WHEN I read the opinions and exchanges with regard to hudud in Malaysia, my head begins to hurt. Women write about their fear of being forced to wear the tudung if hudud were to be implemented. Others use the example of gambling as support for the introduction of hudud. Opponents have cited the persecution of religious minorities in Iran, or the prospect of murderers facing Islamic penalties as opposed to civil ones.
Talk of tudung and gambling is a distraction, as neither comes under hudud law. Hudud seems to have become a shibboleth for those who are opposed to living under conservative Islamic rule. People start fantasising about what hudud might mean — the enforcing of tudung for women, for example — without really understanding the nature of hudud, and its implications for Muslims and their conception of Islam.
Young Muslims wearing tudung in Istanbul (© Chris Schuepp / Flickr)
Islamic penal law must be unique in its classifying of offences according to the punishments they engender rather than the nature of the offence. Tazir crimes, for example, are those for which the penalty is left to the discretion of the judge. Offences where the perpetrator is made to suffer retaliatory actions at the hands of the victim’s family, or where the perpetrator is made to pay some kind of blood money, are called jinayat offences.
Hudud offences stand at the top of the hierarchy of Islamic penal law. There are only five offences that are classified as hudud, and they are in this category because they are regarded as offences directly against God. The specific punishments for these crimes have been expressed in the Quran and the Sunna by God.
Take the crime of theft, for example. Surah al-Maida:38 says, “As to the thief, male or female, cut off his or her hands, a punishment by way of example from God for their crime.”
The five hudud offences are theft (sariqa), unlawful sexual intercourse (zina), false accusation of unlawful sexual intercourse (kadhf), the drinking of intoxicating beverages (shurb), and highway robbery (qatal-tariq). Some jurists, including the religious scholars in PAS, include apostasy as one of the hudud offences, but there is no consensus in Islam about this.
Everyone seems to know about the penalty for theft, as the amputation of hands seems to be an image that immediately springs to mind when one thinks about Islamic law. Similarly the stoning of adulterers, though in fact this capital punishment may only be imposed on those who have already had lawful sexual intercourse before committing adultery. Those who lose their virginity outside marriage may only receive 100 lashes.
Delicate sensibilities beware
What might be more shocking for those of a delicate sensibility is the penalty for highway robbery. This is defined either as the robbing of travellers, or armed entry into a private home with the intention of robbing it. If a murder takes place and the theft is successful, the perpetrator is to be crucified.
A scene from The Passion of the Christ (© 20th Century Fox)
In my wilder fantasies, I sometimes have a hankering for the implementation of hudud laws in Malaysia, simply for the fascinating prospect of witnessing the mechanics of a state-sanctioned crucifixion in Kuala Terengganu. Mel Gibson could be invited as a consultant, thereby increasing KT’s celebrity cachet. Ah, The Passion of the Christ brought to life (or rather, death) in our own backyard, with the added attraction of local colour.
It is instructive that murder in general is not included in hudud law. While most legal codes regard homicide as the gravest of crimes, this is not the case in the Islamic tradition. What comes under hudud does not depend on human reason, societal norms, or democratic consensus. Some might be tempted to call hudud offences arbitrary. The pious believer, however, would deny that any divine ordinance could be called this. God has decreed that these five offences have specified penalties, and therefore, by necessity, God must have good reasons for doing so. It is only our limited knowledge that prevents us from understanding why God regards cheating on your husband as a more serious crime than murdering him.
This is the logic of religious belief. That is why some Catholic bishops seem to believe that wearing a condom is a more serious sin than infecting your sexual partner with HIV.
Questioning hudud is not a simple matter of choosing what kind of rules one wants as a Muslim. The only reason for the classification of these crimes as hudud is that they have been so ordained through God’s revelation to the prophet Muhammad. To question the status of hudud is to raise fundamental questions about the nature of the Islamic revelation. If God is so explicit and unambiguous about the penalty for theft in Surah al-Maida, on what grounds is this Quranic verse to be ignored? If one can challenge so clear a Quranic ordinance, what else in the Quran can be questioned?
(© Kyle Zakeski / sxc.hu)
To challenge the legitimacy of hudud laws is to embark on a perilous journey: you cannot know where the journey will end. I happen to like perilous journeys and uncertain destinations, but religious conservatives prefer safer itineraries. They have good reasons for doing so. The reason why hudud has such a privileged position is grounded in the conviction that, of the vast corpus of Islamic law, these offences alone have had their penalties explicitly determined by God.
Question hudud, and everything is up for grabs. Why pray five times a day? Why obey the rules for inheritance? If the explicit may be ignored, the less explicit may have even less significance.
Some commentators on the hudud issue have identified democratic will as the key issue in the hudud controversy: if the majority of citizens vote for hudud law, should this not then be the law of the land? This is a politically illiterate stance that equates democracy with mob rule. A majority of voters in California recently voted to make gay marriage illegal, but that vote is being challenged in the courts on the ground that it violates the principle of equal protection. If whites had been a majority in South Africa, this fact alone would not have made apartheid either moral or lawful.
Faithful praying towards Mecca; Umayyad Mosque, Damascus (© Antonio Melina / ABr)
Of course one could dismiss the entire hudud issue by characterising its proponents as politicians who seek to harness the emotional piety of the people for their own political ends. Given the political culture of Malaysia, this is a tempting and not implausible reading of the situation.
Whatever the motivations of the politicians, however, the hudud issue raises a far more central issue: how can a pious Muslim choose not to be ruled by hudud law? To do so would be to move the science of the interpretation of the Quran, and the notion of what revelation really means, far ahead of what traditional Sunni Islam is willing to concede. Are Muslims in Malaysia really prepared for the consequences of such a move?
Aloysious Mowe, SJ is an International Visiting Fellow at the Woodstock Theological Center, Georgetown University, Washington, DC. He is a Jesuit priest with an academic interest in Islamic law and history.