By Salah-Dean Satouri*
When Western commentators engage with Islamic law, they frequently focus on its most severe punishments, such as amputation for theft and stoning for adultery.[1] These penalties, known as ḥudūd (plural of ḥadd), have represented some of the strictest boundaries within Islamic criminal law. The objective of this essay is to determine whether ḥudūd punishments are indeed “immutable” and “fixed” or if they may be reconsidered in a world that often, perhaps unfairly, labels them as “medieval, draconian, and barbaric.”[2] Despite their relatively reserved role in the broader framework of Islamic jurisprudence, they have become highly controversial and contentious.[3] This essay seeks to address the question: Can the severity of ḥudūd punishments be adjusted to align with modern liberal values?[4] This prompt was principally asked to answer a less-loaded question about whether ḥudūd crimes are defined primarily by the severe and punitive punishment mandated or the societal and ethical harm it intends to preclude?
This essay will begin by briefly defining ḥudūd punishments, examining their foundational basis within Islamic doctrine, and contextualizing them historically. Next, this essay identifies both the majority and minority perspectives on the research question to display that there is a rich scholarly debate on this issue. Lastly, this essay will compare these researched positions with responses generated by an AI model to evaluate the potential benefits and limitations of generative AI in researching complex legal and theological issues.
What are the ḥudūd?
The term ḥudūd derives itself from the Arabic word meaning “boundary” or “limit.” The Qur’ān refers to these “limits (ḥudūd) of God” several times, “warning Muslims of the sin of transgressing them and that they should not even approach them.”[5] However, while this concept of ḥudūd as a boundary is introduced in the Qur’ān, specific criminal punishments associated with ḥudūd are detailed primarily in the ḥadīths.[6] This distinction is emphasized by the renowned Islamic scholar Ibn Taymiyya, who observed that “definitions for the categories of crimes (and their corresponding punishments) in Islamic law were the products of human reason and not scripture.”[7]
Classical jurists from the four main Sunnī schools of thought outlined ḥudūd in generally consistent terms. Their definitions emphasized several core themes: the centrality of the specific fixed offenses that triggered these punishments, the divine nature attributed to the punishments, their obligatory implementation to uphold the rights of Allah, and rationales often rooted in deterrence and spiritual retribution. For instance, in the Shāfi‘ī school, al-Māwardī defined ḥudūd as follows:
“Ḥudūd is a punishment decreed by Allah in order to prevent His servants from disobeying His prohibitions and to encourage them to be more obedient. It is called Ḥudūd because the levels of punishment are determined by Allah.”[8]
Traditionally, there are four recognized ḥudūd offenses with an additionally three typically added, including adultery/fornication (zinā), consuming intoxicants (shurb al-khamr), accusing someone of fornication (qadhf), theft (sariqa), and highway robbery (ḥirāba), apostasy as war/treason (ridda), and blasphemy as war/treason (liwāṭ).[9] These offenses are viewed as “violations of the rights of God (ḥuqūq Allāh),” marking them as serious infractions within Islamic law.[10] The penalties for ḥudūd crimes are often considered legally fixed and traditionally leave no room for judicial discretion once the elements of the offense are conclusively proven.[11] This strict approach underscores the gravity with which these offenses are regarded, aiming to protect core ethical and social boundaries as prescribed in Islamic doctrine.[12]
Research Findings
In response to the question, “Can the severity of ḥudūd punishments be adjusted to align with modern liberal values?” the dominant position among traditional scholars asserts that such punishments are immutable, eternal, and cannot be modified.[13] This perspective sanctifies the specific punitive measures, holding that they are divinely prescribed and thus beyond human alteration. However, within this camp, scholars retain the view that ḥudūd punishments are fixed yet seek to recontextualize their purpose, application, and historical practice. In contrast, scholars like Khaled Abou El Fadl argue for a “paradigm shift,” advocating for a reinterpretation of ḥudūd to focus on the underlying values that the punishment intends to deter.[14]
Within the dominant opinion, scholars clarify that while ḥudūd punishments were implemented in Islamic history, they were relatively rare.[15] This rarity stemmed from exceptionally high evidentiary requirements, the fear of wrongful punishment, and the principle derived from hadiths mandating the avoidance of punishment whenever there is doubt.[16] Furthermore, scholars in this camp point to historical precedents where ḥudūd were suspended or altered, such as when Caliph ‘Umar waived the punishment of hand amputation for theft during a time of famine, to contextualize the use of ḥudūd in a modern world.[17] Still, historically, the executive often operated beyond the sharia framework in Islamic law and took an “expansive definition of punishment.”[18] This manifested itself in a “pattern of judges avoiding punishment and executives extensively using alternative sanctions to punish harshly.”[19]
This raises the question: Why would the punishment be considered central to ḥudūd if it was so infrequently enforced? A utilitarian approach draws from Jeremy Bentham’s equation of deterrent power (Expected Punishment = Severity of Punishment x Probability of getting caught), and holds that in the context of early Islamic societies, which lacked an organized police force or state infrastructure to ensure high apprehension rates, the severity of ḥudūd punishments served as a means of maximizing deterrence.[20] Thus, harsh penalties outlined in the sharīʿa were designed to maintain social order by dissuading potential offenders, even though actual enforcement remained rare. This may be complicated when accounting for aforementioned caliphal enforcement, which often exceeded ḥudūd punishments.[21]
Within this camp, there is broad recognition that the “application of ḥudūd ultimately fell under the authority of the ruler or state,” allowing for discretion in cases where enforcement could jeopardize social welfare.[22] This acknowledgment opens the door to discussions on the flexibility and adaptability of ḥudūd in modern contexts. Despite the punishments being fixed and central, justice and social stability are prioritized over strict application.
In contrast, Abou El Fadl argues that Muslim jurists should not focus on the punishments themselves and instead concentrate on the behaviors or conduct that these penalties are meant to deter.[23] He argues that by focusing on the punishments, jurists have “erroneously rendered some of the punitive measures mentioned in the Qur’ān and Prophetic traditions sacrosanct and eternal.”[24] In this view, the severity of the punishment is a marker of the significance of the underlying value rather than an unchangeable element.[25] Thus, while the punishment itself may be adapted or altered, the core ethical or moral value it seeks to protect remains immutable and eternal.
ChatGPT
While the generative AI provided a remarkably good response to the question, it was ultimately insufficient. The response began by addressing the classical view in Islamic jurisprudence, stating that “ḥudūd penalties are divinely mandated and therefore immutable, meaning they cannot be adjusted or abolished by human intervention.” From there it provided four considerations about the potential for “contextual interpretation or flexible implementation” of ḥudūd punishments. Among these, the AI outlined approaches of “Interpretive Flexibility” and “Flexibility in Implementation.” These seemed to be an articulation of Jonathan Brown’s perspective that the application of ḥudūd punishments should be contextual and only be applied under strict conditions. Similarly, it broadly mentioned that throughout history, ḥudūd enforcement was adapted “according to political, economic, and cultural contexts.”
However, the AI then shifted focus, discussing taʿzīr (discretionary punishment) as an alternative when the strict conditions for ḥudūd are unmet rather than providing a nuanced analysis of ḥudūd itself. This approach was disappointingly broad and lacked depth, failing to adequately consider minority opinions within Islamic legal thought on the question at hand regarding ḥudūd. Furthermore, the response appeared to be crafted to appease perceived anxieties, seemingly assuming that I, the questioner, viewed ḥudūd as overly severe. It even attempted to reassure me by suggesting that “while ḥudūd punishments themselves are traditionally fixed, Islamic jurisprudence offers tools and principles that allow for considerable flexibility in interpretation, application, and adaptation to contemporary social contexts.”
Overall, generative AI is a good starting point, but overall, it is inadequate to reach a sufficient conclusion to complex questions within Islamic jurisprudence.
Appendix: ChatGPT’s Response
Q: Can the severity of hudud punishments be adjusted for a more liberal modern world? Ex. Can we, as Muslims, amend the rule on amputation for theft?
A: In Islamic law, hudud punishments are traditionally considered fixed penalties, prescribed by the Qur’an and Sunnah for specific offenses (such as theft, adultery, false accusation of adultery, apostasy, highway robbery, and intoxication). The classical view among many Islamic scholars is that hudud penalties are divinely mandated and therefore immutable, meaning they cannot be adjusted or abolished by human intervention.
However, there is a debate within Islamic jurisprudence about whether hudud punishments can be interpreted or implemented differently in changing contexts:
- Interpretive Flexibility: Some scholars argue that the application of hudud punishments should be contextual, emphasizing that these punishments should only be applied under strict conditions. If certain socio-economic factors, like poverty or social inequality, contribute to a crime, many jurists advocate addressing these root causes first, as hudud punishments are traditionally only applied in cases where guilt is certain and the environment is just.
- Tazir as an Alternative: When the strict conditions for hudud are not met, judges (qadis) can often impose discretionary (tazir) punishments instead, allowing them to consider alternative penalties more fitting for contemporary situations. This gives some flexibility in cases where hudud may seem excessive by today’s standards.
- Maṣlaḥa (Public Welfare): Some modern scholars use the principle of maṣlaḥa, or public welfare, to argue for the adaptation of hudud laws in cases where rigid application might harm society or contradict the higher objectives of Sharia (maqasid al-Sharia), such as justice, compassion, and social well-being.
- Historical Flexibility in Implementation: Throughout Islamic history, many Muslim-majority societies have adapted hudud enforcement according to their political, economic, and cultural contexts. Some argue this shows a historical precedent for flexibility in implementation, even if the foundational laws remain fixed.
While hudud punishments themselves are traditionally fixed, Islamic jurisprudence does offer tools and principles that allow for considerable flexibility in interpretation, application, and adaptation to contemporary social contexts. This remains a highly debated topic among Islamic legal scholars.
Notes:
* Salah-Dean Satouri is a J.D. Candidate at Harvard Law School with a focus on international human rights, democratization, and advocacy for Muslim Americans. He graduated magna cum laude and with first-class honors from the Joint Degree Program at the College of William & Mary and the University of St. Andrews in 2022, earning a B.A. International Honors in International Relations. A former Global Law Scholar at Georgetown University Law Center and a Lebanese-Tunisian American raised in Northern Virginia, Salah-Dean has conducted extensive research and advocacy on constitutional legitimacy and democratic backsliding in the Middle East and North Africa, contributing to publications like The Washington Post, Brookings Institute, and Voice of America.
[1] See Caitlin McFall, Taliban Vows to Publicly Stone Women to Death in Direct Message to Western Democracies, Fox News (Mar. 26, 2024), https://www.foxnews.com/world/taliban-vows-publicly-stone-women-death-direct-message-western-democracies; David Aaro, Brunei Defends Planned Embrace of Extreme Islamic Laws, Fox News (Mar. 30, 2019), https://www.foxnews.com/world/brunei-defends-planned-embrace-of-extreme-islamic-laws; Julia Hollingsworth, Rebecca Wright & Alexandra Field, ‘Barbaric to the Core’: Brunei Brings in Gay Sex Stoning Law, CNN (Apr. 3, 2019), https://www.cnn.com/2019/04/03/asia/brunei-stoning-law-intl/index.html.
[2] Khaled Abou El Fadl, Qur’anic Ethics and Islamic Law, 1 J. Islamic Ethics. 7, 16 (2017).
[3] “In a typical book of fiqh less than 2% of the book is devoted to the ḥudūd crimes and their punishments.” Jonathan Brown, Stoning and Hand Cutting: Understanding the Hudud and the Shariah in Islam, Yaqeen Inst. for Islamic Rsch. 1, 2 (2017); see also Intisar A. Rabb, Enforcement and Punishment in Medieval Islamic Law, in Cultural History of Crime and Punishment in the Medieval Age 9–15 (Sarah McDougall & Karl Shoemaker eds., 2022).
[4] Here, the phrase “modern liberal values” is loaded, serving as a proxy for the dominant Western “liberal” legal order, which generally rejects corporal punishment. This essay recognizes that the phrase may carry an implication of moral superiority tied to a somewhat elusive set of “liberal” principles, which can be problematic. By prompting the generative AI with this question, one objective was to observe how it would address the often racially charged criticisms levied against Islamic law under the guise of this ambiguous concept of “modern liberal values.”
[5] See Qur’ān 2:229, 4:14, 58:4, 65:1; see also Brown, supra note 3.
[6] “The definition of ḥadd given by scholars is the specific punishment for certain offences determined by the Sharia with no permissible variation. If observed clearly, there is no specific evidence found in the Qur’an and Sunnah regarding the exact type of punishment.” Nur Al-Farhain Binti Kamaruzaman, Reconstructing the Theory of Ḥudūd and Its Application within the Malaysian Legal Framework: A Case Study of the Syariah Criminal Code (II) 1993, State of Kelantan 1, 86 (2020) (Ph.D. dissertation, Leeds University).
[7] Brown, supra note 3, at 5 (citing Jonathan Brown, “Taʿzīr,” Oxford Encyclopedia of Islam and Law (Oxford Univ. Press, forthcoming)).
[8] Māwardī, ʿAlī ibn Muḥammad, Kitāb al-Ḥudūd min al-Ḥāwī al-Kabīr 184 (2nd ed.), quoted in Kamaruzaman, supra note 6, at 74.
[9] Mohammad H. Fadel, Public Reason as a Strategy for Principled Reconciliation: The Case of Islamic Law and International Human Rights Law, 8 Chi. J. Int’l L. 1, 5 (2007).
[10] Brown, supra note 3, at 3.
[11] Fadel, Public Reason as a Strategy for Principled Reconciliation, supra note 9, at 5.
[12] Id.
[13] Id. at 5 n.12.
[14] Abou El Fadl, supra note 2, at 19.
[15] “Interestingly, however, ḥudūd punishments were hardly ever implemented in Islamic legal history, for the most part because Muslim jurists made the evidentiary requirements and the technical pre-conditions for the enforcement of the ḥudūd practically impossible to fulfill or because they admitted so many mitigating factors to the point that only a criminal who was most determined to be punished could be made to suffer the ḥudūd penalties.” Id. at 17; see also Brown, supra note 3, at 13.
[16] “It was narrated from Abū Hurairah that the Messenger of Allah (pbuh) said: ‘Ward off the legal punishments as much as you can.’ (Sunan Ibn Mājah, The Chapters on Legal Punishments (Al-Ḥudūd).” Kamaruzaman, supra note 6, at 55; see also Intisar A. Rabb, Doubt in Islamic Law: A History of Legal Maxims, Interpretation, and Islamic Criminal Law 3, 115–16 (2014).
[17] “Yaḥyā Ibn Abī Kathir reported: ‘Umar Ibn al- Khaṭṭāb, may Allah be pleased with him, said, “Do not cut the hand of the thief who steals dates in the year of famine.” (al-Muṣannaf).’” Kamaruzaman, supra note 6, at 62.
[18] Rabb, supra note 3, at 5, 7.
[19] Id. at 9.
[20] Brown, supra note 3, at 19.
[21] “Not all punishments were not for criminal violations of ḥudūd laws; in fact, the disproportionate use of state violence outside of that framework points to the sheer power and inclination of the executive to take an expansive definition of punishment.” Rabb, supra note 3, at 7.
[22] Brown, supra note 3, at 13.
[23] “In my view, the classical approach, which tended to sanctify particular punitive measures and treat them as if part of the immutable and eternal Shariʿah, is quite unfortunate. What ought to be considered immutable and eternal are the ethical values that the punitive measures were intended to safeguard and not the punitive measures themselves.” Abou El Fadl, supra note 2, at 17-18.
[24] Id. at 18.
[25] Id.
(Suggested Bluebook citation: Salah-Dean Satouri, Can the severity of ḥudūd punishments be adjusted to align with modern liberal values?, Islamic Law Blog (Jan. 28, 2025), https://islamiclaw.blog/2025/01/28/can-the-severity-of-%e1%b8%a5udud-punishments-be-adjusted-to-align-with-modern-liberal-values/)
(Suggested Chicago citation: Salah-Dean Satouri, “Can the severity of ḥudūd punishments be adjusted to align with modern liberal values?,” Islamic Law Blog, January 28, 2025, https://islamiclaw.blog/2025/01/28/can-the-severity-of-%e1%b8%a5udud-punishments-be-adjusted-to-align-with-modern-liberal-values/)