Salam, Azim.

Thank you for your question.

Hudud is but a small part of the Shari`ah (Islamic law) and are not by any means equivalent to the word Shari`ah, as one might see in a lot of popular literature and media pieces, especially in the English language.

The word "hudud", which literally means "limits", are (maximum) punishments for certain crimes as prescribed in the Islamic law. These punishments are based on "interpretations" — and sometimes "misinterpretations" — of the scripts, rather than "prescriptions" in the scripts, as you put it in your question.

I start by saying that, quite frankly, many of these punishments form a rather "theoretical" part of the Islamic law, which is not meant to apply except in very rare, exceptional, and extreme cases, not the other way around.

This might sound strange, only because, unfortunately, there is so much attention that is given to this topic from Muslim extremists and non-Muslim 'Islamophobes', alike.

Moreover, there is a great deal of misinterpretation and narrow views that are common in this area, which unfortunately, found their way to some of today's legal systems. This has caused a great deal of injustice and un-Islamic decrees.

Punishing Public Adultery

The space here allows me to explain only one example of hudud. However, this example demonstrates all of the above errors (over-generalization, misinterpretations, and unfair applications). It is the Islamic punishment for adultery.  

First, there is no civil punishment in the Islamic law for "adultery" per se; the punishment, in all schools of the Islamic law, is actually for what could be called "public adultery", because it is witnessed by a number of passersby. This is a very different concept because it is such an unlikely scenario to happen, isn't it?

According to all schools of Islamic law, there are certain conditions that have to apply before anybody could be accused of adultery or called "adulteress" or "adulterer".

The conditions are that the act of adultery has to be witnessed by four people, who have to witness the actual act of intercourse itself. In fact, there is a specific punishment for accusing someone with adultery without this condition.

The Qur'an states:

*{And as for those who accuse chaste women [of adultery], and then are unable to produce four witnesses [in support of their accusation], flog them with eighty stripes and ever after refuse to accept from them any testimony - since it is they, they that are truly depraved.}* (An-Nur 24:4)

This applies to accusing men or women. However, Allah mentioned women specifically in this verse because He knew that so many women (more than men) will be accused of adultery without producing the required four witnesses.

Without these four witnesses (who witness to have seen the intercourse itself), no other evidence is enough to apply the prescribed punishment (whether a DNA test, CCTV camera, pregnancy, or any other evidence).

The exact and literal application of the four-witness condition is meant to be the case here, as is well known in the schools of Islamic law.

Adultery, whether in private or public, is a major sin, of course. But there is no civil punishment for it unless it goes utterly public. Otherwise, it is a sin that people ought to repent from, between themselves and their Lord.

Conceal Sins, Don't Scandalize

Again, according to the Islamic law, the authorities are not supposed to spy on people in order to check who commits adultery and who does not.

Muslim authorities are only supposed to educate their people, not spy on them. Spying is a sin, which the Qur'an is clear about:

*{O you who have attained to faith! Avoid most guesswork [about one another] for, behold, some of [such] guesswork is [in itself] a sin; and do not spy upon one another.}* (Al-Hujurat 49: 12)

In fact, if one Muslim witnesses what he or she thinks is an act of adultery without the company of three other witnesses, the prescribed action is to conceal or cover these people and not to scandalize them.

Ibn Al-Mulaqqin narrated about the story of stoning Ma`iz:

`Abdullah Ibn Unais came and mentioned Ma`iz’s story to the Prophet. So, the Prophet told them: "You should have left him. Maybe Allah would have forgiven him." Then, he told Hazzaal: "O Hazzaal! You did the worst thing to that orphan. If you had covered him with your robe, that would have been better for you." Then, he called the woman who was involved with Ma`iz and told her: "Go", and did not ask her about anything. (Ibn Al-Mulaqqin, Al-Badr Al-Munir fi Takhrij Al-Ahadith wa Al-Athar Al-Waqi`ah fi Al-Sharh Al-Kabir, 1^st ed. Riyad: Dar Al-Hijrah, 2004, vol. 2, p. 622)

It was narrated in Al-Bukhari and Muslim that Anas narrated that he was with the Prophet when a man came to him and said: "Oh Messenger of Allah, I deserve a hadd (corporal punishment) for something I did. So, apply it to me."

The Prophet did not ask him which punishment he deserved, until the prayer was called for and he prayed with the Prophet. After the prayer, the man returned to the Prophet and repeated his sentence.

The Prophet asked him: Didn't you pray with us? The man answered: Yes. The Prophet said: "Allah has forgiven you your sin."

Ibn al-Qayyim commented that this man came in a state of repentance without being asked by anybody, so Allah forgave him and the Prophet did not apply the punishment to him for the crime that he confessed. (Ibn al-Qayyim, I`lam Al-Muwaqi`in `an Rabb Al-`Alamin, Beirut: Dar Al-Jil, 1973, vol. 2, p. 98.)

The Importance of Context

Then, the punishment for public adultery, itself, is mentioned in the following verse:

*{As for the adulteress and the adulterer flog each of them with a hundred stripes, and let not compassion with them keep you from [carrying out] this law of God, if you [truly] believe in God and the Last Day.}* (An-Nur 24: 2)

However, as I always write, one cannot possibly cite one verse of the Qur'an for a certain ruling and overlook the other verses on the very same topic.

In my view, narrow considerations of some verses and overlooking others concerning the same topic, is one of the main problems with current scholarship in Islamic law.

Therefore, we must recall the other verses that deal with the same topic in order to understand all of them correctly and put them all in one context.

The above verse is not the only verse that mentions specific punishments for adultery.

There are two other verses that mention two other punishments.

*{And as for those of your women who become guilty of immoral conduct of adultery, call upon four from among you who have witnessed their guilt; and if these bear witness thereto, confine the guilty women to their houses until death takes them away or God opens for them a way through repentance.}* (An-Nisaa' 4: 15)

Also:

*{And chastise both of the guilty adulterer parties; but if they both repent and mend their ways, leave them alone: for, behold, God is an acceptor of repentance, a dispenser of grace.}* (An-Nisaa' 4: 16)

So, the punishments that are mentioned in the scripts, if adultery is proven, are: "a hundred stripes", "confinement", or simply "chastisement", unless they repent and "mend their ways".

Many scholars say that the hundred stripes punishment abrogated the two other, lighter, punishments.

However, other scholars believed that all of them are valid, and that there is no evidence for such abrogation. (Al-Razi, Al-Tafseer Al-Kabeer)

Thus, the hundred stripes remain as a sort of a maximum punishment in the extreme and scandalous cases of adultery.

Stoning… in the Torah

Related to this punishment is stoning, which is applied in some countries today, in the name of the Islamic law.

However, it is common knowledge that stoning was the punishment that was prescribed in the Torah and not the Qur'an.

The word "stoning" (al-rajm) is mentioned no where in the Qur'an. And when stoning occurred at the time of the Prophet Muhammad and was mentioned as a "script", it was applied and mentioned according to the Torah and not according to the Qur'an.

The story started when some Jews from Madinah asked the Prophet to judge in some cases of adultery involving Jews. The Qur'anic verses were revealed to give him an option to judge between them, as they had asked, or "leave them alone".

He decided to judge between them "according to the Torah" (Al-Nasa'i).

These narrations clearly show that Prophet Muhammad decided to judge according to the Torah in these cases for two reasons:

1. Some rabbis in Madinah were concealing the verses from the Torah that mentioned stoning. So, Prophet Muhammad meant to reveal that.

2. Some rabbis told him that they apply these punishments selectively, according to the status of the accused. Thus, Muhammad meant to show that the law should apply to all, regardless of the status of the accused.

Badr Al-Din Al-`Aini said (in his famous commentaries on Al-Bukhari): "Stoning was according to the Torah before the revelation of the verse that mentioned lashing when the Prophet first arrived in Madinah." (Badr Al-Din Mahmud ibn Ahmad Al-`Aini, `Umdat al-Qari Sharh Sahih Al-Bukhari, Beirut, n.d., vol. 20, p. 258)

The following are the Qur'anic verses that were revealed in relation to these incidents:

*{… Hence, if the Jews of Madinah come to you for judgment, you may either judge between them or leave them alone: for, if you leave them alone, they cannot harm you in any way. But if you do judge, judge between them with equity: verily, God knows those who act equitably.

But how is it that they ask you for judgment seeing that they have the Torah, containing God's injunctions, and thereafter turn away from your judgment? Such as these, then, are no true believers.

Verily, it is We who bestowed from on high the Torah, wherein there was guidance and light. On its strength did the prophets, who had surrendered themselves unto God, deliver judgment unto those who followed the Jewish faith; and so did the early men of God and the rabbis, inasmuch as some of God's writ had been entrusted to their care; and they all bore witness to its truth.

Therefore, O children of Israel, hold not men in awe, but stand in awe of Me; and do not barter away My messages for a trifling gain: for they who do not judge in accordance with what God has bestowed from on high are, indeed, deniers of the truth.}* (Al-Ma'idah 5: 42-44)

Lifting the Burdens

Despite the difference of opinions over the matter, I support the view that stoning  was abrogated by the stripes in the verses mentioned before, not the other way around.

After all, Muhammad was sent in order to "relieve the burdens" that were upon the People of the Book.

*{… those who shall follow the last Apostle, the unlettered Prophet whom they shall find described in the Torah that is with them, and later on in the Gospel: the Prophet who will enjoin upon them the doing of what is right and forbid them the doing of what is wrong, and make lawful to them the good things of life and forbid them the bad things, and lift from them their burdens and the shackles that were upon them.}* (Al-A`raf 7: 157)

Today, the application of these punishments in some Muslim countries is rather arbitrary, and only targets the weak, the poor, and those who do not have the means or the connections to avoid them.

This is, by itself is an "uncertainty" (shubhah) that renders the application unfair and calls for bringing it to a halt.

Any uncertainty about the justice of applying any of the punishments prescribed in the Islamic law is enough grounds for the punishment to be suspended.

The level of uncertainty about the justice in today's "Islamic" legal systems is higher than ever.

I hope this answers your question. Please keep in touch.

Salam.

Useful Links:

The ABCs of Islamic Law

Punishments for Wrongdoers… Why?

The Justice of Divine Judgment

Apostasy, Polygamy, and Adultery

The Meaning of Adultery

Sentencing Adulterers to Death

The Repentance of a Fornicator

Why Are Fornicators Punished?