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King Abdulaziz University

Research and Consulting Institute


Muallim Muhammad 'Awad
Bin Laden Chair of Qur'anic Studies

The Series of "Replying to Anti-Islamic


Allegations"
(3)

A Reply to the Allegation


Objecting to Punishment
as per Islamic Law

Prepared by

Professor Hekmat Bin Basheer


Bin Yaseen
Muallim Muhammad Awad Bin Laden Chair
of Qur'anic Studies

Translated by: Tamer Muhammad Saleem

Revised by: Dr. Khaled Tawfik

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Introduction

All praise is due to the Lord of the Worlds, and peace and
blessings be upon Allah's Messenger Muhammad and all those
loyal to him.

To commence, this research paper comes as a reply to "the


Allegation Objecting to Punishment as per Islamic Law", within the
series of "Replying to Allegations"; one of the works by Bin Laden
Chair for Qur'anic Studies.

At the end of this introduction, I would like to express deep


thanks to the sponsors of this Chair. May the Mercy of Allah
Almighty be upon the father of those in charge of the Chair,
Mu'allim Muhammad 'Awad Bin Laden, after whose name our
Chair has been named! Special thanks are also due to Director of
the Post-Millennium Development Program, Professor Abdur-
Rahman Khamakhim, for his blessed efforts, concern with and
appreciation of the Chair. I would also like to extend thanks to the
University President, Professor Usamah Bin Sadeq Tayyib, the
University Vice President for Business and Cognitive Creativity,
Ahmad Bin Hamid Naqadi, the Dean of the Research and
Consulting Institute, 'Abdul-Malek Bin Ali Al-Juneidi, and Vice
Deans, Professor 'Abdullah Bin Ahmad Al-Ghamedi and Professor
Haitham Bin Hasan Lingawi. Thanks also go to the members of the
KAU Scientific Chairs Research Committee.

Let me also express deep gratitude to Chair Supervisor,


Professor Muhammad Bin Abdullah Al-Halawani, who exerted
praiseworthy efforts in this research paper. I also thank Assistant

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Researcher, Sheikh Ibraheem Bin Muhammad Awwal, who typed
this research paper.

Allah Almighty is the Source of all success!

Professor Hekmat Bin Basheer Bin Yaseen

Mu'allim Muhammad 'Awad Bin Laden Chair of Qur'anic Studies

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Replying to the Allegation

Objecting to Punishment as per Islamic Law

Allah Almighty created humankind, revealed the Qur'an with


rulings with which life affairs can be managed properly. Such rulings
include the administration of punishment according to Islamic Law,
which so much contributes to the fulfillment of the five objectives of
Islamic Law: The preservation of faith, life, money and property, mental
faculties and honor. Indeed, the administration of punishment according
to Islamic Law insures all these prerequisites from various angles.

Despite this serious approach to preserving these five


prerequisites, some groups of positive law makers make much fuss and
stir tumultuous controversies criticizing the wise Qur'anic rulings,
describing them as backward or claiming that they hinder human
resources development, mutilate some parts of the human body and
undermine human dignity. The reply to these allegations comes in the
following six points:

First: The Few Cases Requiring the Administration of Islamic Law


Punishment:

The cases in which Islamic Law punishment is to be administered


are limited. Some reckon that the rulings on Islamic Law punitive
measures are as many as those on prayer. The truth is there are
hundreds of Islamic Law rulings, but only seven of which define the cases
requiring punitive measures in Islam: Herabah (i.e., banditry or armed
robbery), apostatizing, aggression, fornication, slander, theft and
drinking alcoholics. The related punitive measures are to be taken only
after certain stages and the observation of strict restrictions, only if any
of the above-mentioned sins is for sure committed, providing proofs
against the one accused of committing them by way of confession or

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testimony for example. In the case of fornication, the administration of
Islamic punishment required having four witnesses, provided they are
trustworthy and beyond accusation. This is to insure the proper
investigation of truth, certainty and taking precautions with that number
of witnesses peculiar to the crime of fornication.

The wisdom of that is that Allah Almighty pleases that His


servants' sins remain concealed. Also the crime of fornication is
committed by two; so it seems that each of whom must have two
witnesses testifying against him/her for punishment to be
administered.1

Ibn Al-Qayyem, may he rest in peace, said that out of Allah's


utmost Wisdom and Mercy, He has not ordained punishment for sinners
without proving their sins and He would not chastise them in the
Hereafter without proving their sins for them. Ibn Al-Qayyem added that
the proofs to be provided for them are either by way of confession or
showing how their states of affairs attest to their being sinners, or
providing other uncontested proofs out of their hands, provided justice
and integrity. He went on saying that the human mind and instinct
cannot find any better methods; they cannot introduce better ones to
serve people's interests in a better way.2

Here is an example of the rare cases of punishing fornication


according to Islamic Law; since the punishment for fornication was
revealed in the Qur'an, it has never been heard that such punishment
was administered according to the four-witness condition. Also no
woman has ever been punished for fornication without her confessing to
it, even if witnesses witness against her, as in the case of imprecation. In
an authentic Saying by Prophet Muhammad, peace and blessings be
upon him (PBUH), he did not punish a woman in the incident of
imprecation. The story goes as follows: Hilal bin Umayyah accused his
wife of committing illegal sexual intercourse with Sharik bin Sahma' and
filed the case before the Prophet. The Prophet said (to Hilal), "Either you
bring forth a proof (four witnesses) or you will receive the legal
punishment (lashes) on your back." Hilal said, "O Allah's messenger! If
anyone of us saw a man over his wife, would he go to seek witnesses?"
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The Prophet kept on saying, "Either you bring forth the witnesses or you
will receive the legal punishment (lashes) on your back." Hilal then said,
"By Him Who sent you with the Truth, I am telling the truth and Allah
will reveal to you what will save my back from legal punishment." Then
Gabriel came down and revealed to him:-'As for those who accuse their
wives...'' (The Qur'an, 24:6-9) The Prophet recited it till he reached: ''...
(her accuser) is telling the truth.'' Then the Prophet left and sent for the
woman, and Hilal went (and brought) her and then took the oaths
(confirming the claim). The Prophet was saying, "Allah knows that one of
you is a liar, so will any of you repent?" Then the woman got up and
took the oaths and when she was going to take the fifth one, the people
stopped her and said, "It (the fifth oath) will definitely bring Allah's curse
on you (if you are guilty)." So she hesitated and recoiled (from taking the
oath) so much that we thought that she would withdraw her denial. But
then she said, "I will not dishonor my family all through these days," and
carried on (the process of taking oaths). The Prophet then said, "Watch
her; if she delivers a black-eyed child with big (Sabigh) hips and fat
(Khadallaj) shins then it is Sharik bin Sahma's child." Later she delivered a
child of that description. So the Prophet said, "If the case had not been
settled by Allah's Law, I would have punished her severely."3

The lesson derived from this Saying is about respecting women


and their status, and not disregarding a woman's words or killing her,
even though she is proven a liar.

Even if fornication is proven through confession, and the


fornicator is stoned, still, s/he may ask the one stoning him/her to stop it
so s/he may speak to defend himself/herself and in this case, the stoning
process must stop and s/he must be heard to see whether or not his/her
words clear him/her.

In an authentic Saying, Ma'iz ibn Malik escaped while being stoned


to death and Prophet Muhammad (PBUH) said to the Companions
stoning him, "Why did not you let him go?"4

Ibn Ishaq's version, which has a sound chain of narrators, reads,


"When we came out with him, stoned him and he felt the effect of the

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stones, he cried: 'O people! Return me to the Messenger of Allah
(PBUH). My people killed me and deceived me; they told me that the
Messenger of Allah (PBUH) would not kill me.' We did not keep away
from him till we killed him. When we returned to the Messenger of Allah
and informed him of it, he said: 'Why did you not leave him alone and
bring him to me?' and he said this so that the Messenger of Allah (PBUH)
might ascertain it from him."5

Legal Expert, Professor Abdullah bin Ash-Sheikh Mahfouz bin


Beyyah said, "The ultimate objective and most sublime goal of criminal
legislations is to decrease and prevent crime to preserve human rights
to life and security, and to preserving one's property and protect one's
progeny. Such rights are not sufficiently observed in positive criminal
codes; their success and failure are measured by their ability to preserve
these rights."

As Islamic Law strictly fights aggression against these rights by


strongly punishing them, it also provides windows for some of those
committing grave crimes to redress their mistakes, which clearly
indicates that prescribed punishment basically aims at correcting
outlaws and reforming society.6

Second: The Non-Implementation of Islamic Punitive Rules in


Cases of Force Majeure or Uncertainty:

Punitive measures prescribed in Islamic Law are not to be taken in


cases of force majeure or uncertainty; punishment is not to be
administered in Islam particularly in cases of necessity, compulsion,
hunger or poverty. The Qur'an bounds in many related verses such as:
"He has forbidden to you only carrion, and blood, and the flesh of swine,
and that over which any name other than God’s has been invoked; but if
one is driven by necessity – neither coveting it nor exceeding his
immediate need – no sin shall be upon him: for, behold, Allah is All-
Forgiving, Most Gracious." (The Qur'an, 2:173). Allah also says, "In all
that has been revealed unto me, I do not find anything forbidden to eat,
if one wants to eat thereof, unless it be carrion, or blood poured forth,
or the flesh of swine – for that, behold, is loathsome – or a sinful offering

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over which any name other than God’s has been invoked. But if one is
driven by necessity – neither coveting it nor exceeding his immediate
need – then [know that], behold, your Lord is All-Forgiving, Most
Gracious." (The Qur'an, 6:145).

Al-Qortubi said, "Necessity may be due to compulsion by an


aggressor or hunger in famine."

Regarding the meaning of the previous verse, the majority of


scholars of Jurisprudence and religion hold that it refers to the one
struck by penury and starvation, which is the correct view.

It was also said that it refers to those compelled and forced to eat
these unlawful items.

Mujahid said, "It refers to the one compelled to do so as is the


case of a man captured by the enemy that would compel him to eat pork
or other things forbidden by Allah Almighty; compulsion makes this
permissible until it is over."

As for famine, it may, or may not, be permanent; if permanent, it


goes without saying that one may eat a carcass until s/he feels full, but it
is not permissible for one to eat it if he7 @ 10‫ال ٌخاف فٌه قطعا مال مسلم ص‬

In an authentic Saying, Abu Waqid Al-Laithy said, "I said, 'O Allah's
Messenger! We are in a land where we are afflicted with makmasah, so
what dead meat is permissible for us (as food)?' He said, 'If you do not
Tastabihu, do not Taghtabiqu and do not cook pot herbs, or beans@
Tahtafi'u, then you may do whatever you want with it."8

Al-'Ayni said, " 'makhmasah' means 'having a lean stomach


because of hunger'. 'If you do not Tastabihu' means 'if you do not have
food by day'. 'do not Taghtabiqu' means 'do not have food by night'. 'do
not Tahtafi'u' or 'do not tajtafi'u' means 'do not cook it and serve it'; this
word, in Arabic, derives from the stem word 'jafa'a', which is a verb used
to describe a pot when the food cooked in it produces foam and
unwanted substances, and the Arabic entry word of this verb is
composed of three letters: j )‫ (جٌم‬and f )‫ (فاء‬and a' )‫(همزة‬. 'then you may

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do whatever you want with it.' means 'you are free to eat that food
without restrictions.' "9

In an authentic Saying, Prophet Muhammad (PBUH) said, "Verily


Allah has pardoned my Nation for their mistakes, their forgetfulness, and
that which they have been forced to do under duress."10

So, the one forced to fornicate is not to be punished in Islam. Also,


the punishment for theft in Islam is not administered in many cases such
as starvation, as was the case during the Year of Famine (Ar-Ramadah) at
the time of 'Umar ibn Al-Khattab, may Allah be pleased with him!

Al-Hafez ibn Rajab said, " 'mistake' implies doing an act with the
intention of something but ending up, unintentionally, doing something
other than the intended one like intending to kill an infidel and ending
up, unintentionally, killing a Muslim.

As for 'forgetfulness', it implies remembering something, yet


forgetting it on doing it. Both are forgiven i.e., they are not regarded as
sins, but the state of being no sin does not negate the existence of a
certain ruling on forgetfulness.

This is just like the case of the one who forgot to perform ablution
and prayed thinking he performed it; by so doing, he is not a sinner, but
if it was found out that he prayed while in a state of ritual impurity, he
would have to repeat the prayer."11

Ibn Hajar said, "The sin committed by mistake, or due to


forgetfulness, or due to compulsion is forgiven, as unanimously agreed
upon by scholars of religion. They rather disagree on whether it is that
sin or the ruling on it that is disregarded, or both. The indication of the
last Saying and the related consequent actions, such as murder, have a
separate proof."12

Al-Hafez Ibn Rajab said, "The Ruling on the case of being forced to
do something: It is of two types:

First: One may have no choice at all and be unable to abstain from
sinning, like the one who is carried by force and compelled to enter a

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place, having sworn not to enter it, or the one who is carried by force
and has his body used to beat some person to death, while one has no
ability to abstain from doing so… Such a person is not a sinner, as
unanimously agreed upon by scholars of religion. This case does not
imply breaking his oath, according to the majority of scholars.

Second: If one is ordered to beat someone or do other sinful acts,


and one does it indeed, this act has to do with discernment-based
accountability i.e., one may not do that act as he has the choice, but in
doing it, one's purpose is not the action per se, rather one does it
seeking to avert harm. In this case, one has the choice, yet does not
actually have it. Thus, scholars of religion disagree on whether or not
one is held accountable for such a deed."

Scholars also agree that if one is forced to kill a person who did
nothing religiously entailing his being killed, one is not allowed to kill
him/her; one will be killing him/her choosing to spare oneself@. This is
according to the consensus of reliable scholars.13

As for the case of being forced to utter certain words, scholars


agree on its permissibility; if one is forced to say religiously unlawful
words just to save his/her life, one won't be a sinner as Allah Almighty
says, "… save him who is forced thereto and whose heart is still content
with the Faith…" (The Qur'an, 16:106).

As for the narration in which Prophet Muhammad (PBUH)


commanded a group of his Companions saying, "Do not associate
anyone with Allah even if you are cut into pieces and roasted on fire…",
it refers to associating anyone with Allah deep in the heart, as Allah
Almighty says, "But if they strive with thee to make thee ascribe unto
Me as partner that of which thou hast no knowledge, then obey them
not. Consort with them in the world kindly…" (The Qur'an, 31:15). Allah
also says, "… but whosoever’s breast is expanded in unbelief, upon them
shall rest anger from God…" (The Qur'an, 16:106).14

In this regard, Dr. Wahbah Az-Zuhaili studied cases of necessity


and concluded that they are fourteen cases related to nutrition i.e.
hunger and thirst, medication, compulsion, forgetfulness, ignorance,
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hardship or unease, general calamity, travel, sickness and natural
defect.15

All these cases have certain rulings, licenses, facilitations and


excuses. Out of the greatness of this religion, it takes into consideration
such cases, which is indicative its inherent tolerance, forgiveness and
ease for people, instead of restriction, rigidity and unease.

French Jurist L'Ambert also said that the theory of necessity in


Islamic Jurisprudence is stricter and more comprehensive than a notion
whose origin lies in the general international law; in the theory of
variable conditions (provided that the state of affairs does not change),
and in the French Administrative Judiciary, in the force majeure theory,
and in the English judiciary, namely in the flexibility added to the theory
of the non-fulfillment of obligations under the pressure of economic
conditions caused by war, and in the US constitutional judiciary, namely
in the theory of accidental events.16

It also can be noticed that the German legal school and the French
Anglo-Saxon one are influenced by Islamic Jurisprudence when it comes
to the theory of legal necessity in Islamic Law; Dr. Az-Zuhaili said that the
theory of necessity in the general law is based on the same bases of the
right to legal defense in the criminal law, for a state's defending itself is
just like a person's defending himself/herself against the dangers
threatening him/her. That is why Orientalist Louis Yong said, "Still, there
are many things that Westerns should learn from the Islamic civilization,
such as their tolerance, anti-racism, colour, or religion."17

Hence, this Prophetic Saying is concerned with force majeure


cases that people might encounter and sets an important rule which
benefits legal specialists.

In this respect, grand Scholar Al-'Ezz ibn 'Abdus-Salam cited crucial


rules concerning the cases of necessity saying, in the Chapter titled,
"Ijtima' Al-Mafasid Al-Mujarradah min Al-Masaleh" that if mere
corruptive factors exist together and they can be averted, then they
must be averted, and if they cannot be all averted, then the most
corruptive and the most vicious factor is to be handled first, then come
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the less corruptive and less vicious ones. Ibn 'Abdus-Salam added that if
they are all equal, this may require deliberation and making a choice,
given that there may be different views on such cases of equality and
variations. He further added that in this regard, unlawful and
undesirable acts of corruption are all similar. He also cited instances of
cases of existence of various corruptive elements at a time: The first is
the case of a Muslim forced to kill another Muslim, given that if s/he
refuses to do so, s/he will be killed. So s/he is to must avert the
corruptive factor of homicide by patiently accepting his/her own murder
because patiently accepting being killed is less corruptive than killing
another person. But if one can avert harm by whatever means, one must
do it, so long as one is capable of averting the act of corruption. He also
noted that averting homicide through such patience is given precedence
due to religion scholars' unanimous agreement on the prohibition of
homicide and their disagreement on one's accepting being murdered.
Thus, it is a must to give precedence to averting the act of corruption,
given the unanimous agreement on the necessity of averting it, over
averting an act of corruption if scholars disagree on the obligation of
averting it. Ibn 'Abdus-Salam went on explaining that if one is forced to
fornicate or get engaged in sodomy, scholars disagree on the
permissibility of patience in this case, given that it goes without saying
that fornication and sodomy are prohibited. He also indicated that if one
is forced under a threat of murder, to give a false testimony or give a
wrongful verdict, and one knows that such a forced testimony or verdict
would lead to killing an innocent person, or cutting off part of his/her
body, or turning an unlawful sexual intercourse into a lawful one, that
testimony and that verdict become impermissible, for one's accepting
one's own murder is given precedence over causing the murder of
another innocent Muslim or cutting off part of his/her body without
him/her committing a crime entailing that, or turning an unlawful sexual
relation into a lawful one. Ibn 'Abdus-Salam then highlighted that if the
forced testimony or verdict are to encroach upon a person's right to a
property or money, one is to do so through the testimony or the verdict
just to save one's life, just as is the case of preserving it by way of
usurping others' money. He concluded that if one is forced to drink wine,

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or if one gets choked and finds nothing but wine to drink to rid him/her
of the choke, he is not to accept death because in Islamic Law,
preserving life is more important than avoiding such prohibited acts.

The second instance is if one is forced to usurp the money of


another person, one is to do so as the latter sin is less grave than getting
killed; getting murdered is more serious than illicitly taking the money of
another person. This is based on the rule of giving precedence to one
interest over another; this is a frequent case in Islamic Law.18

In light of the above-mentioned, it is clear that Prophet


Muhammad's Sunna cares about the sanctity of the human body and
protecting it from being harmed by many punitive measures prescribed
in Islamic Law. Actually, it reduces the cases of taking such measures
whenever there is a lack of certainty.

Moreover, whenever there was a crime entailing Islamic punitive


measures, Prophet Muhammad (PBUH) would consider the proofs; if he
found no proof, he would not administer punishment. So, uncertainty
would prevent punishment, as in the story of imprecation, that will be
mentioned on discussing women's rights in the eighth research paper,
and as in the case of the Muslim murdered amid the Jews of Khaibar;
uncertain about the identity of the murderer, Prophet Muhammad
(PBUH) paid the blood money i.e., a hundred camels, to the bereaved.19

This indicates that uncertainty prevents punishment, which is a


well-known Jurisprudential rule. Here is a relevant authentic quote by
Ibn Mas'oud: "Spare Muslims flogging and killing as much as possible!"20

In an authentic Saying, Abu Hurairah said, "A man came to Allah's


Messenger (PBUH) while he was in the mosque, and he called him,
saying, 'O Allah's Messenger! I have fornicated.' The Prophet turned his
face to the other side, but that man repeated his statement four times,
and after he bore witness against himself four times, the Prophet (PBUH)
called him, saying, 'Are you mad?' The man said, 'No.' The Prophet
(PBUH) said, 'Are you married?' The man said, 'Yes.' Then the Prophet
(PBUH) said, 'Take him away and stone him to death.'21

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An-Nawawy said, "The Prophet (PBUH) said, 'Are you mad?' to
make sure of the man's condition as usually, no one takes such a
decision entailing one's death without being asked about one's
condition, given that the man could have just repented to obliterate his
sin. In the other version, Prophet Muhammad (PBUH) asked the man's
people about him and they said they knew there was nothing wrong
with him. This is an extra check of the man's condition aiming at
preserving Muslim lives. This also shows that an insane person's
confession is invalid and so, such a person is not to be punished. All
these rules are agreed upon by scholars of religion. The Prophet's saying,
'Are you married?' indicates that the leader must observe the conditions
of stoning e.g., is the fornicator married or not and so forth, be this
through the fornicator's confession or a clear proof. This also shows that
one can be held accountable based on one's own confession.22

In an authentic Saying, Ma'iz ibn Malik admitted that he had


committed adultery and Prophet Muhammad (PBUH) said, "You might
have kissed or caressed her or you might have looked at her with lust
(and so assumed that you committed adultery)". Ma'iz replied in the
negative. He (PBUH) bluntly said, "Did you have sexual intercourse with
her?" and Ma'iz said, "Yes". At this point, Prophet Muhammad (PBUH)
ordered that he be stoned.23

An-Nawawy said, "The Prophet (PBUH) said, 'You might have' and
Ma'iz answered in the negative. This implies that the Prophet (PBUH)
wanted to make him reconsider his confession to adultery trying to find
him an excuse to stone him not. Another version reads, 'You might have
kissed or caressed her or you might have looked at her with lust (and so
assumed that you committed adultery)'. In the first version, the Prophet
(PBUH) just said, 'You might have' as a shortened form of speech, or to
stress uncertainty or because these words and the whole situation
suffice to express the intended words unmentioned i.e., 'You might have
kissed…' This Saying indicates the desirability of informing the one
making such confession of the punishment for adultery or theft or any
other crime entailing punishment as prescribed by Allah Almighty. It also
shows that it is acceptable that the one making the confession goes back

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on his/her confession because the legislation on punitive measures in
Islam pays heed to ease and prevention of punishment, so long as the
crime committed does not violate the rights of people or the financial
duties ordained by Allah such as Zakat (Obligatory Charity), Kaffarah
(compensatory act or payment) and others; in these latter cases, there is
no room for making one reconsider his/her confession and even if one
goes back on one's confession with regard to such cases, it cannot be
accepted. The notion of informing confessors to reconsider their
confessions to avoid punishment is a tradition of Prophet Muhammad
(PBUH), and his rightly-Guided Successors and scholars of religion
unanimously followed their lead.24

Muslim's version reads, "Ma'iz ibn Malik came to Allah's


Messenger (PBUH) and said to him: 'Messenger of Allah, purify me!'
whereupon he (PBUH) said: 'Woe be upon you, go back, ask forgiveness
of Allah and turn to Him in repentance!' He (the narrator) said that he
went back not far, then came and said: 'Allah's Messenger, purify me!'
whereupon Allah's Messenger (PBUH) said: 'Woe be upon you, go back
and ask forgiveness of Allah and turn to Him in repentance!' He (the
narrator) said that he went back not far, when he came and said: 'Allah's
Messenger, purify me!' Allah's Messenger (PBUH) said as he had said
before. When it was the fourth time, Allah's Messenger (PBUH) said:
'From what am I to purify you?' He said: 'From adultery.' "25

This Saying indicates that no punishment is to be administered


without making a confession four times, which is equal to having four
witnesses. It also shows that the leader must make certain of the sanity
of the confessor.

An-Nawawy said, "The version of 'Ma'iz ibn Malik came to Allah's


Messenger (PBUH) and said to him: 'Messenger of Allah, purify me!'
whereupon he (PBUH) said: 'Woe be upon you, go back, ask forgiveness
of Allah and turn to Him in repentance!' He (the narrator) said that he
went back not far, then came and said: 'Allah's Messenger, purify me!' is
similar to the version of the Ghamidi woman who said to the Prophet
(PBUH), 'Purify me!' and he (PBUH) said to her, 'Woe be upon you, go
back, ask forgiveness of Allah and turn to Him in repentance!' All this
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proves that punishment obliterates the sin of disobedience to Allah. This
is explicitly mentioned in the Saying reported by Ubadah ibn As-Samet,
may Allah be pleased with him, in which Allah's messenger (PBUH) said,
"… whoever commits any of these sins and is punished for it in this
world, this will be an expiation for him." There is no disagreement on
that and this Saying proves repentance obliterates cardinal sins as
agreed upon by all Muslim scholars, except for what was mentioned
about Ibn 'Abbas regarding the particular case of a murderer's
repentance, and Allah knows best.

Some might wonder why Ma'iz and the Ghamidi woman were not
satisfied with repentance on its own, albeit serving their ultimate goal,
which is having their sins obliterated, which was insured by their
repentance anyway, given that the administration of the punishment
prescribed in Islam was conditional on the order of Prophet Muhammad
(PBUH). This is because it was dreaded that their repentance might not
be sincere and one of its conditions might not be met, which should
have kept their sins perpetually unforgiven. So, they wanted to insure
that they would get rid of their sins to make no room for doubt, and
Allah knows best!26

As for bearing witness that someone has committed adultery,


this requires bringing four witnesses known for fairness and integrity. If
only three witnesses say someone committed adultery, the three of
them must be flogged as punishment. This happened at the time of
'Umar ibn Al-Khattab, may Allah be pleased with him, when Abu Bakrah,
Nafi' and Shebl ibn Ma'bad witnessed that Al-Mughirah ibn Shu'bah
committed adultery; 'Umar punished them for slander because the
fourth witness, Zeyad, did not show up for testimony.27

Prophet Muhammad's Companions also followed his approach to


averting the administration of prescribed punishment; 'Umar ibn Al-
Khattab, may Allah be pleased with him, averted taking some punitive
measures. Once, a single woman was brought to him as she gave birth to
a baby; 'Umar inquired about her case and she said that she was a
heavy-headed woman and a man slept with her while she was asleep.

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She explained that she had not woken up until he was done with her.
Thus, 'Umar did not punish her.28

In an authentic saying by 'Umar, he said, "Making mistakes in


Islamic punitive measures i.e. not administering punishment, due to
uncertainty is to me more preferable than administering punishment
over uncertainty."29

In an authentic Saying, Ibn (Son of) 'Abbas, may Allah be pleased


with them both, said: "A mad woman who had committed adultery was
brought to 'Umar. He sought counsel from the people regarding her, and
then ordered that she be stoned. 'Ali ibn Abi Talib passed by her and
asked: 'What is the matter with her?' The people said: 'She is a mad
woman of such-and-such a tribe and has committed adultery, and 'Umar
has ordered that she be stoned'. He said: 'Take her back'; then he went
to him and said: 'Do you not know that the pen (recording deeds) has
been lifted from (i.e. not recording the deeds of) the mad person until
he is sane, from the one asleep until he awakes, and from the child until
he attains puberty?' 'Umar said, 'Definitely!", 'Ali said, 'So, what is the
matter with her?' 'Umar said, 'Nothing.' and he freed her." He said, 'He
started saying, 'Allah is the Greatest'."30

Al-Khattaby said, " 'Umar did not order that a mad woman be
stoned as the mad are not to be stoned and it is not possible that he did
not know that rule and the same applies to those who were present
woth him, but that particular woman had fits of madness and she was
sometimes aware of her acts. So 'Umar was of the view that she should
not be excused for her fits of madness believing that she consciously
committed adultery. But Ali was of the view that madness makes room
for uncertainty and so, a mad person could be excused on sinning i.e.,
uncertainty makes no room for punishment. He dreaded that she might
have committed that sin in a fit of madness. So, both Ali and 'Umar
agreed on that view based on independent reasoning and spared her
punishment…"31

There are Jurisprudential rules on cases of uncertainty requiring


the non-administration of punishment; these were specified by Sultan of

16
Scholars Al-'Ezz ibn 'Abdus-Salam who said that the cases of uncertainty
that require the non-administration of punishment are three: The first is
related to the one committing the sin as is the case of a man having
sexual intercourse with a woman whom he thinks to be his wife or slave
girl. The second is related to the woman whom one has sexual
intercourse with as is the case of more than one man sharing one slave
girl with each having sexual intercourse with her. The third is related to
the reason allowing one to have sexual intercourse with a woman as is
the case of a marriage whose validity is controversial.

As to the first case of uncertainty, the one who has sexual


intercourse with the woman is not to be punished because he is not a
sinner and the offspring he begets out of such a relationship is legitimate
and the post-marital waiting period (better known as 'Eddah in Arabic) is
to be observed by the woman with whom he had sexual intercourse
while he is to pay her the dowry. As regards the second case, there is no
room for punishment because possessing the slave girl allows him to
have sexual intercourse with her. But at the same time, because
someone else shares the slave girl with him, that might make the
former's intercourse with her unlawful. Thus, the corruptive factor here
is less grave than mere adultery. Also if one eats a loaf of bread which he
shares with another person, one will be a sinner due to eating the share
of that other person rather than eating one's own share; such a sin is
technically known as the means-based sin. Also if a man of authority kills
a perpetrator without the consent of the perpetrator's partners in the
crime, that man of authority will be a sinner, but no revenge is to be
taken on him and his sin won't be equal to that of him who kills a
murderer who has no partners. Moreover, the means used to reach ends
are not rewarded as much as the ends themselves. For example if one
misses one of two obligatory prayers, one must perform both, given that
he won't be rewarded for the means of doing so as much as for the
obligatory one@. So, he may perform both prayers with one dry ablution
(Tayammum) according to the opinion approved most by scholars. As for
the third case, certainty has nothing to do with scholars' disagreement,
but it has to do with the cancellation of punishment due to uncertainty,
for the maximum benefit lies in humans' fulfillment of their worship
17
obligation towards their Lord, given that prescribed penalties are
preventive methods and they are not to be utilized unless the corruptive
factor fully exists.32

Hence, the previous Sayings involve practical examples which


indicate and observe the right to preserving lives and caring about them
by way of avoiding the administration of punishment. They also make it
clear that it is permissible to abstain from taking punitive measures in
cases of uncertainty; uncertainty or non-confessing to sinning entail the
no-administration of punishment.

Also, in many theft cases, thieves' hands are not to be cut off, as
indicated hereunder:

1. In an authentic Saying, Prophet Muhammad (PBUH) said, "There is no


cutting - of the hand - unless the thing stolen is worth a fourth of a Dinar
or more."

2. In another authentic Saying, he (PBUH) said, "There is no cutting of


hands for stealing fruits and Kathr@." Abu Dawoud said, " '@Al-Kathr'
(in Arabic) means 'Al-Jumar', literally a kind of palm tree fatty
substance." 33

3. Also, if one steals money in public, not stealthily, one's hands are not
to be cut off as the Prophet (PBUH) said in an authentic Saying, "There is
no cutting off of a hand for him who loots.@ And he who loots
something known for public does not belong to us."

4. In another authentic Saying, he (PBUH) said, "A traitor's hand is not to


be cut off."

5. He (PBUH) also said, "There is no cutting of a hand for him who


embezzles."34

As-Saharnafoury said, "There is no cutting of hands in these two


cases because cutting the hands off has been confirmed in texts on cases
of theft, looting and embezzlement, but betrayal is not theft; looting
does not imply stealing in secret and betrayal does not imply stealing
something guarded."35

18
6.Also if some theft takes place during a travel, the thief's hand is not to
be cut off. In an authentic Saying, Junadah ibn Abu Umayyah said, "We
were with Busr ibn Arta'ah at sea when a stealer called Mesdar was
brought; he had stolen a Bukhteyyah. He said, "I heard Allah's
Messenger (PBUH) say, 'There is no cutting of hands during a travel, and
had it not been for that, I would have cut his hands off."36

"Bukhteyyah" is an Arabic word meaning a she-camel from


Khurasan known for long necks.37

7.Also a slave's hand would not be cut off if he stole from his master's
money.

8.A father's hand is not to be cut off if he steals from his son's money.

9.A partner's hand is not be cut off if he steals from his other partner's
money.

10. A creditor's hand is not to be cut off if he steals from his debtor's
money.38

All such cases fall into the previous category of cases in which
punishment is not administered and hands are not cut off out of caring
about the human body and reducing the cases of amputating the hands.

Reverend Sheikh Bin Beyyah said, "The pure Islamic Law, with its
major concern with social safety, provides individuals definite
guarantees, not only in terms of avoiding punishment due to
uncertainties, which is a rule that extends to include penalties,
particularly in morality-related crimes and the mere Divine rights, but
also in terms of judicial procedures and the methods for evidencing. It
prevents judges from judging people according to their own knowledge,
stipulating fairness and soundness, and a minimum of two persons in
certain morality-related cases. Islamic law has also allowed the people
accused to invalidate witnesses' testimonies during litigations, making it
imperative for litigants and witnesses to give solemn oaths, which is an
obligation, and abrogated forced confession, only recognizing confession
made voluntarily, optionally and freely, setting certain conditions for
those in charge of the judiciary such as knowledge, piety, integrity,
19
uprightness and the rest of the criteria cited in the books of rulings and
Jurisdiction."39

Third: Taking precautions such as prevention of crimes, thus needing no


punishment:

The Qur'an and Sunnah abound in great precautionary measures


such as those related to murder:

1. Intimidating the one committing homicide as Allah Almighty says, "If a


man kills a believer intentionally, his recompense is Hell, to abide therein
(For ever): And the wrath and the curse of God are upon him, and a
dreadful penalty is prepared for him." (The Qur'an, 4:93).

2. Prohibiting animosity and grudge as mentioned in an authentic


Prophetic Saying that reads, "Do not fall into rivalry and do not envy,
hate or turn away from one another. And be the servants of Allah as
brothers."40

3. Prohibiting envy and spying on one another as in the verse: "…and do


not spy upon one another…" (The Qur'an, 49:12).

4. Prohibiting mockery as Allah says, "O ye who believe! Let not some
men among you laugh at others: It may be that the (latter) are better
than the (former): Nor let some women laugh at others: It may be that
the (latter are better than the (former): Nor defame nor be sarcastic to
each other, nor call each other by (offensive) nicknames: Ill-seeming is a
name connoting wickedness, (to be used of one) after he has believed:
And those who do not desist are (indeed) doing wrong." (The Qur'an,
49:11).

5. Prohibiting anger as mentioned in an authentic Prophetic Saying that


reads: "Do not be angry!"41

6. Enjoining forgiveness and pardon as Allah says, "…do you pardon and
be forgiving, till God brings His command…" (The Qur'an, 2:109).

7.Enjoining leniency in all affairs, as mentioned in a Prophetic Saying that


says, "Whenever leniency is applied to something, it beautifies it;
when it is removed from anything it makes it ugly."42
20
8. Banning the carrying of arms unless for a legitimate purpose as
mentioned by Prophet Muhammad (PBUH) in an authentic Saying: "He
who carries arms against us does not belong to us."43

9. Enjoining reconciliation in disputes as Allah Almighty says, "So fear


God, and keep straight the relations between yourselves…" (The Qur'an,
8:1).

10. Enjoining justice in judgment as Allah Almighty says, "God commands


justice, the doing of good…" (The Qur'an, 16:90).

11. Argument in the best fashion as Allah Almighty says, "Say to My


servants that they should (only) say those things that are best…" (The
Qur'an, 17:53).

12. Warning of the possibility of arms' being unsafe as Prophet


Muhammad (PBUH) said in authentic Saying, ""If anyone of you passed
through our mosque or through our market while carrying arrows, he
should hold the iron heads," or said, "... he should hold (their heads)
firmly with his hand lest he should injure one of the Muslims with it."44

13. Warning of the frivolous use of arms as an authentic Prophetic


Saying reads: ""None of you should point out towards his Muslim
brother with a weapon, for he does not know, Satan may tempt him to
hit him and thus he would fall into a pit of fire (Hell)."45

14. Taking care of arms as Allah Almighty says, "But it shall not be wrong
for you to lay down your arms [while you pray] if you are troubled by
rain or if you are ill; but [always] be fully prepared against danger." (The
Qur'an, 4:102).

15. Seeking Allah's refuge from Satan's temptations driving one to


commit the crime of murder as it was reported that Prophet
Muhammad (PBUH) said, "Anger is from Satan, and Satan is created from
fire. Only water can put out fire, so when any of you is angry, he should
perform his ablution."46

Fourth: Defective positive penal codes:

21
Comparative studies and accurate statistics prove that positive
penal codes, no matter how much they are amended and changed, are
trivial and useless as those who make such laws possess but little
knowledge as Allah Almighty says, "of knowledge it is only a little that is
communicated to you…" (The Qur'an, 17:85). Al-Khidr said to Moses,
peace be upon them both, "I have knowledge given to me by Allah which
you do not know, and you have other knowledge given to you by Allah
which I do not know…" Moreover, a bird once perched on the edge of
the ship on which Moses and Al-Khidr were travelling, and it dipped its
beak into the sea to sip some water. Al-Khidr said to Moses, "My
knowledge and your knowledge… in comparison to the Knowledge of
Allah, is like what this bird has removed from the sea!"47
Coversely, the Knowledge of Allah has encompassed all His
creatures. Hence, the Law made by the Creator suits His creatures best
simply because He knows them best, and knows the proprieties, rulings,
and the invitation and intimidation methods that fit in with them. These
Divine rules include the punitive measures prescribed in Islamic Law
concerning aggressors, adulterers, thieves, apostates, those who commit
Herabah, slanderers and drinking alcoholics.
Such rules are abandoned in the whole world, even in the Muslim
World, except for those to whom Allah has shown mercy. Comparing
those societies observing Allah's rulings and prescribed punishment to
those ones disregarding such wise deterrents that prevent crime, one
can realize Allah's great Wisdom.
Take for example the KSA's experience in the implementation of
Islamic Law and its unsurpassed success in the administration of Islamic
punishment! The KSA has achieved remarkable success in this field by
eradicating the forms of looting, robbery, murder and ignorance. This is
beside the establishment of security, and justice and enjoining good and
forbidding evil.
That is why one finds the ratio of crimes there is so small;
according to the 1416 A.H. statistics, that ratio was .32/1000 people. On
the other hand, in some other countries, the ratio of crimes is mani-fold
that number: (77.26) in Spain, (41.71) in Western Germany, (20.08) in
Italy, (60.52) in Denmark, (32.27) in France, (75.00) in Australia, (75.00)
in Canada, (12.42) in Korea, (10.72) in Ghana, (4.74) in Kenya and (1.47)
in Indonesia.48
This shows the big difference between those countries governed
by positive law on the one hand, and the KSA that is governed by Islamic
Law, which proves that the latter is the Truth and the KSA experience is

22
pioneering, especially if more attention is paid to preventive security
measures to be taken to prevent crime as this should further decrease
its ratio.
The Republic of Sudan tried to imitate that blessed experience,
since starting to implement the rulings of Islamic Law, the Sudan has
witnessed a tangible decline in the ratio of murders as it decreased
almost by one half. In 1402 A.H., the number of crimes there reached
(1155), in 1403 A.H., the number was (670), in 1404 A.H., it became
(663) according to a field study supported by accurate statistics.49
In Egypt, some laws are compatible with Islamic Law as is the
case of combating drug traffic, which had a major effect represented in
the big decrease in drug crimes. In this regard, law no. 21/1928 A.D. was
made to set a heavier penalty for drug possession, which led to a
decrease in the ratio of narcotics crimes; it kept decreasing year after
year: in 1926 A.D., the number of crimes was (21113) and in 1928-1929,
it became (11404) i.e., the number decreased by almost one half. It
further decreased to (8599) in 1929-1930, then to (1922) in 1936-1937
i.e. it decreased to the tenth. It also decreased to (1628) in 1942-1943.50
As for those countries plagued with the anarchy of positive laws,
the ratio of crimes is on the rise and even enters new phases. Hence,
paying heed to religion reduces such crimes. In "The Journal of Criminal
Law and Criminology" by Pierre Bouzat and Jean Pinatei, P.199-203, it is
mentioned that due to the spread of education and the betterment of
economic conditions for broad sections of society, homicides have
become characterized by trickery rather than violence. The authors cite
some other factors including the rural @ effect on the rising number of
homicides and the role of religion in reducing them. They also mention a
study conducted by legal Orientalist M. Th. Sllin on the relation
between activating capital punishment and cancelling it on the one
hand, and the level of crimes on the other. The authors also mention
'Ezzat 'Abdul-Fattah's study that revealed that the cases of homicides
in Canada since 1962 A.D. has escalated within a trend of general
escalation of violence crimes.51
Such statements by those French experts confirm the upward
trend in crimes with the passage of time and even recognize the role of
religion in decreasing them. So would the world nations understand the
words of these experts?!
An important proof of the rise in the rate of financial crimes is the
report of the Arab International Organization for Social Defence, which
was prepared by the Head of the Family Research Unit of the National

23
Center for Social and Criminal Research, Cairo, Egypt, Dr. Mahmud
'Abdul-Qadir. Page 43 and the following pages of the report read:
"The rate of monetary crimes is rising together with the process of
economic development; the chances of monetary crimes increase when
the society is more productive, complex, civilized and industrialized.
Thus, a high percentage of juveniles' and youths' crimes in most
countries has an economic nature e.g. theft, embezzlement… forgery of
official documents, currencies or coins, drug smuggling, kidnap for
ransom, bribe and black-market crimes…"52
In fact, juveniles have played a big role in such crimes; Dr.
Salahud-Deen 'Abdul-Met'al said, "Definite statistics in some Arab
countries (Syria, Lebanon, Iraq, Jordan and Egypt) reveal that crimes of
theft, assaults and sexual abuse as well as cases of homelessness,
particularly amid juveniles, are noticeable phenomena whose ratio is
constantly on the rise from one year to the other."53
All the previous statistics and data are based on cases of arrests
and filed reports. As for the unreported cases, they are many times
more than the previous cases. Professor 'Abdus-Sabour Shaheen said,
"Out of reading crime research papers, one notices that they always
confirm that the official statistics and criminals' records do not represent
the original size of criminals' community, for there are crimes committed
by anonymous people and others are unperceivable i.e., police and
arrest efforts do not detect them and their victims do not report them."
In his research on "The Relation between Crime and Social Changes", Dr.
Salahud-Deen 'Abdul-Met'al provides an example of such facts with
regard to theft crimes; the ratio of victims who were robbed before
finally reporting their being robbery victims is 75% of those frequently
robbed.54
Undoubtedly, the punishment stipulated in positive laws do not
intimidate or deter criminals, rather, they are more likely to tempt them
to commit crimes!
As for the crimes of homosexuality, in some US states, the result
of such crimes was contracting AIDS; the number of infected cases was
231 in 1981 A.D. The number annually increased to hit 17,050 in 1985
A.D.55 That increase came only in four years, not to mention the 20 years
that followed that date.
Dr. Muhammad Ali Al-Bar said, "Socialsit reformist revolutions, to
cap it all, further increased crime rates."56
In his research and expectations, Crime motives expert, Dr.
Abdullah Mu'aweyah, concluded the following: "It is taken for granted

24
that for example, the ratio of crimes in which guns are used will increase
while the ratio of crimes in which sharp tools and others are used will
decrease, so long as such state-of-the-art weapons continue to be
imported and spread among citizens. Also the rising ratio of crimes
committed by females in a number of Arab countries as a by-product,
yet inevitable outcome, of girls' and women's shouldering
responsibilities and playing new roles in the fields of education, work
and participation in public life; such crimes are expected to steadily
increase… it is also expected that there will be a development in crime
forms due to technological development; particularly in the field of
media and the news broadcast regarding various kinds of crime and the
cinema films in which crimes are well-planned. Despite the few number
of such in the samples surveyed, papers provide relevant news revealing
that some well-planned murder crimes such as stores robbery started to
be committed here and there in some areas in the Arab World."57
Given that escalation in crime rates and the defective remedies,
what consequences would one expect from those worthless positive
laws in the future?! Certainly, they will lead to a public humanitarian
catastrophe because of the evil plaguing societies and its rapid spread.
Indeed, such a plague heralds the destruction of humanity, good and the
evil people, because in an authentic Saying, infallible Prophet
Muhammad said that the increase in corruption would lead to nations'
destruction. Zainab bint Jahsh reported that one day Allah's Messenger
(PBUH) came out in a state of excitement with his face quite red. And he
was saying: "There is no god but Allah; woe betide Arabs because of the
turmoil which is near at hand as the barrier of Gog and Magog has been
opened like it." He (in order to explain it) made a ring with the help o his
thumb and forefinger. She said: "Allah's Messenger, would we be
destroyed despite the fact that there would be pious people amongst
us?" He said: "Yes, when the evil would predominate." 58
Therefore, a society's adhering to Islamic Law insures its survival;
the Muslim Nation will remain in a good condition, provided it observes
the sanctity of Islamic Law so that it can help all Muslims and non-
Muslims for them to escape the grave ramifications of abandoning
Allah's rulings and replacing them by fable human views. Allah says,
"Allah would make the burden light for you, for man was created weak."
(The Qur'an, 4:28). It is noteworthy that there are major differences
between the results of punishment in Islam and those of positive laws

25
punishment. Such differences were reviewed by Professor Rawyah
Ahmad Az-Zahhar as follows:

1. The criminal and penal code in Islamic Law aims at protecting the
morals of society from acts undermining them; Islam calls for sublime
morality. Verily, the call for morality is one of the greatest missions of
Prophets as Prophet Muhammad (PBUH) said, "Indeed, I have been sent
to perfect noble manners."59 So, morality is the very core of the Islamic
methodology which is to be perceived from a holistic point of view that
comprises individuals and the whole society.

On the other hand, positive laws' conception of morality is so


limited and defective. They do not pay heed to good manners or to
protecting individuals and society. What proves this argument is the fact
that such laws do not punish adultery in cases of involved parties'
consent which denotes that they do not regard adultery as a vice. They
also do not penalize drinking alcoholics unless this causes harm to
others.

The reason for such a narrow-minded view is the fact that the
makers of those positive moral laws are after all humans who are prone
to being driven by their caprice and whims, giving precedence to their
materialistic gain over all principles, thus manipulating their power and
authorities to impose such laws serving their personal interests. This
contradicts the moral codes set by the Great Creator Who knows all
human tendencies and whimsical desires, and knows how to tame them
to protect humans. So, the societies governed by Islamic Law are more
secure and stable and the crime ratio there is less than that in societies
implementing positive laws, where various kinds of crimes are
widespread, and spiritual and moral values are degraded and are
overwhelmed by materialistic values and utilitarian views.

2. The rulings of Islamic Law on crimes and penalties are viable at all
times and places. In other words, they are constant because their Maker
is Allah, Exalted be He, the Omniscient Lord Who knows all humans'
affairs and knows what is best for them in religion and life, and how to
insure for them a happy enjoyable life so long as humans exist.

26
As opposed to this, man-made laws are constantly vulnerable to
changes; their faults come to be noticed over time, simply because they
are the product of mortals' limited knowledge. Add to this, their change
is conditional on the change in the legislative authorities controlled by
caprice, ambitions, personal goals and individual interests.

Hence, establishing justice and stability necessitates the existence


of constant scales and rules on dealing with criminalization and
punishment; they are not change with the change of authorities to best
insure that everyone remains well aware of one's rights and duties, what
to do and what not to do, and what acts are punished and what are not.

So the validity of any law is measured according to the extent of


assurance it lends to souls; a goal that cannot be sufficiently attained
except via Divine Laws. They cannot be only attained by having the men
of law agreeing that there is neither a crime nor punishment without a
text, for such a text, in that context, is susceptible to change and
alteration due to the change in rulers and regimes. That is why such
rules have no real value without a constant holy text; one that is far
from the human touch and binding to all. This cannot be achieved so
long as laws are man-made. But the previous rule can be of some value
in establishing justice and stability, if the relevant text speaks for the Will
of the Creator whose absolute Wisdom and ultimate Justice can never
be contested by any sane person.

The crystal-clear evidence of this fact is the status quo of humanity, even
though the above-mentioned rule has been endorsed since the French
revolution and adopted by the UN in the Universal Declaration of Human
Rights.

The motive behind ratifying this rule is to prevent rulers from


wronging their peoples by giving people an opportunity to criminalize
and punish according to their personal whims, yet the question is: Was
justice established after the stipulation of that rule? Did stability and
security prevail? Was injustice stopped?

It is a fact that only a small part of these objectives could be


achieved, yet injustice remained defiant. This is because those
27
authoritative groups of people that were supposed to be prevented
from doing injustice managed, through secret schemes, to play with
rulers and legal texts, thus controlling the source of legislations
specifying crimes and punishment; why not if they are the very
lawmakers?!

One should not be taken in by statements like "people are the


lawmakers" as most of the decisions made in the name of the people
never represent their true will. There is no single human community that
is not controlled by certain groups of authority under whatever slogans.
So the rule that says, "There is no crime, no punishment, without a text"
is attributed to those very people who were supposed to be stopped
from despotically wronging people; ironically, they become the very
source of legislation, thus being the opponent and the judge, both at a
time.

Surely, the origin of such corruption in positive laws lies in having


the legislative rules decided by human beings blinded by whims and
personal desires.

As for Islamic Law, its source is the God in control of everything,


which means that no human, no matter his/her status, is entitled to
decide what is lawful and what is not, to add or diminish, to change or
alter rulings on his/her own.

This is evident in the aspect of punishment as the penalties for the


most serious and common crimes have been already specified and
measured in Islamic Law, which allows no one to manipulate them. As to
the rest of the crimes, judges have broad powers to assess their
penalties, but still, within the broad principles of Islamic Law, and
provided that their verdicts insure the interests of the Muslim Nation,
beside many other legal restrictions. Moreover, judges can, by no way,
exceed the already-prescribed limits of punishment for such serious
crimes.

3. Linking Islamic Law, with regard to crime and punishment, to


individuals' dogmas, given the fact that it is based on the principle of
reward and punishment and it represents a religious obligation for which
28
one gets rewarded if observing it and gets punished in the Hereafter if
abandoning it, makes such a Law revered in souls and held in awe and
respect deep down hearts, which helps have it activated and applied
with people's consent and satisfaction, without them feeling wronged or
oppressed.

The high degree of rulers' and subjects' adherence to the


implementation of Islamic Law is unmatched by any man-made law. This
is because the implementation of Islamic Law on the part of rulers and
subjects' resorting to it during litigations is a religious duty for which
they get rewarded and which keeps them closer to Allah.

This explains why Muslims at the time of Prophet Muhammad


(PBUH) tended to confess their crimes and get fully punished for them,
no matter how severe the punishment might be. They did so believing
that the One Who set such penalties is Allah Almighty, bearing in mind
that the chastisement of the Hereafter is severer and graver. They did so
out of the belief that punishment in life would purge away whatever sins
or crimes they might have committed, which would lend them
psychological comfort and a sense of reassurance that would help them
repent and be upright to head for the Hereafter free from all their
burdensome sins and the related punishment.

On the other hand, positive laws, mostly made by rulers, are set to
serve their own interests and gains. That is why people's respect for such
laws is much less than their respect for the Divine rules; the makers of
such laws lack the self-confidence qualifications such as absolute
knowledge, absolute justice, absolute integrity, and absolute
impartiality, for such attributes are not possessed by any mortal being,
rather they belong only to the Maker of the Universe.

4. The penal code in Islam suits the human nature because it has been
set by the One Who fashioned that nature, the One Who knows the
complexity of human souls, the One Who knows what best deters them
and prevent them from committing crimes; "Is it (imaginable) that He
Who has created (them) will not have (such) knowledge, while He is the
Knower of the finest things, the All-Aware?" (The Qur'an, 67:14).

29
As a matter of fact, Islamic Law best suits the human nature, since
this very nature is affected by all hasty and speedy matters, although
their effect might be of a value less than things occurring slowly or
taking a long time. In other words, human souls crave for sooner joys,
sacrificing worthier benefits in the long run. Such far-reaching benefits
yet to be achieved are more important than hasty ones and likewise, the
human soul dreads speedy pain that is to be inflicted upon it soon, even
though its effect or harm is much less than that pain the soul might
suffer later on, in the long run.

Given that the quick administration of physical punishment results


in quick effects, merely thinking of them before committing a crime
suffices for normal humans to abstain from such a crime. That is why the
legislation of such punitive measures has major far-reaching effects
leading to decreasing crimes and deterring those who have criminal
intentions before actually committing crimes.

Now that punishment in Islamic Law best fits the human nature,
such a Law stipulates that the key penalties are mostly physical i.e.
involving physical pain, while some others are financial, as opposed to
positive laws in which punishment is based on ridding people of freedom
and other forms of penalties which are all far from the human nature.
So, they do not have an active effect on individuals and society.

Fifth: The Administration of Islamic Punishment Is a Key Factor in


Preserving the Five Prerequisites:

These prerequisites have to do with preserving Faith, lives,


progeny, money and property, and mind. Imam Ash-Shatebi explained in
detail the objectives Allah insures by setting rules. Ash-Shatebi
mentioned that the obligations in Islamic Law aim at preserving its
objectives amid creatures; such objectives are prerequisites i.e. they are
necessary for insuring the both Faith-related and life-related interests.
Thus, if one of these necessities is missing, such interests won't be
served comme il faut, rather, they will be corrupted and lack order.
These objectives include five things, better known as the five necessities

30
i.e., preserving Faith, lives, progeny, money and property, and mind. To
preserve these five, two things are to be done:

First: Insuring their foundations and their being well established


i.e. making sure they exist by doing whatever is necessary for their being
well established.

Second: Insuring factors that prevent potential or existing defects


by way of making such defects non-existent by avoiding what might help
them exist. As far s Faith is concerned, the rules which Allah has set, and
which must exist to preserve it, are belief, uttering the Two Sentences of
the Testification of Faith (literally, I testify that there is no God but Allah
and that Muhammad is Allah's Messenger) and the rest of the pillars of
Islam. As for the things that are not exist so as to preserve Faith, they
are Jihad and punishing those calling for Bida' (i.e., innovations in
religion).

The rules which have been set, and which must exist, to preserve
lives are related to originally allowing eating, drinking and settling in a
domicile, which are all prerequisites for survival. The preventive
measures stipulated by Allah to preserve lives are like the penalty of
paying blood money and taking revenge.

The rules that must exist to preserve progeny are related to


marriage, custody and expenses, while the rules related to the things
that must not exist to preserve progeny are related to the prohibition of
adultery, and slander and punishing them.

The rules which have been set, and which must exist, to preserve
minds are similar to those necessary for preserving lives e.g. eating food
as this is necessary to preserve lives and mental faculties, while the rules
set as preventive measures to preserve minds are related to the
prohibition of all that negatively affects one's mind (such as alcoholics
and narcotics) and punishing those who take them.

The rules which have been set, and which must exist, to preserve
money and property are related to the original forms of dealings among

31
people, while the preventive measures preserving them are related to
the prohibition of theft and punishing it.60

Learned Scholar Ibn Beyyah said, "Consequently, if the fuss made


about the harshness of Islam concerning the crimes violating moral
codes takes into consideration the comprehensive Islamic approach
represented in the non-referral of cases to courts in the first place,
enjoining the concealment of sins, repentance, with its healing effect,
and the difficulty in proving that a sin was actually committed, that
bewilderment will turn into admiration, and that disgust (at Isamic Law)
into pride, and one will realize that a heavy penalty is in fact a threat to
deter criminals and protect society."61

Sixth: Divine Faiths' Agreement on Administering Religious Punishment:

Considering penalties in faiths and religious laws before Prophet


Muhammad's Mission, one finds them in agreement with those of Islam
and many of their rulings are similar to those of Islam, as is clear in the
Torah, the Bible, the Faith of Prophet Noah (PBUH), the Books of
Prophet Abraham (PBUH) and Prophet Moses (PBUH), as well as the
Roman law as in the codes of Justinian; most of them are taken from the
Torah and the Bible as indicated in the appendixes.

From Chapter 19 to Chapter 31 in the Torah, one finds texts full of


commandments and laws prohibiting murder, theft, unlawful sexual
intercourse, false testimonies… and enjoining the killing of murderers
and the one who beats his parents or curses them, and kidnappers. One
also finds in them rulings on revenge such as an life for life, eye for eye,
tooth for tooth, hand for hand, foot for foot, burn for burn, wound for
wound, stripe for stripe, killing those who present offerings to other
gods and killing the one who has sexual intercourse with an animal,
keeping witches away, and if a man steals an ox or a sheep and
slaughters it or sells it, he shall pay five oxen for the ox and four sheep
for the sheep, and allowing the owner of the money or stolen items to
kill the robber.

"The Book of Exodus" makes it obligatory to kill the one who


curses one's parents, or has unlawful sexual intercourse, or kills the one
32
with whom he had intercourse or a gay who kills his sexual partner after
having sex with him, and kill the one who has sex with a beast and the
beast itself, and kill the woman who has sex with a beast and kill the
beast itself, and kill the one who offers his seed to Molech62, be him an
Israelite or one of the strangers and those who come to live with them.
It also makes it obligatory to kill those who are inclined towards those
who have familiar spirits63 and wizards and every man and woman who
have familiar spirits and wizards; all those are to be stoned to death. It
also obligates that the daughter of any priest, if she profane herself by
playing the whore, is to be burnt.64

In "The Book of Deuteronomy", Chapter 22, there is a legislation


concerning the case in which the tokens of virginity are not found for a
damsel married by a man. And if that man's case turns out to be untrue,
he will be amerced a hundred shekels and she shall be his wife; he may
not put her away all his days. But if she is not found a maid, she will be
stoned to death. There is also another legislation on a man's lying with
an engaged virgin in the city with her consent; both are to be stoned.
But if he lies with her in a desert, he alone is to be killed, for in this case,
the maid should have refused and cried for help, yet found no rescue. As
for the case of a man who lies with a girl who is no engaged, he is to pay
her father 50 shekels of silver, marry her and he may not put her away
all his days.65

In Dt. 24, 25, 26 and 27, there are various rulings such as
instructing that the one who kidnaps an Israelite and treats him as a
slave is to be killed.

It also includes a ruling allowing magistrates to order that sinners


be flogged with 40 lashes, no more… and a ruling stating that a woman
who seizes the genitals of a male opponent to help her husband in a
struggle shall have her hand cut off.66

As for the Bible, it also comprises the same source of guidance


and light and conforms to the Torah; Alah Almighty says, "And We sent,
following in their footsteps, Jesus son of Mary, confirming the Torah
before him and We gave to him the Gospel, wherein is guidance and

33
light, and confirming the Torah before it, as a guidance and an
admonition unto the God-fearing." (The Qur'an, 5:46). Dr. Ahmad
Shalabi also cited some points of agreement among these Books such as
the prohibition of murder, unlawful intercourse, theft and false
testimonies.67

Looking at the laws and covenants derived from Divine Books,


before their being distorted, before Islam i.e., those of the Romans, the
Greeks and others, and what is mentioned in the Qur'an and Sunnah
about the Laws of earlier Prophets and Messengers as in the Scrolls of
Abraham (PBUH) and Moses (PBUH), one finds a lot of such Laws
congruent with Islamic Law; Allah says, "He hath ordained for you that
religion which He commended unto Noah, and that which We inspire in
thee (Muhammad), and that which We commended unto Abraham and
Moses and Jesus, saying: Establish the religion, and be not divided
therein. Dreadful for the idolaters is that unto which thou callest them.
Allah chooseth for Himself whom He will, and guideth unto Himself him
who turneth (toward Him). And they were not divided until after the
knowledge came unto them, through rivalry among themselves; and had
it not been for a Word that had already gone forth from thy Lord for an
appointed term, it surely had been judged between them. And those who
were made to inherit the Scripture after them are verily in hopeless
doubt concerning it. Unto this, then, summon (O Muhammad). And be
thou upright as thou art commanded, and follow not their lusts, but say:
I believe in whatever scripture Allah hath sent down, and I am
commanded to be just among you. Allah is our Lord and your Lord. Unto
us our works and unto you your works; no argument between us and
you. Allah will bring us together, and unto Him is the journeying." (The
Qur'an, 42:13-15). So, we, Muslims, perceive that the laws Allah has
ordained for us were ordained for previous peoples at the times of
Noah, Abraham, Moses and Jesus, Allah's peace and blessings be upon
them all, as mentioned in these verses.

In the Qur'an (87:18-19), there are statements approving of what


has come in the Books of Prophets Abraham and Moses: "And this is in
the Books of the earliest (Revelation),- The Books of Abraham and

34
Moses.", which refers to the points elaborated in earlier verses in this
Qur'anic Chapter. Also, in the Qur'an (53: 36-38), Allah says, "Or has he
never yet been told of what was [said] in the revelations of Moses, and
of Abraham, who to his trust was true: that no bearer of burdens shall
be made to bear another’s burden…"

Learned fundamentalist Scholar Al-Ghazali stated that all divine


Faiths had no disagreement concerning the rules prohibiting disbelief,
killing, unlawful sexual intercourse, theft and taking intoxicants.68

This was reported by Sheikh Muhammad Abu Zahrah who also


made a comment saying that the key five interests that are prerequisites
for humans, which is an undisputed fact, and preserving them through
imposing penalties on those who violate their sanctities are things taken
for granted and neither minds nor Faiths disagree on them.69

As for the claims saying that such religious rulings on punishment


are unviable, leave behind handicapped people, put off their capacities,
and make harshness and oppression prevalent in societies, this totally
untrue. Rather, such rules on punishment are a compromise between
excess and negligence or slackness. Out of reading the history of nations'
civilizations, particularly, their criminal codes, one finds astounding
penalties that do not discriminate between adults and kids; in them,
even animals, the insane and inanimate objects are vulnerable to
punishment. Once, an eight-year-old was executed in England in the 18th
Century A.D. for murder. French Orientalist Paul Fauconnet cited a
package of proofs in his Dissertation entitled, "Responsibility: A
Sociological Study", investigating hypothetical conditions in which an
individual could be responsible. He provided proofs (based on the data
collected not only from primitive peoples, but also from communities
that were more organized until a recent time) stating that children, the
insane, and even animals and inanimate objects were often treated as
beings that could be held accountable and punished, and accordingly,
they might be convicted. Fauconnet said that animals' penal
accountability is not a primitive phenomenon that might vanish within
the course of civilization. He added that the exact opposite is almost
true as there are traces of that accountability in the major three
35
societies that witnessed the advent of today's civilization, namely the
Israelites, the Greeks and the Romans. He explained that for this reason,
one finds that, according to the instructions of the Torah, an ox that
gores someone to death is to be stoned and his meat is not to be eaten.
Fauconnet further added that this procedure is to be taken even if the
ox's owner confesses that the fault is his and is executed. He went on
saying that also Plato, in his laws, said, "And if a beast of burden or other
animal cause the death of any one… the kinsmen of the deceased shall…
let the beast when condemned be slain by them, and let them cast it
beyond the borders. And if any lifeless thing deprive a man of life… the
nearest of kin shall… cast forth the guilty thing beyond the border, as has
been said about the animals."

The same applies to Prehistoric Rome; the penalty for moving


fields' borders there was applicable both to humans and oxen.

Penalties reached their peak particularly in Christian Europe


where cases against animals emerged, first in 13th Century France, then
expanded like an oil slick in Central Europe. They continued until the 18th
Century, and even up to the 19th Century amid Slavic people in the
south.

As for children and mad people, the human conscience does not
always wrong them by making them vulnerable to penalties of various
degrees of seriousness, particularly in cases of murdering humans or
vendetta cases in which particular families are targeted. In the Twelve
Tablets Laws (the first written laws during the Roman era made by the
Decemviri (Ten Men) who made those laws in the 5th Century B.C. i.e.
450 B.C., and had them engraved on twelve tablets of bronze), one finds
a prepubescent child's accountability is light in some cases of felonies,
but they are not completely invalid. All prepubescent children were
treated in that law on equal footing. After the Twelve Tablets Laws,
there were developments that exempted young children from such
penalties, but such developments came late, maybe after the time of
Hadrian.

36
In 18th Century England, an eight-year-old boy was executed for
murder or making a fire.

In France, judges used to give ordinary verdicts against mad


people, and the parliament was authorized to make the sentences light
or cancelled. But when it came to the crime of offending the royal self,
there was no room for light sentences. This brings us to the first
conclusion that restricting punishment to normal grown-ups seems to be
the end of an epoch of evolution that witnessed gradual changes in the
concept of accountability.

According to the system of Draco (Lawgiver) of ancient Athens in


th
the 7 Century B.C., who stayed in Athens until the Roman Invasion,
committing a crime by mistake was punished by temporary exile.

In the oldest Roman laws i.e., the Twelve Tablets Laws, a victim
whose body part was cut off because of an unintentional felonious act
was allowed to take revenge if he did not accept blood money.

In the Chinese law, the one who killed by mistake or coincidence


was punished with 100 lashes and exiled.

In the Torah, the one who unintentionally commits homicide is


punished with some sort of exile and it is legally possible that a kinsman
of the murdered one kills the murderer if the latter leaves his exile
before the term specified. In the canon law i.e., Church laws made by an
ecclesiastical authority, redemptive suffering was imposed in many
years to absolve one of unintentional sins ignorantly committed.

In England, up to the early 19th century, the one who


unpremeditatedly committed homicide would be convicted and his
property and money confiscated, unless his prince showed mercy on
him. This last case is also manifest in the old French law.70 This is the
case of nations before and after Islam that came to insure the rights of
those who have them and, above all, insure the fulfillment of Muslims'
obligations towards Allah Almighty, given that fulfilling such obligations
best insures all forms of human rights.

37
These similarities between Islamic Law and that of the People of
the Scripture, particularly those undistorted, denote that Divine Faiths
share the same rulings, for they all come from the same source; Allah,
Exalted be He. But the People of the Scripture interpolated some rulings.
The best example of such similarities is the ruling on stoning the one
who has unlawful sexual intercourse; this ruling is explicitly mentioned in
the Torah as stated by Abdullah ibn Salam, Allah be pleased with him.

This does not imply that Islam is influenced by earlier rules of the
Romans or the People of the Scripture. Rather, the Book of Islam, the
great Holy Qur'an, came to encompass and dominate all previous Books,
being the last or seal of all Divine Books , which explains why it is viable
at all times and places. So, Allah Almighty says, "To thee We sent the
Scripture in truth, confirming the Scripture that came before it, and
guarding it in safety…" (The Qur'an, 5:48).

In his commentary on this verse, Imam At-Tabary said that the


words of Allah imply that He has revealed the Qur'an verifying the
preceding Divine Books which He revealed to His Prophets and "guarding
it in safety" implies that Allah revealed the Qur'an to Muhammad
verifying previous Books, bearing witness that they are truly from Allah,
guarding them and preserving them.71

In an authentic Saying, Ibn (Son of) 'Abbas, may Allah be


pleased with them both, commented on "and guarding it in safety"
explaining that "guarding" (literally "Muhaymen" in Arabic) means
"Ameen" (literally, "Trustworthy Keeper" in Arabic), which implies that
the Qur'an is entrusted with safeguarding all the Books before it.72

Western learned scholars and genius authorities versed in law and


human rights could not help being fascinated by the wise and merciful
rulings of Islamic Law. Indeed, they have praised the rulings of Islamic
Law, instructing that attention should be paid to such rulings to
formulate a unified law applicable to all peoples.

French Orientalist Marcel A. Boisard wondered if it would not be


realistic and progressive to believe in the human value, freedom and

38
will, and imagine the establishment of a law by which all peoples live,
stressing that Islam would contribute to the making of that law.73

"The World of Islam" Journal Editor-en-chef and German


Orientalist, Dr. G. Kampffmeyer74, said that attacking Islam is of no use,
and it would not make Muslims abandon their religion, and it would not
hamper the Islamic renaissance, rather, it would promote it.75

German Orientalist Erwin Graf also said that Islamic Jurisprudence


could benefit modern society.

Graf is also of the view that the principles of Islamic Jurisprudence


are not designed to suit one society in particular, which confounds the
claim that Islamic Jurisprudence is anti-progress.

He added that Islamic Law neither antagonizes life nor is


estranged from it, rather, it should be re- explored so it would meet new
needs and be adaptable by means of interpretation or analogy (i.e.,
Jurisprudential syllogism or analogy).76

Professor 'Allal Al-Fasi cites various related quotes for example,


he quoted Professor Gibbon as saying that Islamic Jurisprudence is
recognized from Oceania and the Atlantic to the Wang River as a
Constitution, not only of the fundamentals of religion, but also of
criminal and civil laws, and the legislations upon which the life of the
human race and the management of its affairs are based.

Also, Italian Law maker, La Caselli, urged the whole world to


derive its laws from Islamic Law because, according to him, it is more
compatible with the spirit of legal life and indeed, the Hague Conference
on Comparative Law ratified Islamic Law as the source of international
law.

In his "The Spirit of World Politics", Harvard Law Professor Hocking


wrote: "Islamic lands will not progress by merely imitating Western
arrangements and values. Can Islam produce fresh thinking,
independent laws and relevant statutes to fit the new needs raised by
modern society? Yes! - and more! Islam offers humanity greater
possibilities for advance than others can. Its lack is not ability - but the
39
will to use it. In reality the Shar'iya contains all the ingredients
needed."77

40
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41
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42
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43
End Notes

1. ‫ وسائل إثبات‬P. 160.


2. ‫ أعالم الموقعٌن عن رب العالمٌن‬2/119.
3. ‫ صحٌح البخاري‬8/303-304, Saying 4747, the Book of the Exegesis,
the Qur'an, 24, the same verse. "Sabigh" means "big" and
"khadallaj" means "fat".
4.Narrated by Ahmad, ibn Majah and at-Tirmidhi, and
authenticated by Al-Albani, ‫ إرواء الغلٌل‬28/8, Saying 2360.
5.Sheikh Al-Albani said, "This is a good chain of narrators", ‫إرواء‬
‫الغلٌل‬, 7/354.
6.‫ حوار عن بعد حول حقوق اإلنسان فً اإلسالم‬P.87.
7. ‫الجامع ألحكام القرآن‬, 2/225.
8.‫ المسند‬by Imam Ahmad ibn Hanbal, 5/218, Saying 21948. This is
an authentic chain of narrators according to the two Sheikhs i.e.,
Al-Bukhari and Muslim, ‫ عمدة القاري‬by Al-'Ayni, 21/143.
9. ‫عمدة القاري‬, 21/142-143.
10.Transmitted by Abu Dawoud in his ‫سنن‬, the Book of Penalties,
the Chapter on "The Penalty Intercedes on his Behalf", Saying
4375, reported by Al-Bukhari in ‫األدب المفرد‬, Saying 465, and by Ibn
Hibban in his ‫صحٌح‬, Al-Ehsan (literally, Perfection of Faith), Saying
1520, affirmed by Ibn Hajar and regarded by Salahud-Deen Al-
'Ala'I as sound chain of narrators. Consider ‫بذل المجهود‬, 17/316. It
was authenticated by Al-Albani according to his methods, ‫السلسلة‬
‫الصحٌحة‬, Saying 638.
11. ‫جامع العلوم والحكم فً شرح خمسٌن حدٌثا من جوامع الكلم‬, 2/366.
12. ‫فتح الباري‬, 5/161.
13. Ibid, 2/370-371.
14. Ibid, 2/372-373.
15. ‫نظرٌة الدولة الشرعٌة‬, P.73-74.
16.Ibid, P.315.
17. "The Arabs and Europe", P.10, quoted from, ‫قالوا عن اإلسالم‬
P.327.
18. ‫قواعد األحكام‬, 1/79-80.

44
19.‫صحٌح البخاري‬, the Book of Blood money, the Chapter of Oaths,
Saying 6898.
20.Transmitted by Ibn Abu Shaibah and Al-Baihaqi accordiong to
an authentic chain of narrators, ‫إرواء الغلٌل‬, 8/26.
21. ‫صحٌح البخاري‬, the Book of Penalties, the Chapter titled, "No
Mad Man and Mad Woman Are to Be Stoned",
Saying 6815.
22.‫صحٌح مسلم بشرح النووي‬, 11/193.
23.Transmitted by Ahmad in his ‫المسند‬, 1/338, and by Abu Dawoud
in his ‫سنن‬, Saying 4427, and it was authenticated by Al-Albani,
‫إرواء الغلٌل‬, 7/355.
24.‫صحٌح مسلم بشرح النووي‬, 11/195.
25. ‫صحٌح مسلم‬, the Book of Penalties, the Chapter entitled, "The
One Who Confesses to Having Had Unlawful Sexual Intercourse",
5/119.
26.‫صحٌح مسلم بشرح النووي‬, 11/195.
27.Transmitted by Al-Baihaqi in ‫السنن الكبرى‬, 8/334-335. It was
authenticated by Al-Albani, ‫إرواء الغلٌل‬, 8/29.
28.Transmitted by Al-Baihaqi in his ‫السنن الكبرى‬, 8/235. It was
authenticated by Al-Albani, ‫إرواء الغلٌل‬, 8/30.
29.As-Sakhawi said, "It was transmitted by Ibn Hazm in his ‫اإلٌصال‬
with an authentic chain of narrators, ‫المقاصد الحسنة‬, P.30.
30. ‫ السنن‬by Abu Dawoud, the Book of Penalties, the Chapter
entitled, "A Mad Person Who Steals or Commits a Sin Entailing
Punishment", Saying 4399. It was authenticated by Al-Albani in
‫صحٌح سنن أبً داوود‬, Saying 3699, and by Al-Arna'ut in his ‫جامع‬
‫األصول‬, 3/507.
31.‫ مختصر سنن أبً داوود‬by Al-Mundhiri, 6/229.
32.‫قواعد األحكام فً مصالح اآلنام‬, 2/137.
33.‫السنن‬, the Book of Penalties, the Chapter entitled, "Cases That
Do not Entail Cutting Hands off", Saying 4388. It was
authenticated by Al-Albani in ‫صحٌح سنن أبً داوود‬, Saying 3688.
34.These three versions were reported by Abu Dawoud in ‫السنن‬,
the Book of Penalties, the Chapter entitled, "Cutting off Hands as
Punishment for Stealth and Betrayl", Saying 4391-4393,

45
authenticated by Al-Albani in ‫صحٌح سنن أبً داوود‬, Saying 3690-
3692.
35.‫بذل المجهود‬, 17/339.
36.‫ السنن‬by Abu Dawoud, the Book of Penalties, the Chapter
entitled, "A Man Who Steals While Travelling…", Saying 4408. It
was authenticated by Al-Albani in ‫صحٌح سنن أبً داوود‬, Saying 3708.
37.‫بذل المجهود‬, 17/357.
38. ‫ أحكام القرآن‬by Ibn 'Arabi, 2/609, and ‫روائع البٌان فً تفسٌر آٌات‬
‫األحكام‬, 1/555.
39.‫حوار عن بعد‬
40.‫صحٌح البخاري‬
41.‫المسند‬, 16/68, Saying 10011.
42.‫صحٌح مسلم‬, 8/22, Saying 6767.
43.‫صحٌح البخاري‬, 6/2592, Saying 6660.
44.Ibid., 6/2592, Saying 6664.
45.Ibid., 6/2592, Saying 6661.
46.‫ السنن‬by Abu Dawoud, 2/664, Saying 4784.
47.An agreed-upon Saying, ‫صحٌح البخاري‬, the Book of the Exegesis,
the Qur'an, 18, Saying 4725, and ‫صحٌح مسلم‬, the Book of Virtues,
the Chapter on the Virtues of Al-Khidr, Saying 2380.
48.Statistics from ‫حقوق اإلنسان فً اإلسالم وتطبٌقاتها فً المملكة العربٌة‬
‫السعودٌة‬, by Professor Sulayman 'Abdur-Rahman Al-Huqayl, P.131-
132.
49. ً‫الدوافع إلى ارتكاب جرٌمة القتل فً الوطن العرب‬, P.93-94.
50.ً‫التشرٌع الجنائً اإلسالم‬, 1/715.
51.‫انظر الوافع الرتكاب جرٌمة القتل‬, P.60.
52.‫دستور األخالق فً القرآن‬, by Professor 'Abdus-Sabour Shaheen@ ‫ص‬
.‫ل‬, abridged.
53. ‫التغٌر االجتماعً فً البالد العربٌة وعالقته بالجرٌمة‬, P.55, quoted from
ibid.@‫صل ولط‬
54.Ibid., @‫صل ولط‬
55.Ibid. @‫ص ل و ل ط‬
56.‫األمراض الجنسٌة‬, P. 135.
57.ً‫الدافع إلى ارتكاب جرٌمة القتل فً الوطن العرب‬, P.268-269.

46
58.Transmitted by Muslim in his ‫صحٌح‬, the Book Pertaining to the
Temptations and Portents of the Last Hour, the Chapter entitled,
"The Nearing of Temptations", Saying 2880.
59.‫سلسلة األحادٌث الصحٌحة‬, 1/75.
60.‫الموافقات‬, 2/118-120, and 4/27-29.
61.‫حوار عن بعد‬, P.91.
62. A Canaanite god; it was a Canaanite ritual to present their
children to be burnt as offerings to win its pleasure, Ibid.
63."have familiar spirits" means "to be in contact with Jinn"; the
Book of "Leviticus", Chapter 20, reads, "'A man or woman who is
a medium of spirits among you must be put to death. You are to
stone them; their blood will be on their own heads.'". Consider
‫) الٌهودٌة‬1( ‫مقارنة األدٌان‬, P.297.
64. ‫تارٌخ بنً إسرائٌل من أسفارهم‬, PP.72, 78, and ‫) الٌهودٌة‬1 ( ‫مقارنة األدٌان‬,
P.296.
65.Ibid., P.104.
66.Ibid, P.106.
67.‫) المسٌحٌة‬2( ‫مقارنة األدٌان‬, P.229-230.
68.‫المستصفى‬, 1/288.
69.ً‫الجرٌمة والعقوبة فً الفقه اإلسالم‬, 2/41.
70.‫دستور األخالق فً القرآن‬, P.222-226.
71.‫جامع البٌان‬, 8/486.
72.Transmitted by At-Tabarani, 8/488, and Ibn Abu Hatim,
4/1150, and Al-Baihaqi in ‫األسماء والصفات‬, P.109; all narrations
relying on the version by Ali ibn Abu Talhah reported by Ibn
'Abbas.
73."L'Humanisme de l'Islam" by Marcel A. Boisard, a
Contemporary French Thinker and Man of Law who paid much
attention to the issue of international relations and human rights.
He wrote a number of research papers for conferences and
periodicals concerned with these two issues. (This text is quoted
from ‫قالوا عن اإلسالم‬, P.53).
74.Graduated from the Department of Oriental Languages,
Leipzig University@, and specialized in modern Islam and
contemporary Arabic,1936‫@ت‬. Consider ‫المستشرقون‬, 2/413.

47
‫@‪75.‬‬
‫‪, P.113-114.‬موسوعة المستشرقٌن‪76.‬‬
‫‪, 200.‬المقاصد الشرعٌة‪77.‬‬

‫‪48‬‬