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«A thesis submitted to the University of Birmingham for the degree of DOCTOR OF PHILOSOPHY Department of Theology and Religion School of Philosophy, ...»

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At the second level, criticisms against ḥudūd include claims that the law lacks provisions that grant the accused his fundamental rights such as the presumption of innocence and the right to defense. Article 11(1) of the UDHR states: ‘Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence’ (UN General Assembly, 1948b). Although legal systems in the Muslim world vary in reflection of diverse religious ideologies and cultural influences, many of them are observed to not guarantee equality for individuals before the law (Ramadan, 2004).

At the third level, criticisms center on the original nature and quantum of ḥudūd punishments. The IHRL, through Article 5 of the UDHR, states: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”. The

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official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions’ (UN General Assembly,

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In addition, capital and corporal punishments do not have a favorable position in the IHRL. Although there is no explicit prohibition of capital punishment in said Convention, attempts have been made to encourage its restriction and abolition. For example, Article 6 of the International Covenant on Civil and Political Rights (hereinafter ICCPR) limits its use by declaring that ‘sentence of death shall not be imposed for crimes committed by persons below eighteen years of age’ (UN General Assembly, 1966). Meanwhile, corporal punishments are legally prohibited in general terms in the IHRL and in particular terms in the “Torture Convention”. Judging strictly by the principles set in the preceding articles, it is clear that the ḥudūd penalties of stoning, lashing, and amputation violate the prohibition of “torture” under the IHRL framework.

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Despite the apparent extremity of ḥudūd penalties to modern sensibilities, alQaradawi has never contested the applicability of the penal code in Muslim life throughout his lifelong career. What sits at the very heart of his opinion on the issue is his unwavering conviction that the laws prescribed by Allah, as derived and inferred by Muslim scholars from the Quran and Sunna, are absolute and eternally valid (Sharia and Life, 2011). For him, the degree of extremity exhibited by ḥudūd penalties is necessary to ensure the effectiveness of the penal code as both a deterrent and a punishment, although he places more emphasis on the former purpose than the latter due to his agreement with the general Muslim belief that Islam is not keen on punishing people (Sharia and Life, 2011).

The idea that ḥudūd is based more on preventing than punishing is, as many Muslims believe, reflected in the scrupulousness of its conditions. In theory, the meticulous nature of procedural rules and requirements prescribed by Islam in the ḥudūd ordinance for prosecuting a crime seems to make it difficult, if not impossible, for a Muslim perpetrator to be liable for conviction. The evidentiary system of eyewitness testimony of two Muslim males of good reputation (four in the case of adultery and fornication), who themselves are subject under extreme scrutiny to ensure the trustworthiness of their accounts, seems to readily annul the risk of arbitrary prosecution of most of the ḥudūd offenses. In addition to circumstantial evidence being mostly peripheral to the eyewitness system in the Islamic law, prosecution of a crime without direct, substantial evidence can only stand if the act is committed in a conspicuous manner (e.g., alcohol consumption in the public sphere). Al-Qaradawi presents the hypothetical case of a man who has committed adultery in private and

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(Sharia and Life, 2011). In such circumstance, he argues that, should there be uncertainty in the evidence, the crime will cease to fall under the purview of ḥudūd and should be dealt with instead by the court’s discretion (ta’zῑr), for it is better for the judge to err by absolving a guilty criminal than by prosecuting an innocent man (Sharia and Life, 2011). As can be observed, the crime is punishable nevertheless from the scholar’s perspective.

Al-Qaradawi’s proposition for the suspension (as opposed to abolition) of ḥudūd rests on his belief that its implementation in any given society must be conditional upon two criteria: First, the society must have applied Islamic teachings in their totality;

second, the Muslim community must have had adequate knowledge of Islamic commandments and prohibitions as well as the terms of the penal code (Sharia and Life, 2011). He bases this conviction on the historical account of Prophet Muhammad having made it a priority to establish the “quintessential” Muslim society in Medina before sanctioning the penalties of ḥudūd (Sharia and Life, 2011). The scholar’s thinking here is rooted in the logic that proper establishment of social justice (e.g., sufficient standard of living, adequate rate of employment, social and gender equality, and political stability) and adequate understanding of Islamic teaching (including the intricateness of the Islamic law) can prospectively prevent the occurrence of crimes - and concomitantly, the need to exercise the severe penalties of the Islamic penal code in the first place (Sharia and Life, 2011). The simplicity of this proposition, however, does not reflect the reality that the Muslim world is divided in its approach to ḥudūd; most Muslim countries vary greatly in their use of traditional Islamic punishments, while many do not even adopt the penal code.





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that it is necessary to subject the penal code to ijtihād, particularly for vague areas where there are definitional complexities (e.g., the scope of “theft”) and ruling ambiguities (e.g., punishment for alcohol consumption and apostasy). In the context of theft, for example, Kamali (1999) questions whether scenarios such as “stealing from a deceased person” and “pickpocketing” fall within the precise definition of this crime in the Qur’an. Al-Qaradawi makes it clear that alternatives to ḥudūd in the civil law (e.g., imprisonment) are ineffective as both deterrents and punishments, with the rationale being the feasibility of amateur convicts benefitting from an in-prison “tutoring” from other inmates with a higher degree of criminal experience, and the subsequent possibility of criminal recurrences (Sharia and Life, 2011). In most instances, alQaradawi’s understanding of Islamic morality does not deviate from the prevailing Muslim thinking in the Muslim world; he deems norms such as homosexuality, pre- and extra-marital sexual relations, and the consumption of intoxicants as simply “perverted” and “unnatural” (al-Qaradawi, 2003b). As will be evident henceforth, the scholar exhibits a tendency to use the Qur’an and Sunna to justify his views in most occasions, and to reinforce his line of argument with logical reasoning that mainly engages with presumptions about the general risks associated with said norms.

In prohibiting adultery and fornication, al-Qaradawi cites the verse ‘And do not approach unlawful sexual intercourse. Indeed, it is ever an immorality and is evil as a way’ (Qur’an, 17:32) and states that the inclination ‘… to satisfy one’s sexual need freely with whomever is available and whenever one pleases, without any restraints of religion, morality or custom…’ is founded on the philosophy of ‘the advocates of free sex’, which ‘… reduces the human being to the status of an animal’ (al-Qaradawi,

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the breaking-up of families, bitterness in relationships, the spread of venereal diseases, and a general laxity in morals…’, subsequently paving the way for ‘…a flood of lusts and self-gratification…’ (al-Qaradawi, 2003b, p.133). In a similar manner, al-Qaradawi forbids homosexuality by citing the story of Prophet Lot (whose society, as documented in the Qur’an, was rife with men pursuing other men for sexual desires) and the corresponding verse: ‘Do you approach males among the worlds; And leave what your Lord has created for you as mates? But you are a people transgressing’ (Qur’an, 26:165and then proceeds to describe the practice as ‘… a reversal of the natural order, a corruption of man’s sexuality, and a crime against the rights of females…’, which ‘… disrupts its [society’s] natural life pattern and makes those who practise it [homosexuality] slaves to their lusts, depriving them of decent taste, decent morals and a decent manner of living’ (al-Qaradawi, 2003b, p.153). While he acknowledges that classical Muslim scholars differ in the type of punishment imposed on men (and women) who engage in same-sex relations, he defends the severity of the penalties, saying that they have been prescribed ‘… to maintain purity of the Islamic society and to keep it clean of perverted elements…’ (al-Qaradawi, 2003b, p.154).

On the issue of alcohol consumption, al-Qaradawi has come under intense criticisms in the Muslim world for having modified his original prohibition of the act in his book The Lawful and the Prohibited in Islam. Previously, al-Qaradawi forbade the use of all types of intoxicants in any amount (with the exception of those used for medicinal purposes), citing as justifications, first, the Qur’anic verse that reads ‘O you who have believed, indeed, intoxicants, gambling, [sacrificing on] stone alters [to other than Allah], and divining arrows are but defilement from the work of Satan, so avoid it

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hatred through intoxicants and gambling and to avert you from the remembrance of Allah and from prayer. So will you not desist?’ (Qur’an, 5:90-91), and then, the Prophetic sayings that read ‘Of that which intoxicates in a large amount, a small amount is ḥarām [unlawful]’ and ‘If a bucketful intoxicates, a sip of it is ḥarām’ (in alQaradawi, 2003b, p.59). In the afore-mentioned book, he also highlights ‘the harmful effects of drinking on the individual’s mind, his health, his religion and his work’, ‘the disasters which he brings upon his family by neglecting their needs and by not fulfilling his obligations, as the head of the family, toward his wife and children’, and ‘the spiritual, material and moral evils which proliferate in societies and nations due to the widespread assumption of alcohol’ (al-Qaradawi, 2003b, p.56). The scholar takes his argument in the book further by linking the specific Islamic prohibition of consuming intoxicants to the general Sharia rule that ‘it is haram for the Muslim to eat or drink anything which may cause his death, either quickly or gradually, such as poisons, or substances which are injurious to health or harmful to his body’ (al-Qaradawi, 2003b, 65). However, in 2008, al-Qaradawi issued a fatwa that permits Muslims to consume any beverages with alcoholic content formed naturally through the process of fermentation and of not more than 0.5% based on the logic that such minimal concentration of the organic compound is not sufficient to cause intoxication (Harrison, 2008). The scholar’s position here not only contradicts the very evidence on which he based his original prohibition of alcohol consumption (i.e., the Prophetic saying: ‘If a bucketful intoxicates, a sip of it is ḥarām’), but it also prioritizes reason over scriptural authority, which is a glaring exception to his usual commitment to keeping close to explicit Islamic texts. It is not clear, however, whether al-Qaradawi’s change of mind

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spontaneity.

With regard to apostasy, al-Qaradawi goes by the belief among a majority of classical Muslim jurists that apostasy is punishable by death (in OnIslam, 2006). While the Qur’an is silent about this worldly punishment, there is supposedly ample evidence in the Prophetic tradition. Al-Qaradawi uses the following evidence to support his position: First, the Prophetic saying that reads ‘Whoever changes his religion, you kill him’ (in OnIslam, 2006, para. 11); second, another corresponding Prophetic saying that reads ‘The blood of a Muslim who testifies that there is no god but Allah and that I am the Messenger of Allah is not lawful to shed unless he be one of three: a married adulterer, someone killed in retaliation for killing another, or someone who abandons his religion and the Muslim community’ (in OnIslam, 2006, para. 12); third, the historical account that the last of the four Rightly-Guided Caliphs, `Ali ibn Abi Talib, himself put some apostates to fire after having given them three days to repent (in OnIslam, 2006).

6.2.3 Ramadan on Ḥudūd and Islamic Morality Similar to al-Qaradawi, Ramadan does not contest the scriptural bases of the ḥudūd offenses and penalties. Rather, the Swiss thinker questions Muslim readings of the Islamic tradition and interpretations of the penal code. By his call for a global moratorium on ḥudūd in 2005, Ramadan intended to put an end to government abuse of the penal code and establish an open dialogue that would allow scholars to critically question its contemporary applicability in light of the objectives of Islam, with the focus shifted from administering punishments to promoting social justice and integrity of

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to evaluate three important aspects: First, the scriptural sources from which the specifics of ḥudūd are legitimately derived and the range of both possible and established divergent readings over time and history; second, the conditions (and exceptions) of ḥudūd as stipulated by the scriptural sources, by a body of scholars through unanimous decisions (ijmā’), or by individual scholars across all schools of legal thought, while taking into account their divergences; third, the realities of today’s sociopolitical context (existing political and legal systems) that bear an immediate effect on the contemporary applicability of ḥudūd and Muslim-scholarly divergences with respect to this issue (Ramadan, 2005). The main objective of these three aspects is to allow scholars to clarify interpretative latitudes offered by the texts, while keeping in mind the state of evolving modern societies (Ramadan, 2005).



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