The blood of a Muslim is not permissible except in three circumstances? A contextualised and scholarly reading by Mullā ‘Alī al-Qārī

With the rise of secularism over the last 200 years, it has been assumed to be the standard measure of how society should run. This has evidently been taken for granted without question. With the rise of the new phenomenon of secularism and its dominance over Muslim and non-Muslim minds, in contrast to religion being intertwined with the state in the Muslim world before that, critics have emerged to critique Islamic rulings, specifically the Ḥudūd punishments.

The main Ḥadīth in question is the one which is found in Imām al-Nawawī’s collection “al-Arba’een”, the Messenger of God ﷺ is reported to have said:

“It is not permissible to spill the blood of a Muslim except in three (circumstances): the thayib fornicator, a life for a life, and the one who forsakes his religion and separates from the community.” (1)

Although the fundamental premise that religion should be separated from judicial verdicts is fundamentally flawed, this is not what will be addressed in this article. But rather, the purpose of this article is to extract:

1. Proper contextualization for Islamic judicial rulings
2. Reasons for why they exist

This will be done through analysing and extracting excerpts from Mullā ‘Alī al-Qārī’s celebrated and prominent explanation of Nawawī’s “al-Arba’een”. Mullā ‘Alī was a prominent jurist who significantly contributed to the Ḥanafī scholarly tradition in all relevant Islamic fields. He excelled in:

1. Tafsīr (Qur’anic exegesis)
2. Fiqh (Islamic law)
3. Usūl al-Fiqh (Islamic legal theory)
4. Kalām (Islamic theology)
5. Ḥadīth science and its exegesis.

And many other sciences, thus, it is reasonable to call him a polymath, similar to the great Shāfi’ī jurist al-Suyūtī. From the teachers of Mullā ‘Alī was the verifier of the Shāfi’ī school, Ibn Ḥajar al-Haytamī (2) and many other celebrated giants of knowledge in Islamic intellectual history.

Mullā ‘Alī’s explanation of this particular Prophetic tradition contains a deep grammatical analysis of the text; thus, my methodology in presenting his explanation will be to categorise the topics he discusses into sub-categories and translate the relevant parts whilst commenting on his explanation and elaborating on it based on what other leading and eminent scholars have said.

Mercy in law and order

In this Ḥadīth is a subtle illusion that killing is not the base- rule but rather an exception. Thus, life is intrinsically sacred and inviolable. This inviolability cannot be lifted except in three specific cases.

Mullā ‘Alī writes:

“It is in no way permissible to kill a Muslim except in three specific exceptions and they are: The fornication of a muḥṣan, killing a soul without the right to do so and apostasy .” (3)

This is confirmed and elaborated on by al-Ṭūfī, who writes:

“The intent of this narration is to show that blood is inviolable…Rationally and legally, the original ruling when it comes to blood is prohibition.” (4)

Who is a muḥṣan/thayyib?

Mullā ‘Alī writes:

“The intent from the word “thayyib” is a “muḥṣan,” and it is a person who is legally responsible and free who entered a valid marriage contract whilst being legally responsible and free and has had sexual intercourse within that marriage .” (5)

The translation given on Sunnah.com is “the married person who commits adultery”. However, this is inaccurate because if someone who fulfils the two conditions of freedom and legal responsibility enters a valid marriage contract, has sexual intercourse but then has a divorce or khul’ or any other form of legal separation from his/her partner, then he is unmarried but still a “thayyib/muḥṣan”.

Vigilantism against fornicators?

A common misconception is that Islam condones vigilantism against fornicators; however, Mullā ‘Alī and the vast majority of Islamic scholarship refute this claim.

Mullā ‘Alī writes:

“Furthermore, stoning is [only to be] done by the command of the head of state and not by individual people.” (6)

Speaking about judicial punishments generally, the eminent jurist ‘Alā al-dīn al-Kāsānī says:

“As for the conditions that make applying judicial punishments permissible, then there are some conditions that encompass all of the judicial punishments and some that are specific to some (punishments) but not others. As for the condition that applies to all judicial punishments, it’s application by the head of state. And it is that the applicant of the judicial punishment is done by the head of state or someone whom he appoints in applying it.” (7)

The punishment for fornication

Before beginning to talk about the punishment for fornicators, it is important to understand what the ruling actually is.

Fornicators are split into two categories:

1. thayyib/muḥṣan
2. A non muḥṣan (someone who committed fornication without fulfilling the conditions of being a muḥṣan

The punishment for the first category is stoning to death, while the second is 100 lashes.

Mullā ‘Alī writes:

“As for the legally responsible virgin who isn’t a muḥṣan, if he is a free person, then he is to be lashed 100 times; if he is a slave, then he is lashed 50 times. There is no [obligatory] exile, according to us.”

Before going into the conditions and stipulations for this punishment to be applied, it is important to recognise the wisdom behind this fixed punishment.

Mullā ‘Alī argues that there are many corruptions in committing fornication. He says that in fornication, ancestries are lost, and the normalisation of fornication leads to lost children who can’t identify their parents. This has a domino effect on many other legal rulings, such as:

1. Obligatory maintenance
2. Child custody
3. Rulings related to inheritance
4. One would not know who their maḥram’s are, thus giving a continuous chain of confusion in regards to the rulings listed.
5. It violates the sanctity of a family

Thus, fornication leads to serious instability within society, and it releases the human being from his role of responsibility. Fornication is merely the submission of man to what his nature leads to, thus being subjugated and humiliated by his own desires. Another wisdom from the prohibition of fornication, which Mullā ‘Alī lists, is that in the act of fornication comes conflict, This is something observable since fornication is a detestable action in conservative societies due to it’s harms (8). Thus, committing the act of fornication with somebody’s Mother or Sister is essentially disrespecting her as a human, thus leading to conflicts between tribes and people, which does not lead to any praiseworthy consequence but rather a blameworthy one.

To the effect of what we have listed above, the eminent scholar Ibn al-Humām argues that it is logically impossible for fornication to have been permitted in any previous divine law as its immorality is known through reason (9). This idea is built upon the Ḥanafī principle of knowing whether something is intrinsically good or bad (whether someone would be praised or condemned for committing such an action) through reason. The verifying Ottoman theologian Ismā’īl Gelenbevī explains the Ḥanafī position in a concise manner, he says:

“The position of the Maturidi’s (Ḥanafīs) who affirm that we know if an action is praiseworthy or blameworthy before the divine law gives guidance on it say that if the action necessitates blameworthiness (qubḥ) then this action is impossible from the Almighty, so leaving this action is obligatory from (his wisdom) and not obligatory upon him.” (10)

Ibn al-Humām argues that the 5 purposes of the law (Maqāṣid al-Sharī’ah) are universal principles which have been applicable and present in every divine law and the fixed punishments have been legislated to protect these five universal principles. They are:

1. Protection of life
2. Protection of property
3. Protection of health
4. Protection of religion
5. Protection of dignity (11)

When is the punishment applied?

The scholars of Sunni Islam from across all four schools of jurisprudence have written in great length throughout the centuries on ways to avoid applying the punishment. This is not the unlawful interference of scholarship inserting things into the religion, but rather this is rooted in a Prophetic tradition that has gained en masse acceptance amongst the Muslim scholarly community, thus making it a definitive obligation, and consensus is established upon it (12). This Hadith is:

أدرؤوا الحدود بالشبهات

“Waive the fixed punishments off when doubt arises.”

One of the conditions is that four witnesses must witness the act of penetration itself at the same time. Anything other than that is considered doubtful and is thus rejected.

In order to waive the punishment, the head of state or his appointed representative must ask some questions of the witnesses. The following questions are:

1. What is it? (Fornication)
2. How was it committed?
3. Where did he/she commit this?
4. When did he/she commit it?
5. With whom did he/she commit it?

Asking these questions is a religious obligation, and the purpose of it is to find a way to waive the punishment for the offender. It is also a religious obligation upon the head of state to inquire about the witnesses’ truthfulness and reliability, both in secret and in public. Finding out the reliability of the witnesses in public is simply not enough, according to Ḥanafī jurists, as privately they can be habitual sinners (fusāq) and have evil intentions, so it’s necessary to enquire about their private state (13).

Furthermore, a mute person is not given the punishment regardless of whether he self-confesses through a sign or witnesses witness his act. This is the same for a blind person, except that if the blind person self confesses, then he is given the punishment.

Due to the core principle of waiving the punishment, Ḥanafī jurists split a suspicion (which can remove the punishment) into two categories:

1. Doubt in the act
2. Doubt in the subject-matter

Under these two categories of doubt, Muslim jurists managed to clarify that many cases are considered doubtful occurrences, and due to that, they would waive the punishment. These examples are filled with books of jurisprudence from all four schools of law (14) . Also, a lot of jurists considered the mere difference of opinion on whether something is subject to the fixed punishment as a sufficient reason to waive the fixed punishment altogether since the mere presence of a difference of opinion is a source of doubt.

Is there life in killing?

The second part of the Ḥadīth states that the blood of a Muslim is lawful in the case of him committing an act of murder. This law is called the law of equal retaliation (qiṣāṣ), the justification for this ruling is found in the Qur’an, God almighty says:

“There is life for you in the law of retaliation, O people of reason! So that you may be mindful.” (15)

However, a question is to be posed whose answer uncovers the wisdom behind the ruling: how can there be “life” in a law that executes somebody?

Abū al-Barakāt al-Nasafī (d. 710) answers this question in his renowned exegesis of the Qur’an, He writes:

“There is life for you in the law of retaliation” is an eloquent statement due to its strangeness, for the law of retaliation involves killing and removing life, and it has been made a description of life in this verse, and in understanding the law of retaliation is immense eloquence (in this verse) because the meaning is: “There is, in the genus of this ruling, life for you due to its prevention from killing a group of people for the crime of one person” (which was a common practice), so the law of retaliation (safeguards) life. Or it could mean another type of (preservation) of life, and it is life by refraining from murdering somebody because knowing the law of retaliation exists is a form of prevention from committing the crime because if the criminal intends to commit the crime and then remembers the law of retaliation exists, he will be deterred from committing it, so the victim is saved from being killed while the criminal is saved from being killed in retaliation, so the law of retaliation is the reason for preserving two souls.” (16)

Mullā ‘Alī is silent on the wisdom behind the ruling on the law of retaliation; however, the commentators of Nawawī’s collection give the same idea as al-Nasafī.

Abū Bakr al-Rāzī, championing the Ḥanafī school, argues that this verse is a clarification on the reason (‘illah) why the law of retaliation is legislated. To this extent, he argues that if a Muslim were to kill a slave or a non Muslim citizen (dhimmī) then he would be executed in retaliation . “This is because God wills survival for all”, al-Rāzī argues (17).

What about freedom of religion?

Last but not least, we come to the final part of the Prophetic tradition, where the Prophet ﷺ says that the apostate is to be executed.

In analysing the reason why the Apostate is to be executed, we need to distinguish between two different positions that exist within the Sunni jurisprudential tradition.

The partisans of Ḥadīth argued to the extent that the apostasy of an apostate disrupts the social order of Islamic society, unlike the original disbeliever (18). What is important to note is that those who advocate against the execution of an apostate already have secular presuppositions in mind which divide religion from the state. This is why we can observe that this objection against Islam in particular only typically arose after the emergence of the modern nation-state, which divorces religion from the state. So the extent which should be argued is whether secularism should be implemented or a state based upon religion. If the interlocutor is to grant that the state should be based on religion then leaving this religion is automatically seen as treason which causes social disruption. From the partisans of Hadith, some modern scholars have argued that if the apostate is to conceal his apostasy and not actively preach it, then he is to be left alone (19).

As it is known, Mullā ‘Alī al-Qārī is a Ḥanafī jurist, thus he is a partisan of the school we are about to present.

The Ḥanafīs took a distinctive approach when it came to the issue of apostasy, Ḥanafīs recognised that the Prophet ﷺ forbade the killing of original disbelieving non–combatants. Thus, the cause for killing an original disbeliever was him being an active combatant against the Muslim‘s. To this extent, the founding father of Islamic international law and one of the founders of the Ḥanafī school, Muḥammad b. Al–Ḥasan al–Shaybānī writes:

“Disbelief is the greatest of crimes, but it is between the slave and his Lord. The punishment for this crime is delayed to the Hereafter; as for what happens in this world, it is legislated for the benefit of the servants of God. In this case, the benefit is a defense against the sedition of fighting. This (sedition) does not appear from non-combatants.” (20)

Ḥanafīs also recognised that the Qur’an explicitly declared that there is to be no compulsion in religion (21). In approaching this Ḥadīth, the Ḥanafīs sought to combine between the seemingly conflicting evidence es. Thus, they maintained that the Ḥadīth is restricted in it’s meaning to combatant men due to the explicit, unrestricted prohibition of killing non combatant disbelievers and the reason thus therefore must be shared (which is combatancy and not disbelief per se).

Al-Qāḍī Abū Zayd al-Dabbūsī [d.430/1039] writes:

“The meaning in it is that apostasy is disbelief. It does not become obligatory to kill a woman over it, due to it being analogous to her original disbelief. This is because disbelief in and of itself is not a reason to kill.” (22)

Mullā ‘Alī goes further and states that the effective cause (‘illah) is that the habit of male apostates is that they go to the abode of war (enemy territories) and fight against the Muslims, in order to deter what is common from these combatant men, they are killed in deterrence of this Unlike women, who are not susceptible to such behaviour (23) . and all non combatants according to the relied upon position of the Ḥanafī school (24).

Conclusion:

In this article, we have thoroughly analysed this Ḥadīth through the lens of classical scholarship, putting their claims against the primary sources. We have given thorough and reasonable justifications for the reasons and conditions on when and how these fixed punishments are applied. Our justifications and conditions for these punishments are ones which seek to preserve universal values which can be known via reason; thus, they are applicable for all times, including our current ones, with no contradiction with reason but rather reason and nature supports these fixed punishments.

______________________________

(1) Al-Arba’een al-Nawawīyyah, Ḥadīth 14

(2) Al-Mubīn al-Mu’īn li-Fahm al-Arba’een p.8, Dār al-Lubāb

(3) Ibid p.346

(4) Al-Ta‘yīn p.126, Maktabah Makkīyah

(5) Al-Mubīn al-Mu’īn li-Fahm al-Arba’een, p.365, Dār al-Lubāb

(6) Ibid.

(7) Badā’i al-Ṣanā’i 9/249 (DKI 2019)

(8) Al-Mubīn al-Mu’īn li-Fahm al-Arba’een p.366, Dār al-Lubāb

(9) Fatḥ al-Qadīr 5/195 (DKI 2003)

(10) Rūḥ al-Ma‘ānī 9/19 (DKI 1994)

(11) Fatḥ al-Qadīr 5/195 (DKI 2003)

(12) Al-Ashbāh wa’l Naẓā’ir, Ibn Nujaym. p.108 (DKI 1999)

(13) See: al-Hidāyah 4/7-8 (Dār al-Sirāj), Radd al-Muḥtār 12/21-22 (Dārussalām)

(14) See for example, al-Hidāyah, al-Mabsūṭ and Ibn ‘Ābidīn’s gloss

(15) Qur’ān 2:179

(16) Tafsīr al-Nasafī 1/156 (Dār Ibn Kathīr)

(17) Aḥkām al-Qur’ān 1/196 (Dār Iḥyāʾ al-Turāth)

(18) al-Taʿyīn fī Sharḥ al-Arba’īn, p.128, (al-Maktaba al-Makkiyah), al-Tanbih ‘ala Mushkilāt al-Hidāya, 4/293 (Maktabatul Rushd)

(19) Al-Jihād fī al-Islām, al-Būṭī p.212, (Dār al-Fikr)

(20) Sharḥ al-Siyar al-Kabīr 4/186, (DKI 1997)

(21) Tafsīr al-Maẓhirī 6/246, (Dār Iḥyāʾ al-Turāth)

(22) al-Asrār. 10/87, (Asfār, Kuwait)

(23) Al-Mubīn al-Mu’īn li-Fahm al-Arba’een p.372, Dār al-Lubāb

(24) Al-Ikhtiyār li-Ta’līl al-Mukhtār 4/95 (al-Risālah), al-Asrār 10/88 (Asfār, Kuwait), Radd al-Muḥtār 6/213, (Dār Aalim al-Kutub), Ghāyat al-Bayān, Volume 8 p.539, (Dārul Ḍiyā’).