Kassim Ahmed
 

The Legal Dilemma

To resolve the Hudud dilemma we should go back to the Quran, which is
the only indisputable book of guidance for the Muslims. For punishments of all crimes, the Quran gives two golden rules. Firstly, punish according to the severity of the crime, that is, the biblical principle of an eye for an eye, a tooth for a tooth. This is stated in many verses: one of them goes like this:

"They (the believers) encounter aggression with an equivalent response. However, those who pardon and conciliate receive a better reward from God. God is never
unjust ". (42:40). This is a just principle and may also be called the principle of equivalence.

The second principle given by the Quran is higher than the principle of justice. It is higher than justice in the sense that justice requires retaliation, which is painful. The principle that forgoes punishment is none other than the principle of mercy. Now, mercy is a major attribute of God. About His mercy, God says in the Quran: "He has ordained mercy as His virtue" (6:12). So the second rule of punishment is punishment in accordance with mercy.

Again, typical of the Quran, its grand teachings are almost always repeated several times. As the reader can see, the verse cited above containing the first principle also gives the second principle.

That being so, that Islam gives two universal principles of punishment for all crimes, how is that we have this so-called fixed punishments for certain crimes?
The answer is simple. History has handed them down to us. Are we to question history? Who knows in these times of great uncertainty? But we should keep in mind the saying that history is often written by the victors.

However, we can examine the Quran, for the use of this word Hudud, which is the plural form of the word had meaning "boundary" or "limit". This word is used 1 4 times in the Quran, and, strange to say, none of them refers to punishments, fixed or otherwise. The word refers to the general concept of limits as in the sentence, "Do not go beyond limits". The word "limits" here refers to metaphorical rather than physical boundaries.

Let us quote the Quran for the use of this word:
"Divorce may be retracted twice. The divorced woman shall be allowed to live in the same home amicably, or leave it amicably. It is not lawful to take back anything you have given her, unless the couple fears that they may transgress God's laws. lf there is fear that they may transgress God's laws, they commit no sin if the wife willingly gives anything back. These are God's laws, do not transgress them. Those who transgress limits ordained by God's (Hudud `Ilah) are unjust (2:229)

We should note carefully that the passage refers to laws of divorce. It does not refer to any crime. One can wonder without end how those brilliant jurists of old tell us that it refers to crimes

 Let us have a look at the famous passage of hand cutting:
"The thief, male or female, you shall cut their hands as a punishment of their crimes, and to serve as a deterrent from God.
God is Almighty, Most Wise. If one repents after committing this crime, and reforms, God redeems him. God is Forgiver, Most Merciful' (5:38-39).

One should note well the second part of the passage where it commands lightening the punishment up to pardon. The jurists, amazingly, seemed to have forgotten this part altogether. It should also be noted that the punishment is not carried out automatically or immediately. The mention of the offender repenting and reforming shows that a period of time elapses between his apprehension or trial and the passing or carrying out of the punishment.

Let us look at another passage, the punishment for adultery:
"The adulteress and the adulterer you shall whip each of them a hundred lashes. Do not be swayed by kindness from carrying out God's law, if you truly believe In God and the Last Day... However, if they repent afterwards, and reform, then God is Forgiver, Most Merciful (24:2-6).

We should note three things in this passage. First, the punishment applies equally to both married and unmarried offenders, while the Hudud laws promulgated by the jurists make a distinction between married and unmarried offenders: death by stoning for the
married, and a hundred lashes for the unmarried. Second the difference between the Hudud punishment and the Quranic punishment. Third, again consistently, the Quran law provides a merciful way out for repenters and reformers.

To climax the discussion, let us look at the famous law for apostasy. The Hudud law stipulates death, whereas the Quran unambiguously proclaims and establishes absolute freedom of belief. Let us quote the Quran:

"There is no compulsion in religion, the right way is indeed clearly distinct from error" (2:256).

"If your Lord had pleased all those on earth would have believed all of them. Will you then force men till they are believers?" (10:99).

The many Quranic pronouncements of this' momentous matter are so clear that they do not need any elaboration. However, the upholders of the death punishment for apostasy argue that the above verses were abrogated by those verses that command believers to fight and kill the disbelievers.

However, this argument is self-negating, because it is preposterous to suggest that God changed His mind halfway through the Quran! The verses they refer to are those that came down in times when the Muslims were at war with the disbelievers: naturally the enemy was to be killed for being the enemy, and not for their disbelief.

Disbelief whether occurring from the beginning or later will only be punished by God after the Day of Judgement. This is because no man can sit in judgement on another's belief.

With these three examples, the reader should be able to see for himself the vast differences between the punishments mentioned in the Quran and the Hudud punishments. How do we account for the differences? We leave it to our religious scholars to explain to us.

Lastly, we should ask why the Quran fails to mention certain crimes. It does not mention rape. It does not mention lesbianism. Although it mentions fraud and corruption, it does not stipulate punishments for them. If we are shortsighted, we shall charge the Quran for being incomplete as to leave out these important things. But, as I have pointed out, the Quran gives two beautiful universal principles of punishments to cover all crimes.

The most probable reason why certain crimes and their punishments are mentioned in the Quran is that those crimes were actually committed in Arabian society then, and the punishments were the forms of punishments current at that time.

These forms, like cutting the hand for theft and a hundred lashes for adultery, were taken over by the Quran from current practices, with the important provision for lightening the punishments in cases of repentance and reforms by the offenders.

No doubt, our modern sense of justice would make us recoil at the thought of hand chopping, but we must not forget that in all cultures in pre-modern times, punishments were very severe. In England in the l8th century, it was reported that one punishment for theft was not chopping off the hand, but chopping off the head!

We can be absolutely sure that the Prophet Muhammad applied the laws of the Quran closely during his time. As to the large discrepancies found between the Quran and the accounts of what he was supposed to have done in terms of punishments. I am content to leave to our scholars to answer.

Islam as a universal system giving justice to all our citizens should surely be welcome. But this Islam must be freed from its theocratic shackles. Our religiously enlightened leaders are best placed to achieve this.