in category Fiqh (Jurisprudence)

How should Muslims understand the hudud laws today?

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The American Muslim academic argues today the Hudud are relevant mostly in their absence from the legal stage across the globe. With the exception of a few states like Nigeria, Sudan, Iran and Saudi Arabia, the criminal laws of majority Muslim countries have been replaced by modified British or European imports.

How do Muslims make sense of the Hudud's absence? Muslim scholars have followed several tacks in negotiating these profound questions. In the mid twentieth century some argued that the Hudud were abandoned because of Western pressures during the colonial period and that, if restored, the Hudud would help mold more law-abiding and harmonious societies. Others have more recently argued a revival of the Hudud would be inappropriate for the foreseeable future because our political and social environments make removing all ambiguities (shubuhat) systematically impossible. It's assumed this situation is a result of colonialism and the globalization of Western values. But some scholars have argued that this had been the case for almost a millennium. Hence the extraordinary rarity of the Hudud being carried out.

Another argument is our current era is an "age of crisis and necessity" (darura). Since in Islamic law 'necessity makes the prohibited permissible,' Muslim states under foreign domination or other constraints are allowed to lapse in ways that would otherwise not be allowed.

The Mauritanian scholar Abdullah Bin Bayah has made the interesting argument that he based on the Prophet (pbuh) prohibiting cutting off the hand of Muslim soldiers who stole while on campaign. Instead, the Prophet punished them with lashes or delayed the punishment until the need for a full fighting force had passed. Though Muslims are not literally in the land of the enemy, Bin Bayah writes, they are in "a land of anxiety" where many Muslims feel uncomfortable with the Hudud's harsh physical punishments. It's as if the Abode of Islam has been culturally conquered, with Muslims becoming allergic to their own revealed tradition.

The most important point to note is that Muslim scholars have affirmed that what is essential for Muslims is to believe that the Shari'a is ideal law and that the Hudud are valid in theory. The actual implementation of the Hudud comes at the discretion of the ruler/state and is not necessary for people to be Muslim.

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