07 Jul Is cutting hands off a necessary punishment for stealing? Death for apostasy? Stoning for adulterers?
Is cutting hands off a necessary punishment for stealing? Death for apostasy? Stoning for adulterers?
Is cutting hands off a necessary punishment for stealing? what about capital punishment for people who turn to other religions? and stoning adulterers?
I’d like to write that, first of all, this is actually my specialization, so I am glad that you have asked me this question. Insha Allah, I hope to write an answer that you’ll find acceptable.
Let’s go through your questions, one by one, and first, allow us to evaluate the first question: whether cutting off someone’s hand is necessary.
This injunction is found in The Qur’an, and it is within Surah Al-Ma’idah, with the following:
“Now as for the man who steals and the woman who steals, cut off the hand of either of them in requital for what they have wrought, as a deterrent ordained by God: for God is almighty, wise. (39) But as for him who repents after having thus done wrong, and makes amends, behold, God will accept his repentance: verily, God is much-forgiving a dispenser of grace.” [5:38-39] Muhammad Asad
So, in the first ayah (38) we have the clear injunction that you can cut off the hand of those who steal, not that you have to. The discretion afforded to the judge as to whether the thief deserves their hand cut off is accepted by all schools, with the only difference being as to what defines those limits.
All the schools agree that theft by those in need, i.e. stealing food when one is starving, cannot be punished by cutting off someone’s hand. Some schools argue that cutting off those who steal (not for need) can only be done after a third apprehension, kind of like a “three strikes” rule. Other schools argue that it has to be the theft of a certain value, as in, when someone steals “X” amount, they are thus possiblysubject to this sentence. Different scholars will use different formulas of these two factors, but, poverty and need should never be punished by this sort of sentence.
The reason being that if the society has created a space for people who are poor enough to have to steal for food, or money, or other necessities, than the failure of the state is the root of the problem. In order to be subject to the harshest penalties under the Islamic conception of the law, you must enjoy the benefits of the law: that your needs are met, and that if you are in need of help, that zakat would be distributed to you. This is the Islamic society, that both the rulers and the ruled are subject to responsibilities, but also enjoy rights, and thus, as those with more power, the rulers have the greater onus to provide than do the citizens.
Yet, even if a thief qualifies for the standard of having a hand removed for theft, that does not mean that they must have their hand cut off. Again, we look to The Qur’an, and the ayahs mentioned.
Not only is the injunction to cut off someone’s hand an equal sentence for both men and women (yay equality) but it also is framed in a very honest way: this is a method to deter people. Thus, we see the leniency involved and the reason why you should not look at this as a simple commandment. However, even more convincing is the second ayah, 39, in which those who repent after doing wrong and who “makes amends,” is to be forgiven.
This particular phrase is a little more controversial, because the debate among the scholars is what constitutes (1) repentance, and (2) what defines “making amends.”
Many scholars argue that the thief must return the things stolen before being apprehended, and that he/she must also pay the aggrieved party, if possible.
Personally, I believe that if one returns the stolen goods, and is not subject to the poverty exceptions (for hand-cutting sentencing) that they should make amends through prison time. If you look at the English word for jail, penitentiary, it is word that is constructed as a place for those to do “penitence,” or to be sorry for one’s sins.
Thus, I believe that jail time would be acceptable, and that you can cut off someone’s hand if they show utter disregard for the state, for the people that he/she stole from, and not only refuses to return stolen items, but refuses to apologize to either the people or to God, then, yes, they can be subject to losing a hand. That would be a pretty mean person, if you think about it, but that point is, again, that the bar for cutting off someone’s hand is overwhelmingly high, and thus, it is by no means a necessary punishment.
As far as death for people who turn to other religions, this is an even simpler question to answer, but first let’s address the status of Muslims approaching this question today:
Should someone be killed for leaving Islam? Overwhelmingly, the answer is no. Why do people do that today? For a huge range of reasons, that entail reactions to Westernization, neo-Colonialism, rejection of all sorts of stuff and the Wars in Iraq and Afghanistan, etc etc. So, that’s today, and it has little to do with formal Islam.
As far The Qur’an is concerned, there are no punishments on this earth for leaving Islam.
“As for anyone who denies God after having once attained to faith – and this, to be sure, does not apply to one who does it under duress, the while his heart remains true to his faith, but [only to] him who willingly opens up his heart to a denial of the truth -: upon all such [falls] God’s condemnation, and tremendous suffering awaits them: (107) all this, because they hold this world’s life in greater esteem than the life to come, and because God does not bestow His guidance upon people who deny the truth. They whose hearts and whose hearing and whose sight God has sealed – it is they, they who are heedless! (109) Truly it is they, they who in the life to come shall be the losers!” [16:106-108] Muhammad Asad
So, if there is nothing in The Qur’an that would sanction any earthly punishments (i.e. flogging, prison, etc) the question becomes, where do we get the idea that Apostasy in Islam is punishable by death?
The answer is Hadith. Now, I would like to be very clear here, if there is something that is in the Hadith, that is not in The Qur’an, there are two possibilities:
First, if the Hadith contradicts something in The Qur’an, there’s is a very high probability that it is a weak (dayeef) or fabricated Hadith.
Second, as is the case with the Hadith in question (sanctioning death for Apostasy) you must check the Hadith back to the larger rule found in The Qur’an, if The Qur’an does not directly support the injunction found in this Hadith, then that means without question that the Hadith is for a very narrow and very explicit situation that most probably will never be relevant to you.
Thus, when The Prophet says that those who leave Islam should be put to death, he is talking about a very specific time, when the Muslims were living in Yathrib (Medina) and were being attacked and besieged by the Meccans.
Let us remember that what constituted the community of the early Muslims was not tribal, blood ties, or ethnic; the community that was established by The Prophet was predicated on belief (among the Muslims) and as a conscious, willing union between those of other faiths (namely Jews, Christians, and Pagans of Yathrib [Medina]).
So, when we think of “religion” today, we think of it as something separate to our nationality, tribe, ethnicity, etc. People can be a German Buddhist, or a Japanese Christian, or a Argentinian Follower of The Church of Diego, but during the time of The Prophet, a person’s status as a “Muslim” was the equivalent to what we consider our national identity. The governmental structure that a Muslim was subject and loyal to was that of Islam, just like, an American citizen is subject and loyal to the United States government.
So, within the Hadith that refer to The Prophet sanctioning death as a penalty towards those who leave Islam, this is not an issue of someone saying: “Oohhh yahhhh I’m like, not mazlam any moreeee, just not feelin’ it anymore, lolz, let’s watch Twilight.”
It is not the simplistic notion of leaving a religion, as we understand it today, rather, it should be understood as someone committing high treason, a crime that is punishable by death in the United States, and many other countries. This is different to “regular” treason, or petty treason, which is usually punished with life in prison. The difference between “high treason” and “treason” is whether the nation is at war, and in many countries, high treason is punishable by death, while treason is not.
So, the context of The Prophet saying that those who leave Islam should be put to death, it is not because they are “leaving Islam,” it is because they are betraying their community, which is defined by their acceptance of the tenants of Islam, much like the American community is not defined by any ethnic ties, but by one’s acceptance of the tenants of the US Constitution. Thus, this Hadith is within the context of (1) War time, (2) High Treason, and (3) Does not abrogate The Qur’an, but, is the result of a need deemed necessary by The Prophet, applies to this very narrow situation that he was in.
So, it is such a narrow context that it can almost be rendered meaningless. Today we do not organize our states by virtue of religion, we do so by the boundaries of the state, either in a geographic and/or national sense, so by saying that “death is penalty for those who turn to other religions,” we are not really referring to the same thing, which adds to the confusion.
Thus, it is from the confusion of how we understand Hadith that leads me to your final question: stoning adulterers.
However, before we continue we must define our terms, and thus the term zina, many times translated as “adultery” is a very wide term, and while within Western thought, there are different categories for “adultery” and “fornication,” The Qur’an’s usage of the word “zina” is a far more vague term. To many it can encapsulate anything from masturbation to fornication to sodomy, while to others it has a far more narrow meaning. Only God knows what is the true meaning, and thus, our test as a community is to reach the interpretation that is the most just. That being said, “zina” as used hereon will refer simply to adultery and fornication, but rendered as adultery, for the sake of brevity.
Like in the question of apostasy, there is nothing in The Qur’an that refers to a death sentence or stoning for those who commit adultery. In fact, The Qur’an has a very explicit punishment:
“As for the adulteress and the adulterer – flog each of them with a hundred stripes, and let not compassion with them keep you from [carrying out] this law of God, if you [truly] believe in God and the Last Day; and let a group of the believers witness their chastisement.” [24:2] Muhammad Asad
So, as you can see, within The Qur’an, we have a very clear punishment, one that is very harsh, but one that also requires an extremely high burden of proof in order to be used. That bar, being, that there are four witnesses to the fact that this happened, excuse me for being explicit, but that four individuals have physically seen sexual intercourse between the parties in question; not that they heard, or thought, or heard someone else say, but that they physically saw them having sex. So, in order to be subject to this punishment, you must be committing adultery in a abundantly egregious manner.
Thus, it is abundantly clear within The Qur’an that we do not have stoning as a penalty for adultery. Whether we actually use flogging as a punishment, is up for interpretation, especially when you consider the incredible amount of evidence that must be provided in order to carry out such a sentence.
There are two major Hadith that are used to justify stoning, and they are not very strong, in my opinion, let me tell you why: There is nothing in The Qur’an to support this action, and thus, without Qur’anic support, that automatically makes an injunction weaker and most probably, very narrow.
The two major Hadith are as follows:
The first one is where The Prophet ordered that man be stoned to death for adultery. Case closed, right? Er. The man was Jewish, and according to Jewish Law, he had to be stoned for his crime, and since there were Jews within the community of Muslims, and The Prophet said that their laws were to govern them (in matters of religion) he allowed this practice out of respect for the Laws of Moses, thus making this Hadith not applicable to Muslims.
The second Hadith either places The Prophet as sentencing stoning for the death of a man who confessed himself to adultery, or as reported in Abu Huraira that reports The Prophet of sentencing a man to flogging and banishment and the woman to death by stoning.
The problem with this second Hadith, is that we cannot establish whether this Hadith was before or afterthe revelation of 24:2. Also, the fact that The Prophet would sentence a punishment for man that would differ to a woman, is odd, and, as with all sentences in The Qur’an, defy the equality of punishment for men and women.
Thus, if we find these Hadith to actually be authentic then the only logical conclusion that we can come to is that these Hadith must be revealed prior to the injunction found in 24:2, and thus, stoning would have been in line with the Laws of Moses, which would explain why stoning was used. However, once 24:2 is revealed, we do not have any Hadith in which The Prophet allows stoning (for Muslims) and thus, we regard these Hadith either as authentic and examples of choices made before revelation (like The Prophet adopting Zayd, for example) or that they are inauthentic and thus inapplicable.
Regardless of whether you find them authentic or not, the end result is the same: stoning is not a punishment that is acceptable in Islam, and there is nothing within The Qur’an that condones this, and the only clear Hadith of stoning is when The Prophet allows Jews to stone their adulterer according to their law.
Why do Muslims today misunderstand this? That is a complicated issue that, as I said earlier, has much more to do with politics than it does with religion; the point is that regardless of whether the sources are Muslim or non-Muslim, it seems the mistakes are being made on either side, albeit it for different reasons.
Insha Allah, I hope I was able to clear up any misconceptions and that if you, or anyone else, has a question on this, or any other topic, please do not hesitate to ask me.