The issue of implementing the shari’ah needs to be understood in a broader manner than its restriction to the application of corporal punishments (hudud) for crimes as is widespread in both Muslim and non-Muslim contemporary literature. The implementation of the shari’ah is multifaceted and has different grades, so it would be unjust to describe a given situation as not implementing the shari’ah just because some of its rulings are transgressed in daily life. These transgressions occurred in different ways and to various degrees over the course of Islamic history in all Muslims countries and nations. Not a single Muslim scholar said that these countries had left the realm of Islam or that they were not implementing the shari’ah. In fact it would not be farfetched if we were to claim that the “the implementation of the shari’ah” is a modern term.
Realities that need to be understood:
1) The shari’ah refers to that which has to do with beliefs, world view, which is comprised of the fact that this universe is created by a Creator, that human beings are held responsible by legal rulings describing their actions, that this responsibility arises from the revelation that God sent with His Messengers and revealed in His Books, and that there is a Day of Judgment when rewards and punishments will be meted out. The shari’ah is also comprised of jurisprudence, which regulates the procedure of personal, communal, and societal conduct, an ethical system, a means of spiritual development, intellectual and interpretive methodologies for dealing with revelation in the form of both the Quran and the Sunna, and methodologies for dealing with the world no matter how it changes and no matter how complex it becomes.
2) The issue of corporal punishments (hudud) has two aspects: The first is the belief in the preeminence of this penal system in deterring crime, as well as an assertion of the gravity of these sins, the extent of their grossness, their negative impact on society, and a personal rejection of them in all of their forms; and the belief that this penal system is not inherently unjust or violent in and of itself. The other aspect is that Islamic law has set conditions for the implementation of these corporal punishments as well as certain situations in which their implementation would be temporarily halted or suspended. The implementation of corporal punishments in these situations or in the absence of its conditions would amount to a departure from the shari’ah.
3) Anyone who closely examines Islamic legal texts will find that corporal punishments were not instituted for the purpose of revenge, but to deter crimes before they are committed. They will also find that Islamic law does not seek out their implementation as much as it seeks out pardon, forgiveness, and their protection from them. The texts in this regard are numerous.
4) Corporal punishments have not been implemented in countries like Egypt for over one thousand years. This is because the legal conditions for their implementation, which describe specific means for establishing [guilt] and stipulate the possibility of retracting a confession, are not met. All of this is summed up by the saying of the Prophet, “Prevent [the implementation of] corporal punishments by means of uncertainties,”1 and, “To err by pardoning is better than to err by punishing.”2
5) A certain period of time may have characteristics that necessitate the general application of exceptions even though exception, by their nature, are to be applied in isolated cases. These characteristics, which include it being an age of necessity, an age of doubt and uncertainty, an age of discord, and an age of ignorance, have an effect on legal rulings. Necessity permits the impermissible even if it becomes prevalent and continuous, which is why they permitted burial in the -Fasaqiof Egypt in spite of its being contrary to the law; uncertainty permits the discontinuation of corporal punishment as was done by Umar ibn al-Khattab in the year of ash when doubt became prevalent since the legal condition for implementing corporal punishments was lost. Imam Jafar al-Sadiq and al-Kirkhi from the Hanafi school, as well as others, held that the impermissibility of looking at improperly clothed women was not applicable in countries of central Asia since they did not wear the hijab and lowering one’s gaze became difficult if not impossible. In his book al-Ghiyathi Imam al-Juwaini stipulated the conditions of the age of ignorance making it clear what people are meant to do in the absence of mujtahids, then in the absence of religious scholars, then in the absence of the sources of the law.
What scholars of juristic methodology, like al-Razi in the al-Mahsul, referred to in their books as ‘rational abrogation,’ which is the result of the disappearance of the object (al-mahal) in the ruling, is linked to this. This is a more exact term for, according to the consensus of the community, reason cannot abrogate firmly established rulings, rather the ruling is not implemented if its object has vanished. For example, the command to make ablutions made washing the hands to the elbow one of its integrals, but if one’s arm has been amputated this becomes impossible; the case is similar with such rulings as those based on having slaves, the greater khilafa, or using gold and silver coins.
6) In order to arrive at the implementations of the legal rulings that God intended by them, and obedience to God and His messenger we must understand the reality [in which we live]. The advice [given to] David’s people is related in Shu’b al-Iman according to Wahb ibn Munabih, “The intelligent person should have knowledge of his time, hold his tongue, and embrace his role.”3
It follows that the jurists clearly stated that rulings change with the change of times if they were originally based on custom (the text of article 90 of Majalah al-Ahkam al-‘Adliyah). In the sphere of monetary transactions, the Hanafi school permitted invalid transactions [conducted] in non-Muslim lands, so the ruling changed in accordance with the change in location. The legal maxim states, “Necessity permits the impermissible,” which is taken from His saying But he who is driven by necessity, neither craving nor transgressing, it is no sin for him. Lo! God is Forgiving, Merciful,4 makes circumstances change with a change in conditions. These rulings also change with a change in persons; rulings pertaining to actual people possessed of reason are different from those pertaining to an artificial legal person (al-shakhsiyah al-‘itibariyah) who do not possess reason. These four aspects of time, place, persons, and states are those that al-Qarafi sited as being aspects of change that must be taken into consideration when rulings are being applied to reality.
It is well known that in this age of ours yesterday does not survive, and today does not live through tomorrow. There are many reasons for this, such as mass communication, transportation, and modern technologies, all of which have made it such that it is as if people are living in one village; also the exponential growth in population which has not decreased since 1830, as well as the intellectual disciplines which have been developed in order to realize the interior states of human beings, or their roles as members of society, or as beings living under the conditions that we have mentioned. The characteristics of this age have changed many concepts, such as the concept of contracts, liability, delivery of goods, usufruct, and legal politics. We must realize all of this in order for the greater goals of the shar’iah not to be lost.
7) We can examine the attempts of modern Islamic countries to implement corporal punishments:
i) We find that Saudi Arabia implements corporal punishment directly through Islamic courts without legal texts formulated as laws for a criminal penal code. The Saudi implementation of corporal punishment is firmly established and there are no effective calls or approaches to cancel or halt it, even if there are some calls from those who oppose the [Saudi] political system seeking to regulate its procedures describing the current system as being unjust and an infringement on human rights.
ii) Then there is the situation of Pakistan, Sudan, one of the states of Nigeria, one of the states of Malaysia, and Iran whose legal codes include Islamic corporal punishment. The practical application of corporal punishment has been halted in Pakistan, its cessation occurred in Sudan after the reign of al-Namiri, it has been halted in Iran and Malaysia, and is implemented in one state of Nigeria in an extremely limited manner. In all of these countries castigation (ta’zir) is commonly used instead of implementing corporal punishment (hudud) except in the case of crimes that necessitate execution.
iii) The rest of the Islamic countries, which number 57 out of the 196 countries in the world, remained silent in their legal code on the issue of corporal punishment (hudud). The perspective adopted in this case is that our age is one of general uncertainty, and the Prophet said, “Avert [the implementation of] corporal punishments by means of uncertainties.”5 Also the witnesses who are legally eligible to establish criminal activity that necessitates corporal punishment have not existed for a long time. Al-Tanukhi relates in his book Mashawir al-Muhadirah, “A judge used to enter a district or a village and find forty witnesses of the sort with whom we are satisfied as to their being just and accurate, while today a judge enters a town and only finds one or two witnesses.”6 And our age can generally be described as one in which there are no witnesses.
Investigations undertaken to arrive at the truth, which lead to the implementation of corporal punishments, are not part of the method of the shari’ah. Ma’iz confessed [to having committed fornication], and the Prophet turned his face away from him four times, then he turned him over to his family with the hopes that they would testify that he was mentally impaired or insane, then he came up with loopholes for him, and when Ma’iz recanted while the punishment was being carried out, the Prophet said to ‘Umar, “Why didn’t you let him go?”7 The scholars understood from this that it is permissible to go back on one’s confession as long as it has to do with the rights of God, as opposed to the rights of man. Also, the Prophet never asked about the other party to the crime, nor did he seek her out even as a kind of completion to the investigation. It has also been narrated concerning Abu Bakr, ‘Umar, Abu Darda’, and Abu Hurayrah that thieves would be brought to them and they would say, “Have you stolen? Say, ‘No’.”8
The textual evidence for corporal punishments essentially indicates the greatness of the sin for which the punishments were legislated; that they are enormous and grotesque crimes that require this severe punishment. This results in preventing people from committing these crimes, as God says, With this doth Allah appal His bondmen. O My bondmen, therefor fear Me! [39:16]. In this regard corporal punishments help complete the social order that is born of the dominant culture of viewing these sins as enormous and repudiating those who have been known to commit them, have made their sins public, or exhibited pride in committing them. At the same time the shari’ah left the door of repentance open and enjoined the concealment [of sin] in many texts from the Qur’an and the Sunnah.
With this brief overview we have shown the legal origins and description of the implementation of the Shari’ah, as well as the way in which this is played out in reality, and the place of corporal punishments therein.