The Important Difference between Applying Hudood & “Applying Sharia”

The Important Difference between Applying Hudood & “Applying Sharia”
[Dr. Eyad Qunaibi]

Peace be Upon You

Dear Kind Brothers and Sisters,

We have heard and still hear comments like: "Such and such Jihadi group doesn't rule by or apply the Islamic Sharia whilst the other group does". And when these people are asked about what they really mean by "implementing Sharia", it turns out that they, in fact, refer to applying Hudood (Limits and Punishments set by Allah) such as cutting the thief's hand off.

We will prove that applying the Sharia of Allah is not the same as applying Hudood. Not only that, we will show that, under some circumstances, Sharia may forbid applying Hudood because the latter becomes something against Sharia itself.

Previously, we have made clear that the correct term to be used for Sharia is the Quranic one: “Iqaama” which implies involving everyone, rather than “applying” or “enforcing” which sound patronizing. Therefore, the Iqaama of Sharia is the responsibility of every single member of the Muslim Ummah, as much as they can, whether they have “Tamkeen” (establishment & ability to be actual rulers) or not, and whether they hold positions or are mere citizens and subjects.

On the other hand, applying Hudood, is the exclusive responsibility of the Muslim Leader (Imaam) who rules a land over which the Muslims have complete control, and it's not the responsibility of individual Muslims; for "applying Hudood is not applicable unless there is a power and Imara (leadership of a Muslim state)" as Shaikh Ibn Taymiyya said in "Al-Fatawa".

The prophet Muhammad, peace be upon him, once said: "Pardon matters among yourselves that may deserve a Hadd (singular of Hudood) punishment, for whatever is brought to my attention, the Hadd punishment becomes binding." (hadith labeled as authentic by Shaikh Al Albani). Which means, if Muslims find someone guilty of a transgression (stealing, adultery, drinking..), they can choose not to 'escalate' it to the Imaam, the Muslim ruler, but rather hide his crime and provide the necessary help for the transgressor to become a better person. However, once the matter reaches the ruler or whoever takes his role (eg: a judge or a governor) the ruling becomes a duty and must be executed. This also shows that a group of Muslims that has no Imaam is not meant to apply Hudood and it's not their responsibility to do it. Otherwise, the prophet, peace be upon him, wouldn't have differentiated between the two cases, and wouldn't have allowed a group of Muslims to pardon a transgressor who the Imam did not know of.

Another Hadith proving this point is when one of the companions, Safwan Ibn Umayyah, caught someone who stole his dress and brought him to the Prophet, peace be upon him, the prophet then ruled the hand of the thief to be cut off, Safwan then politely interjected: "O Messenger of Allah! this is not what I really wanted, and I consider the dress as Sadaqa (charity) for him". Then the Prophet PBUH replied: "Why didn't you do so before bringing him to me?"

So, if applying Hudood was the responsibility of Muslim individuals, Safwan wouldn't have had the right to pardon the thief.

To recapitulate, applying Hudood is the exclusive duty and responsibility of the Muslim leader, or whoever takes his role in a fully controlled land of Muslims.

Now, is this the case in the Sham (Syria) where various Jihadi groups exist? Do Muslims have full and complete control over the land? Have they chosen a leader? Or, on the other hand, the Muslims are in self-defense against oppression, trying to regain control from the disbelievers and the territory is a battlefield where no one can claim decisive victory or full control of land?

So, if we say that the Sham is a battlefield, which seems to be the case, and Muslims still didn't acquire sovereignty over this land, let alone choose a ruler, then applying a Hadd punishment has nothing to do with Sharia. And in the hadith, labeled authentic by shaikh Al Albaany, the Prophet PBUH said: "The hands should not be cut in the battles." Meaning that applying this Hadd punishment in this case is in fact disobeying the Prophet's command and going against Sharia!

The land of Sham seems to be a battlefield, the person entitled and responsible for applying Hudood, (i.e. the Imaam) doesn't exist on this land, and none of the leaders of the many fighting groups is the Imaam responsible for implementing Hudood. Hence, the Hadd punishment in this case is not the duty for any of the Jihadi groups to say that this or that group has implemented or stopped the Hadd.

Then, one might say: What is the difference between this and what is said by those who call for democracy and reject applying Hudood and let the penal code be a matter of people's choice? The answer is that these people (democracy advocates) do not reckon that Allah's Sharia must rule instead of people's whims and opinions, whilst here, we are talking about an organic ruling of Sharia where a ruling is derived from within the Sharia itself. On the other hand, democracy advocates make an inorganic judgment over Sharia (based on ideas and moral standards coming from outside the Sharia), claiming that the current times are not suitable for implementing (Iqaama) Sharia.
So, we are talking about an organic or inner ruling of Sharia, a ruling emanating from within Sharia itself, and the only thing a human mind can do regarding it, is asking this question: (What does Sharia enjoin us to do in this case so we follow it, and be of those who really implement it?); If our Ijtihaad (i.e. effort to deduct the ruling of Sharia regarding this matter) leads us to the conclusion that it's forbidden to apply Hudood, we will stick to that ruling and wouldn't apply them.

The outcome in the two cases maybe the same (no implementation of Hadd ), but the big difference that must not be overlooked is that: the first ones didn't apply a Hadd punishment while suspending Sharia in the first place, and because that's what the human law stipulated, while, in the second case, the Hadd wasn't carried out because that's what the ruling of Sharia itself stipulated. It all comes down to the difference between ruling according to the divine law and following man made law.

Is this matter controversial, from the Islamic Jurisprudence (Fiqh) point of view? Is it allowed for jihadi groups to enforce Hudood? When can we say that there is enough authority and sovereignty to make it allowed or an obligation to carry out Hudood? and if Hudood are not applied, how are we supposed to prevent crimes of robbery, adultery, and drinking alcohol..? Is it by discretionary punishment (Ta'azeer)? and which Ta'azeer shall we apply?
All of these above interrogations are questions pertaining to (Fiqh) that can be a matter of discussion and debate among Muslim Scholars, but we need to remember that these are Jurisprudential issues, rather than accusing a mujahid group that doesn't apply Hudood of suspending Sharia, and hence questioning/doubting their faith and Deen!

If someone's or some group's Ijtihad led them to not apply Hudood due to what was mentioned above, we shouldn't then accuse them of not applying Sharia fully from this side, they rather don't apply Hudood, and by doing so, they are implementing Sharia. from this side.
Likewise, if their Ijtihad led them to think that the Hudood shouldn't be enforced, but still apply them, we shall not say that they are fully implementing Sharia but they, in fact, SUSUPENDED Sharia in this regard. (because Sharia ruled the opposite, according to their very Ijtihaad).

One might say: "well, isn't the “Islamic State in Iraq and Sham” better because it fully implements Sharia?" We say, again: it applies Hudood; applying Hudood and the Iqama of Sharia are not the same thing. Moreover, applying Hudood is not an end or aim in itself; these Hudood are rather valid and requested as long as they are what Sharia commands.

Let's assume, that all conditions for applying Hudood in a Muslim State were met in a given scenario: an amount of money exceeding a certain limit (Nisaab) was stolen from a place where it was put/hid and there is no probability that the thief has right in it; in this case, we won't blame you for implementing the Hadd in of itself, but our discussion will revolve around whether you are a sovereign state or not and whether or not your Imaam is the lawful Imaam whose right and responsibility is to carry out the Hadd. If these requirements are fulfilled, we won't of course condemn applying Hadd. If not, applying a Hadd becomes an invalid branch (secondary dependent matter) based on an invalid foundation.

As a result, it's neither accurate nor fair to say: (ISIS are falsely claiming to have a State and an Imaam, FURTHERMORE they wrongly apply Hudood). If we say so, it's as if carrying out Hudood is an additional mistake. While in fact, if their statehood and Imaam are sound, carrying out Hudood becomes an obligation and not a mistake.
Therefore, we discuss the principle upon which was founded the act of enforcing Hudood.

We also urge ISIS to be fair to the other groups who are openly committed to the sovereignty of Sharia but don't enforce Hudood -based on the same Ijtihaad mentioned above- and they (ISIS) shall not consider it (not enforcing Hudood) as an act of suspending Sharia but rather a branch based on a principle (root) which is: not claiming to be A SOVREIGN STATE having full control of territory under the leadership of an Imaam chosen by Muslims; If there should be a discussion, it should be about this foundation/principle, rather than about one of its ramifications and results (applying or not applying Hudood).

It should not be said that these other groups' implementation of Sharia is inferior to yours, and it's unjust to incite people to leave the other groups' ranks with the pretext that they don't enforce Hudood whilst ISIS do.

The discussion should be about which group(s) is closer to the implementing (Iqaama) of Sharia as a whole, which includes first and foremost, in the case of the Sham, defending Muslims and fighting against the (disbeliever) enemy and also submitting to the ruling of Allah's Sharia in all matters, whether the legal dispute is between your group and individuals or between your group and other fighting groups, all groups, righteous and misguided ones. Also, this complete submission to Allah's Sharia must take effect within the group and its leaders before making it binding to people outside the group.

Allah the Most High knows best.

Peace & Mercy of Allah be upon you