5 myths about sharia and the hudud punishments

The word sharī’a means a path to water. The Quran uses it once: “Then We put you on a clear path of the matter, so follow it.”^[1] It names God’s guidance, and no book of statutes. A related word appears in a verse addressed to the earlier communities, “to each of you We have given a law and a way”, which treats the path as something that can differ in form across the prophets.

The detailed rulings are fiqh, the jurists’ understanding of that guidance, and fiqh is human work. It is why the four Sunni schools, the Hanafi, Maliki, Shafi’i and Hanbali, differ on hundreds of points and are all accepted as valid. Ismail al Faruqi’s glossary of Islamic English draws the same line: sharī’a is God’s legislation, the laws of Islam as given, and fiqh is knowledge of Islam through its laws, the human science of deriving them.^[2]

The objection runs that the Quran and hadith do contain explicit rulings, so the law is partly fixed. That is correct, and the next entries deal with it. The fixed part is a small core, and the schools built the rest by reasoning from it over centuries.

The ḥudūd (“limits”) are the fixed punishments for a handful of offences: theft, highway robbery, adultery, false accusation of adultery, and for some jurists drinking and apostasy. The Quran itself names the first four.^[3] A typical book of law runs to hundreds of pages on worship, trade, contracts, marriage, inheritance, endowments and courtesy, and gives a few pages to the hudud.

The list is itself disputed. Drinking is forbidden by the Quran, and its penalty rests on the practice of the Prophet and the Companions, with the schools differing on the number of lashes. Most classical jurists held that a persistent apostate is put to death, citing a hadith that whoever changes his religion is to be killed, and the Hanafis excepted women.^[4] Some modern scholars argue that the ruling applied to apostasy joined with treason and cite the verse “there is no compulsion in religion”.^[5] The disagreement is real and the classical position should be stated as it was.

A way to see the proportion is to read the Quran itself. The verses that set punishments are a small fraction of the whole, and the overwhelming weight is on belief, character and obligations to others.

The opposite is true. The jurists made the hudud almost impossible to prove. Adultery needs four eyewitnesses to the act itself, and a person who accuses without them is flogged for slander.^[6] The Prophet is reported to have said: “Avert the ḥudūd from the Muslims as far as you can.”^[7] When a man named Ma’iz confessed to adultery, the Prophet turned away from him several times and asked if he had perhaps only kissed or touched, until Ma’iz insisted.^[8] The penalty was then carried out, so the safeguards narrow the cases without removing the punishment.

Doubt cancels the penalty. Umar suspended the penalty for theft during the year of famine, because people were stealing from need.^[9] Jurists drew from such cases that a hadd (the singular of hudud) may be carried out only when intent, proof and the absence of any excuse are all clear. For theft they also required a minimum value and that the goods had been kept in a secure place.

The strongest objection is that some modern states have applied these laws without the safeguards, and women who reported rape have been charged with adultery. That has happened. Pakistan amended its 1979 Hudood Ordinances in 2006 after such cases. The failure lies in the application, and the classical rules point the other way.

The Quran attaches repentance to almost every hadd. “Those who repent after that and make amends, God is forgiving and merciful.”^[10] Highway robbers who repent before they are caught are excused.^[11]

For killing, the law allows the family of the victim to forgive or accept blood money, and the Quran calls forgiveness better: “Whoever forgives and makes reconciliation, his reward is with God.”^[12] The system is built to give the family the choice to stop at mercy.

There is a limit, and it should be stated. Once a case has reached the judge, the schools held that for most of the hudud the matter can no longer be dropped. In the report of Safwan’s cloak, the Prophet ordered a thief’s hand cut after Safwan had offered to forgive him, saying the pardon should have come before the case was brought.^[13] Mercy therefore works before the court, in repentance and in private settlement, and the law encourages people to use it there.

Islamic law has an internal tool for new questions, ijtihād, the scholar’s disciplined effort to reach a ruling where the text is silent. The Prophet said that a judge who exercises ijtihad and is right has two rewards, and if he errs has one.^[14] A well-known report has the Prophet ask Muʿādh ibn Jabal, when sending him to Yemen, how he would judge, and Muʿādh answered: by the Book, then by the practice of the Prophet, then by his own effort. The chain of that report is disputed, though jurists have cited it for centuries.

The old claim that “the gate of ijtihad was closed” in the tenth century is rejected by many historians, who show that jurists went on issuing new opinions for centuries, and by modern scholars who ask that it be used more freely.^[15] Most of the rulings on banking, medicine and technology today come from just this process.

The limit is that ijtihad works where the text is open. It does not set aside a clear text, which is why the fixed punishments have kept their form while the questions around them have kept changing. Many traditional scholars also hold that most people follow an established school and do not exercise ijtihad themselves.

The strongest form of this objection does not point at the hudud at all. It points at ordinary civic life: whether a citizen can leave Islam, criticise it in print, or practise another religion openly, in a state that calls its law sharia. Saudi Arabia’s Basic Law of Governance makes the Quran and the Sunna the country’s constitution, and its legal framework bans public non-Muslim worship, the public display of non-Islamic religious symbols, and proselytising by non-Muslims outright. Private worship is tolerated unevenly and at the risk of discovery.^[16] Pakistan’s blasphemy statute, Section 295-C of the penal code, carries a mandatory death sentence and has produced 184 documented prosecutions between 2014 and 2018 alone, used against Christians, Hindus and dissenting Muslims together.^[17] They are the settled policy of states that describe their own law as sharia.

The answer given earlier in this piece, that fiqh is not one fixed code, is not a dodge here. It is the only accurate description of what actually produced these laws. Saudi Arabia’s ban on public non-Muslim worship and Pakistan’s blasphemy statute are not identical rulings handed down from the same classical source. They are two states’ own modern legislative choices, built on different readings of different classical material and enforced with different machinery. The classical jurists who wrote on apostasy and blasphemy did not leave behind a single administrable penal code a modern court could apply directly. The code belongs to the state that wrote it, centuries after the classical jurists it claims to follow.

The variation is visible between Muslim-majority states, not only inside them. Senegal’s constitution declares the state secular, protects the free practice of religion, bars political parties from claiming a religious identity, and punishes religious discrimination by law. Muslims there may choose between civil law and sharia for family matters such as marriage and inheritance, but nothing in Senegalese law restricts a Christian’s worship, speech or civic standing.^[18] Malaysia sits between the two poles. Article 11 of its constitution guarantees that other religions may be practised in peace and harmony, and its restriction runs narrower than Saudi Arabia’s: Article 11(4) lets states control the propagation of other religions specifically to Muslims, not public non-Muslim worship as such, and even that narrower rule has gone unenforced in several states for want of the required legislation.^[19]

A reader who wants one answer to “do sharia states protect free speech and minority rights” will not get one, because the premise bundles together a secular constitution with optional Islamic family courts, a narrow restriction on missionary activity aimed at Muslims, and a criminal law that executes people for words. Each of those deserves its own verdict. Saudi Arabia’s restrictions on public worship and Pakistan’s blasphemy law are real, documented, and sit uneasily against the Quran’s own statement that there is no compulsion in religion.^[5] Senegal’s arrangement shows that a Muslim-majority state applying its own reading of sharia to family law is not the same claim as a state criminalising a Christian’s sermon. Collapsing the two into one argument against “sharia” trades a specific, answerable question for a slogan.