Tahkik Journal of Critical Editions of Islamic Manuscripts

Abstract

In Islamic criminal law, crimes are categorized into three parts: ĥadd (fixed), qiśāś (retaliation) and ta‘zīr (discretionary). Maximum sensitivity was displayed for the enforcement of ĥadd and qiśāś offenses in particular. As such offenses are nonrecoverable after their enforcement, it was essential to be very circumspect in this regard. Consequently, the conditions of the crime factors, from proof of the crime to the enforcement, were difficult to satisfy, and Ĥanafī jurists in particular have advocated that the factors emerging prior to or during the enforcement and after the finalization of the judgment should be taken into consideration in order to narrow the field of punishment and prevent potential unjust treatment. Accordingly, the principle of enforcement which was a part of the judgment was adopted for ĥadd crimes had essentially rendered the principle of giving the benefit of the doubt to the defendant more functional.

However, it should be noted that the legal ruling that the ĥudūd (sing. ĥadd) were part of the execution was not adopted by all the founding imams of the Ĥanafī legal school. Abū Ĥanīfa and Imām Muĥammad, the founding imams of the Ĥanafī legal school, adopted the view that the enforcement was a part of the proceedings in the ĥudūd. They took into account the ĥadīths of the Prophet Muĥammad, who ordered the reduction of the ĥudūd in the case that doubts still persisted. These two imams were of the view that even after the finalization of the verdict on the grounds that the injunction as found in the hadiths was absolute, some of the incidental situations which transpired before the enforecement had the effect of diminishing the punishment of the crime of, for instance, adultery, theft and drinking. However, the other two Ĥanafī imams, Zufar ibn Hudhayl and Abū Yūsuf, disagreed. According to them, due to their nature, punitive sentences do not allow amnesty, reduction, mitigation or other forms of punishment. Therefore, even if incidental situations arose after the finalization of the verdict, the realization of the enforecement remains unaffected. Furthermore, the attitude of the Prophet Muĥammad in the incident of Śafwān b. Umayya forms a most important basis in this regard. They argued that in other denominations, the enforecement was a separate process from the judiciary and that the situations that emerged after the finalization of the legal ruling would not prevent the enforcement. Subsequent Ĥanafī jurists made this decision in the form of al-imđā’ min al-qađā’ fī al-ĥudūd.

When it comes to qiśāś punishments that concern only the rights of individuals, such penalties are different from ordinary punishments, primarily because they constitute a violation of the individual’s life or bodily integrity. Therefore, these types of offenses, in terms of their nature, allow different alternatives such as forgiveness of the perpetrator, requesting retaliation or liability known as diya (financial compensation) to the victim or relatives of the victim. Whether the penalties for offenses can be included in the scope of this accident in order to prevent possible damages and grievances that may arise after the finalization of the legal ruling was also a matter of dispute among jurists.

Maĥmūd Hamza Efendi, the Mufti of Damascus, who was one of the Ĥanafī jurists in the 19th century, and the Crimean Abdüssettār Efendi, who held many important positions in the Ottoman State, especially as a constituent of the Mecelle community, brought this issue back onto the agenda.

In the Ottoman Empire, the penalties for offenses could only be applied after the approval of the fatwa and the removal of the farmān-ı ālī (exalted imperial order). Given the transportation and communication facilities of the period, it was almost impossible to impose such penalties, especially in areas far from the center. The decision of retaliation took quite a long time until the enforcement of the verdict, during which the judge who passed the verdict could either die or be dismissed. For this reason, justice was delayed because the punishments could not be carried out, and the trials could persist indefinitely. This particular situation led to the emergence of injustices and new grievances. In consideration of these issues, the mufti of Damascus, Mahmūd Hamza Efendi, argued that the stake in question was for the enforcement of the punishments and that these were outside the scope of the ordinance. Abdüssettār Efendi claimed that the stake includes not only the limits but also the punishments. For this reason, both Ĥanafī jurists tried to present their views on the subject by referring to the main sources of the legal school. In the last period of the Ottoman Empire, Abdüssettār Efendi furnished an explanation of the issue of whether the enforcement was a part of the prosecution in the qiśāś penalties, which was on the agenda once again, in his treatise Tanbīh al-rukūd.