Hudūd as Limit

B. Hudūd as Limit

Islamic criminal law (jinayah) formulated by the expert of Islamic law has three categories of punishment for criminal acts. First, had or hudūd, is the limit of punishment stipulated by the Qur’an and Sunnah. Had consists of seven criminal acts: zina muhshan by being punished with rajm, zina ghairu muhshan by being punished with flogging 100 times, qadzaf or accusing someone to have comitted adultery/fornication by being punished with flogging 80 times, murtad [apostate] by being punished with death penalty, drinking khamer [liquor] by being punished with flogging 80 times, stealing by being punished with hand cutting, and robbery by being punished with hand cutting tangan in crisscross manner until death penalty. Second, qishas is the punishment for murder, which is the debt of life is paid by life Islamic criminal law (jinayah) formulated by the expert of Islamic law has three categories of punishment for criminal acts. First, had or hudūd, is the limit of punishment stipulated by the Qur’an and Sunnah. Had consists of seven criminal acts: zina muhshan by being punished with rajm, zina ghairu muhshan by being punished with flogging 100 times, qadzaf or accusing someone to have comitted adultery/fornication by being punished with flogging 80 times, murtad [apostate] by being punished with death penalty, drinking khamer [liquor] by being punished with flogging 80 times, stealing by being punished with hand cutting, and robbery by being punished with hand cutting tangan in crisscross manner until death penalty. Second, qishas is the punishment for murder, which is the debt of life is paid by life

Even though hudūd is defined as the limit of punishment stipulated by the Qur’an and Sunnah as described above, according to Hashim Kamali, the discussion of hudūd among the fuqaha shows that the four categories of crimes agreed as hudūd are expanded into six and even seven categories. In addition, even though the Qur’an provides room for repentance and self-changes into better behaviour in relation to the four crimes of hudūd, unfortunately, this room is often ignored and subordinated by the law experts only as a formal process which does not show the original teaching spirit of the Qur’an. 214 In other words, the different opinion among the fuqoha, both classical and modern scholars, can also be found in the discussion of hudūd, including Islamic criminal laws in Muslim countries which currently implement hudūd.

The word had literally means limit, limitation, or factor that limits something. Punishment is being called had because it limits the criminal acts. 215 Had literally also means the limit which prevent and preclude something from passing another thing. In Arabic language, the door guard (bawwab) and the jail guard (sijjan) is also called hadad because they prevent people in general to enter the area they guard. 216 The Qur’an mentions the basic word of had as “ha-da-da” and its derivation many times:

1. Haadda (Qur’anic verse al-Mujadilah, 58: 22): ُهَلوُسَرَو َ َّالل َّداَح ْنَم (the people who are against Allah and the Messenger): Islamic teaching in general.

213 Muhammad Iqbal Siddiqi, Hukum Pidana dalam Islam, translator Abdullah Ghalib (Depok: Maktabah an Nahla, t.th.), p. 73-74

214 Kamali, Hukuman, p. 31 215 Engineer, Islam dan Teologi Pembebasan, p. 255. 216 Kamali, Hukuman, p. 73.

2. Yuhadidi (Qur’anic verse at-Taubah, 9: 63): ُهَلوُسَرَوَهَّللاِدِداَحُيْنَم (whoever is

against Allah and the Messenger): Islamic teaching in general.

3. yuhaadduuna (Qur’anic verse al-Mujadilah, 58:5,20): ُهَلوُسَرَوَهَّللاَنوُّداَحُي (the people who are against Allah and the Messenger): Islamic teaching in general.

4. Hudūd (Qur’anic verse al-Baqarah/2:187): the prohibition to have sexual relationship during the period of staying in the mosque ( i`tikaf), Qur’anic verse al-Baqarah, 2: 229: Allah’s laws on thalak (divorce initiated by men) and khulu’ (divorce initiated by women), (Qur’anic verse al-Baqarah, 2:230): Allah’s laws on thalak three times, (Qur’anic verse an-Nisa, 4: 13,14): Allah’s laws on inheritance, (Qur’anic verse at-Taubah, 9:97): Allah’s and the Messenger’s laws in general, (Qur’anic verse at-Taubah, 9:112): Allah’s laws in general, (Qur’anic verse al-Mujadilah, 58:4): Allah’s laws on kafarat dhihar (punishment for regarding wife as mother), (Qur’anic verse ath-Thalaq, 65:1): Allah’s laws on thalak.

The above facts show several interesting points. First, the Qur’an uses the word had and its derivation to refer to the meaning of Allah’s law in general, the laws of Allah and the Messenger, family law which consists of sexual relationship between husband and wife, thalak, khulu’, inheritance and dhihar. Second, the Qur’an also uses the term hudūd for the personal law such as dhihar, inheritance, thalak, and khulu’. Third, hudūd in the Qur’an is not limited to certain Islamic criminal law as developed in the term Islamic law. 217 Fourth, the Qur’an does not even use the word had or hudūd in explaining the four types of crime agreed upon by ulama as hudūd, that is robbery ( hirabah), stealing, zina, and qadzaf (accussing someone to commit zina).

The general meaning of the word Allah’s hudūd [limit] which consist of all Allah’s prohibition and order also being emphasized by the exegetes in explaining the meaning of Allah’s hudūd in Qur’anic verse al-Baqarah, 2:229.

217 Muhammad Fathi Osman, Prakata Kamali, Hukuman, p. 20

“These are the limits of Allah, so do not transgress them. And whoever transgresses the limits of Allah - it is those who are the wrongdoers.”

Ibn Asyur in his exegesis at-Tahrir wa al-Tanwir explains the meaning of Allah’s 218 hudūd in the following verse:

Similar with Ibn Asyur’s explanation, Quraish Shihab explains that Allah’s hudūd or the limits stipulated by Allah consist of two: His order and prohibition. All His orders and prohibitions should be in their own areas. These areas are called the limits of law. The two cannot be exchanged so that what is being ordered is being abandoned, while what is being prohibited is being done. If this is happening, then someone has put something in the wrong place and that is a tyranny. Therefore, the verse ends with the warning: whoever transgresses the limits of Allah - it is those who are the wrongdoers . 219

The use of the word had, either literally or as used by the Qur’an, shows the concept of limit, the limit of what is being permitted and prohibited to do. However, the term had in fiqh is changing into a punishment being stipulated by God which cannot be changed. Consequently, the concept

218 Ibnu Asyur, at-Tahrir, Vol. 2, p. 413. 219 Shihab, al-Mishbah,Vol.1, p. 601.

of limit which separates and prevents is changing into the concept of fixed punishment. 220 The concept of hudūd as limit, not as fixed punishment,

is better explained by Ziauddin Sardar when he discussed the relationship between Syari`ah and hudūd. According to him, Syari`ah law is like spiral which has its own limit, but it keeps moving following the time. The relevance of its norms for contemporary life must be understood by all Muslims in every generation. Syari`ah gives clear minimum and maximum limit for human behavior, which is called hudūd. Therefore, anything outside the limit is considered un-Islamic. Hudūd shows the outer limit of human behavior, it is not the norm. 221

Hudūd as the concept of limit is also explained by Shahrour in a more detail which is known as the theory of law limit or the theory of limit or the theory of hudūd. 222 According to him, Islamic law has two characteristics: (1) permanent (sabit) which means fixed, unchangable and universal, which is also called al-istiqamah which means it is applicable generally and continously; (2) dynamic and tend to change ( al-hanifiyyah). Based on these two characteristics of Islamic law, Shahrour categorises six principles of limit ( hudūd) formed by the range from the combination between the open and the close curve in the x and y axis which shows the two characteristics of al- istiqamah and al-hanifiyyah.

1. Al-Had al-a’la (maximum limit) is the verses about hudūd which have only maximum limit, so the stipulation of the law can only be under the border line or under the maximum limit and cannot go beyond the maximum limit. The examples are the verses which explain the stealing in the Qur’anic verse al-Maidah, 5: 38, and murder in the Qur’anic verse al-Isra’, 17: 33, and al-Baqarah, 2: 178.

2. Al-Had al-adna (minimum limit) is the verses about hudūd which have only minimum limit so the law can only be right on or above the

220 Kamali, Hukuman, p. 74. 221 Sardar, Kembali, p.120. 222 Muhammad Shahrur, Al-Kitab wa AlQur’an; Qira’ah Mu’asirah (Damaskus: al-Ahali li

al-Tiba’ah wa an-Nasyr, 1999), p.579.

minimum limit and cannot go beyond this limit. The examples are the verses about women’s dress in Qur’anic verse an-Nur, 24:31, the verses about women who are forbidden to be married in Qur’anic verse an- Nisa, 4:2 2-23, the verses about prohibited food in Qur’anic verse al- Maidah/5:3, and the verses about debt in Qur’anic verse al-Baqarah, 2: 283-284.

3. Al-Hadain al-A’la wa al-Adna Ma’an (maximum and minimum limit at the same time) is the verses about hudūd which have maximum and minimum limit so the stipulation of the law is between the two limits, or the law being prodused can be right between the two limits. The examples are the verses about hudūd on inheritance in the Qur’anic verse an-Nisa, 4: 11-14 which contain the minimum limit for women and the maximum limit for men: women cannot be given less than the minimum limit and men cannot be given more than the maximum limit.

4. Al-Had al-adna al-a’la ma’an fi nuqthatin wahidah is the verses about hudūd whose maximum and minimum limits located in the same point so the maximum limit is identical with the minimum limit. The example is the verse about hudūd on the punishment of those who commit adultery in Qur’anic verse an-Nur, 24:2.

5. Al-Had al-‘ala li Had al-muqarib duna al-mamas bi had abadan is the verses about hudūd located in the maximum limit which tend to be close but without contiguity except in the infinite area. The example is the verse about the prohibition of approaching zina in Qur’anic verse al-Isra, 17:32. The verse explains the prohibition of “approaching” something that can lead into committing zina. Approaching the “thing” is the minimum limit which cannot be breached.

6. Al-Had al-‘ala mujaban muqhallaqun la yajuzu tazawujuhu wa al-Had al-adna saliban yajuzu tajawuzuhu (positive maximum limit position which cannot be breached and negative minimum limit which can be breached). This position can be described in the relationship between material and monetary cases. The two limits are located in usury as the positive maximum limit and alms as the negative limit. The maximum limit (usury) cannot be breached, but the minimum limit can be 6. Al-Had al-‘ala mujaban muqhallaqun la yajuzu tazawujuhu wa al-Had al-adna saliban yajuzu tajawuzuhu (positive maximum limit position which cannot be breached and negative minimum limit which can be breached). This position can be described in the relationship between material and monetary cases. The two limits are located in usury as the positive maximum limit and alms as the negative limit. The maximum limit (usury) cannot be breached, but the minimum limit can be

The concept of had or hudūd as limit, explained by either Ziauddin Sardar or Shahrour, has essential differences from the concept of had or hudūd as developed by fuqaha. The first difference can be seen in the scope of hudūd in which the fuqaha only limit it on verses (and hadith) on criminal law, while Ziauddin Sardar and Shahrour see the concept of hudūd is not only limited with the criminal law but also personal law such as inheritance. The second difference is on the absence and the availability of room for ijtihad in what is understood as hudūd in which the fuqaha believe that there is no room for ijtihad in the verses on hudūd, while Sardar and Shahrour give room for ijtihad as long as it is within the limit given by Allah. This can be seen, for example, in the punishment of cutting the hands for the thefts. Shahrour and Sardar give room for ijtihad to decide other forms of punishment which do not go beyond cutting the hands, while the fuqaha see that as part of the hudūd crime, the punishment for the thefts must be hand cutting.

Sardar and Shahrour are only some of the contemporary scholars who try to reinterpret the concept of hudūd. As explained by Hashim Kamali, the classical fuqaha actually have different opinion on hudūd, such as on the number of crimes categorised in hudūd. Similarly, the discussion on Chapter IV on the Portrait of the Implementation of hudūd also shows different opinion in many cases of hudūd in the Islamic criminal law of Pakistan, Sudan, Kelantan Malaysia, and Brunei Darussalam. Therefore, re-interpreting the concept of hudūd is not only possible but it has been undertaken since the classical era, and this effort is still going on up until Sardar and Shahrour are only some of the contemporary scholars who try to reinterpret the concept of hudūd. As explained by Hashim Kamali, the classical fuqaha actually have different opinion on hudūd, such as on the number of crimes categorised in hudūd. Similarly, the discussion on Chapter IV on the Portrait of the Implementation of hudūd also shows different opinion in many cases of hudūd in the Islamic criminal law of Pakistan, Sudan, Kelantan Malaysia, and Brunei Darussalam. Therefore, re-interpreting the concept of hudūd is not only possible but it has been undertaken since the classical era, and this effort is still going on up until

Reinterpretation of the concept of hudūd which is different from that of the classical fiqh invites sharp criticism. However, these findings help overcome the misuse of Syari`ah law for a different purpose through the implementation of hudūd. The problem of claiming that the implementation of hudūd is based on the text to some extent can be resolved, but the real problem in reality is actually the battle for and the preservation of political authority. Rajm is the example. Even though there has been a heated debate for a long period of time about rajm, many modern countries apply this punishment at the same time with the implementation of Syari`ah law.