Hadd punishment

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Public flogging of a man for sexual harassment in Islamabad in the 1970s

Hadd punishments ( Arabic حد, DMG ḥadd  'limit', pluralحدود, DMG ḥudūd ) are penalties according to Islamic law that are imposed to protect property, public safety and public morality and are considered “legal claims of God” ( ḥuqūq Allāh ; sg .: ḥaqq Allāh ). Offenses subject to these penalties are extramarital intercourse ( zinā ), false accusation of extramarital sex ( qaḏf ), alcohol consumption ( šurb al-ḫamr ), theft ( sariqa ) and street robbery ( ḥirāba , qaṭʿ aṭ-ṭarīq ).

Justification and application

The Muslim jurists explain the characterization of the hadd punishments as “God's legal claims” by stating that their enforcement is not in the interests of a private person, but rather in the interests of the general public. The purpose of these penalties is not to compensate for the damage, but to avert damage through deterrence ( zaǧr ). For this reason, the authorities or a judge, once they have duly become aware of the act, do not have the right to waive the punishment. Conversely, for offenses atoned for with a hadd penalty, private law compensation cannot be applied for at the same time.

For the amount of the penalty and the question of whether a hadd penalty may be imposed at all, the legal and religious status of the delinquent is usually decisive. The full severity of these punishments applies only to the free Muslim and the free Muslim, while for non-Muslims and slaves the punishment is lessened.

Due to a tradition attributed to the Prophet Mohammed , the hadd punishments were only used restrictively in premodern times. The definition of the facts was narrow, the reporting deadlines were short: a case had to be reported within one month. In addition, there were some hurdles with regard to the necessary number and quality of witnesses. Statements by women, for example, were not allowed. All of this led to the fact that some hudud could almost only come about through a confession . However, confessions always had to be made before the judge in order to be valid. However, hudud's confessions were generally revocable and the Qadi had to advise the accused of this possibility. A basic idea behind the hadd punishments was that only those who want to take the punishment should be punished. This reflected the atoning nature of these punishments. In the modern age, however, this understanding of Hadd punishments has changed in part.

Penalties for Individual Offenses

Fornication and adultery

According to the Koran ( Sura 24,2-3 ), sexual intercourse outside of wedlock, exercised without coercion, by mature, sane, unmarried spouses or single persons is punished with a hundred lashes, tradition calls for stoning of married persons . If the man was married but the woman was not, she should be locked in the house “until death calls her away or God gives her a way out” ( Sura 4:15 ). If the man was unmarried, but the woman was married, he is to be banished for a year and the woman to receive 100 lashes.

Neither pregnancy in women nor a paternity test in men constitutes sufficient evidence of fornication, according to the majority of Islamic legal scholars. This is justified with the requirement that the hadd penalties should not be applied in the event of even the slightest doubt. According to one hadith , Ali ibn Abi Talib asked a pregnant woman whether she had been raped. When she said no, he concluded: "Maybe someone raped you in your sleep". The Maliki school of law makes an exception here: According to it, a pregnant woman who has been charged with testimony should be punished if there is no evidence of rape. The burden of proof in this case lies with the woman.

In recent years, convictions of women adulterers to death by stoning have caused great outrage, for example in the case of Amina Lawal and Safiya Hussaini in Nigeria.

Alcohol consumption

Alcohol consumption was widespread in pre-Islamic Arabia and in the early Islamic period, at the time of prophecy, among both Bedouins and townspeople. The definition of alcoholic beverages varied from region to region: in Medina people drank date wine nabiz  /نبيذ / nabīḏ , where the Taif wine made from grapes was also known: chamr  /خمر / ḫamr , which is then mentioned in six places in the Koran - later as the epitome of all alcoholic beverages. Grape wine was mainly imported from Syria to the south; the traders were Christians and Jews who had their stalls in the Bedouin camps and cities. With the enjoyment of wine, the gambling maisir  /ميسر / maisir , dance and song together.

Initially, it was not Muhammad's intention to forbid the consumption of wine in Medinan society. Because in sura 16 , verse 67 wine is considered a gift from God:

“And (we give you) of the fruits of the palms and grapevines (to drink), from which you make a binge, and (besides) nice maintenance. This is a sign for people who have understanding. "

Sura 4 , which was also written in Medina, only forbids the believers in Sura 4.43 to come to prayer drunk:

“You believers! Don't come to prayer drunk without first (having come to you again and) knowing what you are saying! "

Only in sura 5 , 90 ff - Theodor Nöldeke dates the origin of these verses to the fourth year after the hijra  - the final ban on wine consumption and gambling is pronounced:

Sura 5.90: “Believers! Wine, lottery tickets, sacrificial stones and lottery arrows are (a true) abomination and the work of Satan. Avoid it! Perhaps you will (then) fare well. "
Sura 5,91: “Satan wants (yes) through wine and the lottery only to cause enmity and hatred between you and to keep you from remembering God and from prayer. Don't you want to stop? "
Sura 5,92: “Obey God and the messenger and take care! If you turn away (and do not obey the command) you must know that our Messenger only has to give the message clear. "

The Koran does not provide for penalties for violations of the wine / alcohol ban; this is discussed in more detail and controversially in the Sunnah, which is traced back to Mohammed and the first caliphs, in numerous hadiths . The punishment by stick blows ranges between 40 and 80 blows. It was also necessary to define the Qur'anic term chamr more precisely, as it originally only referred to grape wine. Thus hadiths arose quite early, which were handed down as statements of both the prophet and his immediate followers. So it says: "Everything that is intoxicated is forbidden", in order to then derive a further statement: "Everything that is intoxicated is chamr and therefore prohibited". The surely asked question about the amount of alcohol that is still allowed is answered in the hadiths as follows: of what a large amount intoxicates, a small amount is also forbidden.

Road robbery

Road robbery ( ḥirāba , qaṭʿ aṭ-ṭarīq ) is punishable by killing, crucifixion , chopping off hand and foot in a cross or expulsion. Remorseful repentance , however, has an exempting effect if it takes place before the mugger is arrested. The basis for this regulation is sura 5: 33-34: "But the retribution of those who fight against God and his messenger and are after calamity in the land, which is that they are killed or their hands and feet are cut off, alternately right and left, or they are driven out of the country. That is humiliation for them here in this life. In the hereafter, however, they are destined to be severely punished, except for those who repent before you get hold of them is forgiving, merciful "(translation by Hartmut Bobzin ). The Maliki scholar ʿAbd al-Wahhāb al-Baghdādī (st. 1031) also mentions imprisonment ( ḥabs ) as a possible punishment for street robbery and leaves it to the ruler's judgment to choose the punishment that has the greatest deterrent effect.

Other offenses

Fictional representation of the whipping of a maid in the Ottoman Empire in 1908 by Peter Schnorr ( In den Schluchten des Balkans ; Karl May )
  • Defamation of fornication is punished with 40–80 lashes (Sura 24, verse 4), but the injured party can waive the punishment.
  • Theft (the removal of a valuable, non-perishable, Muslim-permitted product, to which one could not lay a legal claim, from a well-kept place with the intention of illegally keeping it) is done by chopping off the right hand, in the case of repeated chopping off the left foot punished (sura 5, verse 38). The person who was stolen must reclaim their property; if it does not, no limbs will be severed. The testimony of two qualified witnesses is required for the execution of the hadd penalty. The accused is informed of the possibility of the judge's revocation of confession.

See also

literature

  • Abdullahi Ahmed An-Na'im: Toward an Islamic Reformation. Civil Liberties, Human Rights, and International Law. Syracuse University Press, Syracuse NY 1996, ISBN 0-8156-2706-8 , pp. 104-115 (Chapter 6), ( Contemporary Issues in the Middle East ), ( limited online copy in Google Book Search - USA )
  • Maribel Fierro: "Idra'u l-hudud bi-l-shubuhat: when lawful violence meets doubt" in Hawwa 5 (2007) 208-38.
  • Antonia Fraser Fujinaga: Life and limb: irreversible hadd penalties in Iranian criminal courts and opportunities to avoid them. Dissertation, Edinburgh University, 2013 ( digitized version )
  • Baber Johansen: "Property, family and authorities in Hanafi criminal law. The relationship between private rights and the demands of the general public in Hanafi legal commentaries" in Die Welt des Islams 19 (1979) 1-73. Reprinted in Baber Johansen: Contingency in a Sacred Law. Legal and Ethical Norms in the Muslim Fiqh . Suffering u. a. 1999. pp. 349-420.
  • Rudolph Peters: Crime and Punishment in Islamic Law. Theory and Practice from the Sixteenth to the Twenty-first Century. Cambridge: Cambridge University Press 2005.
  • Frank E. Vogel: Islamic Law and Legal System. Studies of Saudi Arabia. Brill, Leiden et al. 2000, ISBN 90-04-11062-3 , pp. 223-278 (Chapter 6), ( Studies in Islamic Law and Society 8).

Web links

supporting documents

  1. ↑ a b cf. Johansen 1999, 386.
  2. ↑ See Johansen 1999, 387.
  3. ↑ See Johansen 1999, 388.
  4. ↑ a b See Johansen 1999, 390–392.
  5. ↑ See Johansen 1999, 394.
  6. ↑ Cf. on this Peters 142-185.
  7. ↑ The Sharia by Christine Schirrmacher, 2nd edition 2009, pp. 50–51
  8. ↑ Sura 4.43
  9. ↑ Sura 5.90
  10. ↑ Sura 5.91
  11. ↑ Sura 5.92
  12. ↑ See Peters: Crime and Punishment in Islamic Law. 2005, pp. 57-59.
  13. ↑ Sura 5 ( Memento of March 5, 2016 in the Internet Archive )
  14. ↑ Cf. ʿAbd al-Wahhāb al-Baghdādī: Kitāb at-Talqīn fī l-fiqh al-mālikī . Ed. Zakarīyā ʿUmairāt. Dār al-kutub al-ʿilmīya, Beirut, 1999. p. 152.
  15. ↑ Sura 24.4
  16. ↑ Sura 5.38
  17. ↑ Cf. Imam Abu 'Abdullah Al-Qurtubi: al-Jāmi' li Ahkām al-Qur'ānī , 6/159.
  18. ↑ See Saleh ibn Fawzan : al-Mulakhkhas al-Fiqhi , 2/442.