What is the reason for the application of penalties for some sins?

Details of the Question

- What is the reason for the application of penalties for some sins? If a person regrets when he commits a crime and a sin, he is purified both in the world and in the hereafter in the knowledge and law of Allah. However, when he commits fornication, he is punished severely in the world even if he regrets. 

The Answer

Dear Brother / Sister,

1. Hadd penalties applied on people are laws imposed by Allah. Thus, when hadd penalties are applied, the orders of Allah are fulfilled.  

2. A hadd penalty applied on a person becomes an atonement for his sins. The Prophet (pbuh) said,

"Woe be upon you! Go back, ask forgiveness of Allah and turn to Him in repentance." Maiz returned without going away much and said, "O Messenger of Allah! Purify me!" The Prophet sent him away uttering the same words three times. When it was the fourth time, the Prophet said, "From what am I to purify you?" Maiz said, "From fornication!" The Prophet (pbuh) asked, "Does he have any mental illnesses?" They said he did not have any such illness. He asked, "Has he drunk wine?" A person stood up and smelt his breath but noticed no smell of wine. The Prophet (pbuh) asked again, “Have you committed fornication?” He said, “Yes.” He made pronouncement about Maiz and he was stoned to death.

After he was stoned to death, the Companions were divided into two groups about him. Some of them said Maiz had been destroyed while others said he had made the best repentance. This disagreement lasted for three days. Then, the Messenger of Allah (pbuh) came and said, “Pray for Maiz b. Malik. May Allah forgive Maiz b. Malik.” Then, the Prophet (pbuh) said, “Maiz made such a repentance that if that were to be divided among a people, it would be enough for all of them.” (Muslim, Hudud, 22; ash-Shawkani, Naylul-Awvtar, VII, 95,109; az-Zaylai, Nasbur-Raya, III, 314 ff)

3. Tazir penalties are applied for the haram deeds other than those for which hadd penalties are applied. For instance, a person who tells lies is not accepted as a witness; a person who does not perform prayers is imprisoned.

4. Some sins are not punished in this world but the doers of those sins will be punished in the hereafter if they do not repent. 

HADD PENALTIES

As a verb, hadd means to demarcate, to whet, to stare, to separate and to apply. As a noun, it means boundary, end, blade, definition and religious penalty. The plural form of hadd is hudud. As a legal term, hadds means Islamic criteria and the religious penalties whose boundaries of halal-haram, amounts and qualities imposed by the religion of Islam.

There are criteria showing whether the deeds responsible people (sane people who have reached the age of puberty) do are in accordance with the consent of Allah and His Messenger.

The criteria showing the value decree of the deeds responsible people do are as follows: Fard, wajib, sunnah, mustahab, halal, mubah, makruh, haram, sahih, fasid and batil. Every deed that a responsible person does is evaluated based on those criteria showing the religious boundaries. Consequently, he is punished or rewarded based on them; what he has done becomes either valid (sahih) or invalid (fasid, batil).

The general meaning of religious hadds is the criteria of halal-haram imposed by Allah. The following is stated after the decrees related to inheritance are explained in verse 12 of the chapter of an-Nisa: "Those are limits set by Allah: those who obey Allah and His Messenger will be admitted to Gardens with rivers flowing beneath, to abide therein (for ever) and that will be the supreme achievement. But those who disobey Allah and His Messenger and transgress His limits will be admitted to a Fire, to abide therein: And they shall have a humiliating punishment." (an-Nisa, 4/ 13, 14) In the verse, Allah's orders are expressed as ‘His limits’ and it is stated that those who transgress those limits will be punished.

Those who obey Allah’s orders and do not transgress those limits are happy people to whom Paradise is promised. Allah made a deal with them and purchased their lives and goods in return for Paradise. (at-Tawba, 9/111) "Those that turn (to Allah) in repentance; that serve Him, and praise Him; that wander in devotion to the cause of Allah,: that bow down and prostrate themselves in prayer; that enjoin good and forbid evil; and observe the limit set by Allah;- (These do rejoice). So proclaim the glad tidings to the Believers." (at-Tawba, 9/ 112)

Allah's limits of prohibitions are the deeds that He rendered haram. The deeds Allah rendered haram are divided into two as major and minor sins. (see an-Najm, 53/32; al-Kahf, 18/49)

There is no definite figure about the number of the major sins. A. Ziyaeddin Gümüşhânevî (d. 1311/ 1893) states in his book that the most appropriate number is 125 and explains them in his book one by one. (see Gafillerin Kurtuluş yolu. Translated by Ali Kemal Saran, İkbal Yayınları, Ankara, (no date))

The deeds that Allah rendered haram are expressed as "Allah's hima (wood)" in a hadith: "Both legal and illegal things are evident but in between them there are doubtful (suspicious) things and most of the people have no knowledge about them. So whoever saves himself from these suspicious things saves his religion and his honor. And whoever indulges in these suspicious things is like a shepherd who grazes (his animals) near the Hima (private pasture) of someone else and at any moment he is liable to get in it. (O people!) Beware! Every king has a Hima and the Hima of Allah on the earth is His illegal (forbidden) things. Beware! There is a piece of flesh in the body if it becomes good (reformed) the whole body becomes good but if it gets spoilt the whole body gets spoilt and that is the heart." (Riyadus-Salihin, 419, 420, M. Emre Translation)

As a term of Islamic penal code (Uqubat), hadds are "penalties imposed by Islam related to certain crimes". There are five crimes that necessitate had penalties: fornication, theft, drinking alcohol, accusing a chaste woman of fornication (slandering), waylaying (highway robbery).

In Islamic penal law, hadds are regarded as rights of Allah. That is, the crimes that necessitate hadd (penalty determined by Islam) are regarded as violation of the rights of the public. Qisas (retaliation) involves the rights of individuals; therefore, it is not called hadd. The penalties that were not determined by the Quran and the Sunnah and that are left to the judge are called tazir penalties: imprisonment, display, banishment, etc. (az-Zuhayli, al-Fiqhul-Islam wa Adillatuh, 2nd impression, Damascus 1405/1985, IV, 284 ff)

The hadd penalties except drinking alcohol were determined in the Quran; the hadd penalty for  drinking alcohol was determined in the Sunnah.

1. Hadd penalty for fornication (hadd for zina): It is stoning to death for a married man and woman, and flogging one hundred times for an unmarried man and woman: " The woman and the man guilty of adultery or fornication,- flog each of them with a hundred stripes: Let not compassion move you in their case, in a matter prescribed by Allah, if ye believe in Allah and the Last Day: and let a party of the Believers witness their punishment." (an-Nur, 24/2)

The penalty of stoning to death was determined by the practice of the Prophet: "A woman from Juhayna who had become pregnant because of fornication came to the Messenger of Allah and said, ‘O Messenger of Allah! I have done something that necessitates had penalty. Apply it on me.’ The Prophet (pbuh) summoned the woman’s guardian and said to him, ‘Treat her well! When she gives birth, bring her to me.’ He acted accordingly. Her clothes were tied around her and the Prophet commanded; she was stoned to death. Then, he performed janazah prayer for her. Thereupon Hz. Umar said, ‘O Messenger of Allah! You performed janazah prayer for her though she had committed fornication.’ The Messenger of Allah (pbuh) said, ‘She made such a repentance that if it were to be divided among seventy men of Madinah, it would be enough. Can you find any repentance better than this? She sacrificed her life for Allah.’” (Muslim Hudud 28; Ibn Majah, Diyat, 36' Malik, Muslim, Muwatta" Hudud, 11)

It is necessary for four just male witnesses to witness clearly in the presence of the judge for the penalty of fornication to be applied and it is necessary for the person who committed fornication to know that it is haram.

2. Hadd penalty for theft (hadd for sirqah):

If a person who is sane and has reached the age of puberty steals something amounting nisab from a place, it is called theft. Its penalty is stated in the Quran: "As to the thief, male or female, cut off his or her hands: a punishment by way of example, from Allah, for their crime: and Allah is Exalted in power." (al-Maida, 5/38)

It is necessary for two just witnesses to witness for the penalty of cutting off the hand and for the judge to decide definitely that the crime was committed. The judge asks the witnesses about the following one by one:

The nature of theft, the type of the thing stolen, its value, how it was stolen, when it was stolen and who stole it.

The nisab for theft (the minimum amount necessitating the penalty of cutting off the hand) is ten dirhams according to Hanafi madhhab. The value of dirham at the time when the penalty is applied is taken into consideration. (see al-Qasani, Badayius-Sanayi', VI, 67; Ibnul-Humam, Fathul-Qadir; IV, 220, 230; Nasai, Sariq, 10; Zaylai, Nasbuur-Raya, III, 359, 360).

We can quote the following hadith as an example of the application of the penalty of cutting off the hand and showing that nobody can be accepted as an intercessor for this penalty, which was ordered by Allah: “The people of Quraysh became worried about the state of a lady from Sons of Makhzum who had committed theft. They said, ‘Who will intercede for her with the Messenger of Allah?’ Some said, ‘No one dares to do so except Usama bin Zayd, the beloved one to the Messenger of Allah.’ Usama spoke about that to the Messenger of Allah. Thereupon, the Messenger of Allah said, ‘Do you try to intercede for somebody in a case connected with Allah’s prescribed penalties?’ Then, he got up and delivered a sermon saying, ‘What destroyed the nations preceding you was that if a noble amongst them stole, they would forgive him, and if a poor person amongst them stole, they would inflict legal punishment on him. By Allah, if the daughter of Muhammad stole, I would cut off her hand.’” (ash- Shawkani, Naylul-Awtar, VII,' 131, 136)

3. Hadd penalty for drinking alcohol (hadd for shurb): It is definitely forbidden to drink alcohol by verse 90 of the chapter of al-Maida. However, its penalty was determined by the Sunnah and practice of the Prophet. The Prophet and Hz. Abu Bakr had the person who drank alcohol flogged 40 times. When those who drank alcohol increased during the caliphate of Hz. Umar, he consulted his friends and decided to increase the minimum amount of hadd to flogging 80 times. (see Darimi, Hudud,10; A. b. Hanbal, IV, 389)

It is necessary for the person who drinks to be sane, to have reached the age of puberty, to become a Muslim and to be able to speak for the penalty of drinking alcohol to be applied. This punishment is applied on a person who is caught as drunk and who is proved to have drunk by witnesses.

"A man who drank wine was brought to the Messenger of Allah. The Messenger of Allah, 'Beat him!’ Abu Hurayra said, "So some of us beat him with our hands, and some with their shoes, and some with their garments. After beating, some of us said to him, 'May Allah disgrace you!' The Prophet said, 'Do not say so; for, you are helping Satan to overpower him.’" (Bukhari, Hudud, 4; Muslim, Hudud, 35; Abu Dawud, 35, 36; Tirmidhi, Hudud, 14, 15)

4. Hadd penalty for slandering that one has committed fornication (hadd for qazf): The penalty for those who accuse chaste women of fornication is stated in the chapter of an-Nur: "And those who launch a charge against chaste women, and produce not four witnesses (to support their allegations),- flog them with eighty stripes; and reject their evidence ever after: for such men are wicked transgressors." (an-Nur, 24/4)

Accusing a chaste man of fornication is also punished by being flogged eighty times. The conditions for being chaste are as follows:

To be a free person; to be sane; to have reached the age of puberty; to be chaste.

5. Penalty for waylaying (highway robbery). To stop people on the way, to prevent them from passing and to rob them. Waylaying can be committed by one person or a group, with or without weapons, in an inhabited place or in the country, in the city or outside the city. The crime is regarded to have been committed in all of the states mentioned above. The penalty mentioned in the following verse can be applied: " The punishment of those who wage war against Allah and His Messenger, and strive with might and main for mischief through the land is: execution, or crucifixion, or the cutting off of hands and feet from opposite sides, or exile from the land: that is their disgrace in this world, and a heavy punishment is theirs in the Hereafter; Except for those who repent before they fall into your power: in that case, know that Allah is Oft-forgiving, Most Merciful." (al-Maida, 5/33, 34)

 According to the verse above and the decrees deduced from it by Islamic fiqh scholars, the penalty for a person who waylays was determined as follows:

a) If a person robs and kills, he is executed and hanged to serve as an example.

b) If a person kills another person but does not take part in the robbery, he is executed but not hanged.

c) If a person robs but does not kill, his hands and feet are cut off from opposite sides.

d) Those who cause fear and terror on the way without killing and robbing are punished by being banished. According to Malikis, if a person robs but does not kill, the president has the choice of killing him, hanging him, cutting off his hands and feet from opposite sides or banishing him. (Ibn Taymiyya as-Siyasatush-Shar'iyya, Egypt 1951, p. 82, 83; Ibn Qudama, al-Mughni,1367, no place of publication VIII, 228)

It is stated in many hadiths that it is necessary to act meticulously and not to make any concessions about the application of those penalties. It is mentioned in the verse above that compassion should not be shown regarding the issue.

Some hadiths related to applying had penalties: 

"Apply Allah's penalties of hadd when you are near and far away. Do not allow the criticism of any criticizer to prevent you from applying Allah's penalties. "

"The example of the person abiding by Allah's order and restrictions in comparison to those who violate them is like the example of those people who drew lots for their seats in a boat. Some of them got seats in the upper part, and the others in the lower. When the latter needed water, they had to go up to bring water; so, they said, 'Let us make a hole in our share of the ship and get water so that we will not trouble the upper deck passengers.' If the people in the upper part allowed the lower deck passengers to do what they had suggested, all the people of the ship would be destroyed; but if they prevented them, all of them would be safe." (at-Targhib wat-Tarhib, 4/25, 27).

There are some issues that should not be ignored related to the application of the religious hadd penalties. First of all, hadd penalties are applied in an Islamic state that operates with all of its institutions and boards and based on the decision of the judge. It is necessary to eliminate all of the elements that could lead people to crime, to give people Islamic education and it is necessary for the state to meet the material and spiritual needs of the individuals.

In the past, hadd penalties were rarely applied due to the failure in eliminating all of the ways leading to crime, the suspect benefitting from doubts, lack of full occurrence of the conditions necessary for the crime to be definite, etc. It is also necessary to add the negligence, weakness, laziness and indifference of the administrators related to the application of penalties.

The following is stated in a hadith: "Do not apply hadd penalties if there are doubts." (Abu Dawud, Salah, 14; Tirmidhi, Hudud, 2) It is an important principle in Islamic penal code. The hands of people who stole were not cut off in a year of famine with the practice of Hz. Umar acting upon this principle. This penalty was not applied on a person who stole from his master or relative due to the doubt that he might have some rights on their wealth. The following examples are related to that principle:

- If four people bear testimony that a person committed fornication but if two of them bear testimony unwillingly, hadd penalty is not applied on any of them: the woman, the man and the witnesses.  

- If one of the witnesses withdraws his testimony while a criminal is being flogged, the remaining stripes are not applied. 

- If somebody says one person drank alcohol and if somebody else says the same person said that he drank alcohol, the hadd penalty for drinking alcohol is not applied.

- If a person admits that he stole first but withdraws his statement later and admits again that he stole some of the alleged goods, the hadd penalty is not applied. (For detailed information, see Cevat Akşit, İslâm Ceza Hukuku ve İnsanî Esasları, İst. 1987, 2nd impression)

Halit ÜNAL

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