This article explores the origin and diffusion of the legal saying, which stated that God's sanctions were not to be applied in cases where there was room for doubt (idra'ū l-hudūd bi-l-shubuhāt), and how it was transformed into a Prophetic saying that was employed mainly by Hanafis and Mālikīs, and rejected by the Hanbalīs and the Zāhirī Ibn Hazm. Behind these developments there is the tension between two equally compelling needs in the early Islamic period: on the one hand, the desire to avoid as much as possible imposition of the severe hadd penalties; on the other hand, the fact that such avoidance usually played in favour of the rich and the powerful.

This author offers a feminist and rights-based critique of zina laws in Muslim legal tradition, which define any sexual relations outside legal marriage as a crime. In the early 20th century, zina laws, which were rarely applied in practice, also became legally obsolete in almost all Muslim countries and communities; but with the resurgence of Islam as a political and spiritual force later in the 20th century, in several states and communities zina laws were selectively revived, codified and grafted onto the criminal justice system, and applied through the machinery of the modern state. The author reviews current campaigns to decriminalise consensual sex, and argues that zina laws must also be addressed from within the Islamic legal tradition. Exploring the intersections between religion, culture and law that legitimate violence in the regulation of sexuality, the author proposes a framework that can bring Islamic and human rights principles together.

background

Idrah'ū l-hudūd bi-l-shubuhāt: When Lawful Violence Meets Doubt

Criminalising Sexuality: Zina Laws as Violence Against Women in Muslim Contexts

This book provides a detailed analysis of Islamic juristic writings on the topic of rape and argues that classical Islamic jurisprudence contained nuanced, substantially divergent doctrines of sexual violation as a punishable crime The work centers on legal discourses of the first six centuries of Islam, the period during which these discourses reached their classical forms, and chronicles the juristic conflict over whether or not to provide monetary compensation to victims Along with tracing the emergence and development of this conflict over time, Hina Azam explains evidentiary ramifications of each of the two competing positions, which are examined through debates between the Hanafi and Maliki schools of law This study examines several critical themes in Islamic law, such as the relationship between sexuality and property, the tension between divine rights and personal rights in sex crimes, and justifications of victim's rights afforded by the two competing doctrines

Idrah'ū l-hudūd bi-l-shubuhāt: When Lawful Violence Meets Doubt

Citations

Criminalising Sexuality: Zina Laws as Violence Against Women in Muslim Contexts

Sexual violation in islamic law: Substance, evidence, and procedure

Das islamische Sklavenrecht

Doubt in Islamic Law: Sunnī Doubt: Substantive, Procedural, and Interpretive Doubt

Against Doubt: Strict Textualism in Opposition to Doubt

Related Papers (5)

Traditionist-jurisprudents and the framing of islamic law

Punishment in Islamic Law: a Critique of The Hudud Bill of Kelantan, Malaysia

Was the Gate of Ijtihad Closed

Statutory Interpretation—in the Classroom and in the Courtroom

Early Islamic Legal Theory: The Risāla of Muḥammad ibn Idrīs al-Shāfiʾī