Ihsān (Islamic criminal law)

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Ihsān ( Arabic إحصان' DMG iḥṣān' making  inaccessible, fixing, immunizing ') is a category of Islamic criminal law that is used to determine the Hadd penalty in the offense of extra-marital sexual intercourse ( Zinā ). While a person who is in Ihsān status is punished with stoning in the case of zinā , the Koranic punishment (Sura 24: 2) of a hundred lashes is provided for those who do not have this status. As a result, the concept of Ihsān, which has also been incorporated into modern Islamic criminal laws such as the Pakistani Hudood Ordinances of 1979, severely restricts the use of the stoning penalty. There are great differences of opinion among Islamic legal scholars with regard to the requirements for the occurrence of the Ihsān state . The Ihsān concept is also relevant for the offense of qadhf, slander on account of zinā, since the relevant hadd punishment should only be applied if the person being defamed was in the state of ihsān at the time of the slander.

Koranic basics of the Ihsān concept

The term iḥṣān does not appear in the Qur'an , but the underlying verb aḥṣana (to make inaccessible ) and the participles muḥṣin ("made inaccessible") and muḥṣan ("made inaccessible") are used in several places . Various meanings for the term are derived from the use of these words in the Quran.

The aspect of chastity

In sura 21 : 91 and sura 66 : 12 Mary is described as the one "who made her shame inaccessible" ( allatī aḥṣanat farǧa-hā ). And in other places ( Sura 4 : 24, Sura 5 : 5) men who "make inaccessible" ( muḥṣinūn ) are contrasted with those who commit sexual immorality ( musāfiḥūn ). As it says in Sura 4:24: "On the addition you are allowed that her freed with your property, as inaccessible-making ( muḥṣinīn ), not driving as fornication men ( Gair musāfiḥīn )." In the juxtaposition with the adjective musāfi das , the participle appears in a different place (Sura 4:25: muḥṣināt ġair musāfiḥāt ) also related to women. Although the Egyptian standard edition of the Koran always vocalizes the female participle as passive: muḥṣanāt (literally "women made inaccessible"), this is not the only recognized reading in Islamic tradition . A number of Kufic and Meccan authorities vocalized the feminine participles as well as the masculine participles as active, and this reading was as common as the activic.

Due to the word usage described in the Koran and the frequent comparison with musāfaḥa ("fornication"), Ihsān is understood as a synonym for "chastity" ( ʿiffa ). The participles muḥṣin and muḥṣana are accordingly usually rendered in German with the terms "honorable" (according to R. Paret ) or "chaste" (according to H. Bobzin ). Those who bring such "honorable women" ( al-muḥṣanāt ) into disrepute by accusing them of adultery are to be punished with 80 lashes if they cannot produce four witnesses (Sura 24: 4). In addition, they are said to be cursed in this world and in the hereafter (Sura 24:23).

The aspect of freedom

In another verse (Sura 4:25) "women made inaccessible" ( muḥṣanāt ) are contrasted with women who are owned by Muslims. From this it is concluded that the participle muḥṣan also denotes free women, as opposed to slaves. In Sura 4:25 the man is allowed to marry a Muslim slave in the event that his assets are insufficient to enter into a regular marriage with a free Muslim woman. A special rule is introduced for these slaves at the end of the same verse: if they commit fornication, then they are due only half of the penalty for free women ( fa-ʿalai-hinna niṣfu mā ʿalā l-muḥṣanāt ). The meaning of "free women" for muḥṣanāt was also adopted in Sura 5: 5, where it is stated that believers may marry muḥṣanāt from believers and the Ahl al-kitāb if they give them their wages.

Ihsān as marriage

Finally, at the beginning of Sura 4:24, there is a passage from the Koran where the term was interpreted as a marriage. At this point it is stated that Muslims are forbidden to muḥṣan women, except for those who are in their possession. This has been generally interpreted to mean that muḥṣan women are women who already have a husband. As the authority for the interpretation that the muḥṣanāt mentioned in sura 4:24 are married women ( ūlāt al-azwāǧ ), the Medinan legal scholar Saʿīd ibn al-Musaiyab (d. 713) is mentioned in particular . In addition, ʿAbdallāh ibn ʿAbbās and ʿAbdallāh ibn Masʿūd are said to have interpreted the word in this way. According to Fachr ad-Dīn ar-Rāzī , the passage accordingly has the following telling value: "If the woman is already married, she is forbidden to all other men, except when she (as a slave) comes into the possession of a person. In this case she is hers Owner allowed. " As a basis for this interpretation, reference is made to the tradition that this verse was revealed when, after the Battle of Hunain in 630, Muslims captured women at Autās who were already married in the unbelieving field. With the revelation of this verse, these previous marriage bonds were broken and the Muslim militants were given permission to have sexual relations with the women.

In addition to this majority opinion, according to which the muḥṣan women in Sura 4:24 mean married women, there was also a minor opinion, according to which the term also meant chaste women here. According to this interpretation, the prohibition on marrying the four wives that the husband already owned was prohibited.

The binding of stoning to Ihsān status

The textual basis for linking stoning to Ihsān status is the hadith , according to which a person's blood may only be shed in three cases, namely in the case of apostasy from Islam , in Zinā after the occurrence of the Ihsān state and in the unjustified killing of a person. The person who is in Ihsān status is referred to as Muhsan ( muḥṣan ) in Islamic law . Stoning as a punishment for the Muhsan was only rejected by the Kharijites and the Muʿtazilites . They justified this with the fact that the stoning penalty cannot be found in the Koran.

Requirements for Ihsān status in Islamic law

In the Islamic law books there are catalogs of requirements that must be met for a person to enter the Ihsān state. In general, the following prerequisites are discussed: (1) maturity or sexual maturity ( bulūġ ), (2) Islam, i.e. the person concerned must be a Muslim (3) freedom ( ḥurrīya ), i.e. the person must not be in slave status, (4) legally valid marriage ( ʿaqd ṣaḥīḥ ), (5) consummation of marriage, (6) existence of these characteristics also in the other spouse.

The Hanafit al-Kāsānī meant that these qualities, when present in a person, formed a "fortress from fornication" ( ḥiṣn ʿan az-zinā ) as a "means of protection" ( mawāniʿ ) . Accordingly , he explains the term Iḥṣān as "entering the fortress before fornication" ( duḫūl fī l-ḥiṣn ʿan az-zinā ). In addition, he said that the inspection of Zinā, despite the existence of all "protective means" ( mawāniʿ ), represented the extreme degree of shamefulness and must therefore be sanctioned with the heaviest of all this worldly punishments, namely stoning.

Maturity or sexual maturity

That maturity or sexual maturity ( buluġ ) is a prerequisite for Ihsān was taught by Abū Hanīfa , Mālik ibn Anas and asch-Shāfiʿī . Some scholars supplemented the maturity with the requirement of the gift of reason ( ʿaql ). Therefore, children and the mentally ill should not be able to get into the Ihsān status. Al-Kāsānī suggested that maturity and reason are safeguards against zinā because they prevent people from committing offensive acts.

Islam

There were disagreements among legal scholars regarding Islam as a prerequisite for attaining Ihsān status. The Hanafis, as well as some Malikites, believed that only a Muslim could attain Ihsān status. Abū Yūsuf , on the other hand, is said not to have considered Islam to be a requirement for Ihsān status. In his opinion, a dhimmī could also attain Ihsān status, so that he had to be stoned if he did wrong. Ash-Shāfidī and the Malikit Ibn al-ʿArabi also shared this opinion . They all argued that Muhammad also had two Jews stoned to death. Al-Kāsānī , however, meant that the norm generated thereby was abrogated by the lashing verse (Sura 24: 2) . Al-Kāsānī, who considered Islam to be a prerequisite for Ihsān, justified the stricter punishment of the Muslim with the fact that this offense represented a "greater shamefulness" ( mazīd qubḥ ) because the Muslim who received the benefit of Islam was himself had to prove to be particularly ungrateful.

freedom

Freedom was generally considered to be a prerequisite for the Ihsān state. Only the Iraqi scholar Abū Thaur (d. 854) took the opposite view. He said that slaves could also attain Ihsān status and would therefore have to be stoned at Zinā. Al-Auzāʿī and Mujāhid ibn Jabr restricted this to the effect that the slave would only get into the state of Ihsān if he married a free woman. On the other hand, Mālik said that this man only had Ihsān if he was released after the marriage and continued to associate with his wife. On the other hand, if he left her before the release, he would not enter the Ihsan state. The same applies to the slave who is married to a free man.

Legal marriage

The majority of scholars, including Mālik and al-Shāfiʿī, believed that a legal marriage is a prerequisite for Ihsān status. Only Abū Thaur, the Egyptian scholar al-Laith ibn Saʿd (d. 791) and al-Auzāʿī are said to have expressed a different opinion . Al-Bādjī taught that legal marriage required the consent of the Lord if either spouse was not free at the time of marriage. Even if the slave was later released, the marriage would not occur without the consent of the ihsān.

While according to Sunni doctrine it is sufficient that the delinquent has entered into a legally valid marriage at some point, Shiite doctrine requires that the delinquent must still be legally married at the time of the act and that the spouse is also available to him. For example, if the spouse is imprisoned or on a trip, the Ihsān status is suspended. This Shiite definition of Ihsān was also incorporated into the Sudanese Penal Code in 1991.

Consummation of marriage

Mālik ibn Anas said that the consummation of the marriage must have taken place in a situation in which sexual intercourse was permitted ( ḥāla ǧāʾiz fī-hā al-waṭʾ ). In his opinion, intercourse during menstruation or fasting did not lead to Ihsan status. The Hanbalit Muwaffaq ad-Dīn ibn Qudāma taught that Ihsān only occurs when vaginal intercourse ( al-waṭʾ fī l-qubul ) has taken place, in which the glans in the vagina has disappeared ( waṭʾ ḥaṣala bi-hī taġaiyub al -ḥašafa fī l-farǧ ). Anal intercourse ( al-waṭʾ fī d-dubur ) and other sexual acts, on the other hand, were insufficient to induce the Ihsān state.

The Egyptian Malikit Ahmad ibn Muhammad ad-Dardīr (d. 1786) introduced in his Muwaṭṭāʾ commentary, as an additional requirement, the non-denial ( ʿadam munākara ) of marriage. Muhammad ibn Ahmad ad-Dasūqī (d. 1815) stated that the marriage was only considered consummate if both spouses confirmed this. If, on the other hand, a spouse denied enforcement, this requirement was deemed not to have been met. Other Malikites, on the other hand, said that in the case of Zinā one should disregard the delinquent's own testimony on the issue of marriage.

The spouse meets the Ihsān requirements

There were extensive discussions on the question of what requirements the spouse must meet in order for a marriage to lead to Ihsān status. A person who converts another person to Ihsān status through marriage is referred to as " muhsin " ( muḥṣin ) in Islamic law . Several early legal scholars such as al-Hasan al-Basrī , Qatāda ibn Diʿāma , Sufyān ath-Thaurī and Mālik ibn Anas believed that the slave woman can also function as a muhsin. So when a free Muslim has married a slave and married her, this is supposed to bring him into the Ihsān state. Ahmad ibn Hanbal, however, ruled this out.

There were similarly controversial positions regarding non-Muslim spouses. While Jabir ibn Zaid and Mālik ibn Anas believed that a consummate marriage to a Christian or a Jew would put the husband in the state of Ihsān, Abū Hanīfa , Mujāhid ibn Jabr , Sufyān ath-Thaurī and Ahmad ibn Hanbal believed that unbelievers Spouses cannot confer an Ihsān state. A hadith was invoked , according to which Mohammed advised his companion Hudhaifa ibn al-Yamān, who wanted to marry a Jewish woman, against it because she did not "make him chaste". He is quoted in this context with the words: "Leave her, for she does not make you chaste" ( daʿhā fa-inna-hā lā tuḥṣinu-ka ). Others, who considered the Islam of the spouse to be an Ihsān requirement, invoked the alleged prophetic phrase : "He who associates other things with God is not a muhsin " ( man ašraka fa-laisa bi-muḥṣin ).

The Hanafi put forward a total of the presence of all Ihsan requirements when spouse for the occurrence of Ihsan status. So if a free, sexually mature Muslim, who is in full possession of his mental powers, marries a slave ( ama ), a girl who is not yet sexually mature ( īabīya ), a mentally ill person ( maǧnūna ) or a woman of the Ahl al-kitāb and the According to the Hanafi view, before consummation with her, this man does not get into the Ihsān state and is accordingly not stoned in Zinā even if the wife later accepts Islam or is released. Spouses should leave the Ihsān status even if they briefly fall away from Islam and then accept Islam again. According to al-Kāsānī, the Ihsān properties must also be present in the other spouse because sexual satisfaction ( qaḍāʾ aš-šahwa ) in marriage with the immature girl, the mentally ill, the unbeliever ( al-kāfira ) and also with the female slaves ( ar-raqīq ) is imperfect.

The Ihsān status as a prerequisite for the Qadhf

In Hanafi jurisprudence, a distinction is made between the Ihsān status, which is a prerequisite for stoning, and the Ihsān status, which is a prerequisite for the offense of slander ( qaḏf ). The "Ihsān of slander" ( iḥṣān al-qaḏf ) differs from the "Ihsān of stoning" ( iḥṣān ar-raǧm ) mainly in the requirements. Al-Kāsānī names a total of five requirements for him: (1) reasonableness, (2) maturity, (3) freedom, (4) Islam and (5) abstention from zinā ( al-ʿiffa ʿan az-zinā ). Only if all these requirements are met by the person being slandered should the person slandering, as provided for in Sura 24: 4, be punished with 80 lashes. This definition of "Ihsān of slander" was also adopted in the 1979 Pakistani Hudood Ordinances .

literature

Arabic sources
Secondary literature
  • J. Burton: Art. "Muḥṣan" in The Encyclopaedia of Islam. New Edition . Vol. VII, pp. 474b-475a.
  • J. Burton: "The meaning of 'Ihsan'" in Journal of Semitic Studies 19 (1974) 47-75.
  • Şamil Dağcı: Art. "İhsan" in Türkiye Diyanet Vakfı İslâm ansiklopedisi Vol. XXI, pp. 546a-548b. Digitized
  • Harald Motzki: "Wal-muḥṣanātū mina n-nisāʾi illā mā malakat aimānu-kum (Koran 4:24) and the Koranic sexual ethics" in Der Islam 63 (1986) 192-218.
  • Rudolph Peters: Crime and Punishment in Islamic Law. Theory and Practice from the Sixteenth to the Twenty-first Century. Cambridge University Press, Cambridge 2005. pp. 167f.

Individual evidence

  1. ↑ See Rubya Mehdi: The Islamization of the Law in Pakistan. Curzon, Richmond (Surrey), 1994. p. 117.
  2. ↑ See Burton: "The meaning of 'Ihsan'". 1974, p. 48.
  3. ↑ Cf. Motzki: Wal-muḥṣanātū mina n-nisāʾi . 1986, p. 202.
  4. ↑ Cf. al-Kāndahlawī: Auǧaz al-masālik ilā Muwaṭṭaʾ Mālik . Vol. X, pp. 504f.
  5. ↑ Cf. al-Kāndahlawī: Auǧaz al-masālik ilā Muwaṭṭaʾ Mālik . Vol. X, p. 504.
  6. ↑ See Burton: "The meaning of 'Ihsan'". 1974, p. 73.
  7. ↑ See Burton: "The meaning of 'Ihsan'". 1974, p. 60.
  8. ↑ Cf. al-Kāndahlawī: Auǧaz al-masālik ilā Muwaṭṭaʾ Mālik . Vol. X, pp. 509f.
  9. ↑ Cf. al-Kāndahlawī: Auǧaz al-masālik ilā Muwaṭṭaʾ Mālik . Vol. X, p. 511.
  10. ↑ Cf. al-Kāndahlawī: Auǧaz al-masālik ilā Muwaṭṭaʾ Mālik . Vol. X, p. 510.
  11. ↑ Cf. al-Kāndahlawī: Auǧaz al-masālik ilā Muwaṭṭaʾ Mālik . Vol. X, pp. 511, 513.
  12. ↑ See Burton: "The meaning of 'Ihsan'". 1974, pp. 60f.
  13. ↑ See al-Kāsānī: Badāʾiʿ aṣ-ṣanāʾiʿ fī tartīb aš-šarāʾiʿ Vol. VII, p. 39 and al-Kāndahlawī: Auǧaz al-masālik ilā Muwaṭṭaʾ Mālik . Vol. X, p. 505.
  14. ↑ See Burton: "The meaning of 'Ihsan'". 1974, p. 47.
  15. ↑ Cf. al-Kāsānī: Badāʾiʿ aṣ-ṣanāʾiʿ fī tartīb aš-šarāʾiʿ Vol. VII, p. 38.
  16. ↑ Cf. al-Kāsānī: Badāʾiʿ aṣ-ṣanāʾiʿ fī tartīb aš-šarāʾiʿ Vol. VII, p. 39.
  17. ↑ Cf. al-Kāndahlawī: Auǧaz al-masālik ilā Muwaṭṭaʾ Mālik . Vol. X, pp. 506-508.
  18. ↑ Cf. al-Kāsānī: Badāʾiʿ aṣ-ṣanāʾiʿ fī tartīb aš-šarāʾiʿ Vol. VII, p. 38.
  19. ↑ See Burton: "The meaning of 'Ihsan'". 1974, p. 57.
  20. ↑ See Burton: "The meaning of 'Ihsan'". 1974, p. 57f.
  21. ↑ Cf. al-Kāsānī: Badāʾiʿ aṣ-ṣanāʾiʿ fī tartīb aš-šarāʾiʿ Vol. VII, p. 38.
  22. ↑ See Burton: "The meaning of 'Ihsan'". 1974, p. 55.
  23. ↑ Cf. al-Kāndahlawī: Auǧaz al-masālik ilā Muwaṭṭaʾ Mālik . Vol. X, pp. 515f.
  24. ↑ Cf. al-Kāndahlawī: Auǧaz al-masālik ilā Muwaṭṭaʾ Mālik . Vol. X, p. 506.
  25. ↑ Cf. al-Kāndahlawī: Auǧaz al-masālik ilā Muwaṭṭaʾ Mālik . Vol. X, p. 516.
  26. ↑ See Peters: Crime and Punishment in Islamic Law. 2005, p. 61.
  27. ↑ See Peters: Crime and Punishment in Islamic Law. 2005, p. 167f.
  28. ↑ Cf. al-Kāndahlawī: Auǧaz al-masālik ilā Muwaṭṭaʾ Mālik . Vol. X, pp. 505f.
  29. ↑ Cf. al-Kāndahlawī: Auǧaz al-masālik ilā Muwaṭṭaʾ Mālik . Vol. X, p. 506.
  30. ↑ Cf. al-Kāndahlawī: Auǧaz al-masālik ilā Muwaṭṭaʾ Mālik . Vol. X, pp. 508f.
  31. ↑ See Burton: "The meaning of 'Ihsan'". 1974, p. 49.
  32. ↑ See Burton: "The meaning of 'Ihsan'". 1974, p. 49f.
  33. ↑ See Burton: "The meaning of 'Ihsan'". 1974, p. 50.
  34. ↑ See Burton: "The meaning of 'Ihsan'". 1974, p. 50.
  35. ↑ Cf. al-Kāndahlawī: Auǧaz al-masālik ilā Muwaṭṭaʾ Mālik . Vol. X, p. 517.
  36. ↑ See Burton: "The meaning of 'Ihsan'". 1974, p. 55.
  37. ↑ Cf. al-Kāndahlawī: Auǧaz al-masālik ilā Muwaṭṭaʾ Mālik . Vol. X, p. 507.
  38. ↑ Quotation al-Kāsānī: Badāʾiʿ aṣ-ṣanāʾiʿ fī tartīb aš-šarāʾiʿ Vol. VII, p. 38.
  39. ↑ Cf. al-Kāndahlawī: Auǧaz al-masālik ilā Muwaṭṭaʾ Mālik . Vol. X, p. 507.
  40. ↑ Cf. al-Kāndahlawī: Auǧaz al-masālik ilā Muwaṭṭaʾ Mālik . Vol. X, p. 507.
  41. ↑ Cf. al-Kāndahlawī: Auǧaz al-masālik ilā Muwaṭṭaʾ Mālik . Vol. X, p. 508.
  42. ↑ Cf. al-Kāsānī: Badāʾiʿ aṣ-ṣanāʾiʿ fī tartīb aš-šarāʾiʿ Vol. VII, p. 38.
  43. ↑ Cf. al-Kāsānī: Badāʾiʿ aṣ-ṣanāʾiʿ fī tartīb aš-šarāʾiʿ Vol. VII, p. 37.
  44. ↑ Cf. al-Kāsānī: Badāʾiʿ aṣ-ṣanāʾiʿ fī tartīb aš-šarāʾiʿ Vol. VII, pp. 40f.
  45. ↑ See Rubya Mehdi: The Islamization of the Law in Pakistan. Curzon, Richmond (Surrey), 1994. p. 135.