Sunni Religious Law Perspectives on Hodud
Adherents and religious legal scholars of Sunni Islam usually defend Divine Hodud and the Islamic penal system. They consider Hodud to be a divine right; [these punishments] are based on expediency and their consequence is to protect society from the causes and factors that result in the commission of crime. Furthermore, they are deterrents to sin and wrongdoing, and in the event of the commission of a crime, they help in implementing justice. Some also believe the implementation of Hodud for violators to be a part of otherworldly punishment.
Although the near unanimous majority of Sunni legal scholars defend Hodud and their usefulness, they are extremely cautious in practice, however, and have rarely ruled in favor of their implementation. Among contemporary {Sunni] religious scholars, the viewpoint that assists the non-imlementation of Hodud is Yussef al-Qaradawi’s theory. Sheikh Ragheb Sarjani also has a similar opinion.
While defending Divine Hodud as part of the Islamic penal system and a rejection of the Western one, they both attach certain conditions which render their implementation difficult and reduce instances of such punishments to a very low number.
Sheikh Yussef al-Qaradawi, Al-Azhar University’s Mufti, is of the belief that Hodud must be carried out only when the defendant has no logical and valid excuse [for committing the crime]. In other words, no poverty and lack of personal and financial means should have driven the individual to commit crime. For insytance, when there is injustice, poverty, and hunger in the society, when a portion of the population cannot afford to pay for healthcare, there are severe class differences, and the society does not have a huma favce, implementation of Hodud is meaningless and must be set aside. In their opinion, Hodud should be carried out in a society that is acceptable in the eyes of God, where there is an appropriate level of justice, and the people have prosperity and human dignity.
Those who believe that Divine Hodud must be conditional upon non-existence of poverty and the defendant not being in need, cite the tradition of Omar bin Khattab, second khalifa of Moslems, as proof of the accuracy of their opinion. Under Omar’s tenure as khalifa, a great famine came upon the city of Medina and a large number of people either perished or became frail and sickly as a result. On eof the Muftis by the name of Hateb bin Abi-Baltagha had issued a sentence for the fingers of an individual be cut off for theft. The Khalife prevented that from happening and told the mufti: “How do you know the violator was not hungry? When everyone is hungry and they might die of hunger, not Hadd punishment, but a sentence for payment of monetary penalty must be issued instead.”
They also consider utmost certainty of the commission of the violation and sin to be the necessary condition for issuance and implementation of Hodud. There must be no doubt, uncertainty, or misgiving, and there must be sufficient evidence and reasons beyond [solely] the defendant’s confession. Hodud are not permitted when there is uncertainty, doubt, and misgiving.
There is also reference to the Prophet’s tradition “Edrou al-Hodud bel-Shobahat” which means that one must refrain from issuing Hodud sentences when there is no certainty and evidence acceptable to the court. The Prophet continues to say that to make a mistake in forgiving is much better than to make a mistake in punishing. Therefore, since the risk and cost of making a mistake in implementing Hodud is great, particularly those that result in loss of life, great care must be taken in issuing a sentence.
Therefore, from certain Sunni scholars’ perspective, attention to establishing equitable living standards, meeting the reasonable needs for life, ensuring the means of livelihood, sexual needs, and social needs, are pre-requisites to implementation of Divine Hodud; they have a minimalist view of implementing the punishment. Furthermore, they advise self-restraint in issuing and carrying out Hodud, from a practical expediency standpoint.