Previously Asked Questions
Inscribed Punishment Questions:

> I also have a few questions. Early in my conversion, I bought
> a copy of Imam Malik's Muwatta, in its footnotes it listed
> Imam Maliks opinion that if an unmarried pregnant woman
> claims to have been raped, but did not scream for help,
> or produce some sort of proof, she is to be lashed as a fornicator.
>
> It seems to this ignorant man writing to you that the risk of
> accusing and punishing a chaste women for fornication is
> too great. It also seems that cultural things must be taken
> into account, for example many people are ignorant and
> blame/shame women who are raped. They are shunned in
> some societies, in others forced to marry thier attacker.
> Also, the psychological trauma may keep the woman from
> admitting to it until pregnancy forces the issue.
>
> Obviously there are many different situations, such that a
> woman's crys for help could be muffled, silenced, or
> unhearable due to distance/outside noise etc.
>
> Perhaps I misunderstood the ruling,

First of all you should understand that there are ten preconditions
that must met in the Maliki school before the hadd punishment for
fornication can be carried out on a person.  One of these preconditions
is that the person must have committed the act willfully and with
full *choice*.  Thus, it is not permissible to lash someone for
whom it cannot be well established that he/she was not in actuality
forced.

Reference:
   [QF: volume 1: page 303: line(s) 6-8: {book 17, chapter 4,
    section 1, precondition 4}]

Please note that before anybody is penalized with a hadd
punishment, he/she is first put through due process of
Law.  What this means is that the person is brought in
front of an authorized local judge who hears cases and is
authorized to decide whether or not a hadd punishment should
be carried out by the local Islamic ruler with jurisdiction.

It is only if the judge decides that a hadd punishment is
wajib that such a punishment is carried out.  Thus, it is
not valid to grab any pregnant woman off the street and
subject her to a hadd punishment based upon suspicion.

The above two paragraphs contain the understanding
we gain from the fuqaha' of the past that have written
about this and from how the hadd punishments were
actually carried out during the Prophet's (May Allah
bless him and give him peace) time and during the
course of Muslim history.

With that said and done, know that according to the popular
opinion in the Maliki school, there are three ways that
the judge can establish that a hadd punishment is
wajib:

The first way is by the accused acknowledging and admitting
that he/she willfully and with choice fornicated.  This is enough
to establish a hadd punishment if the accused is sane (not
mentally ill) and past puberty - and if the accused does not
withdraw his/her acknowledgement before the punishment is
carried out.

The second way is by four (and no less) adult male upright
witnesses that testify all together in the same hearing that
they saw with their own eyes that the accused was committing
fornication.  If for example, four men show up at the judge's
hearing and three of them give witness and then the fourth
retracts his statement of witnessing, then no hadd punishment
is carried out.  And according to the popular opinion in the
Maliki school, in such a case, the three witnesses that
testified are given eighty lashes for reporting an event that
at least one man had doubts about.  All this is in conformity
to verses 1-4 of surah al-Nur in the Qur'an.

The third way according to the popular opinion in the Maliki
school is by the appearance of a pregnancy on an unmarried
woman.  However, there are stipulations for this.  Among
these stipulations is that the woman was in her home town
where people know her when the act occurred.  Also among
these stipulations is that the judge that hears the woman's
case feels (without reasonable doubt) that the woman was not
forced to have sex (e.g., raped).  If the woman claims to
have been forced, she can bring any evidence that she
has even if it isn't confined to people hearing her shouts.
For example, if she can bring a family member that
remembers that she was significantly emotionally upset for
a period of time after the incident or she can bring a witness
that saw that she had a bruise or had blood on her body
or clothes, that will probably be enough for the judge
to decide that the woman was forced.  Thus, this third
way of establishing the hadd punishment for fornication
really returns to the decision of the judge who hears her case.

[As a side note, many scholars outside of the Maliki school
(e.g., Hanafi and Shafi`i) do not consider pregnancy of an
unmarried woman sufficient cause to indict her of
fornication.]

References:
   [QF: volume 1: page(s) 305, 106: line(s): 18-28, 1-3]

> The reason that some things that are Haram have a hadd punishment
> is because of thier detriment to society. So these things that are detrimental
> to society are discouraged through the threat of punishment. In seeking the
> wisdom behind a prohibition with a hadd punishment, one should look to see
> what the societal detriment would be.

The Hadd punishments were established by the Prophet and the first two Caliphs.
There are fourteen acts (i.e. (1) manslaughter, (2) battery, (3) fornication,
(4) accusing a chaste person of fornication, (5) taking intoxicants,
(6) stealing, (7) armed insurrection against the Islamic government,
(8) committing gang crime with weapons, (9) leaving the din,
(10) pretending to be Muslim in order to harm Muslims (e.g., a spy),
(11) publicly cursing Allah, His prophets, or angels, (12) practicing black
magic, (13) not praying the five daily prayers and (14) not fasting
during Ramadan) for which there is a hadd punishment inscribed in the
Maliki school.  We have listed these acts in footnote 2541 of the
Explanatory Notes of the Guiding Helper.


Yes.  There is a reasoning behind the punishments as there is a reasoning behind most
laws given to us by Allah, but we are narrating the opinion, that the Islamic governor
may not add a new "hadd" punishment based upon his own research and experience.

The Islamic ruler may add lesser penalties to other public violations of Shari`ah, but these
lesser penalties would take a non-painful form and non-restrictive form (e.g., a small fine
or forced public service for a short period of time).

Reference:
   [QF: volume 1: page 295: line(s) 3-6: {book 17, introduction}]

The "hadd" punishment that we are talking about has four major forms:

   a) Death penalty
   b) Cutting of a body member or limb
   c) Flogging with a whip (with medium power hits)
   d) Expelling someone from his homeland for a period of time (e.g., one year).

> However, other things that are haram, that don't have a prescribed
> punishment might be more detrimental to the individual than to society
> as a whole? Ghiba for example is wide spread, and one could argue it's
> detrimental nature on society, yet we are not all flogged 80 times a day X
> the number of times we committ this enormity. Likewise, issues wherein
> there may be scholarly disagreement (i.e. music, figurative representation,
> eating shellfish etc.) can not be enforced with such threat due to thier more
> personal nature.

Again if it can proven that the Prophet (May Allah bless him and give him peace)
or the following two Caliphs (we can also say following four Caliphs , but by
`Umar ibn al-Khattab's time, all hadd punishments and the acts associated with them
were firmly established and known) carried out a hadd punishment for the act,
then a hadd punishment is permissible; else, only a minor penalty (e.g., public service)
is allowed.

After studying this subject, the Maliki scholars came to the conclusion that
only the fourteen acts we listed and those acts that are part and parcel of those
fourteen (e.g., selling drugs and intoxicants) are the ones which have a
hadd penalty legislated for them.

> The hole I see already is that a Caliph can flog someone for something
> without a Hadd punishment, as long as it's under the hadd limit...

See the clarification above that the Caliph may not "invent" his own hadd
punishments.  For example, he may not inscribe the death penalty for those
that speak out against his government, since it is recorded that many people
spoke out against `Umar ibn al-Khattab and his practices without any hadd
punishment (or any punishment at all) being given.

The din is what Allah has revealed and what the Prophet (May Allah bless
him and give him peace) demonstrated.  The Caliph's job is to facilitate the
practice of this din, but he is not allowed to alter it and then claim that his
altered version is actually the din since he is given some sort of "divine"
authority.  The Caliph does not have any such 'divine' legislative authority
in our din (unlike the medieval Christian Popes for instance).


> I have a short question about the punishment for Blasphemy.
> I read in the translation of Qadi Iyad's Shifa, that there were
> occasions where someone killed a person who had insulted the
> Prophet (peace and blessings of Allah be upon him.)  This occured
> without a trial, and was approved of. There are some other hadiths
> similar to this that I've read elsewhere. This seems to imply that
> someone took the law into thier own hands. I'm sure there's some
> detail I'm missing, so I was hoping you could explain.

In the Maliki school a hadd punishment is not
permissible to execute until the accused is
given a fair public trial in front of a judge.  We're sure
you remember this from the question you had earlier
about giving a pregnant single woman a hadd punishment.

The evidence presented must prove beyond a reasonable
doubt that the crime was committed.  If no such clear
proof is available, the judge may not authorize any
punishment to be given.

This is how the court process is explained in the Maliki
Books of Law, such as Ihkam al-Ahkam (i.e. the Asimiyyah)
and al-Qawanin al-Fiqhiyyah.

If Qadi `Iyad has pointed out circumstances under which
a hadd punishment was given for sabb (i.e. public defamation
of Allah, the Prophets, or Angels) without a trial, it is
probably his way of emphasizing the importance of venerating
Allah, His Prophets, and Angels and is *not* an event that
sets a precedence for all cases of sabb.

References:
   [QF: volume 1: page(s) 313-314: line(s) 26-28, 1-15:
     {Book 17, chapter 10, sabb of Allah, Prophets, and
      Angels}]

> I saw an interview with a Nigerian scholar a while back
> in which he explained that the punishments in Islam are
> so scary is that they should prevent someone from doing
> the things associated with them (i.e. adultery, murder,
> blasphemy, apostasy, etc.)Now this makes perfect sense to
> me, but I recognize in myself that I would hate to ever have
> to witness or inflict such a punishment. Is this a weakness in faith?
> I would imagine that if I were all of a sudden put in the position
> of Qadi, I would look for every possible way to avoid such a punishment.

The astute Qadi will rather let a guilty man go free than let an innocent
man be punished.  The scholars derive this principle from the hadith
of the Prophet (May Allah bless him and give peace):

    "Qadis are of three types.  Two Qadis are in Hell while only one is
     in Paradise.  The Qadi who willfully gave incorrect rulings is in the
     Hellfire.  Also, the Qadi who destroyed the rights of people due to
     ignorance is in Hell.  And the Qadi who gave the correct ruling [with
     knowledge] is in Paradise."

    [{Tirmidhi, Ahkam, what the Prophet said about the Qadi, hadith #1244}]

> Also, I heard that there was a Mujtahid who felt that Apostasy wasn't
> punishable by death. Do you know who this was?

Sorry.  We are not acquainted with this mujtahid.

However, there is a minority opinion in the Maliki school which
is much softer on the person who is found guilty of public defamation
of Allah, the Prophets, or Angels.  This minority opinion states that
even after being found guilty of sabb, the accused can simply state
that he now regrets/repents from his act and in such a case no
punishment can be executed on him.

> I noticed that in one of your responses you mentioned the
> felonies which neccesitate Hadd, and then in paranthesis you
> mentioned that an amir can estblish lesser penalties (non-painful,
> non-restrictive) for other lesser crimes. However, this was not
> mentioned in the footnote you listed for QF (just the 13 (I think)
> felonies.) Since it takes me a long time to translate word for word,
> can you tell me where to look for the part about the amir being able
> to establish lesser penalties?

This is mentioned throughout the book with the word ta'deeb or ta`zeer.
The Maliki scholars usually use the word ta'deeb for this light form of
punishment.

One section in QF that explains this is:

  far`un yajuzu fi l-madh-hab al-ta`zir bmithli al-hudud wa aqallu
  wa akthar `ala hasabi l-ijtihad.  wa qala ibn wahb la uzadu fi t-ta`zir
  `ala `ashrati aswat li l-hadith al-sahih....

  Section:  It is permissible in the Maliki madh-hab to give other
  punishments (ta`zir) with punishments similar to hadd punishments
  or less than or greater than [hadd punishments] based upon the
  ijtihad [of the amir or qadi]. [This is the popular opinion] However,
  [other Maliki scholars like] Ibn Wahb have said that one
   should not exceed ten whips when executing a non-hadd punishment
  (ta`zir) as such is mentioned in a sahih hadith.

  [QF: volume 1: page 307: line(s) 20-24: {book 17, chapter 5 (fi hadd
   al-qadf, very end}]

Now, we are narrating the minority opinion on this subject given by Ibn Wahb
and similar Maliki scholars.  They state that no other act other than the
fourteen greater crimes may be punished with the degree with which
a hadd punishment is executed.  And since the exact form of this lesser punishment is
not written in stone, we would encourage the amirs (in an industrial and
civilized society) to choose a small fine or forced public service for a short
period (e.g., one week or two weeks).  And as stated above, if they decide to
whip, they may not exceed ten whips of medium strength.

And a relevant example from the Khurashi Sharh of Mukhtasar Khalil is:

  The madhab of the Mudawaanah is that anal sex with a foreign woman
  (one who is not one's wife) is also treated as fornication and not homosexuality.
  So, the unmarried perpetrator is given one hundred lashes and the married
  perpetrator is stoned (to death).  And Sheikh Khalil excluded with the
  foreign woman (ajnabiyyah) one's own wife.  Since, the perpetrator of anal
  sex with one's own wife is (only) given a light punishment (ta'deeb). [This is
  of course if he performed it in public or went to a judge and confessed.]

 [KH: volume 8: page 76: line(s) 4-6: {hadd of zina, near beginning, explanation
  of Sidi Khalil's words "or coming to a foreign woman in her back, or
  a dead woman who was not one's wife, ..." }]

As for the exact form of the ta'deeb, the amir should give the judges general
guidelines to follow.

You can do further research on this yourself (ta'deeb, is the gerund
of ad-da-ba, the active participle is mu'addib and the passive participle
is mu'addab).

> Are photos, videos, or recordings, ample evidence to convict or
> accuse someone of something? Maybe 50 years ago they would be very
> difficult to forge, but at this point they are easy to change around without
> anyone (or at least a few professionals) knowing.
>
> I was also thinking that since photos/videos are debated amoungst scholars
> that they might be impermissable as evidence (if they were considered haram.)

A photograph or a video may not take the place of an eyewitness in the
Maliki school.  This is because it is among the preconditions of a witness
that he be human and sane.

However, a photograph or a video may be submitted as *supporting* evidence
in a case as long as the photograph or video was taken in a public place.  The
judge can then decide whether this piece of supporting evidence along with
the other evidence presented (e.g., testimony from live witnesses) is enough
to convict the accused of the crime.

References:
   [QF: volume 1: page 264: line(s) 4: {book 15, chapter 7,
    conditions of witnesses, very beginning}]

> This leads me to ask, if spying is haram, then can a person be accused
> if someone obtained evidence through spying?

No.  It is not valid to accuse a person of a crime through evidence taken
from spying.  All such evidence taken from spying or unwarranted searches
and seizures is to be totally disregarded.   The precedent for this was set in
the famous incident during the Khalifate of `Umar ibn al-Khattab who
overheard music and smelled alcohol from a residence of a man in Madinah.
`Umar then scaled the man's backyard wall and told him that he had committed
a felony (e.g., drunk alcohol).  The man then defended himself by saying that
although he may have committed one crime, `Umar had committed three:
(1) spying by obtaining evidence from a private residence, (2) entering
through the back of the residence whereas the Qur'an commands us to enter
through the front [al-Qur'an 2:189], and (3) entering into a private residence
without prior permission.  `Umar then acknowledged his mistake and did
*not* bring the man to court.

> Then I wonder, what is the definition of spying.

The definition of spying is obtaining evidence/information from an exclusive
private space of an individual.  An exclusive private space may be a
closed house/residence/apartment/hotel-room/suite/room, private vehicle of
transportation with its doors closed, etc.

For example, one may not use instruments or one's eyes to listen
to or see what is going on inside a private hotel room.
Now if one senses danger for a third party (e.g., a kidnapped child), then the
authorities may use surreptitious methods to verify if the person in
danger actually is located within a private place to facilitate the
safe release of the victimized person.

References:
   [QF: volume 1: page 368: line(s) 20-21: {book 21, chapter 5,
    section 4, one may not spy to correct wrongs}]-




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