Journal of Islamic Law

Between Divine Mandate and Modern State

Bahman Khodadadi — Sun, 29 Jun 2025 21:29:05 +0000

Rarely does any aspect of Islamic law command such global attention or stir such deep internal controversy as the ḥudūd punishments. Anchored in scripture and charged with moral gravity, these punishments occupy a complex space where divine authority, political power, and human suffering intersect. What does it mean to treat certain punishments as sacred and immutable in an era increasingly shaped by demands for human rights, rehabilitation, and legal reform? Do these ostensibly immutable decrees uphold the true spirit of justice, or do they entrench an unforgiving orthodoxy that resists ethical evolution? How have political regimes mobilized ḥudūd punishments to assert religious legitimacy or consolidate power? Can a faithful reading of Islamic tradition allow for the reinterpretation—or even suspension—of ḥudūd in light of present-day ethical concerns?

As these questions suggest, this volume aims to illuminate the theoretical foundations and practical realities of ḥudūd law, explore possibilities for a moratorium on ḥudūd punishments, and offer an interdisciplinary examination of this complex and contested issue. The contributions critically engage with juristic, political, sociological, and theological discourses surrounding the implementation of ḥudūd punishments in the modern era. These analyses encompass interpretations of the Qurʾān and ḥadīth, while also addressing the conceptual tensions and practical obstacles involved in the suspension or application of ḥudūd laws across a range of legal and political contexts, including those of Indonesia, Iran, Morocco, Pakistan, and Saudi Arabia.

Sacred Texts and Profane Realities

Muhammad Zubair Abbasi — Sun, 29 Jun 2025 22:51:41 +0000

This article examines the impact of Islamic criminal laws (ḥudūd), particularly the Zina Ordinance, on children’s rights in Pakistan. By analyzing the judgments of the Federal Shariat Court (FSC) and the Shariat Appellate Bench (SAB) of the Supreme Court, the study identified three key trends in case law. First, ambiguity in defining adulthood—whether based on statutory age limits or biological puberty—has resulted in inconsistent judicial decisions. Second, the judicial approach on minors’ consent in sexual offenses evolved over time, shifting from accepting consent to rejecting it, aligning with the principle of statutory rape. Third, while leniency in sentencing underage offenders reflects an emphasis on rehabilitation, it raises questions about deterrence and consistency. The findings of this research underscore the critical role of procedural laws and legal certainty in safeguarding children’s rights within a mixed legal framework of Islamic laws and common law tradition.

An Intrinsic Sharīʿa-Based Approach to Reducing Ḥudūd Capital Punishments in Iran

Mohsen Borhani, Mohammadamin Radmand — Sun, 29 Jun 2025 23:45:42 +0000

Iran’s criminal laws are based on Islamic law (sharīʿa) in accordance with its Constitution. In recent years, Iran has been among the countries with the highest execution rates worldwide. Most of these executions are linked to ḥadd-based punishments. This has led some intellectuals and foreign observers to believe that the high execution rate is due to laws grounded in sharīʿa. To reduce executions, they have proposed abandoning sharīʿa. However, such an approach does not align with the values of an Islamic society. Shīʿa jurisprudence, with its inherent capacity, such as the diversity of fatwās and authoritativeness of the consensus provides an opportunity. It allows for a significant reduction in executions without partially or entirely departing from sharīʿa.

God’s Law, King’s Court

Hazim H. Alnemari — Mon, 30 Jun 2025 01:25:11 +0000

This article examines two significant developments in Saudi criminal law during 2018 and 2019 respectively: the abolition of al-ḥukm bi-l-shubha (criminal convictions based on doubt) and the abolition of al-taʿzīr bi-l-jald (discretionary flogging punishments). The King undertook these developments as part of a broader plan to overhaul the Saudi justice system. Considering their grounding in fiqh, analyzing these abolished practices yields key insights: the intricate elements of ḥudūd enforcement; the susceptibility of ḥudūd jurisprudence to interpretive variances that yield unpredictable judicial outcomes; the inadequacy of ḥudūd as a capping threshold for taʿzīr offenses; and the possibility of implementing broad measures to guide the enforcement of ḥudūd, which may eventually evolve or find parallels in other jurisdictions.

Public Debates on Sharīʿa and the “Savages-Victims-Saviors” Metaphor of Human Rights

Tabinda Mahfooz Khan — Mon, 30 Jun 2025 19:59:03 +0000

While Pakistan’s Hudood Ordinances decreed by General Zia have been analyzed from a legal, socio-economic, and feminist perspective, this article contributes to emerging scholarship that examines the problem from the perspective of secular rights and law, as well as traditional Islamic scholarship. I ask why it took 27 years and the intervention of another military dictator, General Musharraf, to reform the Zina Ordinance through the Protection of Women Act, 2006, and why the Deobandi ʿulamāʾ declared this reform un-Islamic. I argue that the core problem was the absence of “authentic deliberation” on fiqh-based laws in public debates, exacerbated by what has been called the “savages-victims-saviors” metaphor of human rights discourse. Over this period, Pakistan’s judiciary, however, had integrated madrasa-educated fuqahāʾ, in a limited capacity, and learned how to communicate with them in terms of the scholarship they deemed authoritative, contributing to the emergence of what has been termed an “overlapping consensus” between fiqh and liberal citizenship as well as to the ideal of a “public reason” for sharīʿa.

Regulating Crimes under Muslim Law and European Civil Law Framework in Indonesia

Anggi Azzuhri — Mon, 30 Jun 2025 23:45:21 +0000

Indonesia’s penal code, derived from Dutch colonial law, defines gambling as speculative betting on luck—a vague formulation that leaves room for ambiguity. Because Indonesia incorporates Islamic law into its legal system, clarifying the definition of gambling becomes especially crucial. However, divergent and often contradictory interpretations among Islamic jurists, particularly regarding whether gambling falls within the scope of punitive criminal law, complicate this task within Indonesia’s framework of legal pluralism. This study traces the evolving interaction among Islamic law, customary law (adat), and state laws in Indonesia, using the controversy over the Porkas/SDSB lotteries of the 1980s and 1990s as a case study. The central argument is that, although fiqh remains largely marginalized in the Indonesian Penal Code, adjudicators occasionally draw on Muslim legal sources—particularly adat laws—to define criminal offenses. Even in the SDSB case, however, European civil law exerted more influence over the criminalization of gambling than Islamic law. While muftis continue to play a limited role in penal legislation, despite having lesser political influence, their views often influence public opinion or institutionalized norms, further sidelining fiqh in defining the legal contours of gambling.

A Decolonial Critique of the Maqāṣid-Based Approach to Sharīʿa

Mohamed Mitiche — Tue, 01 Jul 2025 01:37:20 +0000

A polarizing symbol, the ḥudūd punishments have come to be conflated with the very essence of the sharīʿa by advocates and detractors alike. This article applies a decolonial critique to reform projects that call for the suspension of the ḥudūd, particularly those appealing to maqāṣid al-sharīʿa for internal legitimacy. Focusing on one such prominent call, I argue that the fixation on ḥudūd as divinely mandated punishments, in lieu of political punishment (taʿzīr) or the law of talion (qiṣāṣ), reflects a misplaced critique, revealing a colonial lens and the enduring coloniality of power. By analyzing ḥudūd enforcement in Saudi Arabia and Iran, I show their statistical rarity, theoretical inapplicability, and ethical dissonance with liberal sensibilities. I incorporate perspectives from contemporary and premodern scholars—including Ali Gomaa, ʿIzz al-Dīn b. ʿAbd al-Salām, and Abū al-Qāsim al-Burzulī—highlighting historical critiques and alternatives to ḥudūd. Additionally, I examine the broader implications of reform, particularly its implicit reliance on the carceral system, which remains unchallenged by reformist discourse. Engagement with critical theorists Michel Foucault, Angela Davis, and Michelle Alexander reveals the reformist concern with regulating the visibility of violence, rather than its elimination, as a hegemonic function of human rights discourse in defining the boundaries of legitimate debate.

Reassessing Baghy in Islamic Fiqh

Hamidreza Asimi, Jamshid Gholamloo — Tue, 01 Jul 2025 02:38:45 +0000

The 2013 Islamic Penal Code of Iran marked a notable shift by categorizing baghy (armed rebellion) as a ḥadd crime for the first time, imposing the death penalty for acts perceived as undermining the Islamic Republic’s foundation. Nonetheless, this legislation presents considerable legal ambiguities and strays from well-established Shīʿa fiqh principles. The existence of conflicting fiqhī interpretations regarding similar actions has exacerbated the difficulties in legal understanding. This essay utilizes a normative approach rooted in ethical and fiqhī principles—such as exercising caution regarding life and property (iḥtiyāṭ-i dar dimāʾ) and safeguarding human dignity (karāmat-i insānī)—to advocate for reforms. It posits that baghy should no longer be classified as a ḥadd crime and calls for alternative strategies focused on negotiation, reconciliation, and leniency. By aligning the penal code with sharīʿa and human rights standards, these proposed reforms seek to address the legal and ethical dilemmas posed by the current laws.

Contemporary Mechanisms to Reform Islamic Criminal Law

Yannis Mahil — Tue, 01 Jul 2025 03:19:45 +0000

This essay analyzes the contemporary evolution of Islamic criminal law, focusing primarily on the case of Morocco. It investigates the hermeneutical strategies employed by Islamic scholars and modern Muslim states to avoid the implementation of certain punishments drawn from ḥudūd, qiṣāṣ, and taʿzīr. The essay highlights, for instance, the role of “contextual and eclectic ijtihād” in adapting Islamic criminal law to modern contexts, and emphasizes the shift from ḥudūd to taʿzīr punishments across many Muslim countries. By focusing on the evolution of criminal law in Morocco and its connection to Islamic law, the essay explores the influence of Western legal systems and internal reform efforts, showing how traditional Islamic terminology and penalties have been mainly secularized while keeping the “Islamic” offenses. It sheds light on the dynamic interplay between tradition and modernity. The essay also addresses ongoing debates surrounding the death penalty in Morocco and its link to Islamic criminal law, particularly in light of the Kingdom’s recent vote in favor of a universal moratorium at the United Nations. Through this case study, the essay also highlights the role of modern Muslim states in balancing Islamic legal heritage with contemporary human rights standards, as well as the strategies used to “Islamize” the secularization of Islamic criminal law.