Halting the Death Penalty in Divine Hodud Punishments from a Practical Expediency Perspective
One of the reasons that could be put forth for halting Hodud is the expediency theory. This is an approach that does not concern itself with the principle of implementation or abolishment, but rather with the suspension [of Hodud punishments]. The former Head of the Islamic Republic Judiciary, Seyed Mohammad Shahrudi enumerated three conditions which, if satisfied, would halt implementation of Hodud, even if there is a sound basis for the issuance of the rulings and no defects are found therein. His opinion is as follows:
“Concerning those Hodud that are the rights of God and human beings, the ruler/judge can refrain from implementing Hadd [punishment] in any one of three instances: 1. In the event of a conflict, when the ruler/judge determines that implementation results in harm or corruption…such as the people turning away from Islam…; 2. Implementation of religious Hadd defeats the purpose and intent for which it was devised. We know with certainty that Divine Hodud are deterrents, the purpose of which is to reform the criminal and to prevent him and others from committing such crimes and to think about the consequences of sin. Now, if carrying out Hadd causes the criminal to become more corrupt and go farther and farther away from religion and [eventually] turn away from Islam and join the enemies and the opposition because of this, in such cases it is said that the ruler/judge may prevent implementation of Hadd and delay it. 3. In cases where implementation of Hodud is impossible or difficult. 3.1. Where there is conflict with a more important corrupting factor; for instance if carrying out Qesas of a criminal results in sedition and war with a government of which it is fearful… implementation of Qesas [by the next of kin] is not permitted as a matter of duty… 3.2. Where the ruler/judge determines that it is expedient to forgive the criminal, and that, for instance, Qesas must be reduced to [payment of] Diah. It can be said that the ruler’s general guardianship over the people, their property, and their personal rights, either in absolute terms or in what is considered in society’s and the [political] regime’s interests, requires that he exercise guardianship over this specific right as well, just like his guardianship over lives and property. Therefore, in the same way he can collect taxes and assess taxes on people’s personal property and prevent them from exercising portions of their personal rights, and, as required by the government’s interests, limit some of their freedoms, he can also prevent the next of kin from exercising his/her right to Qesas, since he is more meritorious and deserving of [the exercise of] these rights than they are… In such cases, Qesas by the next of kin shall be prohibited.”
Source: Seyed Mahmud Hashemi Shahrudi, “Requirements of Penal Law”, Volume 1, Dadgostar Publishing, Tehran, 1378 (1999-2000), pages 203-205.
Citing a tradition descended from Imam Ali, the first Shi’a Imam, Ayatollah Montazeri puts forth the necessity to abolish and set aside certain divine decrees that are more appropriate for a violent society, from a perspective of expediency and observance of the requirements of a particular time.
Vassael al-Shia, Volume 10, cites a tradition from Imam Ali whereby Hadd cannot be implemented in the land of the enemy, since there is the fear that the person on whom Hadd has been carried out would join the enemy out of anger. Ayatollah Montazeri states that it can be understood from the manner of argument contained in this narrative that where implementation of a divine Hadd results in negative consequences in society and creates further corruptions, it must not be carried out. Then Ayatollah Montazeri concludes:
“On that basis, it is possible to say that under current circumstances where the world has become sensitive to certain Hodud and has made them propaganda tools [to use] against Islam and the integrity of religion, it would [be best to] refrain from implementing them. Furthermore, it can be understood from these narratives [and traditions] that the main objective for making these punishments law is not some incomprehensible issue out of blind obedience [of divine law], but reforming society, ensuring public safety, and preventing and doing away with corruption and oppression. Clearly, this objective is dependent upon different societies’ cultural capacity and level of progress; it is likely that punishments are different with regard to their intensity and minimum-maximum sentences, based on cultural differences. It can therefore be said that it is possible that in the future, because of cultural progress in societies, there might be no need to carry out punishments that are more appropriate for violent societies.”
Source: Ayatollah Hosseinali Montazeri’s written response to Hassan Rezai, penal law researcher at Planck Institute, Germany, dated 15/11/1386 (February 4, 2008).
The principle of “Istihsan”, which Sunni Moslems mostly adhere to, is also relevant here. “Istihsan” generally means as follows:
According to this rule, which relies on rationality and interpretation based on the conventional wisdom of a specific time period, a ruling is issued only if it is defensible based on contemporary rationality. Therefore, relying on the rule of “Istihsan”, violent punishments can be considered outdated and dispensed with for lack of conformity with the philosophy of punishment in contemporary times.
Another rule that is instrumental is the invalidation of Hadd subsequent to the defendant’s denial of his/her confession. That is, in crimes where the only evidence of the crime is the defendant’s confession, if the latter denies and states that he/she has been forced to confess under duress, persecution, torture, or deception, Hadd punishment ceases to be valid. The Shari’a judge and the judicial system can forgive the defendant in such instance. It must be emphasized that this rule concerns cases where there is no other evidence or documentation other than the defendant’s confession. This rule’s basis in [Shi’a] narrative has been stated in the book “Vassael al-Shi’a”, Chapter 12, on the Preliminary Issues of Hodud.
Furthermore, the very stringent conditions that must be met to [implement] stoning and death penalty sentences in [meting out] divine Hadd, renders their implementation either impossible or reduces their numbers to a mere few. On this basis, some Islamic experts believe that the philosophy behind Hodud is to instill fear in order to deter, that their objective is not to inflict physical harm and/or take life; the Maker of Shari’a laws does not intend for these punishments to be implemented.
This level of concern rises in Hodud punishments that require the killing of an individual. Since a judge is fallible human being and one can never be absolutely certain of the accuracy of a sentence, some Islamic scholars and experts have advised to refrain from issuing death sentences. For instance, Ibn Arabi, the renowned Islamic scholar and mystic prefers forgiveness and pardon over punishment, especially the death penalty, because, [he says], God has built [the world] based on the preservation of life. (Source: Reza Feiz, “The Concept of Punishment In Ibn Arabi’s Mysticism”, Theology and Law, Islamic Razavi Sciences University Specialized magazine, Fall and Winter ___, Number 9 and ___, Page 5___-___).