Reconsidering Flogging as a Punishment
F. Reconsidering Flogging as a Punishment
Sa’ad bin Sa’d bin Ubadah tells that in his home, there is a weak small man. One day this weak man was committed zina with one of the slaves of the family. This incidence was reported to the Messenger. The Messenger answered: “Flog him as a had of zina”. Knowing the Messenger’s decision, Sa’ad bin Sa’d bin Ubadah tells that in his home, there is a weak small man. One day this weak man was committed zina with one of the slaves of the family. This incidence was reported to the Messenger. The Messenger answered: “Flog him as a had of zina”. Knowing the Messenger’s decision,
Similar case also occurred in the era of the Prophet Job (Ayub) pbuh who was tested by God with poverty and serious illness so the Prophet relied on his wife’s help. One day he was angry because his wife was late in fulfilling his request. His wife came home with food. The Prophet Job asked: “Where do you get the food from?” It was told that his wife answered that she had sold some of her hair. Knowing this, the Prophet Job was angry and promised that when he had been recovered he would flog his wife with stick 100 times. After the Prophet Ayub recovered, he was no longer angry with his wife. He felt pity on her if he hits his wife who has accompanied and looked after him during his illness. Allah then gave him solution by instructing the Prophet Job to gather a bundle of grass which consists of 100 blades and strike his
wife once. This case is written in Qur’an Qur’anic verse Shad, 38: 44 . And take in your hand a bundle of thin grass and strike therewith (your
wife), and break not your oath. Truly! We found him patient. How excellent (a) slave! Verily, he was ever oft-returning in repentance (to Us)!
The two cases written in the above hadith and the Qur’anic verse give very important lesson for anybody especially policy makers. First, giving punishment must be based on fair law, legal policy and legal certainty. Second, legal policy and legal certainty must become the main reference in giving punishment. Legal certainty can be modified in such a way in order to ensure justice and wisdom as the spirit and the objective of the implementation of the law. The above Prophetic tradition (hadith) shows that flogging does not necessarily use rattan, but it can use any other tools
241 Abi al-Fadl Ahmad bin Ali bin Hajar al-Asqalani, Bulugh al-Maram min Adillati al-Ahkam (Bairut: Dar al-Fikr, 1989), p. 259.
including the date palm. The Qur’an explicitly explains that the tool to flog can be a bundle of thin grass. This shows that the purpose of flogging is not to hurt and even more to harm the physic of those who committed immoral acts but to educate them in order they do not commit the same immoral acts. This is the wisdom and the spirit of law. Without wisdom, the law will lost its spirit. Giving punishment, judge, law and wisdom are the four chains which cannot be separated because these four aspects come from the same root: “ hakama al-hakim hukman hikmatan” which means the judge decides the law with wisdom.
In his exegesis, al-Alusi explains the different opinion of ulama in understanding the above Qur’anic text. Some of the ulama suggest that even 100 times of flogging can be modified into once or twice, but it is required that the strike inflicts pain in order to have deterrent effect. Some of the ulama have different opinion on whether the modification of punishment was only specific to the Prophet Job, or it is applicable in general for unlimited time. Asy-Syafi’i, Abu Hanifah, and Zufar argue that this modification is not only for the Prophet Job but also for all humans. If anyone swears to hit his wife 100 times and he modifies it with one strike of 100 blades of grass, then he is regarded to have implemented his swear. 242
The above case also gives a good model on how the literal text should
be related into the aims of Syari`ah (maqhasid asy-syari`ah)). The literal Qur’anic text states that the punishment for adulterer is flogging 100 times. However, if 100 times of flogging is harmful and does not show any justice, then the practice of flogging can be modified with the aim of Syari`ah on flogging. Therefore, the Messenger pbuh did not instruct to flog 100 times, and the Prophet Job did not flog 100 times, but once which symbolically represents 100 times. This rejects the view that the text which has definite injunction (qath’iyy ad-dalalah) cannot be interpreted in order to connect its values with the need and the welfare of people. The number 100 is fixed (qath’i) and does not change, but how to execute 100 times [of flogging]
242 Mahmud Syihabuddin Al-Alusi, Ruh al-Ma’ani fi Tafsir Al-Qur’ani al-Adhim wa as-Sab’i al-Matsani (Beirut: Dar al-Kutub al-Ilmiyah, 2001), v. 17, p. 257.
is open to ijtihad. In the principles of Islamic Jurisprudence (ushul fiqh), ijtihad bi takhriji al-manath can stop when nash qath’i can no longer be re- interpreted, but ijtihad bi tahqiqi al-manath from the stipulation resulted from ijtihad bi tahkriji al-manath, still need room for ijtihad to be grounded in the appropriate context.
The efforts did by the Prophet actually were not only modifying the type of punishment but also trying how to avoid corporeal punishment and encouraging individual and social repentance to God. Abu Hurairah narrated that one day when the Messenger was in the mosque, a man came and informed the Prophet: “Dear the Messenger, I have committed adultery”. The Messenger seemed to try to ignore that confession. The man was approaching the Messenger again and told him: “Dear the Messenger, I have committed adultery”. The Messenger ignored that confession again. This was repeated four times. Seeing that the Messenger ignored his confession, the man swore four times that he has committed adultery. Responding to his swearing, the Messenger asked: “Are you insane?” The man answered: “No”. The Messenger asked again: “Are you married?” The man answered, “Yes, Messenger”. Ibnu Abas also narrated that when Ma’iz bin Malik came to the Prophet and confessed that he had committed adultery, the Prophet asked him: “May be you just kissed her or you just be on top of her or you just see her?”. The man answered, “No, I was really committed adultery. When the man answered “no” to the Messenger’s question, the Messenger asked his companions to stone him to death (HR. Bukhari). 243
The question is why the Messenger ignored the confession of that man four times, why when the man has confessed four times the Prophet still asked about the state of his mentality and his social condition, why the Prophet was checking on the possibility that the man might only kiss, or be on top of the woman or see her. There are several messages behind the Messenger’s attitudes. First, the Messenger wanted to remind that immoral acts should not be announced in public, but only be confessed in the heart between the person and God. Second, mental and social condition must be considered in
243 Al-Alusi, Ruh al-Ma’ani, v. 17, p. 257.
giving punishment. Third, it is suggested that the person withdraw his or her confession that they have committed immoral acts especially on the immoral acts related with the rights of Allah. Indirectly, the Messenger prohibitted Muslims from doing anything which was contradictory with the main message of that hadith. The Messenger prohibitted to reveal immoral acts to public, either by those who committed that act or by other person as often happened in a Muslim society which implements Syari`ah law. Therefore, it is clear that the Messenger did ijtihad istislahi to combine the literal texts with the objective to create public welfare as the spirit of a text. The Messenger had given examples just as he continually had dialogue between texts and the human welfare, between text and the context of human needs.
Currently, Muslim society is moving very quickly from one civilization to another, knowledge civilization, technology civilization, culture civilization, political civilization, economic civilization and human civilization in general. The globalization and modernization stream from Europe has raised various religious attitudes especially within Muslim communities. Modernity which has raised to the surface the issues of democracy, gender equality, pluralism, secularism, tollerance and freedom of religion or not to have religion and other contemporary issues have questioned the religious doctrines which have been accepted and believed as the truth. The issues of modernity have made some Muslim communities, especially traditionalist-fundamentalist Muslims to re- think religious doctrines which they have believed for centuries. In Indonesia the clash between religious doctrine and modernity has led into the birth of various religious styles and behaviors such as the renewal movement of revivalist pre-modernist, classical modernism, post-modern revivalism, neo- modernism, neo-fundamentalism on one side, and the development of the forms of socio-Islamic thinking such as rational Islam, civilized Islam and transformative Islam on the other side. This variety shows how Muslim socities respond and at the same time modify the issues of modernity. 244
244 For the characteristics of these movements, see Bhudi Munawar Rahman, Islam Pluralis, p. 436-437.
In this context, Muslims who live in this century must do the ijtihad, to rethink how to implement religious texts, religious values and principles in Indonesian contexts and in the context of the modern world. Ijtihad, as argues by al-Qaradlawi, is not to destroy and neglect the existing body of knowledge which has been built well for hundred and even thousand years by the best generation in the past. The new ijtihad is not to neglect the products of the exegetes and not to neglect ulama understanding of the Hadith. New ijtihad is to re-new the fragile ladder-steps and to add new ladder- steps to arrive in the height and excellence of civilization in order to create the public welfare and goodness for all human beings. According to al-Qaradlawi, what it means by ijtihad in the current era is the ijtihad which follows the following principles:
1. To understand, think and rethink the products of fiqh (in its broad meaning) which are very rich contained in various schools ( madzhab), especially the opinion of the companions ( sahabat) and the followers of the companions ( tabi’in), to choose which opinion is the most rellevant for the current human need,
2. To return to religious sources and to understand well and deeply the aim of Syari`ah ( maqhashidu asy-syari`ah),
3. To do the ijtihad for the new issues which have not been done and known by the previous fuqaha’ in the past by following the values and the principles stipulated by religious texts of Qur’an and Sunnah because they contain solution for all human problems and the remedy for all illnesses of human body and especially human heart. 245 The problem is that some Muslims are often careless and incomprehensive
in reading the texts. For example, in responding to the issue of whether or not the person who changes his/her religion should be sentenced to death, some ulama believe that the person should be sentenced to death. Other ulama argue that if the person is male, then he should be sentenced to death, while if the person is female, then it is not obligatory to punish her with death penalty, as argued by Abu Hanifah. The first argument is based
245 Yusuf al-Qaradlawi, Syari’at al-Islam, p. 78 .
on one hadith “whoever change their religion, kill them” (HR. Bukhari). 246 However, the first opinion ignored other two hadiths which require that the death penalty for those who change their religion is only fo those who leave their group ( jama’ah)(al-mufariqu li al-jama’ah) and fight against Allah and the Messenger (rajulun yakhruju mi al-islam fayuharibullaha wa rasulahu). 247 In fact, if the three hadiths are being combined textually by using the theory of hamlu al-mutlaq ala al-muqayyad, [taking the general into specific], then it can be concluded that “A person who changes his/her religion ( murtad) can only be sentenced to death if he/she fights against Muslim society”. This means, if the person changes his/her religion because he/she is in doubt in what he/she believes, not because he/she wants to fight against Islam, then it is not allowed to kill him/her. The argument which states that the person who change his/her religion ( riddah) should definitely (mutlaq) be killed is lack of comprehesive reading of the texts, especially the hadith texts, and even more the Qur’anic texts. Thus the real problem of Muslims is not the inability to put into dialogue between the texts and contexts, but their incomprevensive nature of their understanding of (several) texts.
As a result, even though the punishment of flogging is explicitly stated in the text, there is an open room for ijtihad to decide how the mechanism, requirements and aims of its implementation in order to be suitable with its contexts as exemplified by the Messenger pbuh. Comprehensive understanding in reading the whole religious texts which discuss one topic and relate them with the public welfare is non-negotiable in order to implement Islam as the blessing for all universe.
246 Ibu Hajar, Bulugh al-Maram, p. 255.
247 Ibnu Hajar, Bulugh al-Maram,p. 245 .