# Can hudud punishments such as stoning or hand-cutting change with the times?

*Is the stoning hadith fabricated? Hudud changing with the age, and the spirit versus the letter of the law*

- URL: https://muftiabulayth.org/r/ksqksrxndnw/s/6/
- Date: 2020-04-22 · Kind: discussion · Transcript tier: machine · Recording: Shaykh Dr. Shabir Ally | Juxtaposing the Quran, Jumbling Aisha's age & Jinn Possession | MindTrap#16 (18:08–24:41)
- Status: general teaching
- Watch from the start of the segment: https://www.youtube.com/watch?v=KsQKsrXndNw&t=1088s
- Recording page: https://muftiabulayth.org/r/ksqksrxndnw/

**Topics:** Hudud and punishments; Legal theory and method; Guest conversations

**Summary (not a quotation; machine-made, unchecked):** Mufti Abu Layth holds that stoning was a pre-Quranic practice abrogated by the Quran and that the Sharia's punishments reflect their age, as Maliki scholars and the Ottomans applied. The guest agrees that the spirit of the law can require departing from its letter, as Umar did when he suspended hand-cutting in a famine.

## Longer summary

The segment opens with the end of the guest's balcony analogy. Mufti Abu Layth then takes up viewers' questions about whether the stoning report is fabricated: his view is that stoning was in the previous scriptures and a practice known among the Arabs, that the report in Sahih Muslim of Jews coming to the Prophet to be judged by their book shows it being condoned as a prior practice, and that when the Quran came it abrogated it. He adds that around the seventh century Maliki scholars in north-west Africa, such as al-Burzuli [?], ruled that because the era had changed the hudud such as hand-cutting had changed to financial penalties, long before European influence, and that in the east the Ottoman sultan Suleiman al-Qanuni changed many hudud punishments; his understanding is that the Sharia is meant to reflect the day and age in punishments, rulings and transactions, and he asks whether this resonates with the guest. The guest puts it in his own words: we follow how things have been done until we hit a snag and realise rethinking is needed; there is a letter and a spirit of the law, the letter exists to maintain the spirit, and applying the letter in a new situation can thwart the spirit, so one must sometimes depart from the letter, an ancient and well-known principle. He gives examples: scholars read the command to write down loan agreements as a recommendation, and nobody takes the command to hunt after leaving ihram as an obligation. So the hudud are not non-negotiable and inflexible, and he cites Umar suspending the cutting of the hand during a famine because those stealing to eat were not the evildoers the measure targeted; the time and circumstance must be seen and the law applied accordingly.

## Sources and names cited

- Dr Shabir Ally (guest)
- Sahih Muslim
- report: some jews came to the prophet and asked to be judged by the book
- naskh (abrogation)
- hudud (prescribed punishments)
- al-Burzuli [?]
- punishments change to reflect their age (attributed to al-Burzuli) [?]
- Sultan Suleiman al-Qanuni (the Magnificent)
- the spirit of the law may require departing from its letter
- Quran 2:282 (write down your loan agreements): https://quran.com/2/282
- Quran 5:2 (when you leave ihram, hunt): https://quran.com/5/2
- Umar ibn al-Khattab
- report: umar suspended the cutting of the hand during the famine

## Transcript (machine tier, 18:08–24:41)

[17:49] advantage of being able to stand on the balcony how do we do that by getting the books from over the ages we can see what written at different junctures in Islamic history we can take them as milestones indicating how Islam was perceived at those various junctures in Islamic history and we can see an evolution of ideas over time so we can see the whole procession how it began how it began and how it proceeded and and the twists and turns and where it is ending up so if those scholars in the past being part of the procession did not have the vantage point that we have it's no fault of their own

[18:28] there were great scholars and a level reward them their mistakes and all I mean we have mistakes too and we we we ask allah sunnatullah to forgive us we nobody is entirely like we're not gods either and and we're not infallible but we are responsible for the unique vantage point that Allah has given us Allah is going to question us you were in a position to know this and that why did you not oh not to to what you were in a position to know you see and some people here have asked as well about this about the stoning for example

[19:07] and what exactly is it that are we saying it's fabricated or what that some of the questions I mean the way I have viewed this year was that as you highlighted that it was in the price previous scriptures there's a hadith in Sahih Muslim that the some Jewish people come to the Prophet and they ask to be judged by the book and it's from there that this is just condoned as a prior practice which was already in existence amongst Arabs as well it wasn't that it was unheard of but it was not in the Quran when the Quran came it would have

[19:46] abrogated that in my understanding the other thing that I've highlighted is that with as the centuries passed they were certain Allah man who emerge around the seventh century in northwest Africa you've got some great orlimar date I'm like a possum and personally who actually in his time issued a ruling saying that the who dude they are like the hand chopping not the cutting of the hand or whatever it is that due to the change of the era and the ruling has also changed and he in his time and this is not this is way before modernity this is way before

[20:25] being input influenced by Europe he wrote and he was the chef Elise Lam in his time and one of the you know especially of the Mauna Kea now he writes that wait they are they will be changed in line with financial penalties for his age but he says that the age must reflect the Haddad punishment and you've got something similar going on in the in the East with Salomon Rocker Muni does the Ottoman kind of Calif changes a lot of the Redoute punishments to other penalties now my understanding has been

[21:03] that the Sharia will reflect the mandates to reflect the day and age whether that same punishments whether that's in rulings whether that's in you know just transactions or its understanding is that something that resonates DIF with yourself as well but let me put it in my own way to be to be most clear and I know you put it in a way that you know it's hard to disagree with but I want to put it in my own words of course yeah so the way I see this year is that you know we tend to

[21:43] follow exactly the way things have been done and that's fine until we reach a snag and we realize some rethinking is necessary like we can't do it the same old way because obviously it's not bringing out the original spirit so so now we realize that there is a spirit of the law and there is the letter of the law the letter of the law was there for the purpose of maintaining a certain spirit but sometimes if you apply the letter of the law in a new situation you might actually thwart the spirit of the law so now we in order to capture that original spirit sometimes we need to

[22:23] depart from the letter of the and this is an ancient and well-known principle and Muslim scholars have done this throughout the ages sometimes we look at a verse in the Quran the verse says plainly something and they say no while the Spirit is not that it couldn't be that yeah for you know for example the Quran says write your your loan agreement and the Muslim scholars look at that and say even though it's in the command form well because it's dealing with a practical matter it's not a matter as you know it's not the kind of thing that people were born in the Hellfire for then you know this must be taken to be a

[23:02] recommendation even though it is given in the imperative form more to the point the Quran says after you have come out of your Iran FASTA do then hunt and and it's given in the imperative form and you know but but everybody agrees that the Quran is not making it mandatory for Muslims to go out and hunt soon as they come out from Iran yeah I mean you may be in Mecca and you're in a five-star hotel well me almost wanna Taylor take us back there because now with the lockdown you don't know when we'll have that beautiful opportunity to go there but

[23:41] you see the point shape that even though as you know the Quran may be saying something in the imperative Muslim scholars realize that it's not the imperative that is intended there's a certain spirit behind this all saying and if the spirit that needs to be captured and applied so in a similar way when the Quran gives you specific laws and and people have referred to these as the whole dude law and and they think that these are non-negotiable and it is like you know inflexible it must be like this and applied the same way in all times in all places and that is not necessarily the case and we see that a

[24:18] great companions of the Prophet is it is reported that American água as an example when he was Calif he realized that people were stealing not because they're bad people but due to a famine and so he suspended that the application of that law of cutting the hand because he recognized that the cutting of the hand that was a measure intended to be used against people who have gone out of their way through evil tendencies to to commit that crime and and these poor people in the face famine who were

## Cite

Mufti Abu Layth Archive, segment KsQKsrXndNw/s/6. https://muftiabulayth.org/r/ksqksrxndnw/s/6/

Not a fatwa: these answers were given to specific people at specific times. Ask a qualified scholar about your own situation.