Kembaraxtra- Malaysian Criminal Law -Islamic Law -Categories of Islamic Criminal Law : Hudud, Qisas and Tazir


A. Foundations: Rights in Islamic law

Q1. What is the basic principle about law and punishment mentioned in the text?
A: The text says it is a predictable norm that where there is no law, there will be no punishment, and living peacefully requires respecting the law.

Q2. How are human social dispositions divided in Islam?
A: They are divided into:

1. ḥaqq Allāh (rights of Almighty God), and
2. ḥaqq ādamī (rights of fellow human beings).

Q3. What kinds of crimes fall under disobedience to Allah’s commandments (punishable in Sharī‘ah courts)?
A: The text lists: apostasy, theft, zina/illicit sexual relations, false accusation of zina (qadhf), highway robbery, and alcohol drinking.

Q4. What are the three main classifications of “Islamic criminal law” in the text?
A: Islamic criminal law includes divine penal rules grouped into:

1. ḥadd / ḥudūd Allāh (limits prescribed by God),
2. qiṣāṣ (retaliation/compensation), and
3. ta‘zīr (discretionary punishment).

B. ḤUDŪD (Fixed punishments / limits prescribed by Allah)

B1. Meaning and offences

Q5. What is a ḥadd (ḥudūd) crime?
A: A ḥadd crime is an offence that violates limits declared unlawful by Allah in the Qur’ān, prohibited by the Prophet (SAW) in Sunnah/Ḥadīth, or derived through accepted Islamic legal sources.

Q6. According to the text, what are the six ḥudūd offences?
A: The text lists six:

1. Apostasy
2. Theft
3. Illicit sexual relations (zinā)
4. Drinking alcohol
5. Armed robbery (al-ḥirābah)
6. Slanderous accusation of sexual immorality (qadhf)

B2. Theft (Sariqa)

Q7. How do Muslim scholars define theft (sariqa) here?
A: “Taking or snatching the property of another person by stealth.”

Q8. What Qur’ānic punishment is mentioned for theft?
A: The Qur’ān prescribes: cutting off the hands of male and female thieves as recompense and exemplary punishment.

Q9. What did the Prophet (SAW) do regarding theft punishment?
A: The text states the Prophet implemented amputation during his time and prohibited mediation in executing ḥudūd.

Q10. Is ḥadd punishment remissible (can it be cancelled)?
A: The text says orthodox jurists deduced that ḥadd punishment is irremissible (cannot be remitted).

Q11. Is there a minimum value before theft punishment applies?
A: Yes. The stolen property must reach a minimum value, but schools differ:

• Ḥanafīs: 10 dirhams or more (based on a hadith: “No amputation is due unless for ten dirhams”).
• Mālikīs: 3 dirhams or ¼ dīnār.
• Ḥanbalīs: similar to Mālikīs (based directly on hadith).
• Shāfi‘īs: ¼ dīnār.
• Ẓāhirīs: no fixed minimum value.

B3. Illicit sexual relations (Zinā)

Q12. What does zinā cover in the text?
A: It covers all unlawful sexual relations outside legal marriage, including modern categories such as fornication, adultery, homosexuality, sodomy, lesbianism, and also mentions zoophilic/bestiality as prohibited.

Q13. What is the punishment for fornication mentioned in the Qur’ān?
A: 100 stripes (lashes), with believers witnessing the punishment.

Q14. Who does the 100 lashes apply to?
A: The text says it applies to unmarried fornicators (male or female).

Q15. What is the punishment for adultery in the text?
A: Stoning to death for married persons who commit adultery.

Q16. What evidence is required before punishment for zinā (fornication/adultery) can be carried out?
A: The text requires thorough investigation and proof through:

• four upright witnesses, or
• personal confession, or
• pregnancy outside marital life.

B4. Alcohol drinking

Q17. Where is the prohibition and punishment for alcohol found according to the text?
A: The prohibition is in the Qur’ān, but the punishment is found in the Prophet’s statements (Sunnah).

Q18. How did the Prophet (SAW) define intoxicants?
A: “Any drink which makes a person drunk (getting intoxicated).”

Q19. Why does the text say alcohol is prohibited?
A: Because of negative effects: intoxication may lead to serious wrongdoing; addiction harms society, health, economy, and behaviour; it causes loss of mind and may lead to tragic circumstances.

Q20. What is the disagreement on punishment for alcohol drinking?
A: Sunni schools agree it is a crime with special punishment, but differ on lashes:

• 80 lashes: Ḥanafīs, Mālikīs, and some Ḥanbalīs
• 40 lashes: Shāfi‘īs, Ẓāhirīs, Zaydīs, and another Ḥanbalī view

Q21. Why did scholars disagree between 40 and 80 lashes?
A: It traces to practice of the Companions:

• Abū Bakr: 40 lashes
• ‘Umar: first 40, later increased to 80 after consultation due to rising cases, aligning it with qadhf (80 lashes).

Some jurists say 40 is ḥadd and 80 is ta‘zīr; others claim their view is supported by ijmā‘.


B5. Qadhf (false accusation of zinā)

Q22. What is qadhf?
A: A derogatory allegation accusing a chaste person of zinā without legal proof.

Q23. What Qur’ānic punishments are prescribed for qadhf in the text?
A: Three consequences:

1. 80 lashes
2. testimony rejected forever (unacceptable as a witness)
3. spiritually, the person is treated as rebellious/evil-doer, with forgiveness tied to repentance and righteous deeds.

B6. Al-Ḥirābah (armed robbery)

Q24. What other terms are used for al-ḥirābah?
A: The text mentions:

• As-sariqa al-kubrā (great theft)
• Qaṭ‘uṭ ṭarīq (highway robbery)
• Al-ḥirābah (armed robbery)

Q25. What Qur’ānic punishments are listed for armed robbery?
A: The verse lists possible punishments:

• killed, or
• crucified, or
• hands and feet cut off on alternate sides, or
• expelled from the land,

with exception for those who repent before being overpowered.

Q26. What example (hadith report) is used to illustrate hirābah?
A: A report about people from the tribes of ‘Ukil and ‘Urayna: they killed the Prophet’s shepherd and stole camels; they were captured and punished severely, and were described as committing theft, murder, apostasy, and war against Allah and His Messenger.

Q27. How does Islamic law match punishment to the gravity of hirābah?
A: The text says punishment is applied according to intensity of the offence:

• if robbery includes killing, punishment may be execution/crucifixion;
• if property is taken without killing, then hand cutting may apply.

B7. Apostasy

Q28. How does the text justify punishment for apostasy?
A: It treats apostasy like internal rebellion and relies on hadith statements including:

• killing is lawful only in three cases, including adultery by married person, murder, and publicly turning away from Islam;
• “Whoever changes his religion, kill him.”

Q29. What conditions does the text mention about apostasy punishment?
A: Five key conditions/points:

1. Execution applies when apostasy is public and rebellious; if concealed privately, the matter is left to Allah.
2. The apostate is given three consecutive days to return, with scholars explaining the implications.
3. Rejecting Islam is not acceptable even jokingly; it is rebellion and disrespect to faith.
4. Apostasy is viewed as propaganda/war against Islam and harms the Muslim community.
5. If under an Islamic government, apostasy is treated as rebellion against the authority of the Islamic state.

C. QIṢĀṢ (Retaliation / compensation)

Q30. What principle governs qiṣāṣ according to Mark Cammack (quoted)?
A: Lex talionis: equivalence—offender suffers the same harm inflicted on the victim.

Q31. What are the two types of qiṣāṣ?
A:

1. qiṣāṣ fī an-nafs (retaliation for homicide)
2. qiṣāṣ fīmā dūna an-nafs (retaliation for wounds/injuries)

Q32. What are the possible punishments for homicide/injury under qiṣāṣ rules?
A: Either:

• qiṣāṣ (retaliation), or
• diya (blood money) as an alternative if the victim’s family forgives.

Q33. What is the punishment for deliberate homicide?
A: Normally qiṣāṣ (killing the culprit), unless the victim’s family forgives and accepts blood money.

Q34. What is the punishment for accidental homicide?
A: No qiṣāṣ; only:

• diya (blood money) and
• kaffārah (penance), such as freeing a slave or fasting two consecutive months if unable.

D. TA‘ZĪR (Discretionary punishment)

Q35. What does ta‘zīr mean in Islamic criminal law?
A: It is punishment aimed at preventing repeat crime and reforming the offender—disciplinary, reformative, and deterrent.

Q36. Why is ta‘zīr called a “residual” category?
A: Because it covers sinful/offensive acts that disturb public order but are not fixed as ḥadd or qiṣāṣ, so the punishment is left to discretion.

Q37. Give the definition of ta‘zīr as stated in the text.
A: “Discretionary punishment for transgression against God or against an individual where there is neither fixed punishment nor kaffārah.”

Q38. What Qur’ānic examples does the text use to show ta‘zīr discretion?
A:

• “As for the two of you (males) who are guilty of it, punish them both” — punishment type/amount not specified, left to ruler/judge.
• Verse about dealing with disobedient wives (admonish → refuse bed → beat lightly) — method is sequential but discretion exists in application.
• “The recompense for an evil is an evil like thereof; but whoever forgives…” — suggests discretion in retaliation or forgiveness.

E. Proof and Evidence Requirements

Q39. Can punishments be imposed based on mere allegations?
A: No. The text stresses punishments must be supported by evidence recognised in Qur’ān and Sunnah.

Q40. What evidential methods are mentioned to establish offences?
A: The text lists:

• testimony,
• confession,
• solemn oath / plaintiff’s testimony,
• two or four witnesses, and
• li‘ān (mutual cursing when a husband accuses his chaste wife of adultery without witnesses).