Islam & the Modern World · Modesty & Sexual Ethics

Why the punishment is almost unenforceable

Handle with care. Handle with care: state clearly that convictions in some modern states fall far below the Qur'anic standard and are unjust.

In short

• 1.Q 24:4 requires four witnesses to the act itself; anything less is not evidence.
• 2.A failed accusation is itself a crime: eighty lashes and permanent loss of credibility as a witness (Q 24:4).
• 3.The deterrent is public; the enforcement is designed to be near-impossible.

The claim being examined

The hadd punishment for zina is cited as proof that Islam is brutal about sex.

The Islamic position

The evidentiary bar — four eyewitnesses to the act itself — is set so high that the punishment is effectively unenforceable, while false accusation is punished immediately.

Analysis

The structure is the argument and it must be stated exactly. Q 24:2 gives the penalty for zina; Q 24:4 requires four witnesses and imposes eighty lashes on anyone who accuses a chaste person and fails to produce them, along with permanent disqualification from giving testimony. The classical jurists defined the required witnessing so strictly — four upright adult witnesses to the physical act itself, at the same time — that jurists openly acknowledged it would essentially never be satisfied outside confession. The Prophetic practice reinforces this: in the case of Ma'iz, the Prophet, peace be upon him, turned away from his confession repeatedly and looked for a way out, and the Prophet instructed that the hudud be averted by doubts, a maxim (idra'u al-hudud bi'l-shubuhat) that became a foundational principle of Islamic criminal law — narrated in Jami at-Tirmidhi 1424 and elsewhere with debated chains but universally adopted by the jurists. Two honesty requirements. First, the punishments in the text are real; do not pretend Islam has no penal code. Second, the abuses in some modern states — convictions on pregnancy alone, or on evidence far below the Qur'anic bar, which the majority of classical jurists rejected — are a failure of those states against Islamic law, and should be named as such rather than defended.

From the Qur'an

From the Bible

From the Sunnah

Sources

Ibn Rushd, Bidayat al-Mujtahid, Kitab al-Hudud · Intisar Rabb, Doubt in Islamic Law (2015) · Intisar A. Rabb, Doubt in Islamic Law: A History of Legal Maxims, Interpretation, and Islamic Criminal Law (Cambridge, 2015)

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