hudud punishments are imposed are those against morality (adultery, fornication, and false allegations of adultery), property (theft and highway robbery), and a residual group involving apostasy and drunkenness. These crimes must be contrasted with crimes that are the subject of a private claim, including murder, when it is possible for the victim and his family to opt for either retaliation or blood money.
The hadd punishments are severe. For instance, the first offense of theft, on the proof of two witnesses or a confession, results in amputation of the hand at the wrist, and the second, further amputations (Qur’an, surah 5.42-43). For fornication, on the proof of four male witnesses or a confession, a married person is sentenced to stoning to death and others to one hundred lashes.
These punishments are traced to verses in the Qur’an, although sunnah (prophetic example) and ijma` (community consensus) have developed the details. For example, in relation to adultery and fornication, stoning as a punishment does not appear in the Qur’anic verses (surah 24.2: “The whore and the whoremonger-scourge each of them with a hundred stripes”), but is based on h adith (prophetic tradition).
The punishments, to an extent, are tempered by the strict rules of evidence. The evidence must be based on either a voluntary confession or the evidence of male eyewitnesses. Nonetheless, reports of hudud penalties being imposed inSaudi Arabia, in particular, are fairly frequent. In February-March 1991 alone, five people had their right hands amputated for theft (Amnesty International Report, I991 ).
With the notable exception ofSaudi Arabia, however, hudud punishments have fallen into disuse in the modern Muslim world, primarily because of Western notions of penology and sentencing. Increasing fundamentalist ideology, however, has brought about a call for the introduction of hudud penalties. Thus, for example,Pakistanin 1979 andSudaninitially in 1983 both introduced laws that enable hudud penalties to be imposed. InSudan, the Penal Code (1983) s 318 states: “Whoever commits fornication shall be punished by death if he were married.” A similar provision appears in article 5 of the Pakistan Offence of Zina (Enforcement of Hudood) Ordinance 1979.
In relation to theft, amputation is sanctioned under Sudanese law when the stolen goods are above a certain value, they have been stolen surreptitiously, the thief has no real need, and the thief is not related to the owner. Article 5 of the equivalent ordinance inPakistan(Offences against Property [Enforcement of Hudood] Ordinance 1979) states, “Whoever, being an adult, surreptitiously commits from any hirz [an arrangement made for the custody of property] theft of property of the value of the nisab [4.457 grams of gold] or more is said to commit theft liable to hadd.”
Several justifications are offered for these penalties. It has been suggested that imposition of hudud acts to reduce the crime rate by serving as an example to those who might turn to crime. It has also been argued that the sentences are retributive and even reformatory: society demands that those who transgress should be punished, and it is better to be punished harshly in this world and repent than to go to the next world unpunished and unrepentant. The danger, however, is that hudud methods of punishment might be used by some for political purposes as a force for oppression.
[See also Criminal Law; Human Rights; Law, article on Legal Thought and Jurisprudence.]
BIBLIOGRAPHY
Bassiouni, M. Cherif, ed. The Islamic Criminal justice System.New York, 1988. Helpful and systematic study of criminal law in Islam. Heyd, Uriel. Studies in Old Ottoman Criminal Law.London, 1973. Describes the criminal justice system as it existed from the late fifteenth to the eighteenth centuries in theOttoman Empire. Lippman, Matthew, Sean McConville, and Mordechai Yerushalmi. Islamic Criminal Law and Procedure.New York, 1988. Introductory guide to the criminal law of Islam.
Mayer, A. “Libyan Legislation in Defense of Arab-Islamic Sexual Mores.” American journal of Comparative Law 2o (1980): 28’7-313. Stimulating article that discusses, in particular, the Libyan law on fornication.
Schacht, Joseph. An Introduction to Islamic Law.Oxford, 1964. Chapter 24 of this well-known work describes the penal system of Islam in detail.
Safwat, Safiyah. “Islamic Laws in theSudan.” In Islamic Law, edited by Aziz al-Azmeh, pp. 231-2S0.London, 1988. Useful description of the “islamization” of the Sudanese legal system, with a focus on penal law.
DAVID STEPHEN PEARL
