Hudud: Crime and Punishment
Particularity and Contingency of Penal Injunctions
Given the widely-held misconceptions of Shari’ah, one cannot emphasise enough the point that in terms of the actual implementation of the various Qur’anic penal injunctions (hudud) amongst Medina’s Muslims, this was a process fundamentally premised on and implemented via communal consensus, rather than being formally pursued by an institutionalised religious bureaucracy.
“During the Prophet’s time people were more concerned with day to day problems of marriage, divorce, inheritance etc. on one hand, and those of problems like theft, robbery, murder and some similar problems for which the Qur’an and the Prophet were inerrant source of guidance,” reports Prof. Nehaluddin Ahmad of Sultan Sharif Ali Islamic University in Brunei Darussalam. “The people asked the Prophet for guidance and followed his pronouncements or the Qur’anic injunctions voluntarily.” (Nehaluddin Ahmad, “The Modern Concept of Secularism and Islamic Jurisprudence: A Comparative Analysis”, Annual Survey of International & Comparative Law, 2010, Vol. 15, No. 1, p. 16-17)
Indeed, communal voluntarism is an essential prerequisite for the application of the haad penalties described by the Qur’an. This is evident in the evolution of the Prophetic mission, which can be discerned from the chronology of the revelation of Meccan and Medinan verses, and the distinctions between them. El-Garray rightly observes:
“The application of Hudud in accordance with Islamic Shari’a Law cannot be implemented until people are convinced with the wisdom underlying them. Therefore, the Prophet Muhammad did not apply any hudud for a period of 13 years. Instead, he was teaching people and implanting the meanings of religion in their minds. When they were enlightened, they were content that the hudud were being imposed on them as a way to reduce the severe punishment of God for worldly crimes in the Day After.” (Omar El-Garray, “Religious Extremism and Human Rights in the Experience of Sudan”, Sudanese Human Rights Quarterly, Summer 1995)
Here, El-Garry refers to the fact that the Qur'anic verses on haad penalties were not revealed for 13 years during the Prophetic mission - they were only revealed once acceptance of this mission was established in the community.
This essential component of the cognition of the validity of the haad rules as a precondition for their applicability is expressed within the classical Hanafi school of Islamic jurisprudence as shubat al-ishtibah (uncertainty of miscognition) or shuba fi'l-fi'l (uncertainty about the act), wherein legal liability is predicated on belief in and knowledge of the law, and intent to break it (e.g. see Hina Azam, Sexual Violation in Islamic Law: Substance, Evidence and Procedure, p. 181)
Within the Shafi'i school, this was expressed as follows: "whoever is ignorant of the illegality of an act that obligates a hadd sanction... yet, commits the act, is not to receive a hadd punishment; but if he knows of the illegality but is [simply] ignorant of the requisite hadd sanction or other punishment, he is to be punished." (Taj al-Din al-Subki, al-Ashbar wa'l-nazi'ir, cited in Intisar A. Rabb, Doubt in Islamic Law, p. 211)
However, the role and function of the few penal injunctions referred to in the Qur'an is often interpreted in purely literalist terms without due consideration for their overriding social goals, in terms of the Qur'anic maqasid. Islamist interpretations, in particular, tend to presume that the rigid implementation of such penal injunctions constitutes the very purpose of revelation.
Firstly, there is no Qur'anic basis at all to equate the Qur'anic conception of Shari'ah with any specific legal architecture of rules/regulations for conduct, including such penal injunctions. The widely proposed doctrine of 'Amr bin Marouf (derived from the Qur'anic exhortation to "command the good (marouf) and forbid the evil (munkar)") is frequently misinterpreted without any regard for the actual classical Arabic meaning of the terms marouf (good) and munkar (evil), which refer explicitly to concepts of universal shared human values.
Secondly, the one-sided and reductionist character of such approaches is evident from the way in which the Prophet himself oversaw the execution of Islamic penal injunctions. Contradicting the simplistic view of a purely literalistic and everlasting validity to the penal injunctions described in the Qur'anic text, is the Prophet's own approach to implementing and administrating these injunctions, as documented in a range of authenticated hadith. This important history proves clearly that hudud was not bound by the literalist letter of the law, but was routinely applied in a varied and flexible manner depending on the actual social context, as well as the Prophet’s own overarching compassion, mercy and generosity.
From numerous reliable historical reports, it is clear that the Prophet actually avoided implementing penal injunctions at his discretion, and even unambiguously discouraged their implementation in some circumstances.
This was never done arbitrarily – but a close analysis confirms that this sort of Prophetic flexibility regarding hudud was based on the application the higher maqasid (ethical objectives or values) as derived from the Qur’an itself. In other words, the Prophetic practice indicates that the Qur’anic maqasid in many cases required the suspension or amelioration of the literal application of penal law.
What are the hudud?
There are only four undisputed hudud penalties stipulated by the Qur’an: 1) Theft; 2) Armed robbery; 3) Illicit sexual intercourse; 4) Slander. It should be noted that the Qur’an does not institutionalise the death penalty as a first option for any case, even murder. For intentional murder, the Qur’an is explicitly clear that the family of the victim would have three options (2:178): the most spiritually lofty option is to forgive the murderer; otherwise, the options are to demand compensation from the murderer, or for her/him to be killed in kind. The evidential conditions mentioned in the Qur’an are the testimony of two independent, reliable witnesses to the act of murder itself.
Nor does the Qur’an ever mention stoning to death, although this is a common practice in some countries, conducted in the name of Islam. Stoning to death is also widely advocated as a penalty by classical Muslim scholars. However, the available evidence contradicts the legitimacy of the penalty of stoning to death for adultery.
The first doubt is that there is no mention of stoning to death in the Qur’an at all. Secondly, the hadith narrations describing the Prophet’s endorsement of this penalty are inconsistent, which raises questions about their historical authenticity. Thirdly, many Islamic scholars point out that a significant number of these narrations concerned Jews who were to receive penalties according to their own religious law, as demanded by their own communities. In this case, the application of these hadith to Muslims is mistaken. Fourthly, other scholars note that in any case, the bulk of these narrations pertained to events occurring before the revelation of the Qur’anic punishment for illicit sexual relations. This means that even if they did apply to Muslims, the Qur'anic revelation specifying the nature of the penalty (and not mentioning stoning to death at all) would have abrogated the validity of that practice. Resurrecting the practice as if it belongs to Islam is, therefore, a denial of the Qur'an. Finally, it is worth noting that the evidential condition for the penalty, even according to those who advocate it, is a total of four independent, reliable witnesses to have physically seen the actual act of penetration itself, a matter which is of course highly improbable. It should be noted that most countries which do implement this practice, such as Saudi Arabia or Iran, never bother to even meet that basic evidential criterion. (For discussion see Asghar Ali Engineer, Islam and Modern Age. A detailed online dissection of this and related issues is Ahmad Shafaat, Punishment for Adultery in Islam: A Detailed Examination, 2003-2005)
Overall, Prof. Ahmad Shafaat has mounted a compelling argument that there is no sound textual evidence for the stoning penalty for adultery, and, furthermore, that there is no sound evidence at all for other mandatory death penalty punishments, for instance, regarding apostasy (see Shafaat's other works).
Prophetic flexibility on hudud
So we are left with these four basic penalties, which were only relevant in the context of public offenses. The Prophet clarified that the primary purpose of these penalties was simply to reduce the penalties received in the Hereafter: “Who so ever commits the sins (shirk, stealing and adultery) and is punished for it, then the punishment nullifies the sins for them. And who so ever commits the sins and Allah covers it, then it depends on Allah to pardon them or punish them.” (Sahih al-Bukhari, hadith no: 6784)
However, even better than seeking to be punished via hudud, according to the Prophet, was attempting to resolve and forgive related sins without requiring hudud. Although, the early Muslims did often voluntarily approach the Prophet to confess or arbitrate accusations involving hudud, the Prophet himself clarified many times that it was far better to forgive and resolve hudud crimes without his intervention:
“Pardon in hudud among yourselves, for the legal penalty for any wrongdoing reported to me will imperatively be applied.” (Collected by Abu Dawud in the chapter 'Legal Penalties,' no. 4376, and An-Nasa’i in the chapter 'Cutting Off the Hand of the Thief,' no. 4889. Al-Hakim also collected it and deemed it authentic, and Adh-Dhahabi agreed with him [vol. 4, p. 383])
In other words, it was better for members of the community to address actions that might invoke the hudud penalties among themselves, rather than seeking the arbitration of an external adjudicator in the form of the Prophet. If the crime had not come to his attention, or had been voluntarily forgiven, no penalty was necessary – the gravity of the crime was not an issue here.
Haad penalties were, ultimately, about prosecuting public crimes - ethical violations that were conducted in such a way as to become public knowledge that could, therefore, damage the public good. In another hadith, the Prophet said:
"He who has committed [haad], let him cover himself with the covering of God, and let him repent to God. For on him who reveals to us his deed in the open, we will enforce the Book of God." (Al-Hakim, Mustadrak, 4:244, 383)
The Prophet went further, though, in exhorting Muslims to avoid confessions. In one case, a confessing thief was told by the Prophet:
"Did you steal? Say no." (al-Kasani, Bada'i al-sana'i, 7:61)
In all cases, even when haad issues came to him, the Prophet exhorted the parties to resolve the matters among themselves through forgiveness rather than invoking the penalties. According to Anas ibn Malik:
"I never saw a case involving legal retaliation being referred to the Messenger of Allah, peace and blessings be upon him, except that he would command pardoning the criminal." (Sunan Abu Dawud, no. 4497, graded sahih)
The Prophet also forbade the creation of a sort of 'moral police' among the Muslims who would seek out sins or mistakes, and implement punishments:
“A leader, if he spies for the faults of his people, it would mean that he is destroying them.” (Sunan Abu Daud, no: 4889, graded sahih by al-Albani)
The preference, instead, is for Muslims to forgive such crimes amongst each other and avoid publicising knowledge of them:
"Whoever covers (a crime) of a Muslim then Allah will cover him in this world and the hereafter.” (Sunan Ibn Majah, no: 2078, graded sahih by al-Albani)
On this note, the Prophet exhorted that every effort should be made to avoid implementation of the penalties – through encouraging self-repentance, forgiveness between aggrieved parties, or other measures:
“Avert the hudud (legal punishments) from being inflicted as much as you can, and whenever you find a way for a release [of a defendant] go through it, since it is better for one who rules to make a mistake in acquitting, than to make it in punishment of the innocent.” (Sunan al-Tirmidhi no. 1424. Classified authentic [sahih] by al-Hakim)
And in the same vein:
“Ward off the hudud through shuhubaat (ambiguities/doubts).” (Musnad Abu Hanifa)
As noted by Prof. Mohammad Hashim Kamali, currently head of the International Institute of Advanced Islamic Studies in Malaysia, the general language of these ahadith is not limited to a particular kind of ‘doubt’ relating to the evidential process, but doubt in general. By implication, any kind of doubt or ambiguity would fall within its remit.
This could also, therefore, include many crucial issues in modern society – rampant materialism, entrenched socio-economic inequalities, widespread temptations to sin, complete absence of any context for hudud implementation, and so on. These concerns would also apply to Muslim-majority countries which are for the most part highly unequal societies ruled by centralised and repressive military regimes, often with the support of Western powers. Consequently, such deeply-entrenched conditions of injustice themselves constitute fundamental societal ambiguities which would thus automatically require hudud penalties to be warded off – in effect, reducing them to ta’zir (discretionary) measures including a variety of penalties considered suitable by a consensually-elected, legitimate judicial authority. (See Kamali, “Punishment in Islamic Law: a Critique of the Hudud Bill of Kelantan, Malaysia”, Arab Law Quarterly [Vol. 13, No. 3, 1998] pp. 203-234. Also see his Principles of Islamic Jurisprudence [Kuala Lumpar, Islamic Texts Society, 2005]; Freedom of Expression in Islam [Kuala Lumpar, Islamic Texts Society, 1997])
In this context, it is important to recall that despite the necessity of enforcement upon an offense being confirmed to him, the Prophet often followed the very type of procedure Kamali describes here, resulting in the non-enforcement of penalties. The late Indian scholar Dr. Asghar Ali Engineer of the Institute for Islamic Studies in Mumbai, cites two authenticated historical cases which illustrate this:
“The Holy Prophet very well indicated that compassion is far more superior to the punishment. When one person came to him and said that I was sick and a lady came to see me and I could not resist the temptation and did what is strictly forbidden (i.e. had sexual intercourse with the lady). Please punish me. He was quite weak due to his illness and could not have borne the 100 blows. The Prophet took mercy on him specially because he had confessed to his crime and he took 100 branches of palm date tree and gave him one gentle blow (thus fulfilling the need of the Qur’anic punishment of 100 lashes). This show of compassion had much greater impact on him than the 100 blows.
There is another equally important story in the hadith literature. A child labourer that was underpaid by his employer stole fruit from the employer’s garden and ate. He was caught in the act and was brought to the Prophet by the employer demanding punishment of cutting off his hand. The Prophet made thorough inquiry and came to the conclusion that the child was underpaid and suffered pangs of hunger, which led him to steal fruit. Instead of punishing the child, he admonished the employer for underpayment and made it obligatory on him to educate the child and provide proper food to him until he grows up. There are many such examples, which make it clear that punishment per se is not the final objective but the reformation of the offender.” (Engineer, Islam and Modern Age)
Another well-known case of a hudud penalty being systematically suspended was under the governance of the second rightly-guided caliph, ‘Umar, who refused to amputate the hand of a person who stole due to hunger, because the circumstances deserved leniency. During this period, there was a severe famine, and as a consequence, ‘Umar implemented a general moratorium on the hudud penalty for theft. (William E. Shepard, Sayyid Qutb and Islamic Activism: A Translation and Critical Analysis of Social Justice in Islam [New York: E.J. Brill, 1996] p. 220)
According to the Prophet's wife Aisha, there were numerous other cases where the Prophet simply did not apply the haad for theft despite the seemingly literal Qur'anic imperative, and even though there was no famine:
"During the time of the Messenger of Allah, peace and blessings be upon him, he would not cut off the hand of the thief who stole less than the price of a shield or coat of armor, and both of them were valuable." (Sahih Muslim, no. 1685)
This demonstrates that the Prophet did not recognise the Qur'anic haad penalties as being universally applicable, but that their applicability depended on the extent to which they would achieve the Qur'anic ethical objective of justice.
There are many other examples. For instance, it is reported that under the Caliph 'Umar, a woman came and admitted in the presence of Ali ibn abi Talib to having committed adultery, and demanded she be subjected to the legal punishment. Instead, Imam 'Ali said to 'Umar, "Commander of the believers, this woman does not take account of the gravity of her words," and the two agreed that there was sufficient doubt which therefore required the inapplicability of any punishment, in spite of her confession. (Muhammed Sa'id Ashmawi, Islam and the Political Order, Council for Research in Values and Philosophy, Washington DC, 1994, p. 101)
In this context, it is clear from the Sunnah (Prophetic practice) that despite the literal and unqualified character of the Qur’anic text on the hudud penalties in the preceding cases, the higher maqasid evident from the Qur’an in terms of justice/compassion demanded that these penalties be waived.
The possibility of suspending the hudud as a mechanism of protecting Qur'anic justice/compassion is not mentioned in the Qur'anic text, but is evident from the Prophetic implementation of the hudud. This demonstrates clearly that the hudud were not supposed to be everlasting and omnipresent in their relevance and application, but rather that they were supposed to help sustain the Qur'anic maqasid of justice/compassion in the specific context of Meccan society at the time. And even then, the moral probity and flexibility of the Prophet and rightly-guided Caliphs prove that in some circumstances of the time, blind and literalist applications of hudud would have been unjust, and therefore non-Qur'anic.
This also demonstrates that the execution of the hudud cannot in themselves be equated with justice and goodness. Rather, the Qur'anic maqasid of justice and goodness could also obligate the non-implementation of hudud. Hence, there is no basis to draw a necessary equivalence between the Qur'anic command of "amr bin marouf" ("commanding that which is good") and the hudud penalties.
Prof. Tariq Ramadan draws on this example to justify his call for a contemporary general moratorium on the hudud punishments implemented in Muslim-majority countries largely in deleterious and unjust socio-political and economic conditions:
“The caliph ‘Umar ibn al-Khattab established a moratorium towards thieves when he suspended the application of the punishment during a famine. Despite the Qur’anic text being very explicit on this, the state of the society meant it would have been an unjust literal application: they would have castigated poor people whose potential theft would have been for the sole purpose of surviving in a state of absolute poverty. Therefore, in the name of absolute justice demanded by the global message of Islam, ‘Umar ibn al-Khattab decided to suspend the application of a text: keeping with the literalist interpretation would have meant disloyalty and betrayal of the superior value of Islam that is justice. It is in the name of Islam and in the understanding of texts that he suspended the application of one of these injunctions.” (Tariq Ramadan, “An International call for Moratorium on corporal punishment, stoning and the death penalty in the Islamic World”)
Thus, these examples of Prophetic practice, as well as the example of the rightly-guided Caliph, demonstrate that the particular legal injunctions of the Qur’an do not necessarily hold permanent value in and of themselves, but were designed to meet the Qur’an’s own maqasid (higher ethical principles) – and as such are liable for suspension if their application may violate those same Qur’anic maqasid in new social contexts.
This insight derived directly from Prophetic practice goes against the grain of the excessive legalism of some Muslim scholarship – a lesson which applies not simply to the hudud punishments, but even to the more minor personal penalties relating to religious practice.
Once again, this is illustrated in several sayings of the Prophet. In one case, for instance, a man spoke to the Prophet about the voluntary penalty for breaking his fast during Ramadan by having sexual intercourse with his wife:
“Narrated Abu Huraira: A man came to the Prophet and said, ‘I have been ruined for I have had sexual relation with my wife in Ramadan (while I was fasting)’ The Prophet said (to him), ‘Manumit a slave.’ The man said, ‘I cannot afford that.’ The Prophet said, ‘(Then) fast for two successive months continuously.’ The man said, ‘I cannot do that.’ The Prophet said, ‘(Then) feed sixty poor persons.’ The man said, ‘I have nothing (to feed them with).’ Then a big basket full of dates was brought to the Prophet. The Prophet said, ‘Where is the questioner? Go and give this in charity.’ The man said, ‘(Shall I give this in charity) to a poorer person than l? By Allah, there is no family in between these two mountains (of Medina) who are poorer than we.’ The Prophet then smiled till his premolar teeth became visible, and said, ‘Then (feed) your (family with it).’” (Sahih al-Bukhari, Volume 8, Book 73, no. 110)
Prophetic leniency and compassion on the supposed literal application of even minor penalties was paralleled by the Prophet’s dismissal of excessive concern for the formal dimensions of ritual practice. While Prophetic practice in general certainly underscored the importance of outer form alongside inner intention and spiritual development, he also made clear that the former was less significant than the latter:
“Narrated ‘Abdullah bin ‘Amr bin Al-As: While the Prophet was delivering a sermon on the Day of Nahr (i.e., 10th Dhul-Hijja-Day of slaughtering the sacrifice), a man got up saying, ‘I thought, O Allah’s Apostle, such-and-such a thing was to be done before such-and-such a thing.’ Another man got up, saying, ‘O Allah's Apostle! As regards these three (acts of Hajj), thought so-and-so.’ The Prophet said, ‘Do, and there is no harm,’ concerning all those matters on that day. And so, on that day, whatever question he was asked, he said, ‘Do it, do it, and there is no harm therein.’” (Sahih al-Bukhari, Volume 8, Book 78, no. 658)
In much the same vein, and in a statement that traditional Islamic scholarship today clearly hasn't taken seriously enough, the Prophet warned:
“Ruined are those who indulge in hair-splitting.” (Sahih Muslim, Vol. 4, no. 6450)
Of course, these sorts of traditions should not themselves be legalistically generalised to infer a new ‘rule’ permanently annulling adherence to specific ritual forms. A litany of other authentic historical traditions clarify that the Prophet frequently chose to give specific guidance on form. However, a holistic approach to these different traditions suggests that an excessive legalistic focus on the outer form of ritualistic practice is to be avoided, and that diversity in such forms is not necessarily of consequence or harm. As noted above, this does not nullify the significance of attention to the form – the Prophet never suggested its abandonment – but simply that the form itself is not as important as the purpose it should be oriented toward.
Best efforts should be made, therefore, to identify and practice ritual forms correctly, but not obsessively, nor to the point that it becomes a cause of division between Muslims.
It is universally recognised among orthodox Sunni and Shi'a scholars that in the absence of the evidentiary requirements to implement hudud (such as, for instance, the lack of four independent and reliable witnesses with no motive for dishonesty, to an alleged act of adultery), there is no basis to derive judgement and then implement the corresponding hudud.
Instead, therefore, the entire proceedings must be shifted to the realm of ta'zir - discretionary legal norms. Under ta'zir, other evidentiary legal standards and punishments may be agreed and implemented by the community, by shura (mutual consultation) to reach collective agreement. In modern societies, where the vast majority of crimes cannot by their very nature be adjudicated purely on the basis of eyewitness evidence and where all kinds of forensic data enabled by scientific advancements have become critical to investigating and prosecuting crimes, there is simply no firm basis for hudud to be implemented.
Instead, as long as new arenas of evidentiary standards involving a wide array of complex forms of physical, eyewitness and forensic evidence are integral to the investigation and prosecution of crimes, there are no grounds to resort to the implementation hudud. For all intents and purposes, it is virtually impossible to meet the baseline standards of unimpeachable reliable eyewitness established in the Qur'an.
While countries like Saudi Arabia and Iran, for instance, routinely implement their own variants of hudud punishments despite failing to meet even the strict evidentiary witness standards set out by the Qur'an, doing so is in fact quite illegitimate - even from an orthodox Islamic legal perspective.
The hudud punishments were thus most appropriate to the historical and social circumstances in which they were revealed, in which their effectiveness can be understood in the context of seeking to regulate the lawless tribal societies of 7th century Arabia:
“So we have revealed an Arabic Quran to you, in order that you may warn the capital city [Mecca] and all who live nearby...” (42:7)
Today, when the vast majority of crimes cannot ever be resolved simply using eyewitness evidence (which is often by itself unreliable and partisan), the Islamic legal necessity of communities shifting their judicial affairs to the realm of ta'zir is paramount.
For the most part, then, an Islamically-inspired legal system would seek to ensure that the best means of obtaining and assessing evidence to adjudicate crimes is available, and to develop a corresponding discretionary system of laws that substitutes capital punishments with more appropriate penalties formulated under ta'zir, with a view to advance the system as much as possible in meeting the Qur'anic maqasid of justice and mercy.
THE CASE FOR CONSTITUTIONAL SUSPENSION OF HUDUD
The overall import of this analysis for Muslim diasporas in modern Western societies is that there is simply no solid textual justification for the idea that Islam inherently entails the necessity of hudud being implemented indiscriminately and comprehensively as Divinely-enforced wajibat (obligation) in all times and places. Rather, this view comes from a narrow and selective reading of only certain portions of Islamic texts, which ignores the very literal texts and traditions providing a wider context, variability, limitations and contextual inapplicability of hudud.
On the contrary, the Prophetic model itself established a clear, constitutional framework upholding the sacred nature of a democratic, secular public space in which multiple communities could co-exist in political equality, mutual security, and religio-cultural autonomy. The term ‘democratic’ is used here in its full original sense in conveying the full, grassroots power of the demos – the people – rather than simply the specific form of representative democracy, which is of course the dominant form of democracy today.
Across this wider Medinan community, there was a permanent suspension of any overarching Muslim legal framework. Only the Covenant of Medina was to govern wider Medinan community affairs.
Under this constitution, the Muslim community’s adherence to Islamic legal injunctions was a matter of collective voluntarism, and even then conditional on meeting the higher ethical principles of the Qur’an. It was also discouraged by the Prophet himself who strongly recommended that his followers avoid asking him to adjudicate on hudud.
Further, in the context of the majority non-Muslim societies of the West, there is no basis to call for a societal implementation of hudud as a desirable outcome, as this would be a violation of the indigenous cultural and religious norms of these societies – which by Prophetic practice, Muslims are obliged to respect (whether or not they would be a majority or a minority).
Relatedly, the material, economic and cultural conditions of these cosmopolitan societies in which people of vastly different ethnic, cultural and religious backgrounds are enmeshed, is such that there are no longer clearly bounded-communities which can live by their own autonomous laws and norms. In such conditions, the implementation of one particular overarching set of state-enforced Islamic laws and norms in a way that would still respect the norms of these different but geographically overlapping communities is utterly impossible. The Prophetic model would suggest that in such circumstances, the Islamic approach would be to develop a constitutional framework of common law consistent with the maqasid of that model – to enable freedom of religion, ensure political equality, and protect the autonomy of members of different ethnic groups to pursue their cultural norms without imposing them on others.
Finally, the consumerist culture and widespread social structural inequalities of these societies would also suggest that even if by some peculiar historical development the implementation of Muslim legal norms became possible, these conditions would negate the viability of hudud penalties in any case.
The same logic applies equally to Muslim-majority countries, irrespective of the question of their internal socio-political and economic conditions. The fact is that in the era of globalisation, these countries are increasingly cosmopolitan, home to a mix of peoples of different ethnic backgrounds and religious sensibilities, once again without communities being cleanly separated into distinctive identities.
More significantly, though, the very evolution and proliferation of multiple legal schools within the corpus of 'Shari’ah' Law itself contradicts the viability of the Islamist vision of a single, centralised state-enforcement executive to impose one particular set of legal rulings.
Under the Prophetic model, the Prophet himself was voluntarily approached by the nascent Muslim community on religious and legal questions surrounding day-to-day issues precisely because he was accepted as the sole Divinely-appointed guide. But there is no such analogous condition today. On the contrary, the very nature of Muslim scholarship itself, along with the ethics of the Qur’an, are intrinsically open to the plurality of human legal opinions as recognised in the concept of al-ikhtilaf (the etiquette of disagreement between Islamic scholars).
This has precisely the same implications for contemporary modern Muslim-majority societies as for majority non-Muslim societies. Given that the Prophetic model precisely and constitutionally respects the autonomy and self-governing dynamic of multiple religious communities with respect to their own adopted religio-cultural norms, the same model applies for the multiple sub-communities within the Muslim community.
Thus, rather than a single bureaucratic executive enforcing a particular exclusivist code, the Qur’anic maqasid and Prophetic model demand that Muslim-majority countries adopt common law constitutions that protect political equality, the sacred independence of different Muslim legal schools, and correspondingly the religious autonomy of individual Muslims to freely follow, without coercion, the religious norms and values of their choice (not to mention, of course, the religious autonomy of non-Muslims).
The upshot of this discussion is that the secular public space is in fact an integral dimension of the Islamic polity, and that this fundamental elementary requirement cuts across both Muslim-majority and non-Muslim majority countries.
In both cases, to remain in compliance with the Prophetic model’s axiomatic protection of equality and freedom of plural religious practice, a common law framework much like the Covenant of Medina is required, in which there would be no governmental executive enforcement of Shar’iah or hudud across multiple religious community.
Indeed, given the scope for unchecked abuse, given the very localised context of the hudud penalties which drew on existing Arabian tribal customs and practices to address and reform local Arabian society, and given the reality that hudud today is usually implemented by corrupt states in a way that oppresses the most vulnerable, we should take most seriously the Prophet's command to "ward off" hudud as much as possible.
Rather than attempting to transplant these penalties reductively to our vastly different present-day context in a way that disregards that they were modifications and regulations of tribal practices of the time (in the words of the Qur'an intended for "those nearby"), our focus should, as per the Prophet's concerns, be on ensuring that the higher Qur'anic maqasid of justice/compassion can be protected today.
Finally, on that note, the Qur'an itself provides us textual grounds to recognise the inapplicability of the hudud beyond their historical and geopolitical context (al-waqi), grounded as they were in reorganising existing tribal Arab customs of the time:
"And thus We have revealed to you an Arabic Qur'an that you may warn the Mother of Cities [Makkah] and those nearby, and warn of the Day of Assembly..." (47:2)
Here, the Qur'an emphasises that although the Prophet Muhammad brought a universal message for all humankind, there is a specific purpose in the revelation arriving through an "Arabic Qur'an", that purpose being to communicate the message to, and reform, the local Arab tribes in Mecca and the surrounding areas.
The above analysis thus establishes strong grounds to recognise that within the Qur'anic-Prophetic model, hudud is applicable largely to the highly specific socio-historical and cultural context of the Arabian peninsula in the 7th century - beyond this, the Prophetic's own suspension of the hudud due to its inapplicability in some social contexts that would lead to injustice, requires a fundamental axiomatic position of caution in attempting to apply the hudud outside this context.
We may remind ourselves of the above cited sahih (authentic) hadith:
“Avert the hudud from being inflicted as much as you can, and whenever you find a way for a release [of a defendant] go through it, since it is better for one who rules to make a mistake in acquitting, than to make it in punishment of the innocent.” (Sunan al-Tirmidhi, no. 1424)
Given the Prophetic principle that justice is preferable to implementing the hudud in error, axiomatic preference must be given to recognising the constitutional inapplicability of hudud to avoid the risk of "punishment of the innocent" and other forms of injustice.
This, too, was emphasised by Caliph 'Umar, who went so far as to say:
"It is better for me to abolish hudud than to institute and apply them on the basis of doubtful evidence." (Ibn Abi Shayba, Al-Faruq al-haditha, Musannaf, Cairo, 2007, Vol. 9, p. 304)