19. The State and Penal Laws

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Section 1: The State

Modern conceptions of the state

All modern conceptions of the state have one thing in common: material benefits have so obsessed the views of the civilized world that God and religion have been relegated to the corner of oblivion and the higher values of life are utterly neglected. Modern states are at one in worshipping the two new gods which Western civilization has created in place of the One God Whom it has dismissed as a thing of the past. The Nation and the State are the new idols before which the civilized man has fallen prostrate. And along with the old god Mammon, a new Trinity has emerged in place of the Trinity of the Church. The gain of economic advantages or the acquisition of wealth being the sole consideration of the civilized man, he is prepared to make any sacrifice that is required of him to gain this end, in the name of the State and for the love of the Nation. Wealth, Nation and State have thus the highest place of honour in the heart of the civilized man and he worships these idols. The desire to bow is there in human nature, and if people will not bow before their Maker, they must bow before things of their own making. Objects unworthy of worship have, however, always led humanity to ruin, and the worship of Mammon and its two associates, the Nation and the State, is even now leading civilization to sure destruction.

Every state must necessarily be invested with power, with which it may stop aggression and protect the weak, dealing out fair justice to all. The advance of science has increased this power a thousandfold. On the other hand, materialistic outlook on life has made man more unscrupulous in the use of his power against fellow man, and with advancement in the conquest of nature, the conquest of self, which alone serves as a check on the tyranny of man against man, has been retarded and thrown to the background. The result is that the increased powers of the state, which must necessarily be exercised through individuals, are being used more for the enslavement and destruction of man than for his deliverance from tyranny and upholding the cause of truth and justice.

Islamic conception of the state

It is to remedy this evil that Islam requires the vesting of state authority in the hands of men who are God-fearing before all. The state which the Holy Prophet Muhammad founded was invested with physical force, as every state must necessarily be, but it was a unique service which he rendered to humanity that he spiritualized the greatest of all human physical forces. The head of the state in Islam is called both an Amīr, meaning ‘one who commands’, and an Imām, meaning ‘a person whose example is followed’, i.e., a person who stands on a very high moral plane. On his deathbed the Holy Prophet gave an indication as to who should succeed him as the head of the Muslim state by appointing Abu Bakr, admittedly the fittest man, to lead prayers in his absence. For a long time this practice was continued, and the head of the state led the prayers.

Righteousness — fear of God and regard for other people’s rights — was as necessary a qualification for the ruler as fitness to rule. Spiritual force alone could enable a man to control the powers which temporal authority gives him and which, in the absence of such force, are often in danger of being abused. The head of the state considered himself responsible to God, in the first place, for the exercise of his temporal authority.

The foundations of the state laid down by the Holy Prophet were thus spiritual. They were at the same time democratic in the truest sense of the word. There exists a misconception in some quarters that the Islamic state was a theocracy. The head of the Muslim state never considered himself a representative of God on earth but as a representative of people who had chosen him to serve them; nonetheless, he certainly considered himself responsible to God for every act that he did in the exercise of his authority. All people, including the ruler, had equal rights and obligations and were subject to the same law. The Holy Prophet himself did not claim any rights beyond those which other Muslims had. In the actual working of the state organization, of which he was the founder and the head, there was nothing to distinguish him from the others. Outsiders came and asked: which of you is Muhammad? He lived in the simplest possible manner, and never claimed any superiority on account of his being a ruler. When his soldiers were digging a ditch for the defence of Madinah, he was there with his pick-axe, and when they were removing heaps of dust and stones, he was one of the labourers who were covered with dust. If ever there was a democracy free from all differences of heredity, rank or privilege, it was the democratic state of which foundations were laid by the Prophet Muhammad.

Perhaps history cannot show a greater conqueror than Umar, the second successor of the Holy Prophet, a conqueror and an administrator at one and the same time. Yet he would not stop even his lowest subjects from rebuking him in public. It is reported that an ordinary citizen once interrupted him repeatedly. “Fear God, O Umar!” said the man; and when others wanted to stop him, Umar himself intervened, saying: “Let him say so; of what use are these people if they do not tell me such things?” This monarch of four kingdoms visited a famine-stricken camp at night incognito, and finding a woman with no food to give to her children, he rushed back to Madinah, a distance of three miles, and took a sack of flour on his back to feed the distressed woman and her children. When a servant offered his services to carry the load, he said: “In this life you might carry my burden, but who will carry my burden on the day of Judgment?” Yet when this great servant of the people was lying on his death‑bed and a young man lauded his great services, he said: “Enough, young fellow! It is sufficient if the evil I may have done in the exercise of authority is neutralised by any good that I have done”.{note} It is such a mental attitude alone which can make men fit for ruling their fellow beings. But such a mentality is created only by a strong faith in God and a feeling of one’s responsibility to God.

It was such a responsible government that Islam created, a government by men who realised that above all other things they were responsible to God for everything they did. The men to be honoured — and entrusting a man with command was certainly doing him honour — were those who paid the greatest regard to their duties. It was such people that were to be placed in authority over others, as the Holy Quran says:

“Allah commands you to make over [positions of] trust to those worthy of them.” — 4:58

In a state, some people have necessarily to be placed in authority over others, but those placed in authority have been repeatedly warned that they would be answerable to God, first of all, for what they did in the exercise of authority. The warning to the prophet-king David is a warning to every true believer:

“O David, surely We have made you a ruler in the land; so judge between people justly and do not follow [your low] desire that it should lead you astray from the path of Allah. Those who go astray from the path of Allah, for them is surely a severe punishment because they forgot the day of Reckoning.” — 38:26

Everyone who was entrusted with any authority was told that he was a ruler in his own sphere and that he was responsible to God for those placed under his trust:

“Everyone of you is a ruler and everyone shall be questioned about his subjects. The king is a ruler and he shall be questioned about his subjects, and the man is a ruler over the people of his house and he shall be questioned about those under his care, and the woman is a ruler over the house of her husband and she shall be questioned about those under her care, and the servant is a ruler so far as the property of the master is concerned and he shall be questioned about that which is entrusted to him.” 1

The ruler or head of the state is, thus, along with all those persons who hold any authority over others, placed in the same category as a servant. Just as a servant is entrusted with a certain property for which he is responsible to his master, those entrusted with authority of the state, in whatever position they may be, are entrusted with the care of the people and guarding their rights, and for the proper discharge of their duties they are responsible, in the first place, to the Real Master, Who is God, and then to the people who have entrusted him with this charge. The first necessity of a good state organization is this mentality on the part of each one of its members, and the greatest stress is, therefore, laid on this in the Islamic concept of state.

Principle of counsel

The Holy Quran and Hadith, as quoted above, also show that hereditary kingship is foreign to the concept of the state in Islam. Nor is the Islamic state an autocracy, as uncontrolled authority is not vested in the head of the state. It has already been stated that the law was one for all, and all were one in the eye of the law including the man entrusted with the highest command, and including the Holy Prophet himself who was as much subject to the law as any of his followers. It is stated in the Quran:

“And when Our clear messages are recited to them, those who have no hope of meeting with Us say: Bring a Quran other than this or change it. Say: It is not for me to change it of my own accord. I follow only what is revealed to me. Indeed I fear, if I disobey my Lord, the punishment of a terrible day.” — 10:15

Speaking of the most prominent qualities of Muslims, the Quran mentions an equally prominent quality: “And whose affairs are [decided] by counsel among themselves” (42:38). The chapter in which this verse occurs is entitled Shūrā or Counsel on account of the great democratic principle of counsel laid down here as the basis of the future state of Islam. This is one of the early revelations, when the Holy Prophet was still leading the life of a helpless and persecuted reformer, and shows how the two ideas of democratizing and spiritualizing the state were blended:

“And those who respond to their Lord and keep up prayer, and whose affairs are [decided] by counsel among themselves and who spend out of what We have given them.” — 42:38

The verse gives prominence to the great acts which are needed to spiritualize man, answering the call of God, praying to God and devoting oneself to the service of humanity, while laying down the principle for conducting the affairs of state. In this verse, Muslims are enjoined as usual to observe prayer and to spend out of what God has given them. Yet between these two injunctions, which always go together in the Quran and which are the basis of a true Islamic life, is placed a third: And their affairs are decided by counsel among themselves. This injunction at such an early period is clearly meant to prepare Muslims for transacting the momentous affairs of state and all matters connected with national weal or woe. In fact, the word amr, translated here as affairs, means ‘command’, and therefore refers to the Islamic state, the affairs of which must be transacted by counsel.

The verses that follow the above verse also show that the Holy Prophet wanted his followers to be trained on spiritual lines while preparing them for conducting the affairs of the state:

“And those who, when great wrong afflicts them, defend themselves. And the recompense of evil is punishment like it; but whoever forgives and brings about reform, his reward is with Allah. Surely He does not love the wrongdoers. And whoever defends himself after his being oppressed, these it is against whom there is no way of blame. The way of blame is only against those who oppress people and revolt in the earth unjustly. For such there is a painful punishment. And whoever is patient and forgives — that surely is an affair of great resolution.” — 42:39–42

These excellent rules for the defence of the Muslim community, which was being oppressed and persecuted at that time, and for the forgiveness of the enemy that was bent upon its extirpation, clearly show that the basis was herein being laid of the Muslim State, because forgiveness could only be exercised towards a vanquished enemy. It was in their sufferings that Muslims were being told to exercise forgiveness when their turn should come to take revenge upon a fallen enemy. The passion for revenge was thus being obliterated from their hearts from the very beginning and the physical force of the state was spiritualized by making it subject to moral considerations.

Position of the rulers

The Islamic State is a democracy in the truest sense of the word. The Quran tells Muslims:

“Allah commands you to make over [positions of] trust to those worthy of them, and that when you judge between people, you judge with justice.” — 4:58

The section of chapter 4 in which this verse appears deals with granting of kingdom to Muslims, who are here required to entrust the affairs of state to people who are worthy of this responsibility. The words that follow (“and that when you judge between people, you judge with justice”) corroborate this significance of the word amānāt or “positions of trust”. The whole verse states the reciprocal duties of the governed and the governors. The Holy Prophet himself has explained the word amānat (singular of amānāt) as meaning government or affairs of state. He said:

“When the amānat is wasted, wait for the doom. It was said: How will the amānat be wasted, O Messenger of Allah? He said: When government (amr) is entrusted to those unworthy of it, then wait for the doom”.2

The first successor to Holy Prophet was Abu Bakr, who was elected the head of the state by the agreement of all parties, and so were the three successors that followed him. When the news of the Holy Prophet’s death spread, Muslims gathered together and freely discussed the question as to who should succeed him as the head of the state. The Anṣār, the residents of Madinah, were of the opinion that there should be two heads, one from among the Quraish and one from among themselves, but the error of this view was pointed out by Abu Bakr who made it clear in an eloquent speech that the state could have only one head.3 And so Abu Bakr was elected, being as Umar stated, “the best” of them4 and “the fittest of the Muslims to control their affairs”.5 Fitness to rule was the only criterion to decide the election, as indeed in the Quranic injunction: “Allah commands you to make over [positions of] trust to those worthy of them” (4:58).

Why the state organization was needed, and what the constitutional position of the head of the state was, was explained by Abu Bakr in his very first address:

“You have elected me as Khalīfah, but I claim no superiority over you. The strongest among you shall be the weakest with me until I get the rights of others from him, and the weakest among you shall be the strongest with me until I get all his rights… Help me if I am in the right, and set me right if I am in the wrong… Obey me as long as I obey Allah and His Messenger; in case I disobey Allah and His Messenger, I have no right to obedience from you.”

The head of the state was a servant of the state who was paid a fixed salary for maintenance out of the public treasury, like all other public servants. It was Abu Bakr, the very first successor of the Holy Prophet, who acted on this rule.6 The head had no special privileges and in his private capacity he could be sued in the court like any other member of the community. The great Umar appeared as a defendant in the court of a judge. Some of the orders given by him to his provincial governors were that they should be accessible at all hours of the day to those who had a complaint to make and that they should not keep a door-keeper who should prohibit people from approaching them. And further that they should accustom themselves to lead hard lives. The head of state carried on the administration with the help of ministers, all important state affairs being decided by a council.

Those entrusted with the work of government, including the head, were required to work for the good of the people. The Holy Prophet is reported as saying:

“There is no one whom Allah grants to rule people, then he does not manage their affairs for their good but he will not smell the sweet odour of paradise.” 7

They were required to be gentle to the people, as for example when the Holy Prophet appointed Abu Musa and Mu‘adh ibn Jabal to govern over Yaman, he instructed them as follows:

“Be gentle [to the people] and be not hard, and make them rejoice and do not incite them to aversion.” 8

According to Hadith, they were enjoined to lead simple lives and to be easily accessible to those who needed their services,9 to be Godfearing,10 to tax the different classes of people according to their capacity, to provide for those who could not earn and to have as much regard for the rights of non-Muslims as for those of Muslims.11 The Holy Prophet did not introduce any compulsory taxation to fund the war that he was compelled to fight; people were required only to subscribe voluntarily if they felt the justice of the cause.

The state was not only required to maintain uncared-for families but also to pay the unpaid debts which were contracted for a lawful need. The Holy Prophet said:

“Whoever leaves property, it is for his heirs; and whoever leaves a burden, it shall be our charge.” 12

“Burden” includes both a family to maintain and debts to be paid.

People’s obligations

The people’s responsibility to the state is to respect its laws and obey its orders as long as they do not involve disobedience to God and His Messenger. After stating that “Allah commands you to make over [positions of] trust to those worthy of them”, in the verse that follows the Quran says:

“O you who believe, obey Allah and obey the Messenger and those in authority from among you; then if you quarrel about anything, refer it to Allah and the Messenger, if you believe in Allah and the Last Day. This is best and more suitable to achieve the end.” — 4:59

This verse lays down three important rules of guidance in matters relating to the welfare of the Muslim community, especially in those relating to affairs of state. These are obedience to God and His Messenger in the first place; secondly, obedience to those in authority from among the Muslims; and thirdly, referring matters to God and His Messenger in cases of dispute with those in authority. God and His Messenger are thus the final authority. The words “those in authority” have a wide significance, so that in different matters relating to the life of man different persons would be in authority.

The first successor of the Holy Prophet, Abu Bakr, in his first address to those who had sworn allegiance to him, said, as already quoted: “Help me if I am in the right, and set me right if I am in the wrong… Obey me as long as I obey Allah and His Messenger; in case I disobey Allah and His Messenger, I have no right to obedience from you”. The law of the Quran was to be held supreme and it was the Holy Prophet who had laid down this rule of the supremacy of the law:

“To hear and obey the authorities is binding, so long as one is not commanded to disobey God; when one is commanded to disobey God, he should not hear or obey.” 13

The Holy Prophet went so far as to say that a black African could be appointed to rule over the Arabs and that obedience was due to him as to any other head.14

Thus while it was considered an act of great merit, “an excellent jihād”, to speak out the truth in the presence of an unjust ruler,15 active opposition to constituted authority or rebellion against it was not allowed because the Holy Prophet had laid down the condition to hear and obey “whether we liked or disliked, and whether we were in adversity or ease, even if our rights were not granted”, and “the authority of the head could only be disputed if he committed open acts of disbelief in which you have a clear ordinance from Allah”.16

Law making

The law of the Quran was supreme indeed, but there was no ban to making laws according to the needs of the people so long as they did not go against the spirit of the revealed law. On being appointed governor of Yaman, Mu‘adh ibn Jabal was asked by the Holy Prophet as to the rule by which he would abide. “By the Book of Allah,” was the reply. “But if you do not find any direction in it,” asked the Holy Prophet. “Then by the practice (Sunnah) of the Messenger of Allah,” was the reply. “But if you do not find any direction in the Sunnah,” he was again asked. “Then I will exercise my judgment,” came the reply. The Holy Prophet raised his hands and said: “Praise be to Allah Who has granted the messenger of His Messenger what pleases the Messenger” (see page here).

The necessary laws were, however, to be made by consultation in accordance with the general command: “And [Muslims are those] whose affairs are [decided] by counsel among themselves” (42:38). It appears from the Quran that people were gathered together for counsel on many important occasions:

“Only those are believers who believe in Allah and His Messenger, and when they are with him on an important matter, they do not go away until they have asked permission from him.” — 24:62

In reply to Ali who enquired as to how to proceed in cases where there was no definite direction in the Quran, the Holy Prophet is reported to have said: “Gather together the righteous from among my community and decide the matter by their counsel and do not decide it by one man’s opinion”. He definitely directed his followers to take counsel whenever an important matter was to be decided: “Never do a people take counsel but they are guided to the right course in their affair.”

Counsel was freely resorted to by the Holy Prophet himself in all important matters. Madinah was attacked three times by the Quraish of Makkah, and every time the Prophet held a consultation with his followers as to how to meet the enemy. On one of these occasions, that of the battle of Uhud, he acted upon the opinion of the majority and marched out of Madinah to meet the enemy, although his own opinion was that the Muslim army should not leave the town. During the battle, when some people disobeyed his orders and this act of theirs caused heavy loss to the Muslim army, he was still commanded to include them when taking counsel:

“Pardon them and ask Divine protection for them, and consult them in [important] matters.” — 3:159

The command “consult them” also refers to the fact that, apparently, it was the taking of counsel and following the majority opinion that had brought about trouble. Yet at such a critical time the Holy Prophet did not waver for a minute from the course of taking counsel in important matters, and just at this juncture we find Divine revelation confirming the principle of adhering to counsel.

Thus the three principles of democracy, namely, the supremacy of the law, the taking of counsel in making new laws and deciding other important affairs, and the election of the head of the state, were laid down and recognized by the Holy Prophet himself.

It was due to these clear directions to make laws for themselves and to decide other important matters by counsel that the first successors of the Holy Prophet had councils to help them in all such matters. It was also in the early history of Islam that the great Imams, such as Imam Abu Hanifah, freely resorted to analogical reasoning in legislation, and Ijtihād was recognized as a source of Islamic law along with the Quran and the Sunnah.

Scrupulous justice

Justice was declared to be the corner-stone of the state which the Prophet Muhammad founded. No distinction was to be made between friend and foe, allied nations and enemies, those whom one loved and those whom one hated, in dealing equitably. The Quran says:

“And do not let [your] hatred of a people — because they hindered you from the Sacred Mosque — incite you to transgress. And help one another in righteousness and piety, and do not help one another in sin and aggression, and keep your duty to Allah.” — 5:2

“O you who believe, be upright for Allah, bearers of witness with justice; and do not let [your] hatred of a people incite you not to act equitably. Be just; that is nearer to observance of duty.” — 5:8

The broad principle was also laid down that dishonesty must be punished, and the balance of justice must be held equal between Muslims and non-Muslims and between friends and foes. The Holy Prophet was told in the Quran:

“Surely We have revealed the Book to you with truth that you may judge between people by means of what Allah has taught you. And do not be one pleading the cause of the dishonest, and ask the forgiveness of Allah. Surely Allah is ever Forgiving, Merciful. And do not contend on behalf of those who act unfaithfully to their souls. Surely Allah does not love him who is treacherous, sinful.” — 4:105–107

Commentators of the Quran agree that the occasion of the revelation of these verses was a dispute between a Muslim and a Jew. The Muslim had stolen something and hid it at the Jew’s, afterwards accusing the Jew of the theft. The Muslim was supported by his tribe. The Holy Prophet cleared the Jew of the charge and gave judgment against the Muslim, despite the risk of the loss of that tribe at a time when every Muslim hand was sorely needed.

Observance of agreements

Great stress has been laid in Islam on faithfulness to agreements:

“O you who believe, fulfil the obligations.” — 5:1

Respect for all contracts, agreements, leagues, treaties, etc. is taught here, as these are included in the significance of the word ‘uqūd, meaning ‘ties’, translated here as ‘obligations’. Nations are particularly enjoined to fulfil their agreements, because they it is who, intoxicated with power, treat agreements as mere scraps of paper:

“You make your oaths to be means of deceit between you because [one] nation is more numerous than [another] nation. Allah only tries you by this.” — 16:92

True to these teachings, the Holy Prophet and his followers stood firmly by their agreements under the most trying circumstances. An example was at the truce of Hudaibiyah. The agreement had just been signed, when Abu Jandal, a convert to Islam fleeing from Makkah, appeared on the scene. He had been severely persecuted at Makkah and showed the scars of his tortures to the Muslims. Under the conditions of the agreement, Muslims could not give him shelter. The Holy Prophet was moved and tried to secure an exception to the rigorous condition, but the other party did not agree to this, and Abu Jandal had to be sent back to his persecutors to be dealt with as they liked. Another example was when, in the time of Umar, the Muslim general, Abu Ubaidah, was obliged to evacuate the occupied territory of Hims, which the enemy was now going to occupy. Abu Ubaidah ordered that the tax received from the people as a condition for their protection should be paid back to them because Muslims could not give them protection any longer. There is not a single instance on record in which Muslims broke their agreement with any other nation. No example of such scrupulous regard for agreements can be found elsewhere.

One of the qualities of those who would be righteous is stated in the Holy Quran to be that they are “performers of their promise when they make a promise” (2:177). The performance of promise on the part of individuals as well as of nations is one of the first essentials of the welfare of humanity, and hence the stress laid upon it by the Holy Quran. Faithlessness to treaties and pledges on the part of nations has wrought the greatest havoc on humanity. Just as no society can prosper until its individual members are true to their mutual agreements and promises to each other, so humanity at large can never have peace unless the nations are true to their agreements.

Section 2: Penal Laws

The penal laws of Islam are called ḥudūd (singular: ḥadd) in Hadith and books of Jurisprudence. In the parlance of the jurists, the word ḥudūd is limited to punishment for crimes mentioned in the Holy Quran or Hadith, while other punishments left to the discretion of the state are spoken of as ta‘zīr.

It should be pointed out at the very beginning of a discussion on the penal laws of Islam that all violations of Divine limits in a general sense are not punishable by the state; punishment is inflicted only in those cases in which there is violation of other people’s rights. For instance, neglect of prayer, or omission to keep fasts or perform the pilgrimage is not punishable; but in the case of zakāt there is difference. Zakāt is a charity as well as a tax, and the Holy Prophet appointed official collectors to collect the zakāt, which was received in the state treasury, thus showing that its collection was a duty of the Muslim state. Hence it was that when, after the death of the Holy Prophet, certain Arab tribes refused to pay, Abu Bakr, the first Caliph, sent out troops against them, this step being taken because the withholding of zakāt on the part of an entire tribe was tantamount to rebellion.

General law of punishment

The punishable crimes in Islamic law are those which affect society; and those spoken of in the Holy Quran are murder, robbery with violence against persons, theft, adultery or fornication and accusation of adultery. Before discussing in detail the various punishments prescribed in these cases, it may be stated that the Quran lays down a general law for the punishment of offences in the following words:

“And the recompense of evil (sayyi’ah) is punishment (sayyi’ah) like it; but whoever forgives and brings about reform, his reward is with Allah.” — 42:40

This golden rule is of very wide application, since it applies both to individual wrong done by one person to another and to offences of a less particular nature, offences against society. Similar instructions as to the punishment of offenders are given elsewhere in the Quran:

“And if you take your turn (‘āqabtum), then retaliate (‘āqibū) with the like of what you were afflicted with. But if you show patience, it is certainly best for the patient.” — 16:126

“And whoever retaliates (‘āqaba) with the like of what he is afflicted with (‘ūqiba), and he is oppressed, Allah will certainly help him.” — 22:60

“Whoever then acts aggressively (i‘tadā) against you, inflict injury (i‘tadū) on him according to the injury he has inflicted on you.” — 2:194

While in the verses quoted above, and similar other verses, a golden rule is laid down for the individual wronged, that he should in the first instance forgive the offender provided the latter amends by forgiveness, the basis also is ordained of penal laws in general for the protection of society, and that basis, according to all these verses, is that the punishment of evil should be proportionate thereto. Every civilized code of penal laws is based on that principle, and by enunciating this general rule, ample scope is given to Muslim peoples and states to formulate their own penal laws. It is for this reason that the Quran does not go into many details, and speaks of punishment only in cases of the most glaring offences against person and property. It should be further noted that the Quran generally adopts the same word for punishment as for the crime. Thus in 42:40, both evil and its punishment are called sayyi’ah (evil); in 16:126 and 22:60, it is a derivative of ‘uqūbah (punishment); and in 2:194, it is i‘tidā’ (aggression). The adoption of the same word evil for the crime and its punishment indicates that punishment itself, though justified by the circumstances, is a necessary evil.

Punishment for murder

Undoubtedly the greatest crime known to society is taking away of the life of another person. It is a crime denounced in the earliest revelations:

“And do not kill the soul which Allah has forbidden except in the course of justice.” — 17:33, 6:151

“And they who… slay not the soul which Allah has forbidden except in the course of justice… and he who does this shall meet a penalty of sin — the punishment will be doubled to him on the day of Resurrection, and he will abide in it in humiliation.” — 25:68–69

The punishment of murder is, however, prescribed in a Madinah revelation:

“O you who believe, retaliation (qiṣāṣ) is prescribed for you in the matter of the slain: the free for the free, and the slave for the slave, and the female for the female. But if remission is made to one by his [aggrieved] brother, prosecution [for blood-money] should be according to usage, and payment to him in a good manner. This is an alleviation from your Lord and a mercy. Whoever exceeds the limit after this, will have a painful punishment. And there is life for you in retaliation, you people of understanding, that you may guard yourselves.” — 2:178–179

The word qiṣāṣ, rendered as retaliation, means retaliation by slaying for slaying, wounding for wounding and mutilating for mutilating.17 The law of retaliation among the Israelites extended to all these cases, but the Quran has expressly limited it to cases of murder. It speaks of retaliation in wounds as being an ordinance of the law of Moses (5:45), but it is nowhere prescribed as a law for Muslims, who are required to observe retaliation only in the case of the slain. In some Hadith reports it is no doubt mentioned that the Holy Prophet ordered retaliation in some cases of wounds, but this was in all likelihood due to the fact that he followed the earlier law until he received an express commandment to the contrary.

The command to observe the law of retaliation in murder cases is followed by the words “the free for the free, and the slave for the slave, and the female for the female”. These were meant to abolish an old Arab custom, for the Arabs before Islam used to insist, when the person killed was of noble descent, upon the execution of others besides the murderer. So it was made clear that whoever the murderer might be, a free man or a slave or a woman, it was the murderer who was to be slain.

An alleviation is, however, allowed in case the person who suffers from the death of the murdered person makes a remission and is satisfied with diyah or blood-money. Another case mentioned in the Quran (4:92) in which blood-money takes the place of a death sentence is that of unintentional killing.

Murder of a non-Muslim

The murder of a non-Muslim living under a Muslim state is punishable in exactly the same way as the murder of a Muslim. The Holy Prophet is reported to have said:

“Whoever kills a mu‘āhad (a non-Muslim living under the protection of a Muslim state), he shall not perceive the odour of Paradise, and its odour is perceivable from a distance of forty years’ journey.” 18

Thus, even from a purely religious point of view, not the least distinction is made between the murderer of a Muslim and a non-Muslim, and therefore any distinction in their temporal punishments is out of the question. And where the Holy Quran speaks of a murderer, it always speaks of the murderer of a nafs (person) and not of a Muslim:

“Whoever kills a person unless it is for manslaughter or for mischief in the land, it is as though he had killed all mankind.” — 5:32

Ali is stated to have with him a written paper, according to which a Muslim was not to be killed for an unbeliever,19 but evidently this related to a state of war and not a state of peace; the latter is expressly spoken of in the hadith already quoted. In fact, the rights of non-Muslims in a Muslim state are in all respects at par with those of Muslims, so much so that Muslims are required even to fight in their defence,20 and the Holy Prophet is reported to have said that their property was like that of the Muslims and their blood was like that of the Muslims.

Alleviation of punishment in murder cases

Hadith speaks of cases of murder in which the murderer’s intention is doubtful and, in these cases too, blood-money is to be paid.21 And where the murderer could not be discovered, blood-money was paid from the state treasury.22 There does not appear to be any reported case in which the murderer may have been imprisoned in case of unintentional murder, but the alleviation of punishment in such cases is clearly provided for in the Holy Quran. The form of alleviation spoken of in the Holy Book is the payment of blood-money but the right of the state to give that alleviation any other form is not negatived.

Punishment for armed robbery

Another crime for which capital punishment may be awarded is robbery by an armed gang, or banditry. In the Holy Quran, this is spoken of as waging war against God and His Messenger:

“The only punishment of those who wage war against Allah and His Messenger and strive to make mischief in the land is that they should be murdered, or crucified, or their hands and their feet should be cut off on opposite sides, or they should be imprisoned. This shall be a disgrace for them in this world, and in the Hereafter they shall have a grievous punishment, except those who repent before you overpower them; so know that Allah is Forgiving, Merciful.” — 5:33–34

It has been accepted by the commentators, by a consensus of opinion, that gangs of robbers, bandits and murderers who create disorder in a settled state of society are referred to in this verse. The punishment prescribed is of four kinds, which shows that the punishment to be inflicted in any particular case would depend upon the circumstances of the case. If murder has been committed in the course of robbery, the punishment would be the execution of the culprit. Where the robbers have committed excesses, one of their hands and feet may be cut off. In less serious cases, the punishment may be only imprisonment. The Arabic words translated as “they should be imprisoned” mean, literally, “they should be banished from the earth”, which both Imam Abu Hanifah and Ahmad Ibn Hanbal take as meaning imprisonment. Deportation is included if we take “earth” as meaning a particular country.

Punishment for theft

Theft is the next punishable crime spoken of in the Holy Quran:

“And as for the man and the woman addicted to theft, cut off their hands as a penalty for what they have earned — an exemplary punishment from Allah. And Allah is Mighty, Wise. But whoever repents after his wrongdoing and reforms, Allah will turn to him mercifully. Surely Allah is Forgiving, Merciful.” — 5:38–39

The cutting off of hands may be taken metaphorically, as in the expression qaṭa‘a lisāna-hū, literally meaning ‘he cut off his tongue’, but which means ‘he silenced him’,23 and it would simply mean restraining the thief by imprisonment or otherwise.

Even if taken literally, it is not necessary to cut off the hands for every type of theft, and this is a fact which all jurists have recognized. Evidently what is meant is that whereas the maximum punishment for armed gang robbery is death (5:33) if murder has also been committed, the maximum punishment for theft (5:38) is the cutting off of the hand. Therefore it is for the judge to decide which punishment will suit a particular case.

There are several circumstances which go to show that the maximum punishment of the cutting off of hands may ordinarily be reserved for habitual thieves. Firstly, the minimum punishment for armed gang robbery, i.e., imprisonment, having already been mentioned in 5:33, may also be taken as the minimum punishment for the much less serious offence of theft, and this would meet the ends of justice. Secondly, the cutting off of hands, being a punishment for the more serious offences falling under armed gang robbery, should also be reserved for the more serious offences falling under theft, and the offence of theft generally becomes more serious when it becomes habitual. Thirdly, the punishment of cutting off of hands, in cases of theft, is called an exemplary punishment and such punishment could only be given in very serious cases, or when the offender is addicted thereto and the milder punishment of imprisonment has no deterrent effect upon him. Lastly, 5:39 shows that the object of the punishment is reform, and an occasion to reform can only be given if the punishment for a first or second offence is less severe.

It is true that the cutting off of the hand, for even a first crime, is reported in Hadith but this may be due to the particular circumstances of society at the time, and it is for the judge to decide which punishment will suit the circumstances. For instance, according to some reports in Hadith, the hand was cut off when the amount stolen was one-quarter of a dinar or more; according to others when it was one dinar or more.24 According to another report the hand of the thief was not to be cut off at all when a theft was committed in the course of a journey or on an expedition.25 Probably some other punishment was given in such cases. There are also reports showing that the hand was not to be cut off for stealing fruit on a tree and the cutting off of the hand is also prohibited in the case of criminal misappropriation.26 In another hadith it is stated that when a certain person stole another’s mantle valued at thirty dirhams from underneath his head, the owner of the mantle offered that he would sell the same to the person who had stolen it, without demanding immediate payment, and the Holy Prophet approved of this arrangement.27 These examples show that great latitude was allowed to the judge in the choice of the punishment.

Punishment for adultery

Adultery, and false accusation of adultery, are both punishable according to the Holy Quran:

“The adulteress and the adulterer, flog each of them with a hundred strokes, and do not let pity for them detain you from obedience to Allah, if you believe in Allah and the Last Day, and let a group of believers witness their punishment.” — 24:2

It is generally thought that while the Quran prescribes flogging as a punishment for fornication, i.e., when the guilty person is not married, stoning to death is the punishment for adultery, and that this is based on the Holy Prophet’s practice. But the Quran plainly speaks of the punishment for adultery in the case of married slave-girls as being half the punishment of adultery in the case of free married women:

“So marry them with the permission of their masters, and give them their dowries justly, they being chaste, not fornicating, nor taking lovers in secret; then if they are guilty of adultery when they are taken in marriage, they shall suffer half the punishment for free married women.” — 4:25

Therefore death, or stoning to death, cannot be conceived of as possible punishment in case of adultery as it cannot be halved, while imprisonment or flogging may be. Thus the Quran not only speaks of flogging, and not death, as punishment for adultery, but it positively excludes death or stoning to death.

Flogging

A few words may be added as to the method of flogging. The Arabic word for flogging is jald which means skin, and the act of flogging signifies hitting or hurting the skin.28 Flogging was therefore a punishment which should be felt by the skin, and it aimed more at disgracing the culprit than torturing him. In the time of the Holy Prophet, and even for some time after him, there was no whip, and flogging was carried out by beating with a stick or with the hand or with shoes.29 It is further stated by the same authority that the culprit was not stripped naked for the infliction of the punishment of flogging; he was only required to take off thick clothes such as would ward off the stroke altogether. Baring the back for flogging is forbidden among Muslims, and a shirt or two must be left over the body. It is further related that it is preferable to give the strokes on different parts of the body so that no harm should result to any one part, but the face and the private parts must be avoided.

Stoning to death in Jewish law

As already shown, stoning to death as a punishment for adultery is nowhere spoken of in the Holy Quran nor was it contemplated as the punishment of adultery in this scripture. In Hadith, however, cases are met with in which adultery was punished with stoning to death. One of these cases is expressly mentioned as that involving Jews:

“Jews came to the Prophet with a man and a woman from among them who had committed adultery; and by his order they were stoned to death near the place where funeral services were held.” 30

Further explanation of this incident is given in another hadith where it is stated that when the Jews referred the case to him, he enquired of them what punishment the Torah prescribed in case of adultery. The Jews tried at first to conceal the fact that it was stoning to death, but on Abdullah ibn Salam giving the reference, they admitted it, and the guilty persons were dealt with as prescribed in the Torah.31 The Gospels show that such was the punishment up to the time of Jesus.32 According to a third version of this hadith, which is the most detailed, the Jews who desired to avoid the severer punishment of stoning for adultery said to one another: “Let us go to this Prophet, for he has been raised with milder teachings; so if he gives his decision for a milder punishment than stoning, we will accept it.” It is then related that the Holy Prophet went with them to their midrās (the house in which the Torah was read), and asked them what punishment was prescribed in their sacred book. They tried to conceal it at first but the truth had to be admitted at last, and the Holy Prophet gave his decision saying: “I give my judgment according to what is in the Torah”.33

Jewish practice followed by the Prophet at first

These reports leave not the shadow of a doubt that stoning was the punishment of adultery in the Jewish law, and that it was in the case of Jewish offenders that this punishment was first resorted to by the Holy Prophet when he came to Madinah. There are other Hadith reports which show that the same punishment was given in certain cases when the offenders were Muslims, but apparently this was before the revelation of the verse (24:2) which speaks of flogging as the punishment for both the adulterer and the adulteress, it being the practice of the Holy Prophet to follow the earlier revealed law until he received a definite revelation on a point.

A suggestion to that effect is contained in a hadith:

“Shaibani says, I asked Abdullah ibn Abi Aufa: Did the Holy Prophet stone to death? He said: Yes. I said: Was it before the chapter entitled The Light [the 24th chapter] was revealed or after it? He replied: I do not know.” 34

The question shows clearly that the practice of stoning for adultery was recognized as being against the plain injunction contained in 24:2. It is likely that some misunderstanding arose from the incidents which happened before the Quranic revelation on the point, and that that practice was taken as the Sunnah of the Holy Prophet. The Khawarij, the earliest Muslim sect, entirely rejected stoning to death (rajm) as a punishment in Islam.35

There is evidence in Hadith itself that Umar himself, at least in one reported case, and it is a reliable report, punished adultery with flogging as laid down in the Quran in 24:2, and not with stoning to death. According to Bukhari, one of Umar’s collectors, Hamzah by name, found that a married man who had committed adultery with his wife’s slave-girl had been punished by Umar with a hundred stripes, and he referred the case back to Umar, and Umar upheld his first decision.36

Accusation of adultery

A false accusation of adultery is punished almost as severely as adultery itself:

“And those who accuse free women and do not bring four witnesses, flog them with eighty strokes and never accept their evidence, and these are the transgressors — except those who afterwards repent and act aright; surely Allah is Forgiving, Merciful.” — 24:4–5

It may be added here that while in ordinary matters two witnesses are required, in the case of an accusation of adultery four witnesses must be produced.37 Thus a case of adultery can be established only on the strongest possible evidence. That circumstantial evidence is accepted is shown by the Quran itself in Joseph’s case who, when accused of an assault on the chief’s wife, was declared free of the charge on circumstantial evidence.38 There are also a number of Hadith reports showing that circumstantial evidence was accepted when it led to the establishment of a certain fact.

General directions for execution of punishment

Punishment must be inflicted without respect of persons, nor should mediation be accepted in such cases. When, in the case of a certain woman who was guilty of theft, some people sought to intercede on her behalf through Usamah, since she came of a good family, the Holy Prophet was enraged and said, “Do you intercede in the matter of a punishment (ḥadd)?”, and then addressed the people in general, saying:

“Those before you went astray, for, when one of them committed a crime and he was a great man, they would not punish him, and when he was a poor man they would execute the punishment.” 39

Leniency was shown in the execution of punishment when the guilty person showed signs of repentance. A Companion relates:

“While I was with the Prophet a man came and said: ‘O Messenger of Allah, I have committed a sin subject to legal punishment (ḥadd), so inflict it on me.’ The Prophet did not ask him what he had done. Then the time for the prayer came and the man offered prayer along with the Prophet, and when the Prophet had finished his prayer, the man again got up and said, ‘O Messenger of Allah, I have committed a sin subject to legal punishment (ḥadd), so inflict on me what is in the Book of Allah.’ The Prophet said: ‘Have you not prayed with us?’ He said: ‘Yes.’ The Prophet said: ‘Allah has forgiven your sin’, or he said: ‘your punishment’.” 40

It is strictly forbidden that a person should be punished for the crime of another.41 Nor is any punishment to be inflicted on a mad man or a minor.42 The punishment of the pregnant woman is to be deferred until she has delivered her child.43

Supplement by the Editor

In recent years certain misconceptions have spread regarding legal punishments prescribed by Islam due to the misapplication of Islamic law in some Muslim countries as well as misunderstandings by Muslim individuals and communities. These misconceptions are clarified from the Holy Quran and Hadith in the supplement below, written by the Editor of this handbook.

1. No punishment for ‘blasphemy’ or insulting the Prophet

Muslims have the duty to refute, by means of word and speech, any allegations against Islam and the Holy Prophet Muhammad. Apart from fulfilling this duty, they are taught in the Holy Quran and by the Holy Prophet to respond to abuse and mockery by the following means only: showing patience, ignoring the abuse, leaving the company of the abusers, and exercising forgiveness. Islam neither requires nor allows Muslims to respond to abuse with fury and rage, call for physical retribution, use violence, or kill the abusers. This is clear from the following verses of the Holy Quran:

“And you will certainly hear from those who have been given the Book before you and from the idolaters much abuse. And if you are patient and keep your duty, surely this is an affair of great resolution.” — 3:186

In a Hadith report, commenting on this verse and on 2:109 (this latter verse is quoted further below), it is stated:

“The Prophet and his Companions used to forgive the idolaters and the followers of previous books, as Allah had commanded them, and they used to show patience on hearing hurtful words.” 44

“So bear patiently what they say…” — 20:130, 50:39
“And do not obey the disbelievers and the hypocrites, and disregard their annoying talk, and rely on Allah.” — 33:48
“And bear patiently what they say and turn away from them with a dignified withdrawal.” — 73:10
“And indeed He has revealed to you in the Book that when you hear Allah’s messages disbelieved in and mocked at, do not sit with them until they enter into some other discourse…” — 4:140; see also 6:68.
“Many of the people of the Book wish that they could turn you back into disbelievers after you have believed, out of envy from themselves, after truth has become clear to them. But pardon and forgive, till Allah bring about His command.” — 2:109
“Take to forgiveness and enjoin good and turn away from the ignorant.” — 7:199
Once there were four men who spread an accusation of immoral conduct against the Holy Prophet’s wife Aishah. Their allegation was ultimately proved to be false. One of them, called Mistah, who was poor, used to receive financial assistance from Aishah’s father, Abu Bakr. After this incident, Abu Bakr swore never again to help Mistah. The following verse was revealed to the Holy Prophet on this occasion:

“And the possessors of grace and abundance among you should not swear against giving to the near of kin and the poor and those who have fled in Allah’s way; and pardon and overlook. Do you not love that Allah should forgive you? And Allah is Forgiving, Merciful.” — 24:22

Hearing this, Abu Bakr exclaimed: “Indeed, I certainly love that Allah should forgive me.” He then resumed providing assistance to Mistah, as before.45

These teachings are borne out by the sayings and actions of the Holy Prophet Muhammad reported in the most authentic of Hadith reports:

“No one and no thing has greater patience than Allah upon hearing hurtful words. People call for a son for Him, and [yet] He grants them safety and sustenance.” 46 (Note: Christians are meant here.)
“Once the Messenger of Allah distributed some battle gains among people. A man of the Ansar said: ‘By Allah! Muhammad, by this division, did not intend to please Allah’. So I [the narrator of this report] came to the Messenger of Allah and informed him about it, whereupon his face changed colour with anger and he said: May Allah bestow His mercy on Moses, for he was hurt with more than this, yet he remained patient.” 47
“Aishah [wife of the Prophet] said: A group of Jews came to see the Messenger of Allah and they said: as-sāmu ‘alaikum [‘Death be to you’ instead of as-salāmu ‘alaikum, ‘Peace be to you’]. I understood it and said: ‘And upon you be death and curse’. Then the Messenger of Allah said: ‘Be calm, Aishah. Allah loves that one should be kind and lenient in all matters’.” 48
Suhayl ibn Amr was a prominent opponent of the Holy Prophet Muhammad at Makkah, and a skilled orator of the Quraish tribe, who used to employ his oratory in making speeches defaming the Holy Prophet. He was captured by the Muslims at the battle of Badr and brought before the Holy Prophet. A Companion suggested to the Holy Prophet that Suhayl’s front teeth should be pulled out “so that he would never be able to exercise his oratory against you”. The Holy Prophet replied without hesitation:

“Certainly not. I will not mutilate anyone, for God would mutilate me even though I am His Prophet.” 49

There is thus no legal penalty in Islam for blasphemy. However, laws may be made to prevent the spread of hate against any religion, as the Quran teaches: “abuse not those [gods] whom they call upon besides Allah…” (6:108).

2. No punishment for apostasy

Maulana Muhammad Ali has fully discussed in the chapter on Jihād in this book that there is no legal punishment of any kind in Islam for an apostate, i.e., a Muslim who leaves the religion of Islam. See pages here–here.

3. Rape

Cases reported from certain Muslim countries show that, under Islamic law as administered there, a woman who reports that she has been raped must produce four, male eye-witnesses (as required for an accusation of adultery) to support her claim; if she fails to produce such witnesses then her report of rape is treated as a confession of adultery on her part, for which she is then convicted and awarded the legal punishment. However, the following hadith shows that this is not at all correct:

“In the time of the Prophet a woman went out for prayer. On the way, a man met her, and he caught her and raped her [lit., ‘fulfilled his need from her’]. She shouted and he went off. A man passed by her and she said: That man did such-and-such to me. Then a group of muhājirīn [Companions of the Holy Prophet who had migrated from Makkah to Madinah] passed by. She said: That man did such-and-such to me. They went and caught the man about whom she thought that he had raped her, and brought him to her. She said: Yes, he is the one. So they took him before the Prophet. When he was about to pass sentence, the man who had [actually] raped her stood up and said: O Messenger of Allah, I am the one who did it. He [the Prophet] said to her: You can go, Allah has indeed forgiven you. And he said some kind words to the man [who had been wrongly caught].” 50

Here the Holy Prophet accepted the woman’s evidence and the identification by her of the attacker. Even the misidentification by her of the attacker was forgiven as it was a genuine mistake.

4. So-called ‘honour killings’ are illegal in Islam

Hadith reports in Bukhari and Muslim show that the Holy Prophet Muhammad strictly forbade any husband from inflicting his own punishment on a man if he caught his wife with him in the sexual act, or making allegations of this kind against his wife without bringing any witnesses. He instructed that the due process of law should be invoked to establish guilt and award punishment. He warned those who would take the law into their own hands that they themselves would be punished. From this, it follows more generally that no person is allowed in Islam to kill another by accusing him or her of an illicit sexual act, even if he claims to have seen it taking place.

According to a report in Bukhari, a man accused his wife of having sexual intercourse with another man and brought the case before the Holy Prophet:

“The Prophet said [to him]: Either you bring forth a proof or you will receive the legal punishment on your back. He said: O Messenger of Allah, if anyone of us saw a man with his wife, would he go to seek after witnesses? But the Prophet kept on repeating: Either you bring forth proof or you will receive the legal punishment on your back.” 51

By “proof” the Holy Prophet meant four witnesses in accordance with 24:4 of the Quran, the legal punishment for accusation without witnesses also being prescribed in that verse. The report says that it was on that occasion that the passage 24:6–9 of the Quran was revealed. The swearing of oaths as stipulated in those verses has been dealt with in this book in the chapter on Marriage on page here under the heading Li‘ān or cursing. According to the report, both the husband and the wife then took oaths as required in this passage, though the wife hesitated to swear the fifth time. Later, when she gave birth to a child, it resembled the alleged adulterer. The Holy Prophet, learning of this, said: “If it were not for the command which came in the Book of Allah, I would have dealt with her in a different way [i.e., by punishment]”.

The very next report in Bukhari is as follows:

“In the lifetime of the Messenger of Allah, a man accused his wife of illegal sexual intercourse and denied that he was the father of her child. The Messenger of Allah ordered them both [to do the cursing as prescribed in 24:6–9], so they did the cursing as commanded by Allah. Then he gave his decision about the child that it would be for the mother, and he separated the cursing couple [by divorce].”52

Similarly, according to a report in Sahih Muslim a man put the following predicament to the Holy Prophet:

“If a man were to find a man with his wife and if he were to talk about it, you would lash him; and if he killed [the man], you would kill him, and if he were to keep quiet he would be consumed by anger.” 53

This question shows that the Holy Prophet would have punished the husband for making a false allegation against his wife if he could not provide proof, and punished him for murder if he killed the other man. The report continues that the Holy Prophet prayed to Allah for an answer, and Allah revealed to him the passage 24:6–9 quoted above. Then both the man and his wife came to the Holy Prophet and swore in the manner prescribed. The woman was then free to go, even though the report casts doubt on her truthfulness.

As to sense of “honour”, it was reported to the Holy Prophet that a man, Sa‘d ibn ‘Ubada, a chief of the Anṣār, said: “If I found a man with my wife, I would kill him by the sword and not ignore it”. The Holy Prophet said:

“Do you wonder at the sense of honour of Sa‘d? I have a greater sense of honour than him and Allah has a greater sense of honour than I have.” 54

By this, the Holy Prophet meant that a person cannot be more moral and more concerned about honour than the Messenger of Allah and Allah Himself. When Allah and His Messenger, who are the greatest guardians of honour, decency and morality, do not teach the action the man wants to take, how can it be moral for him to do so?

In one version of the same incident in Sahih Muslim, Sa‘d ibn ‘Ubada himself asked the Holy Prophet: “If a man finds his wife with another man, should he kill him?”, and the Prophet replied: “No.” In another version, he asked: “If I were to find my wife with a man, should I wait until I bring four witnesses?”, and the Prophet replied: “Yes.” 55

Go to: List of Contents • Previous / Next (20. Morals and Ethics)

Notes to Chapter 19

Note: Bukhari, book 62: ‘Virtues of the Companions’, ch. 8, h. 3700.

1. Bukhari, book 11: ‘Friday Prayer’, ch. 11, h. 893.

2. Bukhari, book 81: ‘Ar-Riqāq (What makes the heart tender)’, ch. 35, h. 6496.

3. Bukhari, book 62: ‘Virtues of the Companions’, ch. 5, h. 3667–3668.

4. Ibid.

5. Bukhari, book 93: ‘Judgments’, ch. 51, h. 7219.

6. Bukhari, book 34: ‘Sales and Trade’, ch. 15, h. 2070.

7. Bukhari, book 93: ‘Judgments’, ch. 8, h. 7150.

8. Bukhari, book 64: ‘Military Expeditions’, ch. 60, h. 4341–4342.

9. Mishkat, book 17: ‘Governing and Judgment’, ch. 2, sec. 2, h. 3556.

10. Bukhari, book 93: ‘Judgments’, ch. 16, ch. heading.

Editor’s Note: Umar ibn Abdul Aziz is also quoted here as saying that a ruler must be intelligent, tolerant, of pure character, firm on truth and justice, and knowledgeable as well as a seeker of knowledge.

11. Bukhari, book 62: ‘Virtues of the Companions’, ch. 8, h. 3700. See also note 20 below which refers to h. 3052 of Bukhari.

12. Bukhari, book 43: ‘Loans (etc.)’, ch. 11, h. 2398.

13. Bukhari,book 56: ‘Jihād’, ch. 108, h. 2955.

14. Bukhari, book 10: ‘Call to Prayer’, ch. 54, h. 693.

15. Mishkat, book 17: ‘Governing and Judgment’, ch. 1, sec. 2, h. 3534 (v. 2, p. 198).

16. Bukhari, book 92: ‘Al-Fitan (Afflictions, Tribulations)’, ch. 2, h. 7055–7056.

17. Lane’s Lexicon.

18. Bukhari, book 87: ‘Blood-wit (Al-Diyāt)’, ch. 30, h. 6914. Tirmidhi, book 16: ‘Blood-wit’, ch. 11, h. 1403 (DS: book 14). Musnad of Ahmad ibn Hanbal, v. 2, p. 186.

19. Bukhari, book 87: ‘Blood-wit’, ch. 31, h. 6915.

20. Bukhari, book 56: ‘Jihād’, ch. 174, h. 3052. This report says that Umar, after he was stabbed, left the instruction for his successor “to fulfil the agreement made with those non-Muslims who are under the protection of Allah and His Messenger, to fight for their security, and not to burden them [with taxes or other obligations] beyond their ability”.

21. Abu Dawud, book 41: ‘Blood-wit (Al-Diyāt)’, ch. 3, h. 4501; ch. 19, h. 4547–4555; ch. 26, h 4588 (DS: book 38, chs. 3, 17 and ch. 24). Musnad of Ahmad ibn Hanbal, v. 2, p. 36.

22. Bukhari, book 87: ‘Blood-wit’, ch. 22, h. 6898. See also book 58: ‘Jizyah’, ch. 12, h. 3173.

Editor’s Note: In this case the murderer of a Muslim was suspected to be one of the Jews of Khaibar, but as there was no evidence of the identity of the murderer, the Holy Prophet himself paid the blood-money to the heirs of the victim.

23. Lisān al-‘Arab.

24. Abu Dawud, book 40: ‘Punishments (Ḥudūd)’, ch. 11, h. 4383–4387 (DS: book 37, ch. 12). Nasa’i, book 46: ‘Cutting off hand of Thief’, chs. 8–10, h. 4906–4956 (DS: h. 4910–4959).

25. Abu Dawud, book 40: ‘Punishments’, ch. 18, h. 4408 (DS: book 37, ch. 19). Nasa’i, book 46: ‘Cutting off hand of Thief’, ch. 16, h. 4979 (DS: h. 4982). Tirmidhi, book 17: ‘Punishments (Ḥudūd)’, ch. 20, h. 1450 (DS: book 15).

26. Abu Dawud, book 40: ‘Punishments’, chs. 12–13, h. 4388–4393 (DS: book 37, chs. 13–14).

27. Ibid., ch. 14, h. 4394 (DS: ch. 15).

28. Lane’s Lexicon.

29. For all references in this paragraph, see Rūḥ al-Ma‘ānī, vol. 6, p. 4 and 5.

30. Bukhari, book 23: ‘Funerals’, ch. 60, h. 1329.

31. Bukhari, book 61: ‘Virtues of the Prophet and his Companions’, ch. 26, h. 3635.

32. “Then the scribes and Pharisees brought to him a woman caught in adultery. … they said to him, Teacher, this woman was caught in adultery, in the very act. Now Moses, in the law, commanded us that such should be stoned. But what do you say?” (John, 8:3–5)

33. Abu Dawud, book 40: ‘Punishments’, ch. 26, h. 4450 (DS: book 37, ch. 25).

34. Bukhari, book 86: ‘Punishments (Ḥudūd)’, ch. 21, h. 6813.

35. Rūḥ al-Ma‘ānī, vol. 6, p. 6.

36. Bukhari, book 39: ‘Sureties (Kafālah)’, ch. 1, h. 2290.

37. For accusation of adultery by a husband against his wife when there are no witnesses, see chapter ‘Marriage’ here under the heading Li‘ān, and the present chapter here under Honour killings.

38. The Quran, 12:26–28.

39. Bukhari, book 86: ‘Punishments’, ch. 12, h. 6788.

40. Bukhari, book 86: ‘Punishments’, ch. 27, h. 6823. See also briefer version in Abu Dawud, book 40: ‘Punishments’, ch. 9, h. 4381 (DS: book 37, ch. 10).

41. Abu Dawud, book 41: ‘Blood-wit’, ch. 2, h. 4495 (DS: book 38).

42. Abu Dawud, book 40: ‘Punishments’, ch. 16, h. 4398–4403 (DS: book 37, ch. 17). Bukhari, book 86: ‘Punishments’, ch. 22, ch. heading.

43. Ibn Majah, book 21: ‘Blood-wit (Al-Diyāt)’, hadith 2694 (DS: ch. 36).

44. Bukhari, book 65: ‘Commentary on Quran’, h. 4566 (on Surah 3, v. 186).

45. Bukhari, book 52: ‘Witnesses’, ch. 15, h. 2261.

46. Bukhari, book 78: ‘Good Manners’ (Adab), ch. 71, h. 6099.

47. Ibid., ch. 53, h. 6059.

48. Ibid., ch. 35, h. 6024. See also ch. 38, h. 6030.

49. Sīrat Rasūl Allāh of Ibn Isḥāq; see its English translation, The Life of Muhammad by Alfred Guillaume, Oxford University Press, 1955, p. 312.

50. Abu Dawud, book 40: ‘Punishments’, ch. 7, h. 4379 (DS: book 37, ch. 8). See also Tirmidhi, book 17: ‘Punishments’, ch. 22, h. 1453–1454 (DS: book 15).

51. Bukhari, book 65: ‘Commentary on the Quran’, h. 4747 (on Surah 24, v. 6-9).

52. Ibid., h. 4748; see also h. 4746.

53. Muslim, book 19: ‘Invoking Curses’, ch. 1, h. 1495a, (DS: h. 3755).

54. Bukhari, book 86: ‘Those who wage war from among disbelievers and apostates’, ch. 40, h. 6846. See also Muslim, book 19: ‘Invoking curse’, ch. 1, h. 1498c, 1499a (DS: h. 3763–h. 3764).

55. Muslim, book 19: ‘Invoking curse’, ch. 1, h. 1498a, b, c (DS: h. 3761–3763).