The History of Hudūd

B. The History of Hudūd

Hudūd, a long with qishās and diyat, has been practiced long before the arrival of Islam. Hinduism, Jews, Christianity and many great nations like Greek and Persia implemented these types of punishment which nowadays considered as cruel and inhuman, such as in the case of qishās and rajm (stoning to death).

Qishās has been practised since the Prophet Moses and written in Exodus:

21 as cited by Sayyid Sabiq in Fiqh as-Sunnah 88 :

Whoever strikes someone a mortal blow must be put to death.However, regarding the one who did not hunt another down, but God caused death to happen by his hand, I will set apart for you a place to which that one may flee.Whoever strikes father or mother shall be put to death.But if injury ensues, you shall give life for life, eye for eye, tooth for tooth, hand for hand, foot for foot,burn for burn, wound for wound, stripe for stripe.

The law of stoning also has been practised in Moses era as it is stated in Leviticus chapter 20: 10-20 mentioned that someone who commits adultery shall be put to death. It is also stated in Deuteuronomy 22:22-24 saying that “if a man and a woman commit adultery shall pelt them with stones, and shall they die.” In the mean time, an opinion has said that in Jesus (Isa) era there was no 89 qishās as a way of punishment but paying diyat. It is

88 Sabiq, Fiqh as-Sunnah, vol.2, p. 341. 89 The word diyat (singular), diyaat (plural) is a verb word from the word wadza means

“financial payment to compensate the life who has been murdered or to compensate the lost of the limbs”. Luis Ma’luf, Al-Munjid fi al-Lughah wa al-‘Alam (Beirut: Dar al-Masyriq, 1986), p. 631 .

mentioned in the Bible Matthew 5: 39-42 as follow 90 :

But I tell you, do not resist an evil person. If anyone slaps you on the right cheek, turn to them the other cheek also. 40 And if anyone wants to sue you and take your shirt, hand over your coat as well. 41 If anyone forces you to go one mile, go

with them two miles. 42 Death penalty and stoning also can be found in the Bible John 8: 3-5

stated that someone who commits adultery should be stone to death. Xavier Leon-Dufoun stated in his book Dictionary of New Testament that adultery is illicit sexual relationships between a married man and a married woman. It is forbidden according to the law because it violates the rights of husband toward his wife. The penalty for this illicit behaviour is stoning to death for both of the perpetrator by the community for their breaching and disgracing the whole community. 91

The above mentioned explanation shows that qishās, rajam and diyat have been practiced by previous revealed religions before Islam. There were various modes of application concerning these laws on the grounds and in different contexts. Some of their application might violate human dignity and discrimination occured between privileged groups over the inferior in the community.

Before the arrival of Islam, injustice occured regularly in the implementation of law. According to Al-Thabari, in Jahiliyya periode when

a slave killed a free man, the victim’s family did not punish the perpetrator,

90 Sabiq, Fiqh as-Sunnah, vol.2, p. 341. 91 XavierLeon-Dufour, Ensiklopedi Perjanjian Baru(Dictionary of New Testament) (Yogya:

Kanisius, n.d.), p.613.

instead, they asked the owner of the slave to be punished by qishās. In addtition, if a woman killed a man, the victim’s family did not demand to punish the woman herself but to asked the male member of the perpetrator to be punished by qishās. In Jahiliyya periode, unjust practices of qishās and diyat often occured such as in the case of Bani Nadhir who claimed to be the highest clan over the others. If the member of this clan committed crime (killing someone from other clan), qishās was not implemented, but to pay diyat instead. Besides, the amount of diyat is half of the diyat regulated for other clan. 92

Consequently, qishās that was practised in Jahiliyya periode violated the right of human dignity because they implemented qishās to innocent person. Islam came to eliminate unjust, discriminative and humiliating practices of qishās, rajam and diyat that violated human’s dignity in Jahiliyya periode. This is the spirit of Islam in seeing all those punishments which aim to eradicate all these practices.

Islam, as the last revealed religion, aims to mediate between the extreme justice of Torah and the extreme generousity of Bible; between the rigidity of Jews legal formal and the Christian pouring of loving grace; and between the violent doctrines of Torah and the softness doctrines of Bible. Islam combined both sides of doctrines of Jews and Christian as mentioned in the Qur’anic verse Al-Baqarah 143: “Thus have We made you an ummah justly balanced, that ye might be witnesss over nations...”

The rigidity of Jews’ doctrines that lead to severity, in fact, was a result of their experiences along history. The Jews is a decended of Jacob who were living under an otoritarian and oppressive Pharaoh. Experiencing oppressions for long time has made the Jews to have low spirit to live and fight. Thus, God revealed the tough doctrines to awaken their spirit of life and claim their human dignity. Unfortunately, these tough doctrines have made the Jews became harsh and abusive toward others.

Along came the Christianity through God’s messenger Isa al-Masih (Jesus) who taught its doctrines of modesty, affection, patience, and

92 Al-Thabari, Jami’u al-Bayan, vol. 3, p. 357.

fortitude. In addition, Christian doctrines eliminate any kinds of violence and harshness of the Jews. However, because of its softness has resulted in neglecting assertive law enforcement.

Islam arrived through the Prophet Muhammad spreading the moderate teaching of its doctrines to mediate between the harshness and the softness. The Qur’an accommodate the law from Torah especially in the case of fair law enforcement in qishās. Qur’anic verse Al-Maidah: 45 stated: “We ordained therein for them:’Life for life, eye for eye, nose for nose, ear for ear, tooth for tooth, and wounds equal for equal.’...” Similar regulation can also be found in Exodus 21: 23-25 saying: “ But if there is serious injury, you are to take life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, bruise for bruise”

In Islam, however, apart from enforcing the law for justice, it allows an opportunity for repentance. Qur’anic verse Al-Maidah further stated: “...But if anyone remits the retaliation by way of charity, it is an act of atonement for himself. And if any fail to judge by (the light of ) what Allah hath revealed, they are (no better than) wrongdoers.”

Justice and gracefulness should always come together; justice without gracefulness could end up in injustice. Gracefulness without justice would make human in continous guilt. In every verse of the Qur’an related to qishās and hudūd, always being concluded with the chance of forgiveness and repentance as a way to protect human dignity.