Repentance as a Legal Concept

Repentance as a Legal Concept Item Type Electronic Thesis; text Authors Hemeidah, Ahmad Al-Saiid Zaki Publisher The University of Arizona. Rights Copyright © is held by the author. Digital access to this material is made possible by the University Libraries, University of Arizona. Further transmission, reproduction or presentation (such as public display or performance) of protected items is prohibited except with permission of the author. Download date 10/01/2022 18:07:33 Link to Item http://hdl.handle.net/10150/144591 REPENTANCE AS A LEGAL CONCEPT by Ahmad Al-Saiid Zaki Hemeidah ______________________________________ Copyright © Ahmad Al-Saiid Zaki Hemeidah 2011 A Thesis Submitted to the Faculty of the DEPARTMENT OF NEAR EASTERN STUDIES In Partial Fulfillment of the Requirements For the Degree of Masters of Arts In the Graduate College THE UNIVERSITY OF ARIZONA 2011 2 STATEMENT BY AUTHOR This thesis has been submitted in partial fulfillment of the requirements for an advanced degree at the University of Arizona and is deposited in the University Library to be made available to borrowers under rules of the Library. Brief quotations from this thesis are allowable without special permission, provided that accurate acknowledgment of the source is made. Requests for permission for extended quotation from or reproduction of this manuscript in whole or in part may be granted by the copyright holder. SIGNED: _________________________________________ Ahmad Al-Saiid Zaki Hemeidah APPROVAL BY THESIS DIRECTOR This thesis has been approved on the date shown below: __________________ ______________ Scott C. Lucas Associate Professor of Near Eastern Studies _April 25th, 2011_ Date 3 TABLE OF CONTENTS LIST OF TABLES…………………………………………………………………….. 5 LIST OF ILLUSTRATIONS………………………………………………………….. 6 ABSTRACT…………………………………………………………………………… 7 CHAPTER 1: INTRODUCTION……………………………………………………... 8 1.1 Context and statement of the problem………………………………………….. 8 1.2 Objectives and scope of the study………………………………………………. 10 1.3 Review of Literature...………………………………………………………….. 13 1.3.1 Repentance and brigandage………………………………………………… 14 1.3.2 Repentance and theft……………………………………………………….. 16 1.3.3 Repentance and qadhf……………………………………………………………. 17 1.3.4 Repentance Paradigms…………………………………………………….. 18 1.3.5 Legal tradition on repentance…………………………………………........ 21 1.4 Methodology…………………………………………………………………..... 29 1.5 Conclusion……………………………………………………………………..... 30 CHAPTER 2: REPENTANCE AND BRIGANDAGE (HIRABA)…………………… 32 2.1 Definition of brigandage……………………………………………………….. 33 2.2 Fixed punishment for brigandage………………………………………………. 35 2.3 Mitigating impact of repentance………………………………………………... 39 2.3.1 Evidence……………………………………………………..……….……. 45 2.4 Liability of repentant convicts……………..…………………………………… 52 2.4.1 Evidence………………………………………………………………........ 61 2.5 Conditions for the validity of convicts’ repentance……………………………. 67 2.6 Repentance and other crimes…………………………………………………… 73 2.7 Conclusion……………………………………………………………………… 79 CHAPTER 3: REPENTANCE AND THEFT………………………………………… 84 3.1 Definition of theft………………………………………………………………. 86 3.2 Fixed punishment for theft……………………………………………………… 86 3.3 Mitigating impact of repentance ………………………………………………. 88 3.3.1 Evidence…………………………………………………………………… 94 3.4 Liability of repentant convicts………………………………………………….. 101 3.5 Conditions for the validity of convicts’ repentance…………………………….. 101 3.6 Conclusion ……………………………………………………………………… 103 CHAPTER 4: REPENTANCE AND ACCUSATION OF FORNICATION (QADHF)……………………………………………………………………………… 106 4.1 Definition of qadhf……………………………………………………………… 108 4.2 Fixed punishment for qadhf…………………………………………………………… 109 4 TABLE OF CONTENTS — Continued 4.3 Mitigating impact of repentance ……………………………………………….. 111 4.3.1 Evidence……………………………………………………………………. 124 4.4 Scope of validity of repentant convicts’ testimony……………………………... 135 4.5 Conditions for the validity of convicts’ repentance…………………………….. 137 4.6 Conclusion………………………………………………………………………. 140 CHAPTER 5: CONCLUSION………………………………………………………… 143 APPENDIX A: AUTHORS AND BOOKS (ALPHABETICAL)…………………….. 148 REFERENCES………………………………………………………………………… 152 5 LIST OF TABLES TABLE 1.1, Islamic theory of rights………………………………………………….. 13 TABLE 1.2, Repentance paradigms in Islamic criminal law ………………………… 18 TABLE 1.3, Repentance paradigms in Islamic criminal law………………………….. 20 TABLE 1.4, Mitigating impact of repentance upon the fixed punishments for brigandage, theft, and qadhf………………………………………………………………………… 23 TABLE 2.1, Mitigating impact of pre-arrest repentance upon the fixed penalties for brigandage……………………………………………………………………………... 33 TABLE 2.2, Fixed penalties for brigandage, according to al-Shafi‘i…………………. 36 TABLE 2.3, Mitigating impact of pre-arrest repentance upon the penalty of alternate cutting of hands and feet in the fixed punishment for brigandage…………………….. 42 TABLE 2.4, Mitigating impact of repentance upon the fixed penalties for brigandage……………………………………………………………………………... 44 TABLE 2.5, Mitigating impact of pre-arrest repentance upon the fixed penalties for brigandage…………………………………………………………………………….. 45 TABLE 2.6, Liability of pre-arrest repentant brigands for murder and robbery……… 53 TABLE 2.7, Liability of pre-arrest repentant brigands for murder and robbery……... 55 TABLE 2.8, Liability of pre-arrest repentant brigands for murder and robbery……... 56 TABLE 2.9, Mitigating impact of repentance upon the fixed punishments for theft, fornication and consumption of intoxicants..………………………………………….. 74 TABLE 3.1, Mitigating impact of repentance upon the fixed penalties for theft……… 85 TABLE 3.2, Mitigating impact of repentance upon hand-cutting in the fixed punishment for theft………………………………………………………………………………… 90 TABLE 3.3, Mitigating impact of repentance upon hand-cutting in the fixed punishment for theft………………………………………………………………………………… 91 TABLE 4.1, Mitigating impact of repentance upon the fixed penalties for qadhf……. 107 TABLE 4.2, Mitigating impact of repentance upon rejection of future testimony in qadhf…………………………………………………………………………………… 115 TABLE 4.3, Mitigating impact of repentance upon rejection of future testimony in qadhf…………………………………………………………………………………… 116 TABLE 4.4, Textual analysis of Q. 24:4-5…………………………………………… 129 TABLE 4.5, Textual analysis of Q. 24:4-5…………………………………………… 131 6 LIST OF ILLUSTRATIONS FIGURE 1.1, Repentance paradigms in Islamic criminal law………………………… 21 FIGURE 1.2, Repentance paradigms in Islamic criminal law………………………… 21 FIGURE 1.3, Mitigating impact of repentance upon the fixed punishments for brigandage, theft, and qadhf…………………………………………………………… 24 FIGURE 2.1, Mitigating impact of pre-arrest repentance upon the fixed penalties for brigandage…………………………………………………………………………….. 44 FIGURE 2.2, Liability of pre-arrest repentant brigands for murder and robbery…….. 55 FIGURE 2.3, Mitigating impact of repentance upon the fixed punishments for theft, fornication and consumption of intoxicants…..……………………………………….. 75 FIGURE 3.1, Mitigating impact of repentance upon the fixed penalties for theft.......... 85 FIGURE 3.2, Mitigating impact of repentance upon hand-cutting in the fixed punishment for theft…....................................................................................................................... 90 FIGURE 4.1, Mitigating impact of repentance upon the fixed penalties for qadhf….. 107 FIGURE 4.2, Repentance paradigms in Islamic criminal law………………………... 112 FIGURE 4.3, Repentance paradigms in Islamic criminal law………………………... 113 FIGURE 4.4, Mitigating impact of repentance upon rejection of future testimony in qadhf…………………………………………………………………………………… 115 7 ABSTRACT This thesis assesses the mitigating impact of repentance upon the fixed punishments for brigandage (hiraba), theft, and the accusation of fornication (qadhf) under Islamic law, focusing on classical sources of Qur’anic exegesis (tafsir), law (fiqh), and legal theory (usul al-fiqh). It examines and compares the opinions of jurists and exegetes who are not affiliated with a school of law as well as jurists who belong to any of the eight legal schools—namely the Hanafis, Malikis, Shafi‘is, Hanbalis, Zahiris, Zaydis, Imamis, and Ibadis. This thesis demonstrates that the mitigating impact of repentance upon the fixed punishments for brigandage, theft, and qadhf constitutes a case of casuistry as jurists do not assign legal significance to the concept of repentance in all of these three cases. Furthermore, the legal tradition on the mitigating impact of repentance upon fixed punishments shows a high degree of commonality that transcends school affiliation and theological orientation. 8 CHAPTER 1: INTRODUCTION 1.1 Context and statement of the problem The concept of repentance is usually addressed in the field of Sufism rather than law as it basically signifies a matter between a person and his Lord rather than a matter between him and the state. Several scholars have discussed repentance from an ethical perspective in their works that are related to spiritual ethics, such as al-Ghazali (d. 505 /1111)1 in his Ihiya’ ‘Ulum al-Din and Ibn al-Qayyim (d. 751/1349)2 in his al-Tawba wa al-Inaba. As an ethical concept, repentance basically refers to returning to God after committing a wrongdoing through regret, confession, and asking God for forgiveness and mercy—as demonstrated by Adam and Eve when they repented to God of eating from the forbidden tree by saying: “O our Lord! We did an injustice to our own selves. We would definitely be among the losers if You do not forgive us and have mercy on us” (Q. 7:23).3 As an ethical concept, repentance may save a person who commits a wrongdoing in this world from receiving God’s punishment in the Hereafter. For instance, upon declaring that those who commit polytheism (shirk), murder, or fornication (zina) will be tormented on the Day of Resurrection for their vices, God makes an exception for those who repent of their wrongdoings in this world (Q. 25:68-70). He says: 1 Al-Ghazali is a Shafi‘i jurist (faqih), legal theorist (usuli) and a scholar of Sufism, who lived in Khorasan, Nishapur and Baghdad. His name is Muhammad b. Muhammad b. Muhammad b. Ahmad al-Ghazali, his kunya is Abu Hamid, and his laqab (title) is Hujjat al-Islam. Kunya is a form that consists of the word Abu (the father of) or Umm (the mother of) followed by a name. 2 Ibn al-Qayyim is a Hanbali jurist, who lived in Damascus. His name is Muhammad b. Abi Bakr b. Ayyub b. Sa‘d, his kunya is Abu ‘Abd Allah and his laqab is Shams al-Din. 3 Throughout the thesis, the English translation of the Qur’an is an amalgam of seven translations by Yusuf Ali, Ghali, Pickthal, Sahih International, Abdel Haleem, Shakir and Muhsin Khan. These translations, with the exception of Abdel Haleem’s, are available at http://Quran.com/. Sometimes I refer to Arberry’s translation at http://tanzil.net/. 9 And [the servants of the All-Merciful are]4 those who do not invoke another god along with God, nor kill the self that God has [made its killing] prohibited except in the pursuit of justice nor commit fornication. Whoever does these [violations] will meet the penalty for vice: doubled will be the torment for him on the Day of Resurrection, and he will eternally abide therein degraded— except for those who repent, believe and do righteous deeds. For these [people], God will turn their odious deeds into fair deeds. God is Ever-Forgiving, Ever-Merciful. Upon prescribing the worldly fixed punishments for brigandage (hiraba) and the accusation of fornication (qadhf), God makes an exception for those who repent of their wrongdoings. In the case of brigandage, God says: ْ َ َ ْ ِ ِ ْ َ‫أو ُ َ ﱠ َ أ‬ ‫أو‬ َْ ‫ف‬ ْ َ ‫أو ُ َ ﱠ ُ ا‬ ْ َ ‫رض َ َ ًدا َأن ُ َ ﱠ ُ ا‬ ُ َ َ ,-‫إ‬ ٍ َ ِ ْ ‫وأر ُ ُ ُ ﱢ‬ َ َ َ#‫ ﱠـ‬$‫) َ َُ( ِر'ُ َن ا‬$‫ا‬ ِ ‫اء ﱠ‬+ َ‫ِﱠ‬ ِ ْ َ ْ ‫ُ َو َ ْ َ" ْ َن ِ! ا‬#َ$ %ُ ‫ور‬ َ ‫ ِﱠ‬I‫( ِ ﱠإ‬33) ٌ 89: ْ ْ ْ ْ َ َ َ ‫ ا َ ﱠ‬,ُ َ :ْ َ ْ ِ 8ْ َ :َ ‫ َأن َ ْ ِ رُوا‬Gِ ْ َH ِ ‫) َ َ 'ُ ا‬$‫ا‬ ‫ﱡ‬ ْ ٌ ٌ ‫أن‬ ‫)اب‬: ‫=ة‬ >‫ا‬ ! ُ $‫و‬ 8$‫ا‬ ! ‫ي‬+ ُ $ @$‫ذ‬ ‫رض‬ ‫ا‬ ‫ا‬ َ َ َ َ ْ ِ َِ ِ ِ ْ َ َ ِ ِ ْ ِ ِ ِ َ67ُ {34O33 ‫ ة‬N ,$‫ رة ا‬%} (34) ٌ 8J‫ر‬ ِ ‫ُ ٌر ﱠ‬6Kَ َ#‫ ﱠـ‬$‫ا‬ Surely, the penalty for those who wage war against God and His Messenger and endeavor to do corruption in the land is that they should be massacred or crucified, or that their hands and legs should be cut asunder alternately or that they should be exiled from the land. That is a disgrace for them in this world, and in the Hereafter they will have a tremendous torment—except for those who repent before you gain control over them. Know that God is Ever-Forgiving, Ever-Merciful. (Q. 5:33-34) In the case of qadhf, God says: َ َ ً‫ َ َ ْ َ ة‬8-ِ ,T ْ ُ ْ ‫) َ َ ْ= ُ َن‬$‫وا‬ I‫( ِ ﱠإ‬4) ‫ ُ َن‬%ِ َ6$‫@ ھُ ُ ْا‬R‫ـ‬$‫وأو‬ َ ِ َ ُ َ ‫ َ َدةً َأ'َ ً ا‬Sَ ْ ُ َ$ ‫ َ ْ َ ُ ا‬I‫و‬ ِ َ َ ْ َ ِ ‫ْ ُ ا‬Vَ ْ َ$ ‫ُ ﱠ‬T ‫ت‬ ِ َ7 َ (,$‫ا‬ ِ‫َ ﱠ‬ َ َ َ Sُ U"'‫ر‬V' َ َ ْ ُ‫اء َ ْ ِ ُ وھ‬ ‫ َ ُ( ا َ ِ ﱠ‬Y‫وأ‬ ْ َ َ @$‫ذ‬ ْ َ ِ ‫) َ َ 'ُ ا‬$‫ا‬ {5O4 ‫ ر‬7$‫ رة ا‬%} (5) ٌ 8J‫ر‬ َ ِ َ ِ "' ِ‫ﱠ‬ ِ ‫ُ ٌر ﱠ‬6Kَ َ#‫ ﱠـ‬$‫ن ا‬X [As for] those who hurl [insults at] chaste women, then they do not come up with four witnesses, flog them eighty times and do not accept any testimony of theirs ever, and those are the ones who are immoral (fasiq)—except for those who repent after that and act righteously. Surely God is Ever-Forgiving, Ever-Merciful. (Q. 24:4-5) Similarly, God makes an exception for thieves who repent of their wrongdoing; however, the syntactic structure of exception is a conditional sentence rather than an exceptive clause. In the case of theft, God says: َ ِ ‫ ﱠ‬$‫رق َوا‬ َ َ َ َ \َ ,' ُ ِ ‫ ﱠ‬$‫َوا‬ ,َ َ (38) ٌ 8[J ً َ َ ,َُ َ ِ ْ َ‫ َ ُ" ا أ‬Hْ َ ُUH‫ر‬ ِ ‫ ﱠ‬$‫ ﱢ َ ا‬Iً [ِ َ +ٌ +: َ ِ ‫اء‬+ ِ َ ُ#‫ ﱠـ‬$‫ َوا‬#‫ـ‬ ‫ ِ ﱠ‬#8 {39O38 ‫ ة‬N ,$‫ رة ا‬%} (39) ٌ 8J‫ر‬ ِ ‫ُ ٌر ﱠ‬6Kَ َ#‫ ﱠـ‬$‫إن ا‬ ِ ْ َ :َ ُ‫َ ُ ب‬ [As for] the male thief and the female thief: cut off the hands of both, as a punishment for what they committed (earned), as a torture from God. God is Ever-Mighty, Ever-Wise. If one repents ‫ َ َ_ َ ِ ﱠ‬Y‫وأ‬ ْ َ َ #, َْ ِ ‫ب‬ َ#‫ ﱠـ‬$‫ن ا‬X َ َ ِ ِ ْ ُ‫'" ِ ظ‬ 4 This is understood from Q. 25:63. The verse cluster Q. 25:63-73 describes the characteristics of those who believe in and worship God; the servants of the All-Merciful (‘ibad al-rahman). 10 after his injustice and acts righteously, surely God will accept his repentance. Surely God is EverForgiving, Ever-Merciful. (Q. 5:38-39) Exception in these three cases signifies that repentance is a legal concept and a matter between a person and the state as it saves a convict of brigandage, theft, and qadhf from receiving the fixed punishments (hudud)5 for these crimes in this world. Furthermore, this exception paves the way for generalizing the mitigating impact of repentance upon all fixed punishments in general. Hence, the problems which this thesis addresses are: 1- Does repentance cancel the fixed punishment for brigandage? 2- Does repentance cancel the fixed punishment for theft? 3- Does repentance cancel the fixed punishment for the accusation of fornication? 4- Does repentance cancel all fixed punishments in general? 5- Do scholarly contentions on the mitigating impact of repentance generally reveal a case of virtual convergence or divergence of opinion? 1.2 Objectives and scope of the study This thesis aims to answer the above questions, and is primarily concerned with analyzing the mitigating impact of repentance upon the fixed punishments for brigandage (hiraba), theft, and the accusation of fornication (qadhf) under Islamic law through the examination of classical sources of Qur’anic exegesis and Islamic law. The study does not examine the mitigating impact of repentance upon other fixed punishments, such as 5 Plural of hadd; a hadd penalty is a punishment whose amount is fixed by God in the Qur’an or by the Prophet in hadith (Prophetic saying). Overall, it is enforced by the state when the crime is established before the court through either confession or evidence (witnesses). 11 fornication (zina), consumption of intoxicants (shurb al-khamr), apostasy (ridda), abandoning prayers (tark al-salat), and sorcery (sihr).6 Moreover, the fixed laws of retaliation (qisas) in the cases of murder, injuries, and limb-cutting are beyond the scope of this research. Furthermore, the mitigating impact of repentance upon non-fixed punishments (ta‘zir)7 is not addressed in this thesis. Notwithstanding its limitations, this study offers some insight into the cancellation of fixed punishments in general by reason of repentance. The three particular cases of the fixed punishments for brigandage, theft, and qadhf are selected for analysis because the relevant Qur’anic verses mention an exception for repentant offenders immediately after describing the worldly fixed punishment.8 Moreover, these cases are representative examples in Islamic criminal law as they fit the two categories of the theory of rights: God’s rights (haqq Allah) and individuals’ rights (haqq al-‘ibad).9 This dichotomous theory is mainly based upon the principle that punishments that are construed as individuals’ rights are the only penalties that can be cancelled after the crimes are established before the court. The cancellation takes place 6 Jurists are not unanimous in considering all of these examples as fixed punishments. 7 Ta‘zir is a disciplinary punishment whose amount is prescribed at the discretion of the judge or ruler (imam) for a violation of God’s law that does not have a fixed punishment in the Quran or hadith. In general, ta‘zir may have different forms: beating, flogging, imprisonment, banishment, etc. Throughout this text, the phrase “be disciplined” would mean “to receive ta‘zir disciplinary punishment.” 8 Almost all the Qur’anic verses that follow the pattern of post-punishment exception for repentant wrongdoers discuss the mitigating impact of repentance upon punishments in the Hereafter rather than upon worldly punishments—as demonstrated in Q. 2:159-160, Q. 3:86-89, Q. 4:145-146, Q. 19:59-60, and Q. 25:68-70. 9 Haqq al-‘ibad literally means the right of the servants (i.e. God’s servants). In his Crime and Punishment in Islamic Law, Rudolph Peters translates haqq al-‘ibad into “a claim of men” and haqq Allah into “a claim of God.” He states that claims of God represent the public interest; Rudolph Peters, Crime and Punishment in Islamic Law: Theory and Practice from the Sixteenth to the Twenty-First Century (United Kingdom: Cambridge University Press, 2005) 192. 12 when the plaintiff pardons the defendant. In Islamic criminal law, God’s rights usually refer to the fixed punishments for brigandage, theft, fornication, and consumption of intoxicants, whereas individuals’ rights usually refer to the fixed punishment for qadhf, retaliation (qisas), and the financial liability for stolen property (daman).10 Unlike the majority of scholars, Abu Hanifa (d. 150/767)11 postulates that all fixed punishments are God’s rights and that individuals’ rights are only represented by retaliation. Moreover, he opines that hand-cutting is the only punishment for theft and that a thief would not be liable for stolen property if his hand is cut off.12 Like Abu Hanifa, the majority of scholars perceives retaliation as an individual’s right, but they also consider flogging in the fixed punishment for the accusation of fornication (qadhf) and the financial liability for stolen property in the fixed punishment for theft as examples of individuals’ rights. All scholars perceive hand-cutting in the fixed punishment for theft, the fixed punishment for fornication13 and flogging in the fixed punishment for consumption of intoxicants as examples of God’s rights. For the sake of 10 Due to space limitation for a master’s thesis, I have not discussed the mitigating impact of repentance upon other fixed punishments—such as the punishments for fornication, consumption of intoxicants, and apostasy. This would be a good topic for future research. 11 Abu Hanifa is an independent jurist, who lived in Kufa, and he is the eponym of the Hanafi school. His name is al-Nu‘man b. Thabit. 12 According to Abu Hanifa, a thief has to return the stolen property if his hand is not cut off; al-Jassas, Ahkam al-Qur’an, ed. Muhammad Qamhawi, vol. 4 (Beirut: Dar Ihya’ al-Turath al-‘Arabi; Beirut: Mu’assasat al-Tarikh al-‘Arabi, 1992) 83-84. 13 In general, the fixed punishment for fornication is publicly flogging the non-muhsan convict one hundred times and banishing him for one year. If the convict is muhsan, the punishment is stoning to death. By and large, the word muhsan refers to a sane pubescent person who has consummated a valid marriage during his or her lifetime. 13 simplicity, the thesis follows the majority’s perception of the theory of rights, as demonstrated in table 1.1 below. Table 1.1: Islamic Theory of Rights Punishment God’s Right Individual’s Right Fixed Punishment for Brigandage (hiraba) Yes No Hand-cutting Yes No Liability No Yes Fixed Punishment for Accusation of Fornication (qadhf) No Yes Fixed Punishment for Fornication Yes No Fixed Punishment for Consumption of Intoxicants Yes No Retaliation (qisas) No Yes Fixed Punishment for Theft 1.3 Review of Literature The primary goal of this thesis is to analyze in depth the mitigating impact of repentance upon the fixed punishments for brigandage, theft, and qadhf under Islamic law. This goal can be achieved through answering three main questions. First, is the fixed punishment cancelled by reason of repentance? Second, would the repentant convict have any liability whatsoever? Third, is repentance subject to certain conditions that render it valid from a legal perspective? Notwithstanding my careful search, I have found that the literature on this topic written in English is very scarce. I have not encountered a single 14 source in English that provide a detailed analysis of the legal significance of repentance in the field of Islamic criminal law. Therefore, this thesis may be considered the first of its kind in laying the groundwork for future studies in English on repentance as a legal concept under Islamic law. This section reviews and compares the literature that has been published about the mitigating impact of repentance upon fixed punishments in general and upon the fixed punishments for brigandage, theft, and qadhf in particular. The English sources will be discussed first followed by the Arabic sources. 1.3.1 Repentance and brigandage Nik Wajis briefly discusses the mitigating impact of repentance upon the fixed punishment for brigandage in his PhD dissertation on brigandage under Islamic law.14 He presents two juristic opinions on the liability of pre-arrest repentant brigands and gives justified preference to the view that pre-arrest repentance cancels the four fixed penalties for brigandage: execution, cutting off the right hand and left foot, crucifixion, and exile. Nevertheless, the convict would be liable for individuals’ rights and therefore he would be obliged to return the stolen property to the rightful owner and to face the laws of retaliation that allow the family of a murdered person to kill or pardon the murderer or obtain blood money from him.15 The other scholarly contention is that pre-arrest repentance cancels the four penalties for brigandage as well as the liability for 14 Nik Wajis, “The Crime of Hiraba in Islamic Law,” diss., U Caledonian, 1996. 15 Wajis, 93-95. 15 individuals’ rights with the exception of returning the existing, not the perished, stolen item to the rightful owner.16 Wajis provides some names of scholars who espouse the first opinion, yet he does not cite any of the proponents who support the second opinion. Although Wajis substantiates his preference, he does not mention the evidence that jurists of the second opinion use to support their argument. Moreover, he does not mention the third opinion concerning this issue in which some exegetes and jurists postulate that pre-arrest repentance altogether cancels the liability of pre-arrest repentant brigands for individuals’ rights. Like Wajis, Rudolph Peters remarks that pre-capture repentance cancels the fixed punishment for brigandage but “does not affect the liability for homicide, bodily harm or theft since these are claims of men.”17 Both Wajis and Peters explain the conditions for the validity of repentance in the case of the fixed punishment for brigandage. Wajis stipulates that a brigand’s repentance represented in stopping the act of brigandage must take place before capture.18 Along the same line, Peters adds that some schools “specify a term during which the defendant must give evidence of the seriousness of his intentions” and that the Malikis further require that the repentant convict turn himself to the authorities.19 Neither Wajis nor Peters provide the other conditions specified by jurists for the validity of repentance in the case of the fixed punishment for brigandage—such as fleeing to a non-Muslim land, securing 16 Wajis, 94. 17 Peters, 27. 18 Wajis, 96-97. 19 Peters, 27. 16 a pledge of safety from the ruler, and the ability to protect oneself from capture either independently or through a powerful group. 1.3.2 Repentance and theft With regard to the issue of repentance in the context of the fixed punishment for theft, Peters does not examine the mitigating impact of repentance (in its basic form) upon the punishment of hand-cutting. Nonetheless, he observes that returning the stolen goods to the rightful owner before the passing of a judgment saves the thief from the punishment of hand-cutting.20 If we consider returning the stolen item as an act of repentance (which is not the way the jurists construe this act), then Peters discusses only one facet of the mitigating impact of repentance upon the fixed punishment for theft. Nevertheless, Peters provides neither the advocates of this opinion nor the names of jurists who hold opposing views. However, Peters cites the opinions of the Hanafis, Malikis, and Shafi‘is concerning the liability of thieves.21 He shows that the Hanafis maintain that a thief would not be liable if his hand is cut off, whereas the Shafi‘is postulate that he is liable whether or not his hand is cut off. In contrast, the Malikis state that a thief would be liable for perished items if he is “rich.”22 The liability that Peters presents applies to thieves in general; he does not specifically refer to the opinions of jurists who cancel the hand-cutting by mere repentance, such as the Shafi‘is (in one trend in the school), the 20 Wajis, 57. 21 Peters, 57. 22 Peters, 57. 17 Hanbalis, and the Imamis. The contention of the Hanafis that denies the liability of thieves whose hands were cut off suggests that there is a lack of scholarly consensus over the liability of thieves. However, Scott Lucas notes that Ibn al-Mundhir (d. ca. 318/930)23 believes in such a consensus.24 The Hanafis’ opinion undermines Ibn al Mundhir’s claim of scholarly consensus that a thief whose hand is cut off has to return the stolen item to the rightful owner. 1.3.3 Repentance and qadhf Peters touches upon the mitigating impact of repentance upon the fixed punishment for the accusation of fornication (qadhf). He states that the testimony of a convict of qadhf is rejected unless he repents, and adds that the Hanafis consider this testimony invalid forever.25 Nonetheless, Peters does not analyze in depth the arguments of the two opposing scholarly camps regarding the validity of the testimony of a repentant convict of qadhf. Furthermore, he does not provide the jurists’ opinions concerning the scope of validity of such testimony. More importantly, he makes no mention for the conditions that are required for the validity of repentance in the case of the fixed punishment for qadhf. 23 Ibn al-Mundhir is a Shafi‘i jurist and a scholar of hadith, who lived in Nishapur, Egypt, and Mecca. His name is Muhammad b. Ibrahim b. al-Mundhir, and his kunya is Abu Bakr. According to Wael Hallaq, Ibn al-Mundhir was the eponym of an extinct legal school; Wael Hallaq, The Origins and Evolution of Islamic Law (UK: Cambridge University Press, 2005) 168. 24 Scott Lucas, “Abu Bakr Ibn al-Mundhir, Amputation, and the Art of Ijtihad,” International Journal of Middle Eastern Studies 39 (2007): 357. 25 Peters, 63. 18 1.3.4 Repentance Paradigms Eloquently and succinctly, Rudolph Peters reveals two main paradigms that govern the mitigating impact of repentance upon fixed punishments in general.26 All Sunni schools, as stated by Peters, hold the view that repentance cancels the fixed punishments for apostasy and brigandage. Shi‘i schools and a trend in the Shafi‘i and Hanbali schools add that repentance that takes place “before the crime has been proven in court” cancels all fixed punishments except qadhf. Peters says that the exemption from punishment offered by repentance is not in harmony with Western theories of criminal law; however, he justifies the position of Islamic law by affirming that “one of the objectives of the punishment is the rehabilitation of the offender.” “By showing his repentance,” Peters explains, “the offender actually proves that he has already been reformed and does not need to be punished anymore.”27 Table 1.2 summarizes Peters’ wonderful presentation. Table 1.2: Repentance Paradigms in Islamic Criminal Law Repentance Paradigms First Paradigm Repentance cancels all fixed punishments, save qadhf (Repentance has to take place before the crime is proven in court) Second Paradigm Repentance cancels the fixed punishments for apostasy and brigandage 26 Peters, 27-28. 27 Peters, 27. 19 Through examining the exegetical and legal works that discuss the mitigating impact of repentance upon the fixed punishments for brigandage, theft, and qadhf, I have reached the conclusion that there are three scholarly trends in the legal discourse concerning the legal significance of repentance in terms of its mitigating impact upon fixed punishments in general.28 Jurists of the first trend argue that punishments that are considered as God’s rights are cancelled by repentance, whereas punishments that are perceived as individuals’ rights are not cancelled by repentance. These scholars tend to regard the mitigating impact of repentance upon the fixed punishment for brigandage (hiraba) as the mother case that governs the mitigating impact of repentance upon all fixed punishments that are construed as God’s right. The extensive use of analogy characterizes this legal approach. The Shafi‘is (in one trend in the school), Hanbalis, and Imamis are the main proponents of this first major trend. In blatant contradiction to the first trend, jurists of the second approach assert that repentance does not cancel fixed punishments that are perceived as individuals’ rights and does not cancel punishments that are considered as God’s rights, save the fixed punishment for brigandage. These scholars tend to refrain from applying the model of repentance in the fixed punishment for brigandage to other fixed punishments. They, however, cite the fixed punishments for apostasy and abandoning prayers as two 28 For example, see al-Mawardi, Kitab al-Hudud min al-Hawi al-Kabir, ed. Ibrahim Sanduqji, vol. 2 (1995) 817-824; Ibn Hajar, Tuhfat al-Minhaj bi-Sharh al-Minhaj, 4:153; Ibn Hubayra, al-Fiqh ‘ala Madhahib alA’imma al-Arba‘a, ed. Ibrahim al-Qadi, al-Sayyid al-Mursi, and Muhammad al-Manqush, 2 vols. (Cairo: Dar al-Haramayn, 2000) 2:314; Ibn Hazm, al-Muhalla bi-al-Athar, ed. ‘Abd al-Ghaffar al-Bindari, vol. 12 (Beirut: Dar al-Fikr) 22; Yusuf al-Thula’i, Tafsir al-Thamarat al-Yani‘a wa al-Ahkam al-Wadiha al-Qati‘a, vol. 3 (Yemen: Maktabat al-Turath al-Islami, 2002) 109-110; Miqdad al-Suyuri, Kanz al-‘Irfan fi Fiqh alQur’an (al-Najaf: Dar al-Adwa’, 1964) part 4, 43-44. 20 exceptions to their general rule. The Hanafis, Malikis, Shafi‘is (in one trend in the school), Zahiris, Zaydis and Ibadis are the main advocates of this second major trend. Breaking a scholarly consensus, a few Shafi‘i jurists postulate that repentance cancels all fixed punishments even the fixed penalty for qadhf. According to this trend, punishments that are regarded as individuals’ rights as well as punishments that are perceived as God’s right are both cancelled by reason of repentance. These opinions— though weakened by the overwhelming majority of jurists—could constitute a minor trend in Islamic law regarding the mitigating impact of repentance upon fixed punishments. Thus, jurists have formulated three paradigms that govern the legal significance of repentance in terms of its mitigating impact upon fixed punishments. Table 1.3: Repentance Paradigms in Islamic Criminal Law Major Trend Repentance Cancels All Fixed Punishments Exceptions First Paradigm Yes Yes -Fixed punishment for the accusation of fornication (qadhf) -Fixed laws of retaliation (qisas) Second Paradigm Yes No -Fixed punishment for brigandage -Fixed punishment for apostasy -Fixed punishment for abandoning prayers Third Paradigm No Yes Almost None 21 Figure 1.1: Repentance Paradigms in Islamic Criminal Law 8 7 Ibadis 6 Imamis 5 Zaydis 4 Zahiris 3 Hanbalis Shafi's 2 Malikis 1 Hanafis 0 Repentance Cancels all Repentance Cancels No Repentance Cancels all Fixed Punishments, save Fixed Punishment, save Fixed Punishments, even Qadhf Brigandage Qadhf Figure 1.2: Repentance Paradigms in Islamic Criminal Law 4% 29% First Paradigm: Repentance Cancels all Fixed Punishments, save Qadhf (29%) Second Paradigm: Repentance Cancels No Fixed Punishment, save Brigandage (67%) Third Paradigm: Repentance Cancels all Fixed Punishments, even Qadhf (4%) 67% 1.3.5 Legal tradition on repentance The legal discourse on the mitigating impact of repentance upon the fixed punishments for brigandage, theft, and the accusation of fornication reveals that there is a shared legal tradition in spite of school affiliation and theological orientation across the eight legal schools of the Hanafis, Malikis, Shafi‘is, Hanbalis, Zahiris, Zaydis, Imamis, and Ibadis. This commonality can be seen in the juristic opinions, reasoning, and 22 evidence expressed across these eight schools. On the whole, jurists—whether independent or affiliated to a legal school—recognize the mitigating impact of repentance upon the fixed punishment for brigandage rather than the fixed punishments for theft and qadhf (see Table 1.4 and Figure 1.3 below). The scholarly contentions on the mitigating impact of repentance generally reveal a case of virtual convergence rather than divergence of opinion. Surprisingly, the Hanbalis and Imamis express virtually identical views on the mitigating impact of repentance in the three cases analyzed in this thesis (see Table 1.4 below). Moreover, these various schools overall advance similar arguments and use the same hadith29 and athar30 reports as evidence in their discourse on the mitigating impact of repentance in the three cases of brigandage, theft, and the accusation of fornication. Unexpectedly, the Imamis cite an athar report on the authority of ‘Umar b. al-Khattab while discussing the mitigating impact of repentance upon cancelling a component of the fixed punishment for qadhf, namely the eternal rejection of the convict’s testimony. This report is cited by each and every school as well as by independent jurists. By virtue of this report, the Imamis as well as the majority of jurists rule that this punishment is cancelled by reason of repentance and that the convict should declare that he was lying in his accusation so that his testimony could be accepted in the future. The Imamis base their arguments on the judgment of ‘Umar b. al-Khattab in a qadhf case documented in 29 30 Hadith (Prophetic saying) refers to what the Prophet said or did or tacitly approved. Athar (post-Prophetic saying) refers to what a sahabi or tabi‘i said or did or tacitly approved. A sahabi (companion) refers to a Muslim person who saw the Prophet and died as a Muslim; singular of sahaba. A tabi‘i (follower) refers to a Muslim person who saw a sahabi and died as a Muslim; singular of tabi‘un. Loosely speaking, sahaba and tabi‘un refer to the first and second Muslim generations. 23 that athar report. The legal conclusion of the Imamis on this issue is shared by the Malikis, Shafi‘is, Hanbalis, Zahiris, Zaydis, Imamis, and Ibadis. Table 1.4: Mitigating Impact of Repentance upon the Fixed Punishments for Brigandage, Theft, and Qadhf Fixed Punishment for Brigandage Cancelled Fixed Punishment for Theft Cancelled Fixed Punishment for Accusation of Fornication Cancelled Hanafis Yes No No Malikis Yes No No Shafi‘is Yes Hanbalis Yes Yes No Zahiris Yes No No Zaydis Yes No No Imamis Yes Yes No Ibadis Yes No No No Yes No 24 Figure 1.3: Mitigating Impact of Repentance upon the Fixed Punishments for Brigandage, Theft, and Qadhf 8 7 Ibadis 6 Imamis Zaydis 5 Zahiris 4 Hanbalis Shafi'is 3 Malikis 2 Hanafis 1 0 Brigandage Cancelled Theft Cancelled Qadhf Cancelled Besides the works of Peters, Wajis, and Lucas, I have surveyed a large number of literary works in English about Islamic criminal law in the hope that I would find a detailed discussion of repentance as a legal concept. For instance, I considered El-Awa’s Punishment in Islamic Law;31 Abou El Fadl’s Rebellion and Violence in Islamic Law;32 Criminal Justice in Islam by Abdel Haleem et al.;33 and Tahir-ul-Qadri’s Islamic Penal System & Philosophy.34 I have come to the conclusion that these sources and several others do not provide more information about the topic of my thesis and are not directly related to my research. I have encountered some titles that seemingly fit my topic; however, I have later realized that they discuss the concept of repentance from a non31 Mohamed El-Awa, Punishment in Islamic Law: A Comparative Study (Plainfield: American Trust Publications, 2000). 32 Khaled Abou El Fadl, Rebellion and Violence in Islamic Law (United Kingdom: Cambridge University Press, 2001). 33 Muhammad Abdel Haleem, Adel Sherif, and Kate Daniels, Criminal Justice in Islam: Judicial Procedure in the Shari‘a (New York: I. B. Tauris, 2003). 34 Muhammad Tahir-ul-Qadri, Islamic Penal System & Philosophy (Pakistan: Minhaj-ul-Qur’an, 1995). 25 legal perspective. For example, Husain’s “Effect of Tauba (Repentance) on Penalty in Islam” discusses the concept of repentance from an ethical perspective,35 whereas “Punishment and Repentance” by John Tasioulas offers valuable information about repentance from a philosophical perspective.36 I have also experienced difficulty in locating secondary sources in Arabic analyzing in depth the mitigating impact of repentance upon fixed punishments in general and upon the fixed penalties for brigandage, theft, and qadhf in particular. Despite my thorough search, I was successful in identifying only six secondary sources in Arabic. Three of these books have similar titles that basically mean The Impact of Repentance on Cancelling Punishments under Islamic law. These works are authored by ‘Ali Jaffal,37 ‘Abd Allah al-Juburi,38 and ‘Ali Khalaf.39 The fourth book discusses the impact of change in circumstances upon the enforcement of punishments under Islamic law.40 AlNur considers the offender’s repentance as one of these circumstances. The English 35 Husain argues that repentance prevents one from committing crimes and thus it has an impact on penalty; Syed Mu‘azzam Husain, “Effect of Tauba (Repentance) on Penalty in Islam,” Islamic Studies 8 (1969): 198-198. 36 Tasioulas argues that mercy on the grounds of repentance is an ethical consideration intimately related to retributive desert (justice) within the framework of the communicative theory that regards the communication of justified censure to the offender as the primary aim of the punishment; John Tasioulas, “Punishment and Repentance,” Philosophy 81 (2006): 279-322. 37 ‘Ali Jaffal, al-Tawba wa Atharuha fi Isqat al-Hudud fi al-Fiqh al-Islami (Beirut: Dar al-Nahda alArabiyya, 1989). 38 ‘Abd Allah al-Juburi, Athar al-Tawba fi Suqut al-‘Uquba fi al-Fiqh al-Islami (Dubai: Dar al-Qalam, 2006). 39 ‘Ali Khalaf, al-Tawba wa Atharuha fi Isqat al-‘Uquba fi al-Fiqh al-Islami (Al-Qunaytira: Ambirmanur, 1998). 40 Muhammad al-Nur, Taghayyur al-Hal wa Atharuh ‘ala al-‘Uquba fi al-Fiqh al-Islami: Dirasa ‘an Taghayyur Hal al-Jani wa al-Majni ‘alayh (Beirut: Dar al-Basha’ir al-Islamiyya, 2008). 26 equivalent of the fifth work’s title is Punishment Cancellation under Islamic Law.41 In this study, al-Fudaylat examines the factors that exempt convicts from receiving punishments, and cites repentance as one of these factors. These five sources present a relatively detailed discussion about repentance as a legal concept, providing more evidence and opinions across the Islamic legal schools. Nevertheless, these sources in the main do not cite the opinions of the Zaydis, Imamis, and Ibadis.42 Moreover, they do not utilize many books that belong to the genre of lawcentered exegesis (tafsir ayat al-ahkam)—such as the works of Abu al-Hawari (d. ca. 3rd/9th century),43 al-Qassab (d. ca. 360/970),44 al-Jassas (d. 370/980),45 Ilkiya al-Harrasi (d. 405/1014),46 Ibn al-‘Arabi (d. 543/1148),47 Sa‘id al-Rawandi (573/1177),48 Ibn al41 Jabr al-Fudaylat, Suqut al-‘Uquba fi al-Fiqh al-Islami, 2 vols. (Jordan: Dar ‘Ammar, 1987). 42 Although al-Fudaylat cites the opinions of the Zaydis and Imamis, the intra-debates within each of these schools are not provided. Moreover, the opinions of the Ibadis are not mentioned. 43 Abu al-Hawari, al-Diraya wa Kanz al-Ghinaya fi Muntaha al-Ghaya wa Bulugh al-Kifaya fi Tafsir Khamsumi’at Aya min al-Qur’an al-Karim, ed. Walid ‘Awjan (Jordan: Manshurat Jami‘at Mu’ta, 1994); Abu al-Hawari is an Ibadi jurist, who lived in Oman. His name is Muhammad b. al-Hawari, and his kunya is Abu al-Hawari. 44 Al-Qassab, Nukat al-Qur’an al-Dalla ‘ala al-Bayan fi Anwa‘ al-‘Ulum wa al-Ahkam wa al-Munbiya ‘an Ikhtilaf al-Anam, ed. ‘Ali al-Tuwaijiri, Ibrahim al-Junaydil, and Shayi‘ al-Asmari, 3 vols. (al-Dammam: Dar Ibn al-Qayyim; Cairo: Dar Ibn ‘Affan, 2003); al-Qassab is an independent jurist and scholar of hadith, who lived in Karj (a city in Iran). His name is Muhammad b. ‘Ali b. Muhammad al-Qassab, and his kunya is Abu Ahmad. He is commonly known as “al-Qassab.” 45 Al-Jassas is a Hanafi jurist and legal theorist, who lived in Baghdad and Nishapur. His name is Ahmad b. ‘Ali al-Razi, and his kunya is Abu Bakr. He is commonly known as “al-Jassas.” 46 Ilkiya al-Harrasi, Ahkam al-Qur’an, 2 vols. (Beirut: al-Maktaba al-‘Ilmiyya, 1983); Ilkiya al-Harrasi is a Shafi‘i jurist and exegete, who lived in Khurasan, Nishapur, and Baghdad. His name is ‘Ali b. Muhammad b. ‘Ali al-Tabari, and his kunya is Abu al-Hasan. He is commonly known as “Ilkiya al-Harrasi.” 47 Ibn al-‘Arabi, Ahkam al-Qur’an, ed. Muhammad ‘Ata, 4 vols. (Beirut: Dar al-Kutub al-‘Ilmiyya, 2003); Ibn al-‘Arabi is a Maliki jurist and exegete, who lived in al-Andalus, Egypt, Sham (now Syria, Lebanon and Palestine), Baghdad, and Mecca. His name is Muhammad b. ‘Abd Allah b. Muhammad b. ‘Abd Allah b. Ahmad, and his kunya is Abu Bakr. 27 Faras (d. 597/1200),49 al-Qurtubi (d. 671/1272),50 Ibn Mutawwaj al-Bahrani (d. 820/1417),51 Muhammad al-Muzi‘i (d. 825/1422),52 Miqdad al-Suyuri (d. 826/1422),53 Yusuf al-Thula’i (d. 832/1429),54 Fakhr al-Din al-Najri (d. 877/1472),55 al-Suyuti (d. 911/1505),56 Muhammad b. al-Qasim (d. 1067/1656),57 Ahmad al-Jaza’iri (1150/1737),58 Siddiq al-Qannuji (d. 1307/1890),59 and al-Dah al-Shinqiti (d. 1403/1982).60 48 Sa‘id al-Rawandi, Fiqh al-Qur’an, ed. al-Sayyid al-Husayni, 2 vols. (1977; Qom: al-Matba‘a al-‘Ilmiyya; Qom: Matba‘at al-Khayyam, 1978); Saʻid al-Rawandi is an Imami jurist, exegete and a scholar of hadith, who lived in Rawand (a town near Kashan in Iran). His name is Sa‘id b. ‘Abd Allah b. al-Husayn b. Hibat Allah b. al-Hasan al-Rawandi, his kunya is Abu al-Husayn, and his laqab is Qutb al-Din. 49 Ibn al-Faras, Ahkam al-Qur’an, ed. Taha Busrih, Munjiya al-Sawayhi, and Salah al-Din Bu‘afif, 3 vols. (Beirut: Dar Ibn Hazm, 2006); Ibn al-Faras is a Maliki jurist, who lived in al-Andalus. His name is ‘Abd alMun‘im b. Muhammad b. ‘Abd al-Rahim b. Muhammad, and his kunya is Abu Muhammad. He is commonly known as “Ibn al-Faras.” 50 Al-Qurtubi, al-Jami‘ li-Ahkam al-Qur’an wa al-Mubayyin li ma Tadammanah min al-Sunna wa alFurqan, ed. ‘Abd Allah al-Turki, Muhammad ‘Irqsusi, Mahir Habbush, Kamil al-Kharrat, Ghiyath Ahmad, Muhammad Barakat, Muhammad Karim al-Din, Muhammad al-Khinn, and Khalid al-‘Awwad, 24 vols. (Beirut: Mua’ssasat al-Risala, 2006); al-Qurtubi is a Maliki jurist and exegete, who lived in al-Andalus and Egypt. His name is Muhammad b. Ahmad b. Abi Bakr b. Farh, and his kunya is Abu ‘Abd Allah. 51 Ibn Mutawwaj al-Bahrani, Minhaj al-Hidaya fi Bayan Khamsumi’at al-Aya, ed. Muhammad Barik Bin (Qazwin: Qism al-Abhath wa al-Dirasat fi al-Hawza al-‘Ilmiyya, 2008); Ibn Mutawwaj al-Bahrani is an Imami jurist and exegete, who lived in Bahrain. His name is Ahmad b. ‘Abd Allah b. Muhammad b. ‘Ali b. Hasan b. Mutawwaj al-Bahrani, and his laqab is Jamal al-Din. 52 Muhammad al-Muzi‘i, Taysir al-Bayan li-Ahkam al-Qur’an, ed. Ahmad al-Muqri, 2 vols. (Makkah: Rabitat al-‘Alam al-Islami, 1996); Muhammad al-Muzi‘i is a Shafi‘i jurist and exegete, who lived in Yemen. His name is Muhammad b. ‘Ali b. Ibrahim al-Muzi‘i, and his kunya is Jamal al-Din. He is commonly known as Ibn Nur al-Din al-Muzi‘i. 53 Miqdad al-Suyuri is an Imami jurist and theologian, who lived in Hillah (a city in Iraq). His name is Miqdad b. ‘Abd Allah b. Muhammad b. al-Husayn b. Muhammad al-Suyuri, his kunya is Abu ‘Abd Allah, and his laqab is Sharaf al-Din. 54 Yusuf al-Thula’i is a Zaydi jurist an exegete, who lived in Yemen. His name is Yusuf b. Ahmad b. Muhammad b. Ahmad b. ‘Uthman b. ‘Ali b. ‘Uthman al-Thula’i. 55 Fakhr al-Din al-Najri, Shafi al-‘Alil Sharh al-Khamsumi’at Aya min al-Tanzil, ed. Muhammad al-‘Utayq, 2 vols. diss., U of Umm al-Qura, 1985; Fakhr al-Din al-Najri is a Zaydi jurist, who lived in Yemen. His name is ‘Abd Allah b. Muhammad b. al-Qasim al-Najri, and his laqab is Fakhr al-Din. 56 Al-Suyuti, al-Iklil fi Istinbat al-Tanzil, ed. ‘Amir al-‘Urabi, 3 vols. (Jeddah: Dar al-Andalus al-Khadra’, 2002); al-Suyuti is a Shafi‘i jurist, exegete, linguist and a scholar of hadith, who lived in Egypt and Yemen. 28 The sixth secondary source in Arabic—as understood from its title—compares the mitigating impact of repentance between the Islamic law and other laws. This book is authored by Jawda Jihad under the title of al-Tawba bayn al-Shari‘a al-Islamiyya wa alQawanin al-Wad‘iyya.61 I was not able to have access to this interesting book via the library of the University of Arizona. In my thesis, I depend largely on classical primary sources in Arabic that belong to the two genres of Quranic exegesis (tafsir) and law (fiqh). I rely more on exegetical works because there is a small number of legal books that examine the mitigating impact of repentance upon all of the three punishments under review. This very fact gives weight to the present work as it fills a gap in the literature in this field. His name is ‘Abd al-Rahman b. al-Kamal b. Muhammad al-Suyuti, his kunya is Abu Bakr, and his laqab is Jalal al-Din. 57 Muhammad b. al-Qasim, Muntaha al-Maram fi Sharh Ayat al-Ahkam, 2nd ed., 2 vols. (Yemen: al-Dar alYamaniyya; Beirut: Dar al-Manahil, 1986); Muhammad b. al-Qasim is a Zaydi jurist and scholar of hadith, who lived in Yemen. His name is Muhammad b. al-Husayn b. al-Qasim b. Muhammad. 58 Ahmad al-Jaza’iri, Qala’id al-Durar fi Bayan Ayat al-Ahkam bi-al-Athar, 3 vols. (al-Najaf: Maktabat alNajah, 1962); Ahmad al-Jaza’iri is an Imami jurist, exegete, and a scholar of hadith, who lived in Iraq. His name is Ahmad b. Isma‘il b. ‘Abd al-Nabi b. Sa‘d al-Jaza’iri. 59 Siddiq Hasan al-Qannuji, Nayl al-Maram fi Tafsir Ayat al-Ahkam, ed. Ibrahim al-Qadi, al-Sayyid alMursi, and Muhammad al-Manqush, 2 vols. (Cairo: Dar al-Haramayn, 1998); Siddiq al-Qannuji is an exegete and scholar of hadith, who lived in India. His name is Siddiq Hasan Khan al-Qannuji. The word “Qannuji” is a reference to the Indian city “Kannauj.” Al-Qannuji does not seem to follow a certain legal school although he studied at al-Azhar. He wrote multiple works in several Islamic disciplines—such as hadith, legal theory, and Qur’anic exegesis—in Hindi, Persian, and Arabic. Al-Qannuji was among the Ahl-i Hadith in South Asia; Muhammad Zaman, The Ulama in Contemporary Islam: Custodians of Change (New Jersey: Princeton University Press, 2002) 40-41. 60 Al-Dah al-Shinqiti, al-Ayat al-Muhkamat fi al-Tawhid wa al-‘Ibadat wa al-Mu‘amalat, ed. ‘Abd Allah al-Siddiq (Cairo: Maktabat al-Qahira, 1964); al-Dah al-Shinqiti is a Maliki jurist and exegete, who lived in Mauritania and the Sudan. His name is Muhammad b. Ahmad al-Dah al-Shinqiti. The word “Dah” means “smart.” He wrote on Islamic law, theology, hadith and Qur’anic exegesis. The information about al-Dah al-Shinqiti is extracted from http://www.azahera.net/showthread.php?t=4936 as the available edition of alAyat al-Muhkamat does not include sufficient information about the author. 61 Jawda Jihad, al-Tawba bayn al-Shari‘a al-Islamiyya wa al-Qawanin al-Wad‘iyya (Cairo: 1991). 29 1.4 Methodology This thesis consists of three chapters—apart from an introduction and a conclusion—each of which analyzes in depth the mitigating impact of repentance upon the fixed punishments for brigandage, theft, and qadhf respectively. Each chapter presents a brief description of the fixed punishment under discussion and determines its position in the dichotomous theory of rights. The chapter then examines the scholarly debate over the mitigating impact of repentance upon the fixed punishment, which involves answering three broad questions. First, does repentance cancel the fixed punishment? Second, if so, what would be the scope of the mitigating impact of repentance and what liability would be in store for repentant offenders? Third, would mere unconditional repentance be sufficient to effect a mitigating impact, or is it mandatory that repentance meets certain requirements in order to have such an impact? Chapter 2 concludes with a discussion of applying the laws of repentance in the case of the fixed punishment for brigandage to other cases in Islamic criminal law. This thesis focuses on classical sources of Qur’anic exegesis and Islamic law, yet it occasionally cites sources from other periods.62 In this study, I cite the opinions of the following eight schools of Islamic law: the Hanafis, Malikis, Shafi‘is, Hanbalis, Zahiris, Zaydis, Imamis, and Ibadis. Moreover, I provide the opinions of jurists and exegetes who are not affiliated to a certain legal school and the opinions of jurists and exegetes who predated the doctrinal era of legal schools. Whenever there is a scholarly debate over an issue, I present the arguments and counterarguments of both sides based on the available 62 By classical I mean late 3rd/9th century to early 10th/16th century. 30 sources. From a historical perspective, the legal opinions quoted in this research go back as early as the 1st/7th century and would move forward until they reach the 14th/20th century. The earliest legal authority identified in this research is Abu Bakr al-Siddiq (d. 13/634), whereas the latest scholar is al-Dah al-Shinqiti. In spite of the lengthy historical period the research covers, the classical period receives the utmost attention in this study. In order for the results of this research to be accurate, it is necessary to isolate the factor of repentance from other factors that may have a mitigating impact upon fixed punishments. Therefore, this thesis is based on four assumptions, the most important of which is that repentance refers to the feeling of remorse (nadam) experienced by the offender after committing his crime rather than to his voluntary confession of the crime before the authorities. Second, the religion of the offender at the time of committing the crime is Islam. In other words, the offender is not a non-Muslim who commits any of the three crimes then embraces Islam. Third, the victim of brigandage, theft, and qadhf demands justice and does not grant a legal pardon to the offender. Fourth, the scene of the crime falls under the jurisdiction of a Muslim ruler. 1.5 Conclusion The primary goal of this thesis is to assess the legal significance of repentance in terms of its mitigating impact upon the three fixed punishments for brigandage, theft, and the accusation of fornication (qadhf) under Islamic law. Through my close analysis of Arabic classical sources of exegesis and law, I have observed that jurists and exegetes in general recognize the mitigating impact of repentance upon the fixed punishment for 31 brigandage rather than the fixed punishments for theft and qadhf. Assigning legal significance to the concept of repentance in the case of brigandage rather than the case of qadhf means that the mitigating impact of repentance upon fixed punishments constitutes a case of casuistry.63 The general convergence of opinion on the mitigating impact of repentance transcends the boundaries of school affiliation and theological orientation. The research shows a high degree of commonality between the schools and even between independent jurists in their reasoning and in the evidence they use—especially the hadith and athar reports cited in their discourses. I argue that the legal significance of repentance in terms of its mitigating impact upon the three fixed punishments for brigandage, theft, and the accusation of fornication constitutes a case of casuistry under Islamic law and reveals a shared legal tradition that transcends both school affiliation and theological orientation. 63 Casuistry signifies that the validity of legal concepts is confined to certain boundaries; Baber Johansen, “Between Legal Concept and Social Praxis,” Islamic Law and Society 2.2 (1995): 135-156. 32 CHAPTER 2: REPENTANCE AND BRIGANDAGE (HIRABA) This chapter assesses the legal significance of repentance in terms of its mitigating impact upon the fixed punishment for brigandage under Islamic law. It attempts to answer three main questions. First, is the fixed punishment for brigandage cancelled by reason of repentance? Second, would repentant brigands be liable for the blood they shed and the property they stole? Third, is brigands’ repentance subject to certain conditions that render it valid from a legal perspective? The chapter concludes with a discussion of the possibility of extending the legal force of repentance in the case of brigandage to other cases in Islamic criminal law, such as fornication and consumption of intoxicants. The discussion in this chapter is based on the assumption that the fixed punishment for brigandage mentioned in Q. 5:33 applies to Muslim brigands and “repentance” in Q. 5:34 means “repentance of brigandage”—as understood by the majority of jurists and exegetes.64 The analysis reveals that the majority of jurists maintains that pre-arrest repentance cancels the fixed punishment for brigandage, but does not absolve repentant brigands from liability for the blood they shed and the property they stole in case any of the victims demands justice (see Table 2.1 below). Moreover, these jurists stipulate that repentance becomes valid only when it takes place before capture and that the mitigating impact of pre-arrest repentance is peculiar to the case of brigandage and cannot be extended to other cases. 64 Al-Harrasi, 2:64-65; al-Jassas, Ahkam al-Quran, 4:52-54; al-Qurtubi, 7:431-435. 33 Table 2.1: Mitigating Impact of Pre-arrest Repentance upon the Fixed Penalties for Brigandage Penalty Fixed Penalty Crime During Cancelled by Liability Brigandage for this Crime Pre-arrest Repentance Murder Execution Yes Facing the laws of retaliation upon request from the victim’s family, which means three possibilities: Execution, Blood Money, or Pardon Robbery Cutting off the right hand and left foot Yes Returning the stolen property to the rightful owner - Facing the laws of retaliation upon request from the victim’s family Murder and Robbery Execution then putting onto a cross Yes Frightening People Exile Yes - Returning the stolen property to the rightful owner - 2.1 Definition of brigandage Under Islamic law, brigandage (hiraba) refers to committing armed robbery and murder openly (mujahara), especially in areas where help is difficult to be sought.65 The archetypal example of brigandage cited by jurists is highway robbery (qat‘ al-tariq).66 As remarked by Wajis, the Malikis emphasize the element of terror in their definition of brigandage as “the act of terrorizing people for the purpose of robbery or other 65 There is a considerable debate among jurists over the definition of brigandage. Extensive citation of these definitions is beyond the scope of this research. The definition I cited is a hybrid of several juristic definitions and is by no means comprehensive. Each jurist defines brigandage according to the custom (‘urf) of his time—as inferred from the exposition of al-Muzi‘i; al-Muzi‘i, 2:746. In Mu‘jam Lughat alFuqaha’, brigandage (hiraba) is defined as fighting people with weapons; Muhammad Qal‘aji, Hamid Qunaybi, and Qutb Sanu, Mu‘jam Lughat al-Fuqaha’ (Beirut: Dar al-Nafa’is, 1996) 156. 66 Al-Muzi‘i, 2:746. 34 purposes.”67 Other examples of brigandage signify crimes where the element of force is evident, such as rape.68 Abou El Fadl notes that “terrorism” may serve as a contemporary example of brigandage. In the same vein, Wajis finds that the Malikis’ definition of brigandage can be extended to cover terrorism.69 Brigandage is seen by jurists as a blatant challenge to the ruler’s authority and this is why almost all jurists perceive the fixed punishment for brigandage as God’s right despite the flagrant violations that brigands commit against people’s life and property. Nevertheless, brigandage is different from rebellion (baghy) as the latter refers to organized armed rebellion against the state in order to overthrow the ruling system.70 These rebels believe that they have a justification to enter into this armed conflict.71 Nonetheless, brigandage is an act committed by an armed group against unarmed civilians, especially in areas where it is difficult for the ruler to extend his authority (sultan). In general, the crime of brigandage is not perpetrated for political reasons. 67 Wajis, 63. 68 Abou El Fadl, 251, 277; the Maliki jurist and judge Ibn Rushd (d. 520/1122) considers rape as a case of brigandage. Like Ibn Rushd, the Hanbali jurist Ibn Taymiyya (d. 728/1328) contends that rape constitutes brigandage. Azman Noor cites three scholarly trends towards the classification of rape: (1) a crime that deserves the enforcement of the fixed punishment for fornication; (2) a crime that entails the infliction of a discretionary punishment (ta‘zir); and (3) a crime that requires the infliction of the fixed punishment for brigandage; Azman Noor, “Rape: A Problem of Crime Classification in Islamic Law,” Arab Law Quarterly 24 (2010): 417-438. 69 Wajis, 164-166; Wajis also asserts that smuggling and drug trafficking can be perceived as brigandage; Wajis, 217. 70 Abou El Fadl, 237-238; jurists also construe the term baghy as a reference to inter-Muslim clashes and they cite Q. 49:9 as evidence: “If two sections of the believers fight, reconcile them. If one of them transgresses against the other, fight the one that transgresses until it returns to God’s Command. If it returns, reconcile them with justice, and act equitably. Surely God loves those who act equitably.” 71 Ibn Rushd believes that rebels who base their action on a plausible interpretation (ta’wil sa’igh) should not be regarded as brigands; Abou El Fadl, 254-255; Ibn al-‘Arabi, 4:153. 35 Another difference between brigandage and other crimes is that a brigand (muharib) is beyond the ruler’s control, whereas other offenders are in almost all cases under the ruler’s control. This is why an assailant (sa’il), for instance, is different from a brigand despite the similarity in the offences that both wrongdoers commit.72 2.2 Fixed punishment for brigandage In Q. 5:33, God prescribes the fixed punishment for brigandage to be “execution, crucifixion,73 cutting hands74 and legs75 alternately, or exile from the land.” The coordinating conjunction “or” is understood by some exegetes and jurists as giving the option to the ruler to enforce whichever punishment he deems proper to the situation. However, other jurists contend that the function of “or” (aw) is categorization (taqsim), which means that each punishment is prescribed for a specific violation. For instance, alShafi‘i (d. 204/820)76 stipulates that a brigand would be executed if he commits murder; would have his right hand and left foot cut off if he commits robbery; and would be 72 An assailant refers to the one who makes an attempt on somebody’s life, property, or honor; Qal‘aji et al., 240. Each of the similar crimes of brigandage (hiraba) and assault (siyal) has different legal consequences. 73 As noted by Abou El Fadl, crucifixion (salb) does not mean nailing someone to a cross; Abou El Fadl, 74. 74 Some scholars, such as the Imamis, state that only the fingers would be cut; Ibn al-Faras, 2:398. 75 The majority of jurists believes that the Arabic word arjul (legs) in the verse refers to feet. However, some scholars, such as the Imamis, contend that half the feet should be cut and the heels should be spared; Ibn al-Faras, 2:398-399. 76 Al-Shafi‘i is an independent jurist, who lived in Mecca, Medina, Yemen, Baghdad and Egypt, and he is the eponym of the Shafi‘i school. His name is Muhammad b. Idris b. al-‘Abbas b. ‘Uthman b. Shafi‘, and his kunya is Abu ‘Abd Allah. 36 executed then put onto the cross77 if he commits both murder and robbery. If a brigand does not commit murder or robbery, but helps his fellow brigands in their crimes, or frightens people, or just attends the crime scene, he would be disciplined and imprisoned.78 Table 2.2 illustrates the fixed punishments for brigandage as described by al-Shafi‘i.79 Table 2.2: Fixed Penalties for Brigandage, according to al-Shafi‘i Fixed Penalties for Brigandage Penalty Offence during Brigandage Execution Murder Cutting off the right hand and left foot Robbery Execution then putting onto a cross Murder and robbery Exile Frightening people or Mere presence in the crime scene “Exile from the land” in Q. 5:34 is construed in various ways by jurists and exegetes. I will focus on the juristic opinions that assign legal significance to repentance.80 Al-Tabari (d. 310/923)81 perceives “exile” as banishing the brigand from 77 After the brigand is killed, he is put onto the cross for no more than three days, according to al-Shafi‘i. If a change happened to his body before the elapse of this period, he would be removed from the cross immediately; al-Mawardi, al-Hawi, 2:770-73. 78 Al-Mawardi, al-Hawi, 2:751-759, 770, 773-4, 780, 787, 792. 79 There is a considerable debate among jurists over the categorization of the prescribed penalties for brigandage. Extensive citation of these opinions is beyond the scope of this research. 80 It should be noted that the scholarly opinions on this point are based on the assumption that a convict of brigandage was captured before declaring repentance. In other words, these contentions discuss the 37 his city to another one and imprisoning him there until his repentance becomes manifest.82 Al-Fayruzabadi (d. 817/1414)83 understands “exile” as the imprisonment of brigands “until their righteousness and repentance become manifest and apparent.”84 Similarly, al-Tabarani (d. 360/970)85 believes that the ruler has to put brigands in prison “until they repent or die.”86 To the same effect, the Shafi‘is (in one opinion in the school) contend that there is no specific time for imprisonment and that a brigand is imprisoned until his repentance becomes manifest (zuhur al-tawba).87 Jurists who understand “exile” as imprisonment usually cite the opinion of ‘Umar b. al-Khattab (d. 23/644): “I imprison him until I know that he repented and I do not banish him from a city to another city lest he should harm them.”88 Nonetheless, Ibn Hazm (d. 456/1064)89 and the Imamis90 mitigating impact of post-arrest repentance upon the punishment of exile, which is an integral component of the fixed punishment for brigandage. 81 Al-Tabari is an independent jurist, exegete, historian and scholar of hadith, who lived in Tabaristan, Basra, Kufa, Baghdad, Sham and Egypt. His name is Muhammad b. Jarir b. Yazid b. Kathir b. Ghalib, and his kunya is Abu Ja‘far. According to Wael Hallaq, al-Tabari was the eponym of an extinct legal school; Hallaq, 168, 215. 82 Al-Tabari, Jami‘ al-Bayan ‘an Ta’wil Ay al-Qur’an, <http://www.altafsir.com/>. 83 Al-Fayruzabadi is a Shafi‘i linguist and exegete, who lived in Shiraz, Baghdad, Damascus, Juraselem, Cairo, India, and Yemen. His name is Muhammad b. Ya‘qub b. Muhammad b. Ibrahim al-Fayruzabadi, and his laqab is Majd al-Din. He is the author of al-Qamus al-Muhit. 84 Al-Fayruzabadi, Tafsir al-Qur’an, <http://www.altafsir.com/>. 85 Al-Tabarani is a scholar of hadith, who lived in Sham, Egypt, Yemen, Hejaz, Baghdad, Kufa, Basra, and Asbahan (Isfahan). His name is Sulayman b. Ahmad b. Ayyub b. Mutayr al-Tabarani, and his kunya is Abu al-Qasim. He is famous for his three hadith works whose title start with the word “al-Mu‘jam.” 86 Al-Tabarani, al-Tafsir al-Kabir, <http://www.altafsir.com/>. 87 Al-Mawardi, al-Hawi, 2:781-82. 88 Exegetes report this athar on the authority of Makhul (d. 113/731); al-Qurtubi, 7:439. 89 Ibn Hazm is a Zahiri jurist and legal theorist, who lived in al-Andalus. His name is ‘Ali b. Ahmad b. Sa‘id b. Hazm, and his kunya is Abu Muhammad. 38 postulate that “exile from the land” stands for banishing a brigand from a city to another one and so forth “until he repents.”91 These scholarly opinions that show that repentance brings the punishment of exile to an end prove that repentance has a mitigating impact upon the fixed punishment for brigandage. As can be seen from these contentions, several jurists and exegetes stress that the manifestation of a brigand’s repentance marks the end of his imprisonment. This condition demonstrates the fact that jurists want to check the sincerity of the brigand’s repentance. It logically follows that the brigand’s behavior would be monitored and evaluated during his stay in prison until it becomes evident that the brigand is sincere in his repentance. What attests to this logical conclusion is the opinion of Ibrahim alNakha‘i (d. 96/715),92 who argues that a brigand is imprisoned “until he behaves well” (hatta yuhdith khayra).93 Likewise, Ibn ‘Atiyya (d. 546/1151)94 states that an imprisoned brigand would be set free “if he repents and his condition is understood” (idha tab wa fuhim haluh).95 90 Al-Tabarsi clearly states in his Majma‘ al-Bayan that the Imami jurists hold this opinion; al-Tabarsi, Majma‘ al-Bayan fi Tafsir al-Qur’an, <http://www.altafsir.com/>; al-Tabarsi is an Imami exegete and jurist, who lived in Mashhad, Tabaristan, and Bayhaq (Iran). His name is al-Fadl b. al-Hasan b. al-Fadl alTabarsi, and his kunya is Abu ‘Ali. He died in 548/1154. 91 Ibn Hazm, al-Muhalla, 12:99-100; al-Tabarsi, Majma‘ al-Bayan. 92 Ibrahim al-Nakha‘i is an independent jurist, who lived in Kufa. His name is Ibrahim b. Yazid b. Qays b. al-Aswad, and his kunya is Abu ‘Imran. 93 Al-Jassas, Ahkam al-Qur’an, 4:54. 94 Ibn ‘Atiyya is a Maliki jurist and exegete, who lived in al-Andalus. His name is ‘Abd al-Haqq b. Ghalib b. ‘Abd al-Rahman b. Tammam b. ‘Atiyya, and his kunya is Abu Muhammad. 95 Ibn ‘Atiyya, al-Muharrar al-Wajiz fi Tafsir al-Kitab al-‘Aziz, <http://www.altafsir.com/>. 39 2.3 Mitigating impact of repentance This section attempts to answer a crucial question as to whether pre-arrest repentance cancels the fixed punishment for brigandage. Moreover, it analyzes the reasons and evidence cited by jurists and exegetes that justify the mitigating impact of pre-arrest repentance upon the fixed punishment for brigandage. The analysis shows that almost all jurists state that the fixed punishment for brigandage is cancelled by reason of pre-arrest repentance mainly because of the apparent meaning of Q. 5:33-34. It also demonstrates that some scholars draw an analogy between the fixed punishment for brigandage and that for theft, which has triggered a scholarly debate over the cancellation of the punishment of hand-cutting by reason of repentance in the case of brigandage. Furthermore, it explains why the mitigating impact of post-arrest repentance upon the punishment of exile does not lie in contradiction with the condition stipulated by almost all jurists that only pre-arrest repentance has a mitigating impact upon the punishments comprising the fixed penalty for brigandage. After mentioning the fixed punishment for brigandage in Q. 5:33, God states an exception for brigands who repent before they are captured: “Except for those who repent before you gain control over them. Know that God is Ever-Forgiving, Ever-Merciful” (Q. 5:34). Acting upon the apparent meaning of the verse, almost all jurists and exegetes affirm that pre-arrest repentance cancels the fixed punishment for brigandage. This convergence of opinion transcends school affiliation across the eight legal schools of the 40 Hanafis, Malikis, Shafi‘is, Hanbalis, Zahiris, Zaydis, Imamis, and Ibadis.96 Therefore, a pre-arrest repentant brigand would not receive any of the four punishments that comprise the fixed penalty for brigandage: execution, cutting the right hand and left foot, putting onto a cross after execution, and exile.97 The classification of the penalty of hand-cutting in the fixed penalty for brigandage as a replication of the fixed punishment for theft rather than as peculiar to the fixed punishment for brigandage has caused a split within the Shafi‘i school. Drawing analogy between the two cases of the fixed punishment for brigandage and that for theft has led Shafi‘i jurists to advance opposing views concerning the mitigating impact of repentance upon the punishment of hand-cutting in the fixed penalty for brigandage. As there are Shafi‘i jurists who believe that repentance does not cancel the punishment of hand-cutting in the fixed penalty for theft, drawing this analogy would mean that repentance does not cancel the punishment of hand-cutting in the fixed penalty for brigandage. The available sources do not refer to this debate in other schools of law. 96 Al-Jassas, Ahkam al-Qur’an, 4:59; Ibn al-Faras, 2:401, 403; al-Muzi‘i, 2:750; Ibn al-Jawzi, Zad al-Masir fi ‘Ilm al-Tafsir, <http://www.altafsir.com/>; Ibn Hubayra, 2:313; Ibn Hazm, al-Muhalla, 12:22; al-Thula’i, 3:108-109; al-Jaza’iri, 3:392; Atfiyyash, Hamayan al-Zad ila Dar al-Ma‘ad, <http://www.altafsir.com/>; Ibn al-Qayyim, I‘lam al-Muwaqqi‘in ‘an Rabb al-‘Alamin, ed. Mashhur Al Salman, vol. 3 (Saudi Arabia: Dar Ibn al-Jawzi, 2002) 308; Ibn Hubayra is a Hanbali jurist, who lived in Baghdad. His name is Yahya b. Muhammad b. Hubayra b. Sa‘d, his kunya is Abu al-Muzaffar, and his laqab is ‘Awn al-Din. He died in 560/1164; Atfiyyash is an Ibadi jurist and exegete, who lived in Algeria. His name is Amuhammad b. Yusuf b. ‘Isa b. Salih b. ‘Abd al-Rahman b. ‘Isa b. Isma‘il b. Muhammad b. ‘Abd al-‘Aziz b. Bakir. He is commonly known as “Atfiyyash,” which figuratively denotes his family’s generosity. He wrote several works on Islamic law, such as Sharh Kitab al-Nayl wa al-Shifa’. He died in 1332/1913; Muhammad Baba‘ammi, Ibrahim Bakir, Mustafa Baju, and Mustafa Sharifi, Mu‘jam A‘lam al-Ibadiyya, 2nd ed., vol. 2 (Beirut: Dar al-Gharb al-Islami, 2000) 399-406. 97 Al-Mawardi, al-Hawi, 2: 822; Ibn al-Jawzi, Zad al-Masir; Atfiyyash, Hamayan al-Zad; Ibn al-Jawzi is a Hanbali jurist, exegete and scholar of hadith, who lived in Baghdad. His name is ‘Abd al-Rahman b. ‘Ali b. Muhammad b. ‘Ali, his kunya is Abu al-Faraj, and his laqab is Jamal al-Din. He died in 597/1200. 41 In his Tafsir al-Qur’an al-‘Azim, Ibn Kathir (d. 774/1373)98 says that there are two scholarly opinions on the cancellation of hand-cutting in the fixed punishment for brigandage by reason of pre-arrest repentance and suggests that the hand of repentant brigands should not be cut off.99 He bases his opinion on the apparent meaning of the verse and on the practice of sahaba (the Prophet’s Companions). He cites three historical incidents during the time of sahaba in which repentant brigands were granted full legal pardon by the authorities.100 Similarly, Nizam al-Din al-Naysaburi (d. 728/1327)101 adopts the same opinion, but bases his opinion on logic. He says that hand-cutting is an integral component of the fixed punishment for brigandage; thus, if the whole fixed punishment is not enforced, neither of its components would be enforced.102 The presentation of this intra-Shafi‘is debate by al-Mawardi (d. 450/1058)103 revolves around the question whether the punishment of hand-cutting is peculiar to brigandage.104 He mentions two scholarly opinions within the Shafi‘i school on this issue. First, hand-cutting is not peculiar to brigandage because it is the same punishment for 98 Ibn Kathir is a Shafi‘i exegete and scholar of hadith, who lived in Damascus. His name is Isma‘il b. ‘Umar b. Kathir, his kunya is Abu al-Fida’, and his laqab is ‘Imad al-Din. 99 Fakhr al-Din al-Razi supports this opinion; Fakhr al-Din al-Razi, al-Tafsir al-Kabir, <http://www.altafsir.com/>. Ibn Hubayra also mentions this intra-Shafi‘is debate, 2:313. 100 These incidents will be mentioned in full under 2.4. 101 Nizam al-Din al-Naysaburi is a Shafi‘i exegete and linguist, who lived in Nishapur and Qom. His name is al-Hasan b. Muhammad b. Husayn al-Naysaburi, and his laqab is Nizam al-Din. 102 Al-Naysaburi, Ghara’ib al-Qur’an wa Ragha’ib al-Furqan, <http://www.altafsir.com/>. 103 Al-Mawardi is a Shafi‘i jurist, who lived in Basra and Baghdad. His name is ‘Ali b. Muhammad b. Habib al-Mawardi, and his kunya is Abu al-Hasan. He is famous for his al-Hawi al-Kabir, a multi-volume book on Shafi‘i law. 104 Al-Mawardi, al-Hawi, 2:822-23. 42 theft, which entails the enforcement of repentance laws in the fixed punishment for theft that—in one trend in the school—does not recognize the mitigating impact of repentance. Second, hand-cutting is peculiar to brigandage because it is legislated as a punishment for stealing property openly, whereas the hand is cut in a non-brigandage situation because of stealing property covertly. This contention entails the enforcement of repentance laws in the fixed punishment for brigandage that recognizes the mitigating impact of repentance. Abu Ishaq al-Marwazi (d. 340/951)105 espouses the first opinion, whereas Abu ‘Ali b. Abi Hurayra (d. 345/956)106 adopts the second. Table 2.3: Mitigating Impact of Pre-arrest Repentance upon the Penalty of Alternate Cutting of Hands and Feet in the Fixed Punishment for Brigandage Fixed Penalty for Brigandage Cancelled by Pre-arrest Repentance Consensus Cutting off the Hand Yes No Cutting off the Foot Yes Yes Under section 2.2 above, I have discussed the meaning of exile and demonstrated that post-arrest repentance terminates the punishment of exile. This post-arrest cancellation of punishment might seem inconsistent with the jurists’ virtual unanimity that post-arrest repentance does not have a mitigating impact upon the fixed punishment for brigandage.107 Nevertheless, there is no inconsistency because most of the jurists 105 Abu Ishaq al-Marwazi is a Shafi‘i jurist, who lived in Baghdad and Egypt. His name is Ibrahim b. Ahmad, and his kunya is Abu Ishaq; al-Mawardi, al-Hawi, 1:308. 106 Abu ‘Ali b. Abi Hurayra is a Shafi‘i jurist, who lived in Baghdad. His name is al-Hasan b. al-Husayn, and his kunya is Abu ‘Ali; al-Mawardi, al-Hawi, 1:120. 43 perceive the punishment of exile as a form of non-fixed disciplinary punishment (ta‘zir) rather than a fixed penalty (hadd).108 This is why most scholars do not fix a period of time for imprisonment and make righteousness and the manifestation of repentance a marker for the elapse of imprisonment. Jurists who perceive exile as a fixed punishment assign a period of time for imprisonment that cannot be terminated by repentance. For instance, Abu ‘Abd Allah al-Zubayri (d. 317/929)109 maintains that imprisonment should last for six months, whereas Abu al-‘Abbas Ibn Surayj (d. 306/918)110 estimates this period to be one year.111 The Zaydi jurist al-Nasir al-Utrush al-Hasan b. ‘Ali (d. 304/917)112 maintains that the ruler has the choice to either banish or imprison the brigand for one year.113 107 It should be noted that there is a minor trend within the Shafi‘is and Imamis that cancels the fixed penalty for brigandage by reason of post-arrest repentance. The Imami jurist Ahmad al-Jaza’iri states the possibility that the ruler in this case would have the option to either punish or pardon the repentant brigand. He draws an analogy between this situation and the impact of repentance upon hand-cutting in the case of theft when the convict repents after the crime is established before the judge. In this case, the ruler has the choice to either punish or pardon the repentant thief; al-Jaza’iri, 3:384-385, 392; Muhammad b. al-Qasim, 253. 108 Al-Mawardi, al-Hawi, 2:780-782. 109 Abu ‘Abd Allah al-Zubayri is a Shafi‘i jurist, who lived in Basra. His name is al-Zubayr b. Ahmad b. Sulayman. 110 Abu al-‘Abbas Ibn Surayj is a Shafi‘i jurist, who lived in Baghdad. His name is Ahmad b. ‘Umar b. Surayj; al-Mawardi, al-Hawi, 1:120-121. 111 Al-Mawardi, al-Hawi, 2:782. 112 Al-Nasir al-Utrush al-Hasan b. ‘Ali is a Zaydi jurist; “Zaydiyya,” Encyclopaedia of Islam, CD-ROM (Leiden: Brill). 113 Al-Najri, 1:243. 44 Table 2.4: Mitigating Impact of Repentance upon the Fixed Penalties for Brigandage Pre-arrest Repentance Post-arrest Repentance Consensus Brigandage Penalty Cancelled by Post-arrest Repentance Consensus Yes Yes Execution No Yes Yes No No Yes Yes Yes Cutting the right hand and left foot Crucifixion Yes Yes Crucifixion No Yes Exile Yes Yes Exile Yes No Brigandage Penalty Cancelled by Pre-arrest Repentance Execution the right hand and left foot Cutting Figure 2.1: Mitigating Impact of Pre-arrest Repentance upon the Fixed Penalties for Brigandage 8 7 Ibadis 6 Imamis 5 Zaydis Zahiris 4 Hanbalis 3 Shafi'is 2 Malikis Hanafis 1 0 Execution Cancelled Cutting the Right Cutting the Left Hand Cancelled Foot Cancelled Crucifixion Cancelled Exile Cancelled 45 Table 2.5: Mitigating Impact of Pre-arrest Repentance upon the Fixed Penalties for Brigandage Execution Cancelled Cutting off the Right Hand Cancelled and Left Foot Cancelled Crucifixion Cancelled Exile Cancelled Hanafis Yes Yes Yes Yes Yes Malikis Yes Yes Yes Yes Yes Shafi‘is Yes Yes Yes Yes Hanbalis Yes Yes Yes Yes Yes Zahiris Yes Yes Yes Yes Yes Zaydis Yes Yes Yes Yes Yes Imamis Yes Yes Yes Yes Yes Ibadis Yes Yes Yes Yes Yes Yes No 2.3.1 Evidence It is worth noting that the reasons and evidence that jurists and exegetes cite to justify the cancellation of the fixed punishment for brigandage due to pre-arrest repentance are almost identical across the eight legal schools. These reasons focus primarily on the syntactic structure of exception in Q. 5:34 and the potential sincerity of pre-arrest repentance by brigands. The lexical aspect of Q. 5:34—though cited by some scholars—does not enjoy the same prominence that the former two reasons have. The analysis shows that the lexical aspect of Q. 5:34 represented in God’s statement “Before 46 you gain control over them” is the underlying factor that has led jurists and exegetes to achieve unanimity on the mitigating impact of pre-arrest repentance upon the fixed punishment for brigandage.114 In Q. 5:33-34, God says: “That is a disgrace for them in this world, and in the Hereafter they will have a tremendous torment—except for those who repent before you gain control over them.” Almost all jurists and exegetes deduce from Q. 5:34 that a brigand would not face the fixed punishment for brigandage if he repents before arrest.115 By contrast, he would be punished if he repents after arrest. Jurists, exegetes and grammarians perceive this contrastive implication because Q. 5:34 is based on the syntactic structure of exception (istithna’). The function of this structure in the Arabic language is to single out an item from a larger entity, giving it a ruling that is opposite to that of the larger entity. Therefore, if the larger entity (mustathna minhu) is in the affirmative, the singled out item (mustathna) would be in the negative, and vice versa.116 The contrastive function of exception is effected by the use of the particle illa (except) and similar particles, such as siwa (apart from). Q. 5:33-34 partly reads: “That is a disgrace for them in this world, and in the Hereafter they will have a tremendous torment—except for those who repent before you 114 I have assigned more space for the discussion of the significance of the structure of exception in Q. 5:34 as this theme is recurrent in the three cases analyzed by this thesis—namely the fixed punishments for brigandage, theft, and the accusation of fornication. 115 Almost all scholars use the Qur’anic phraseology “before control is gained over him” (min qabl alqudra ‘alayh). For the sake of brevity, I use the phrase “before arrest” to convey this meaning. 116 Abu Hanifa, unlike al-Shafi‘i, does not rule that exception from an entity in the negative would render the singled out item in the affirmative; Abu al-Thana’ al-Asbahani, Bayan al-Mukhtasar, ed. ‘Ali Jum‘a, vol. 2 (Cairo: Dar al-Salam, 2004) 560. Abu al-Thana’ al-Asbahani is a Shafi‘i jurist, who lived in Asbahan (Iran), Damascus, and Egypt. His name is Mahmud b. ‘Abd al-Rahman b. Ahmad b. Muhammad alAsbahani, and his kunya is Abu al-Thana’. He died in 749/1348. 47 gain control over them.” The exceptive clause “except for those who repent” is preceded by two sentences coordinated by “and” (wa). In the first sentence “That is a disgrace for them in this world,” this disgrace refers to the fixed penalty for brigandage in this world. In the second sentence “In the Hereafter they will have a tremendous torment,” this torment refers to the punishment for brigandage in the Hereafter. If the exceptive clause refers to the immediate preceding sentence, it would follow that pre-arrest repentant brigands would not face the punishment for brigandage in the Hereafter, but would face the fixed punishment for brigandage in this world. However, if the exceptive clause refers to both sentences, it would follow that pre-arrest repentant brigands would face neither the punishment in the Hereafter nor the fixed penalty in this world. Scholars of Arabic syntax and legal theory (usul al-fiqh) debate the anaphoric reference of an exceptive clause when preceded by a sequence of coordinated sentences. They express three main opinions: first, the exceptive clause would refer to all of the preceding coordinated sentences; second, it would refer to the immediate preceding sentence only; and third, the reference would be established on a case-by-case basis.117 According to the third opinion, if there is a contextual indication (qarina) that shows that the last sentence is not related to the other preceding sentences, the exceptive clause would refer anaphorically to the last sentence only. However, if there is a contextual 117 The first opinion is mainly represented by the Shafi‘is, whereas the second opinion is mainly represented by the Hanafis. Abu al-Thana’ al-Asbahani and al-Qurtubi espouse the third; Abu al-Thana’ alAsbahani, 2:554-555, 564-565; al-Qurtubi, 15:136; al-Zarkashi, al-Bahr al-Muhit, 8 vols. (Dar al-Kutbi, 1994), <http://www.islamweb.net/newlibrary/>; al-Zarkashi is a Shafi‘i jurist and legal theorist, who lived in Egypt, Aleppo and Damascus. His name is Muhammad b. Bahadir b. ‘Abd Allah al-Zarkashi, his kunya is Abu ‘Abd Allah, and his laqab is Badr al-Din. He died in 794/1391. 48 indication that shows that the last sentence is related to the other preceding sentences, the exceptive clause would refer to all of the sentences. Al-Jassas supports the Hanafi position that the exceptive clause would refer only to the immediate preceding sentence in a sequence of coordinated sentences. Nevertheless, he mentions that a lexical indication (dalala fi al-lafz) makes him rule otherwise in this particular verse.118 This indication is God’s statement “before you gain control over them.” The mitigating impact of repentance upon the punishment in the Hereafter is not subject to the condition that repentance takes place before arrest. Therefore, this conditional repentance, al-Jassas argues, is meant to cancel the fixed punishment of brigandage in this world. Were it not for this lexical indication, al-Jassas asserts, the exceptive clause would refer only to the preceding sentence and thus would not rid pre-arrest repentant brigands from facing the fixed punishment for brigandage.119 Although Ibn ‘Ashur (d. 1393/1972)120 identifies the same lexical indication, he puts more emphasis on the syntactic structure of exception as contrasted with other syntactic structures. Ibn ‘Ashur argues that it is the exceptive particle that signifies the cancellation of the fixed punishment for brigandage in case the offender repents before arrest.121 Were it not for the structure of exception, he asserts, the verse would not signify 118 Al-Jassas, al-Fusul fi Usul al-Fiqh, 2nd ed., ed. ‘Ujayl al-Nashami, vol. 1 (Kuwait: Wazarat al-Awqaf, 1994) 270-71. 119 This strong emphasis that al-Jassas puts on the lexical aspect of Q. 5:34 is lacking in his exposition on the same verse in his Ahkam al-Quran. In the latter book, he lays particular emphasis on the significance of the syntactic structure of exception in Q. 5:34 and considers it the reason why the fixed punishment for brigandage is cancelled by reason of pre-arrest repentance; al-Jassas, al-Fusul, 1:270-71. 120 Ibn ‘Ashur is a Maliki jurist and exegete, who lived in Tunisia. His name is Muhammad al-Tahir b. ‘Ashur. 49 the cancellation of the fixed penalty. He believes that if Q. 5:34 hypothetically read “if they repent” instead of “except for those who repent,” the verse would only signify the cancellation of the punishment for brigandage in the Hereafter.122 The author implies that other syntactic structures, including the structure of a conditional sentence, does not have the function of the structure of exception, which is excluding an item from a larger entity. God’s statement “Except for those who repent” in Q. 5:34 excludes repentant brigands from the larger entity of brigands who deserve the fixed punishment for brigandage. However, the hypothetical “if they repent” does not exclude repentant brigands from those deserving the fixed punishment for brigandage; it merely states that God would forgive repentant brigands, which does not necessarily mean that repentant brigands would not be punished in this world. In contrast to Ibn ‘Ashur’s contention, it seems that God’s statement “before you gain control over them” has led exegetes and jurists to unanimously agree that pre-arrest repentance has a mitigating impact upon the fixed punishment for brigandage. If the structure of exception is the underlying factor behind this unanimity, it would have led jurists to achieve the same unanimity in the case of the mitigating impact of repentance upon the fixed punishment for qadhf where Q. 24:5 is phrased as a structure of exception. Notwithstanding the virtually identical syntactic structure between Q. 5:34 and Q. 24:5, scholars have not declared that flogging in the case of qadhf is cancelled by reason of repentance.123 The main difference between the two verses is God’s statement “before 121 Ibn ‘Ashur, al-Tahrir wa al-Tanwir, <http://www.altafsir.com/>. 122 Ibn ‘Ashur, al-Tahrir. 50 you gain control over them.” Owing to the lack of such a statement in Q. 24:5, jurists and exegetes do not assign legal significance to the concept of repentance in terms of its mitigating impact on the punishment of flogging in the fixed penalty for qadhf. This is why I argue that the scholarly consensus over the legal significance of repentance in the case of the fixed punishment for brigandage would not exist if Q. 5:34 hypothetically read, “Except for those who repent. Know that God is Ever-Forgiving, Ever-Merciful” instead of “Except for those who repent before you gain control over them. Know that God is Ever-Forgiving, Ever-Merciful.” God’s statement “before you gain control over them” has prompted jurists to appreciate the legal significance of repentance in the case of the fixed punishment for brigandage and to perceive repentance as a matter between a person and the state rather than as a matter between a person and his Lord. Moreover, I argue that there would be a scholarly consensus over the mitigating impact of pre-arrest repentance in the case of the fixed punishment for brigandage even if Q. 5:34 assumes the structure of a conditional sentence and hypothetically read, “If they repent before you gain control over them, know that God is Ever-Forgiving, EverMerciful.” God Almighty forgives sins when the offender repents to Him, regardless of whether he repents before the authorities arrest him and regardless of whether this sin deserves a fixed punishment in this world. The impact of this forgiveness is typically perceived in terms of being relieved from punishment in the Hereafter, unless there is evidence that signifies relieving from punishment in this world. The condition “before 123 See section 4.3. 51 you gain control over them” signifies that this conditional repentance cancels the worldly punishment, regardless of whether Q. 5:34 is phrased as an exceptive clause or as a conditional sentence. It is true that the structure of exception is stronger than the structure of a conditional sentence in terms of exclusion and contrastive implication, yet the function of exclusion in the structure of exception is not the underlying factor that prompts exegetes to recognize the mitigating impact of pre-arrest repentance upon the fixed punishment for brigandage. It is the lexical aspect of the verse of brigandage that leads jurists to reach such conclusions. The second major reason for the eight schools’ support of the view that pre-arrest repentance cancels the fixed punishment for brigandage is the potential sincerity of prearrest repentance by brigands. Jurists use contrast—as explained by al-Qurtubi (d. 671/1272)—to highlight the importance of this reason.124 If a brigand declares his repentance after his capture, it might be suspected that he declared his repentance in order to avoid the punishment.125 Al-Qurtubi likens the brigands’ post-arrest repentance to the invalid repentance by previous communities who declared repentance after “they experienced God’s punishment”126 and to the invalid repentance that one declares “when 124 Al-Qurtubi, 7:447. 125 Ibn Hajar al-Haytami and Ahmad al-Jaza’iri also have the same opinion; Ibn Hajar al-Haytami, Tuhfat al-Minhaj bi-Sharh al-Minhaj, vol. 4 (Beirut: Dar al-Kutub al-‘Ilmiyya, 2001) 153; al-Jaza’iri, 3:392. Ibn Hajar is a Shafi‘i jurist, who lived in Egypt and Mecca. His name is Ahmad b. Muhammad b. Muhammad b. ‘Ali b. Hajar al-Haytami, and his kunya is Abu al-‘Abbas. He died in 973/1565. 126 Describing the situation of previous communities who did not believe in God and mocked their prophets, God says: “When they saw Our punishment, they said: ‘We believe in God alone, and we disbelieve in whatever we used to be associating with Him.’ Yet, their belief did not benefit them once they saw Our punishment” (Q. 40:84-5). 52 his soul is about to leave his body” (hal al-gharghara).127 Conversely, he likens the brigands’ pre-arrest repentance to the valid repentance by the people of Prophet Jonah (Yunus) who repented before seeing the sign of God’s punishment.128 2.4 Liability of repentant convicts This section answers a crucial question as to whether pre-arrest repentant convicts of brigandage would be liable for the blood they shed and the property they stole during brigandage. Moreover, it analyzes the reasons and evidence cited by jurists and exegetes that justify the liability of repentant brigands. It also provides the counterarguments by other scholars who believe that pre-arrest repentance totally absolves a brigand from any liability whatsoever. Notwithstanding their virtual unanimity on the mitigating impact of pre-arrest repentance upon the fixed punishment for brigandage, scholars are divided concerning the liability of pre-arrest repentant brigands. The analysis shows that the majority of jurists maintains that pre-arrest repentant brigands would not face the fixed punishment for brigandage, but they would be liable for the blood they shed and the money they stole in case the victim or his family demands justice. 127 According to al-Muzi‘i, in this state the pharaoh during the time of Prophet Moses declared his belief in God. This is why “his belief did not benefit him”; al-Muzi‘i, 1:580. 128 When Jonah found no response from his people, he warned them that they would receive God’s punishment in three days, and he left the town. When his people did not find him the next day, they repented before seeing the sign of God’s punishment. According to al-Qurtubi, God’s statement “We relieved them of the punishment of disgrace” in Q. 10:98 refers to the punishment that Jonah warned his people about. Q. 10:98 reads, “If only a single town had believed and benefited from its belief! Only Jonah’s people did so, and when they believed, We relieved them of the punishment of disgrace in the life of this world”; al-Qurtubi, 11:55-56. The translation of Q. 10:98 is the rendition of Abdel Haleem; M. Abdel Haleem, The Quran, (New York: Oxford University Press, 2005) 135. 53 Crime During Brigandage Table 2.6: Liability of Pre-arrest Repentant Brigands for Murder and Robbery Penalty Fixed Penalty Cancelled by Liability for this Crime Pre-arrest Repentance Murder Execution Yes Facing the laws of retaliation upon request from the victim’s family, which means three possibilities: Execution, Blood Money, or Pardon Robbery Cutting off the right hand and left foot Yes Returning the stolen property to the rightful owner Murder and Robbery Execution then putting onto cross -Facing the laws of retaliation upon request from the victim’s family Yes -Returning the stolen property to the rightful owner Jurists and exegetes express two main opinions concerning the liability of prearrest repentant brigands for the blood they shed and the property they stole during brigandage. The proponents of the first opinion admit such liability and thus the family of the murdered person (wali al-damm) would be given the right to exercise one of the three options in the laws of retaliation (qisas)—namely executing or pardoning the murderer or obtaining blood money (diya) from him. If the family requests that the murderer be executed, he would be executed. If they request blood money, he would have to pay it to them. If they declare that they pardon the brigand for free, he would have no liability for his crime of murder that he committed during brigandage.129 As for the stolen property, 129 The phrase “during brigandage” is reiterated because of its significance in this discourse. If a person had committed murder or robbery before committing brigandage, and then he repented of brigandage before capture, his pre-arrest repentance would cancel the fixed punishment for brigandage, but would not cancel the crimes that took place before brigandage. To this effect, Rabi‘a (d. 136/754) formulates his opinion on the mitigating impact of repentance upon the fixed punishment for brigandage; al-Tabari, Jami‘ al-Bayan. 54 the victim of robbery would have the right to reclaim his stolen item. Upon his request, the brigands would have to return the stolen item to him and they would have to return its equivalent if the item no longer remains in their possession. The advocates of the second opinion deny the liability of pre-arrest repentant brigands for the blood they shed and the property they stole during brigandage. Therefore, repentant brigands in this case would not face the laws of retaliation and they would not be obliged by law to return the stolen property to its rightful owner. As far as the eight schools are concerned, the second opinion is primarily espoused by the Ibadis, whereas the first opinion is mainly adopted by the Hanafis, Shafi‘is, Hanbalis, and Imamis. Within the literature of the Malikis and Zaydis, the two opinions are advocated. I could not identify the opinion of the Zahiris because Ibn Hazm does not specifically discuss this issue.130 The opinions of the seven schools are illustrated in Table 2.7 and Figure 2.2 below. 130 Ibn Hazm just observes that pre-arrest repentance cancels the fixed punishment for brigandage. His main argument is that repentance does not cancel any fixed punishment with the exception of the fixed punishment for brigandage; Ibn Hazm, al-Muhalla, 12:22, 97-100, 272-299. 55 Table 2.7: Liability of Pre-arrest Repentant Brigands for Murder and Robbery Repentant Brigands have Liability for Murder and Robbery Hanafis Malikis Yes Yes (in one opinion) No (in one opinion) Shafi‘is Yes Hanbalis Yes Zahiris ? Zaydis Yes (in one opinion) No (in one opinion) Imamis Yes Ibadis No Figure 2.2: Liability of Pre-arrest Repentant Brigands for Murder and Robbery 29% Brigands are Not Liable for Murder and Robbery Brigands are Liable for Murder and Robbery 71% 56 At the individual level, scholars who support the first opinion (Group A) as well as those who adopt the second opinion (Group B) are mentioned in Table 2.8 and arranged in chronological order. Table 2.8: Liability of Pre-arrest Repentant Brigands for Murder and Robbery Group B (Repentant Brigands are Not Liable) Group A (Repentant Brigands are Liable) Scholar Death Date Scholar Death Date Zayd b. ‘Ali Abu Hanifa Al-Shafi‘i Ahmad b. Hanbal Abu Thawr Al-Nasir al-Utrush al-Hasan b. ‘Ali Al-Jassas Ilkiya al-Harrasi Al-Mu’ayyad al-Kabir Ahmad b. al-Husayn Al-Tusi Al-Zamakhshari Ibn ‘Atiyya Sa‘id al-Rawandi Fakhr al-Din al-Razi Al-Qurtubi Nizam al-Din al-Naysaburi Muhammad al-Muzi‘i Miqdad al-Suyuri ‘Abd al-Rahman al-Tha‘alibi Ibn ‘Adil Al-Biqa‘i Al-Suyuti Al-‘Ulaymi Al-Khatib al-Shirbini Abu al-Su‘ud Isma‘il Haqqi Ahmad al-Jaza’iri Al-Alusi Ibn ‘Ashur Al-Amin al-Shinqiti 122/740 150/767 204/820 241/855 246/860 304/917 370/980 405/1014 412/1021 460/1067 538/1143 546/1151 573/1177 606/1209 671/1272 728/1327 825/1422 826/1422 875/1470 880/1475 885/1480 911/1505 928/1521 977/1569 982/1574 1127/1715 1150 /1737 1270/1854 1393/1972 1393/1973 Al-Suddi Al-Awza‘i Al-Layth b. Sa‘d ‘Amrus Al-Hadi Yahya b. al-Husayn Al-Samin al-Halabi Muhammad b. al-Qasim Al-Shawkani Siddiq al-Qannuji 127/744 157/773 175/791 283/896 298/911 756/1355 1067/1656 1250/1834 1307/1890 The scholarly opinions over the liability of pre-arrest repentant brigands for murder and robbery that they committed during brigandage are mentioned here again on 57 the levels of both schools and individual jurists in order to demonstrate the sources that cite these scholars. The first opinion that recognizes the liability of repentant brigands is espoused by Abu Hanifa,131 al-Shafi‘i,132 Ahmad b. Hanbal;133 al-Jassas,134 alZamakhshari,135 Abu al-Su‘ud,136 Isma‘il Haqqi,137 al-Alusi;138 ‘Abd al-Rahman al- 131 Ibn ‘Atiyya, al-Muharrar; Abu Hayyan, al-Bahr al-Muhit, <http://www.altafsir.com/>; al-Mawardi, alHawi, 2:817; Ibn Hubayra, 2: 313; al-Najri, 1:243; Abu Hayyan is a jurist and exegete, who lived in alAndalus and Egypt. In al-Andalus, he was affiliated to the Malikis and Zahirs, but he followd the Shafi‘i school when he came to Egypt. His name is Muhammad b. Yusuf b. ‘Ali b. Yusuf b. Hayyan, and his kunya is Abu Hayyan. He died in 745/1344. 132 Al-Mawardi, al-Hawi, 2:817; al-Baghawi, Ma‘alim al-Tanzil, <http://www.altafsir.com/>; Abu Hayyan, al-Bahr; al-Tabari, Jami‘ al-Bayan; Ibn ‘Atiyya, al-Muharrar; al-Mahalli and al-Suyuti, Tafsir al-Jalalayn, <http://www.altafsir.com/>; Ibn al-Jawzi, Zad al-Masir; Ibn al-‘Arabi, 2:101; Abu Ishaq al-Tha‘labi, alKashf wa al-Bayan, <http://www.altafsir.com/>; Ibn Hubayra, 2: 313; al-Tusi, al-Tibyan al-Jami‘ li-‘Ulum al-Qur’an, <http://www.altafsir.com/>; Atfiyyash, Hamayan al-Zad; al-Najri, 1:244; al-Jaza’iri, 3:392; alBaghawi is a Shafi‘i jurist and scholar of hadith, who lived in Khorasan. His name is al-Husayn b. Mas‘ud b. Muhammad al-Baghawi, and his kunya is Abu Muhammad. He died in 516/1122. Al-Mahalli is a Shafi‘i jurist and exegete, who lived in Egypt. His name is Muhammad b. Ahmad b. Muhammad b. Ibrahim alMahalli, his kunya is Abu ‘Abd Allah, and his laqab is Jalal al-Din. He died in 864/1459. Al-Tha‘labi is a Shafi‘i exegete and linguist, who lived in Nishapur. His name is Ahmad b. Muhammad b. Ibrahim alTha‘labi and his kunya is Abu Ishaq. He died in 427/1035. Al-Tusi is an Imami jurist, legal theorist and scholar of hadith, who lived in Khorasan and Baghdad. His name is Muhammad b. al-Hasan b. ‘Ali al-Tusi, and his kunya is Abu Ja‘far. He is referred to as the head of the Imamis (shaykh al-Imamiyya). He died in 460/1067; al-Hasan b. al-Mutahhar, Khulasat al-Aqwal fi Ma‘rifat al-Rijal, ed. Jawad al-Qayyumi (Qom: Mu’assasat Nashr al-Faqaha, 1996) 249-250. 133 Ahmad b. Hanbal is an independent jurist and scholar of hadith, who lived in Baghdad, and he is the eponym of the Hanbali school. He died in 241/855; al-Muzi‘i, 2:750-751; Ibn Hubayra, 2: 313. 134 Al-Jassas, Ahkam al-Qur’an, 4:60. 135 Al-Zamakhshari is a linguist and exegete affiliated with the Mu‘tazili theological school and the Hanafi legal school. He lived in Khuwarizm, Bukhara and Khorasan. His name is Mahmud b. ‘Umar alZamakhshari, his kunya is Abu al-Qasim, and his laqab is Jar Allah. He died in 538/1143; al-Zamakhshari, al-Kashshaf ‘an Haqa’iq Ghawamid al-Tanzil wa ‘Uyun al-Aqawil fi Wujuh al-Ta’wil, <http://www.altafsir.com/>. 136 Abu al-Su‘ud is a Hanafi exegete and linguist, who lived in Constantinople. His name is Muhammad b. Mustafa al-‘Imadi, and his kunya is Abu al-Su‘ud. He died in 982/1574; Abu al-Su‘ud, Irshad al-‘Aql alSalim ila Mazaya al-Kitab al-Karim, <http://www.altafsir.com/>. 137 Isma‘il Haqqi is a Hanafi exegete, who lived in Istanbul, Bursa, and Constantinople. His name is Isma‘il Haqqi b. Mustafa, and his kunya is Abu al-Fida’. He died in 1127/1715; Isma‘il Haqqi, Ruh al-Bayan fi Tafsir al-Qur’an, <http://www.altafsir.com/>. 58 Tha‘alibi,139 Ibn ‘Atiyya,140 al-Qurtubi,141 Ibn ‘Ashur,142 al-Amin al-Shinqiti;143 Abu Thawr,144 Ilkiya al-Harrasi,145 Fakhr al-Din al-Razi,146 Nizam al-Din al-Naysaburi,147 Muhammad al-Muzi‘i,148 al-Biqa‘i,149 al-Suyuti,150 al-Khatib al-Shirbini;151 Ibn ‘Adil,152 138 Al-Alusi is a Hanafi jurist and exegete, who lived in Baghdad. His name is Mahmud b. ‘Abd Allah alHusayni al-Alusi, his kunya is Abu al-Thana’, and his laqab is Shihab al-Din. My reading of his commentary on the Qur’an suggests that he follows the Hanafi school. Al-Alusi died in 1270/1854; alAlusi, Ruh al-Ma‘ani fi Tafsir al-Qur’an al-‘Azim wa al-Sab‘ al-Mathani, <http://www.altafsir.com/>. 139 Al-Tha‘alibi is a Maliki juirist, exegete and scholar of hadith, who lived in Algeria, Tunisia and Egypt. His name is ‘Abd al-Rahman b. Muhammad b. Makhluf al-Tha‘alibi, and his kunya is Abu Zayd. He died in 875/1470; ‘Abd al-Rahman al-Tha‘alibi, al-Jawahir al-Hisan fi Tafsir al-Qur’an, <http://www.altafsir.com/>. 140 Ibn ‘Atiyya, al-Muharrar. 141 Al-Qurtubi, 7:446. 142 Ibn ‘Ashur, al-Tahrir. 143 Al-Amin al-Shinqiti is a Maliki jurist and exegete, who lived in Mauritania and Medina. His name is Muhammad al-Amin b. Muhammad al-Mukhtar b. ‘Abd al-Qadir b. Muhammad b. Ahmad Nuh. He died in 1393/1973; al-Amin al-Shinqiti, Adwa’ al-Bayan fi Idah al-Qur’an bi-al-Qur’an, <http://www.altafsir.com/>. 144 Abu Thawr is a Shafi‘i jurist, who lived in Baghdad. His name is Ibrahim b. Khalid b. Abi al-Yaman. He died in 246/860; al-Muzi‘i, 2:750-751; al-Qurtubi, 7:443. According to Hallaq, Abu Thawr was the eponym of an extinct legal school; Hallaq, 168, 211. 145 Al-Harrasi, 2:70. 146 Fakhr al-Din al-Razi is a Shafi‘i jurist, exegete, legal theorist and theologian, who lived in Rey and Khorasan. His name is Muhammad b. ‘Umar b. al-Hasan b. al-Husayn b. ‘Ali al-Razi, and his laqab is Fakhr al-Din. He died in 606/1209; al-Razi, al-Tafsir al-Kabir. 147 Al-Naysaburi, Ghara’ib al-Qur’an. 148 Al-Muzi‘i, 2:750-751. 149 Al-Biqa‘i is a Shafi‘i exegete, who lived in Damascus and Cairo. His name is Ibrahim b. ‘Umar b. Hasan b. ‘Ali al-Biqa‘i, and his laqab is Burhan al-Din. He died in 885/1480; al-Biqa‘i, Nazm al-Durar fi Tanasub al-Ayat wa al-Suwar, <http://www.altafsir.com/>. 150 Al-Suyuti, al-Iklil, 2:632. 151 Al-Khatib al-Shirbini is a Shafi‘i jurist and exegete, who lived in Egypt. His name is Muhammad b. Ahmad al-Shirbini, and his laqab is Shams al-Din. He is known as “al-Khatib al-Shirbini.” He died in 977/1569; al-Khatib al-Shirbini, al-Siraj al-Munir fi al-i‘ana ‘ala Ma‘rifat ba‘d Ma‘ani Kalam Rabbina alHakim al-Khabir, ed. Ibrahim Shams al-Din, vol. 1 (Beirut: Dar al-Kutub al-‘Ilmiyya, 2004) 432. 59 al-‘Ulaymi;153 the Hanafis,154 the Malikis155 (in one opinion in the school), the Shafi‘is,156 the Hanbalis;157 Zayd b. ‘Ali,158 al-Nasir al-Utrush al-Hasan b. ‘Ali,159 al-Mu’ayyad alKabir Ahmad b. al-Husayn;160 al-Tusi,161 Sa‘id al-Rawandi,162 Miqdad al-Suyuri,163 Ahmad al-Jaza’iri,164 and the Imamis.165 152 Ibn ‘Adil is a Hanbali exegete and linguist, who lived in Damascus and al-Nu‘maniyya (a city in Iraq). His name is ‘Umar b. ‘Ali b. ‘Adil, his kunya is Abu Hafs, and his laqab is Siraj al-Din. He died in ca. 880/1475; Ibn ‘Adil, al-Lubab fi ‘Ulum al-Kitab, <http://www.altafsir.com/>. 153 Al-‘Ulaymi is a Hanbali exegete, jurist and historian, who lived in Jerusalem and Cairo. His name is ‘Abd al-Rahman b. Muhammad b. ‘Abd al-Rahman b. Yusuf al-‘Ulaymi. He died in 928/1521; al-‘Ulaymi, Fath al-Rahman fi Tafsir al-Qur’an, ed. Nur al-Din Talib, 2nd ed., vol. 2 (Syria: Dar al-Nawadir, 2011) 291. 154 Ibn ‘Atiyya, al-Muharrar; Abu Hayyan, al-Bahr; al-Dah al-Shinqiti, 74-75. 155 The opinion of Malik is different; al-Dah al-Shinqiti, 74-75. 156 Al-Dah al-Shinqiti attributes this opinion to the Shafi‘is; al-Dah al-Shinqiti, 74-75. 157 Both Ibn al-Jawzi and al-Dah al-Shinqiti attribute this opinion to the Hanbalis; Ibn al-Jawzi, Zad alMasir; al-Dah al-Shinqiti, 74-75. 158 Zayd b. ‘Ali is an independent jurist, who lived in Medina, and he is the eponym of the Zaydi school. His name is Zayd b. ‘Ali b. al-Husayn b. ‘Ali b. Abi Talib. He died in 122/740; al-Najri, 1:244; Muhammad b. al-Qasim, 252-253. 159 Al-Najri, 1:244; Muhammad b. al-Qasim, 252-253. 160 Al-Mu’ayyad al-Kabir Ahmad b. al-Husayn is a Zaydi jurist. He died in 412/1021; al-Najri, 1:244; Muhammad b. al-Qasim, 252-253. 161 Al-Tusi, al-Tibyan. 162 Both al-Rawandi and al-Tusi clearly state that they support the opinion of al-Shafi‘i. They use the same phraseology to express their support. After mentioning the opinion of al-Shafi‘i, both al-Tusi and alRawandi say: “And this is our opinion (wa huwa madhhabuna)”; al-Rawandi, 1:368. 163 Al-Suyuri, part 4, 46. 164 Al-Jaza’iri, 3:392. 165 Ahmad al-Jaza’iri attributes this opinion to the Imamis; al-Jaza’iri, 3:392. 60 The second opinion that denies the liability of pre-arrest repentant brigands for murder and robbery that they committed during brigandage is adopted by al-Suddi,166 alAwza‘i,167 al-Layth b. Sa‘d,168 al-Samin al-Halabi,169 al-Shawkani,170 Siddiq alQannuji,171 al-Hadi Yahya b. al-Husayn,172 Muhammad b. al-Qasim,173 and ‘Amrus.174 Furthermore, three jurists advance an opinion that is similar to the scholarly contention that denies the liability of pre-arrest repentant brigands. For instance, Malik (d. 179/796)175 maintains that pre-arrest repentant brigands are liable for the blood they shed but they are not liable for the property they stole except for the stolen property that 166 Al-Suddi is an independent exegete, who lived in Kufa. His name is Isma‘il b. ‘Abd al-Rahman, and his kunya is Abu Muhammad. He died in 127/744; al-Tha‘labi, al-Kashf; al-Tabari, Jami‘ al-Bayan; al-Tusi, al-Tibyan. 167 Al-Awza‘i is an independent jurist, who lived in Sham. His name is ‘Abd al-Rahman b. ‘Amr b. Yahmid al-Awza‘i, and his kunya is Abu ‘Amr. He died in 157/773; al-Tha‘labi, al-Kashf; al-Tabari, Jami‘ alBayan. According to Hallaq, al-Awza‘i was the eponym of an extinct legal school; Hallaq, 170-171, 211. 168 Al-Layth b. Sa‘d is an independent jurist, who lived in Egypt. His name is al-Layth b. Sa‘d b. ‘Abd alRahman, and his kunya is Abu al-Harith. He died in 175/791; al-Tha‘labi, al-Kashf; al-Tabari, Jami‘ alBayan; Ibn al-‘Arabi, 2:101; al-Muzi‘i, 2:750-751; al-Tusi, al-Tibyan. 169 Al-Samin al-Halabi is a Shafi‘i exegete and linguist, who lived in Aleppo and Cairo. His name is Ahmad b. Yusuf b. Muhammad b. Mas‘ud, and his kunya is Abu al-‘Abbas. He died in 756/1355; al-Samin alHalabi, al-Durr al-Masun fi ‘Ulum al-Kitab al-Maknun, <http://www.altafsir.com/>. 170 Al-Shawkani is an independent jurist, exegete and a scholar of hadith, who lived in Yemen. He used to follow the Zaydi school in the early stages of his scholarship. His name is Muhammad b. ‘Ali b. Muhammad b. ‘Abd Allah al-Shawkani. He died in 1250/1834; al-Shawkani, Fath al-Qadir al-Jami‘ bayn Fannay al-Riwaya wa al-Diraya min ‘Ilm al-Tafsir, <http://www.altafsir.com/>. 171 Siddiq al-Qannuji, 2:53. 172 Al-Hadi Yahya b. al-Husayn is a Zaydi jurist. He died in 298/911; al-Najri, 1:244; Muhammad b. alQasim, 252-253; al-Thula’i, 3:108. 173 Muhammad b. al-Qasim, 252-253. 174 ‘Amrus is an Ibadi jurist, who lived in Nafousa Mountains (mostly in Libya). His name is ‘Amrus b. Fath al-Masakini al-Nafusi, and his kunya is Abu Hafs. He died in 283/896; Muhammad Baba‘ammi et al., 2:321-22; Atfiyyash, Hamayan al-Zad. 175 Malik b. Anas is an independent jurist and a scholar of hadith, who lived in Medina, and he is the eponym of the Maliki school. His name is Malik b. Anas b. Malik, and his kunya is Abu ‘Abd Allah. 61 still remains in their possession.176 Virtually absolving repentant brigands of liability, alTabari and Ibn al-Faras (d. 597/1200) state that pre-arrest repentant brigands are neither liable for the blood they shed nor the property they stole except for the stolen property that still remains in their possession.177 Before discussing the reasons why jurists are divided concerning the liability of repentant brigands, it should be noted that jurists are unanimous in cancelling the fixed punishment for brigandage by reason of pre-arrest repentance. This unanimity is achieved across the eight schools as well as independent jurists who are not affiliated with any legal school. Jurists do not debate whether pre-arrest repentant brigands would be executed, crucified, exiled, or have their right hands and left feet cut off. What they debate, however, is the liability of pre-arrest repentant brigands for the blood they shed and the property they stole during brigandage. In other words, jurists debate whether these brigands would face the laws of retaliation and whether they would be required by law to return the stolen property to the rightful owner. 2.4.1 Evidence This section analyzes the reasons and evidence cited by jurists and exegetes concerning the liability of pre-arrest repentant brigands for the blood they shed and the property they stole during brigandage. It presents the arguments of scholars who 176 Al-Tha‘labi, al-Kashf; al-Tabari, Jami‘ al-Bayan; Ibn al-Faras, 2:403-404; Ibn al-‘Arabi, 2:101; alMuzi‘i, 2:750-751; al-Tusi, al-Tibyan; Ibn Hubayra contends that there is a consensus among Abu Hanifa, Malik, al-Shafi‘i, and Ahmad b. Hanbal that repentant brigands are liable for murder and robbery; Ibn Hubayra, 2:313. 177 Al-Tabari, Jami‘ al-Bayan. 62 recognize such liability (Group A) as well as the counterarguments of those who deny it (Group B). The analysis shows that both scholarly camps use the text of 5:44 as a support of their arguments. In addition to the Qur’an, Group B provides three athar reports in which pre-arrest repentant brigands were absolved from liability by Muslim sahabi rulers. However, Group A responds by presenting Qur’anic verses and hadith reports revealing the liability of offenders in general for murder and robbery outside the context of brigandage. God’s statement “God is Ever-Forgiving” in Q. 5:34 is understood in two different ways by exegetes and jurists. Upon describing the fixed punishment for brigandage in Q. 5:33, God excludes pre-arrest repentant brigands from receiving the punishment and declares that He forgives them (Q. 5:34). Group A (the majority) perceives this declaration of forgiveness as a cancellation of the fixed punishment for brigandage, which constitutes a God’s right, rather than absolving repentant brigands from liability for murder and robbery, which represents an individual’s right.178 Al-Suyuti (d. 911/1505) remarks that God says that He is “Ever-Forgiving, Ever-Merciful” instead of saying “Do not inflict the fixed punishment on them” to imply that repentance to Him cancels His rights rather than individuals’ rights.179 In a similar vein, the Shafi‘i jurist Muhammad al-Muzi‘i (d. 825/1422) notes that repentant brigands are liable for individuals’ rights because these rights are not discussed in Q. 5:33. This verse explains the punishment for violating God’s rights and then 178 Al-Qurtubi, 7:446; al-‘Ulaymi, 2:289; Ibn al-‘Arabi, 2:102; al-Suyuti, al-Iklil, 2:632; al-Muzi‘i, 2:750751. 179 Al-Mahalli and al-Suyuti, Tafsir al-Jalalayn. 63 excludes repentant offenders from facing the penalty.180 Nevertheless, Group B construes God’s statement “God is Ever-Forgiving” as an implication for cancelling the punishment for brigandage as well as the liability for murder and robbery. Since the declaration of forgiveness in Q. 5:34 is general, it would encompass the cancellation of both God’s rights and individuals’ rights as the verse does not specify any of these two categories. This argument is deployed by the Maliki jurist Ibn al-Faras, and two Zaydi jurists: alHadi Yahya b. al-Husayn and Muhammad b. al-Qasim.181 Nonetheless, the Zaydi jurist Fakhr al-Din al-Najri (d. 877/1472) affirms that repentant brigands are liable owing to the general laws of retaliation and liability.182 The texts that shed light on these laws are presented by the Zaydi jurist Yusuf al-Thula’i (d. 832/1429).183 In the case of retaliation, God says: “O you who believe! Prescribed for you is retaliation concerning (the ones) killed…Yet whoever overlooks from his brother anything, then there should be a suitable follow-up and payment to him with good conduct” (Q. 2:178). This verse shows that it is the victim’s family who can decide the fate of the murderer. Concerning the financial liability, the Prophet says: “One is liable for what he took until he returns it [to the rightful owner].”184 This hadith report demonstrates that a person would be liable for any damages that might happen to the item 180 Al-Muzi‘i, 2:750-751; Ibn Juzayy, al-Tashil li-‘Ulum al-Tanzil, <http://www.altafsir.com/>. 181 Ibn al-Faras, 2:403-404; al-Najri, 1:244; Muhammad b. al-Qasim, 252-253; Ibn Juzayy, al-Tashil; Ibn Juzayy is a Maliki jurist and legal theorist, who lived in al-Andalus. His name is Muhammad b. Ahmad b. Muhammad b. ‘Abd Allah b. Juzayy, and his kunya is Abu al-Qasim. He died in 741/1340. 182 Al-Najri, 1:244. 183 Al-Thula’i, 3:109. 184 Literally, the hadith reads: “The hand is liable for what it took until it returns it.” 64 he takes from its owner—whether he takes it by means of borrowing or stealing. It also demonstrates that a thief has to return the stolen property to its rightful owner. Furthermore, Group B that denies liability on the part of pre-arrest repentant brigands cite three athar reports in which three brigands were granted full legal pardon due to their pre-arrest repentance.185 These historical precedents took place during the caliphate of ‘Uthman b. ‘Affan (d. 35/656), ‘Ali b. Abi Talib (d. 40/661) and Mu‘awiya b. Abi Sufyan (d. 60/679) respectively. During the caliphate of ‘Uthman, a person who committed brigandage came before arrest to Abu Musa al-Ash‘ari (d. 42/662), who was the governor of Kufa during that time, declaring repentance and asking for Abu Musa’s protection.186 Abu Musa announced the offender’s repentance and ordered people not to harm him.187 The announcement of Abu Musa apparently reveals that the pre-arrest repentant brigand was absolved from liability for the crimes he committed. In the second precedent, a brigand named Haritha b. Badr188 decided to cease committing crimes of brigandage and to declare his repentance before the authorities could arrest him.189 Haritha, who committed murder and robbery during brigandage, 185 The available sources do not include a hadith or an athar report that proves that a brigand declared his pre-arrest repentance during the lifetime of the Prophet. 186 Al-Khazin, Lubab al-Ta’wil fi Ma‘ani al-Tanzil, <http://www.altafsir.com/>; al-Suyuti, al-Durr alManthur fi al-Tafsir bi-al-Ma’thur, <http://www.altafsir.com/>; al-Khazin is a Shafi‘i jurist and exegete, who lived in Baghdad and Damascus. His name is ‘Ali b. Muhammad b. Ibrahim b. ‘Umar, his kunya is Abu al-Hasan, and his laqab is ‘Ala’ al-Din. He died in 725/1324. 187 Exegetes report this athar on the authority of al-Sha‘bi (d. ca. 100/718); al-Khazin, Lubab al-Ta’wil; alTabari, Jami‘ al-Bayan; al-Tha‘labi, al-Kashf. 188 There are variants for the name of this person in the books of exegesis, but they all refer to the same person. Muhammad b. al-Qasim says that the name of this person as mentioned in al-Zamakhshari’s Kashshaf is al-Harith b. Badr. Ibn al-Qasim says that this might be a misspelling (tahrif) on the part of scribes; Muhammad b. al-Qasim, 252. 65 asked Sa‘id b. Qays to seek a pledge of safety (aman) on his behalf from ‘Ali b. Abi Talib, who was the caliph during that time. When Sa‘id informed ‘Ali that Haritha repented before arrest, ‘Ali granted a pledge of safety to Haritha.190 This pledge means that the repentant brigand was absolved of liability for the blood he shed and the money he stole. Unexpectedly, the Imamis do not act upon this athar report—although they do cite it in their books—and follow the opinion of the majority of scholars (Group A) that asserts that pre-arrest repentant brigands are liable for the murder and robbery they commit during brigandage.191 The third athar report relates the repentance of ‘Ali al-Asady, who committed murder and robbery during brigandage. ‘Ali went to Abu Hurayra (d. 57/676) in Medina and declared his repentance before a congregation in the Prophet’s mosque. Abu Hurayra took ‘Ali al-Asadi to Marwan b. al-Hakam (d. 65/685), the governor of Medina during the caliphate of Mu‘awiya, and said to him: “This is ‘Ali; he came repentant and you should do him neither harm nor execution.” The narrator of this report said that the repentant brigand was absolved of liability.192 Notwithstanding their citation in the literature of all the eight schools, particularly the schools of Group A that hold pre-arrest repentant brigands liable for their crimes, these three athar reports that seemingly deny the liability of repentant brigands received 189 Al-Tabari, Jami‘ al-Bayan; al-Tusi, al-Tibyan. 190 Exegetes report this athar on the authority of al-Sha‘bi; Ibn ‘Atiyya, al-Muharrar; Ibn ‘Adil, al-Lubab; al-Tha‘labi, al-Kashf; al-Suyuti, al-Durr; al-Mawardi, al-Hawi, 2:816. 191 192 Al-Tusi, al-Tibyan; al-Suyuri, part 4, 46; al-Jaza’iri, 3:392. Al-Tabari cites this report with an isnad up to al-Layth b. Sa‘d and Musa b. Ishaq; al-Tabari, Jami‘ alBayan; al-Tusi, al-Tibyan. 66 little response on the part of Group A. The most important report in this set is the one in which ‘Ali b. Abi Talib granted full legal pardon to a repentant brigand, absolving him of liability. Even the Imamis who are expected not only to comment on but also to adhere to this report do not reconcile it with their stance that recognizes liability. A reconciliatory attempt is made by the Zaydi jurist Yusuf al-Thula’i, who argues that the pledge of safety that ‘Ali gave means that the fixed punishments for brigandage would not be inflicted on the repentant brigand. He supports his contention by citing an athar report in which ‘Ali said that a pre-arrest repentant brigand is liable for the property he stole and that the laws of retaliation would be inflicted upon him.193 The arguments of both Group A and Group B seem to have equal weight. Q. 5:34 and the athar reports can be construed as either denying or recognizing the liability of pre-arrest repentant brigands for the blood they shed and the money they stole. Excluding brigands from punishment in Q. 5:34 may suggest that they have no liability for their crimes. However, understanding Q. 5:34 in the context of other verses and hadith reports may lead to the belief that the liability is not cancelled despite the cancellation of the punishment for brigandage as the former is individuals’ rights while the latter is God’s right. The cancellation of liability can also be understood from the athar reports cited by Group B, yet there is a possibility that these reports demonstrate the cancellation of the fixed punishment for brigandage but not necessarily the liability on the part of repentant brigands. The citation of two seemingly contradictory athar reports on the authority of 193 Zayd b. ‘Ali narrates this athar with his isnad (a chain of narrators) up to ‘Ali b. Abi Talib. The book that contains this athar is entitled Sharh al-Ibana; al-Thula’i, 3:109. This athar is not mentioned in any of the literature of the eight schools except the Zaydis. 67 ‘Ali b. Abi Talib lends support to the argument of the Zaydi jurist Muhammad b. alQasim, namely that the issue of the liability of pre-arrest repentant brigands is open for ijtihad.194 2.5 Conditions for the validity of convicts’ repentance This section answers a crucial question as to whether repentance in the case of the fixed punishment for brigandage is subject to certain conditions that render it valid from a legal perspective. The analysis shows that the majority of jurists adheres to the apparent meaning of Q. 5:34 and rules that the only precondition for the validity of repentance in the case of brigandage is that it takes place before the brigand is captured—as God says “Except for those who repent before you gain control over them.” Failing to observe this condition means that repentance loses its legal force. Nevertheless, other scholars stipulate various conditions along with the main condition that stresses the time factor. Among these conditions are securing a pledge of safety from the ruler, fleeing to a nonMuslim land, ability to protect oneself from capture either independently or through a powerful group, and righteous conduct. This section analyzes these conditions and presents the arguments and counterarguments of both sides. Almost all jurists are unanimous that repentance would not have a mitigating impact upon the fixed punishment for brigandage unless the brigand repents before he is captured—as understood from Q. 5:34.195 The Maliki jurist Ibn al-Qasim (d. 191/806)196 194 In other words, a judge can choose the opinion that he deems proper in a given context; Muhammad b. al-Qasim, 253. 195 Ibn Hajar, 4:153; al-Jaza’iri, 3:392. 68 adds that the brigand has to go to the ruler and declare his repentance.197 In blatant contradiction of Ibn al-Qasim’s opinion, the Maliki jurist Ibn al-Majishun (d. ca. 213/828)198 observes that the brigand must not go to the ruler and that his repentance should take the form of stopping the acts of aggression and staying wherever he is until his repentance “becomes manifest to his neighbors.”199 Nevertheless, Ibn al-Faras argues that a brigand would not face the fixed punishment for brigandage in both cases whether or not he declares his repentance before the ruler as long as he repents before arrest.200 To support his argument, Ibn al-Faras asserts that God’s statement “Except for those who repent” in Q. 5:34 does not refer to a specific way of repentance.201 Al-Suddi insists that a brigand would receive the fixed punishment for brigandage unless he secures a pledge of safety from the ruler.202 He affirms that the ruler has to accept his repentance and grant him this pledge because the brigand would cause more corruption and commit more murders and robberies if his pre-arrest repentance is not legally accepted by the state.203 When the brigand is granted the pledge, al-Suddi 196 Ibn al-Qasim is a Maliki jurist, who lived in Egypt. His name is ‘Abd al-Rahman b. al-Qasim b. Khalid b. Junada, and his kunya is Abu ‘Abd Allah. 197 Ibn al-Faras, 2:401-403. 198 Ibn al-Majishun is a Maliki jurist, who lived in Medina. His name is ‘Abd al-Malik b. ‘Abd al-‘Aziz b. ‘Abd Allah al-Majishun, and his kunya is Abu Marwan. 199 Ibn al-Faras, 2:401-403. 200 Al-Dah al-Shinqiti, 74. 201 Ibn al-Faras, 2:401-403. 202 Al-Tabari, Jami‘ al-Bayan. 203 Al-Tabari, Jami‘ al-Bayan. 69 continues, he has to come to the ruler “until he puts his hand into his hand” [as a gesture of surrender and obedience]. ‘Urwa b. al-Zubayr (d. 94/713)204 has laid down the condition that a brigand has to flee to a non-Muslim land then come back repentant before arrest so that his repentance could be legally accepted.205 Although al-Tabari cites another report on the authority of ‘Urwa in which he says that a brigand would be punished for the crimes he committed even if he flees to a non-Muslim land, ‘Urwa is usually cited by exegetes and jurists as the proponent of the opinion that fleeing to a non-Muslim land then coming to a Muslim land after declaring repentance before arrest cancels the fixed punishment for brigandage. Al-Tabari stipulates that a brigand must have the ability to protect himself from capture either independently or through a powerful group (fi’a).206 In a similar vein, the condition of having a powerful group that protects one from capture is recognized by ‘Abd Allah b. ‘Umar (d. 73/693), Rabi‘a (d. 136/754),207 and al-Hakam b. ‘Utayba (d. ca. 115/733).208 Along the same line, al-Awza‘i (d. 157/774) and al-Layth b. Sa‘d stipulate three conditions, any of which is sufficient to signify that the brigand is outside the 204 ‘Urwa b. al-Zubayr b. al-‘Awwam is an independent jurist, who lived in Medina. His kunya is Abu ‘Abd Allah. 205 Al-Tabari, Jami‘ al-Bayan. 206 Al-Tabari, Jami‘ al-Bayan. 207 Rabi‘a b. Abi ‘Abd al-Rahman is an independent jurist, who lived in Medina. He is commonly known as “Rabi‘a al-Ra’y.” 208 Al-Hakam b. ‘Utayba al-Kandi is an independent jurist, who lived in Kufa. His kunya is Abu ‘Abd Allah; al-Mawardi, al-Hawi, 2:814-15; Abu Ishaq al-Shirazi, Tabaqat al-Fuqaha’, ed. Ihsan ‘Abbas (Beirut: Dar al-Ra’id al-‘Arabi, 1970) 82-83. 70 ruler’s control and thus renders the brigand’s pre-arrest repentance valid.209 First, the brigand must be able to protect himself from being captured by the ruler. Second, the brigand must have a powerful group that protects him from capture (fi‘a yamtani‘u biha). Third, the brigand has to leave the Muslim land to a non-Muslim land210 then come back repentant before arrest. If none of these three conditions is satisfied, the brigand’s prearrest repentance would be legally invalid and therefore it would not cancel the fixed punishment for brigandage. Al-Awza‘i said that if “a thief or a group of thieves” commit murder and highway robbery but they cannot protect themselves from being captured or “do not have a powerful group” that offers them protection, and “they do not feel safe unless they join the masses of their community,” if they repent before the ruler gains control over them, their repentance would not be accepted and they would receive the fixed punishment. As can be seen, Al-Awza‘i does not consider a person as a brigand if he is not powerful or has a powerful group that can protect him from being captured by the ruler. Furthermore, al-Awza‘i’s statement suggests that brigands are a distinct heterogeneous entity separate from the society. It gives one the sense that these extremely powerful gangs of brigands live in fortresses and citadels and have their own territories. In contrast, Ibn al-Faras and other jurists are of the opinion that a brigand’s prearrest repentance is legally accepted under all circumstances whether or not he has a powerful group that protects him from capture and whether or not the brigand flees to a 209 Al-Tabari, Jami‘ al-Bayan. 210 The term provided in the narration is dar al-harb. 71 non-Muslim land.211 Ibn al-Faras supports his argument through the general style of Q. 5:34 in which God excludes pre-arrest repentant brigands from receiving the fixed punishment for brigandage. God’s statement “Except for those who repent” in Q. 5:34 refers to repentant brigands in general; it does not refer to a specific group of brigands with certain qualifications. In his Ghara’ib al-Qur’an wa Ragha’ib al-Furqan, the Shafi‘i exegete Nizam alDin al-Naysaburi argues that a brigand’s repentance has to be accompanied by righteous conduct. To support his argument, al-Naysaburi cites two Qur’anic verses in which righteous conduct is mentioned after repentance. After mentioning the punishment for fornication,212 God says: “Yet, in case they (both) repent and act righteously, then leave them alone” (Q. 4:16). After mentioning the punishment for theft, God says: “If one repents after his injustice and acts righteously” (Q. 5:39). Al-Naysaburi observes that the implication of this condition would probably be that a seemingly repentant brigand would receive the punishment for brigandage “if something that contradicts repentance becomes apparent” (in zahar ma yukhalif al-tawba). The condition stipulated by al-Naysaburi would necessitate that the authorities monitor the behavior of the repentant brigand until they establish the sincerity of his repentance. Performing righteous acts would be an explicit marker that signifies a positive change in the brigand’s conduct. Nevertheless, the Shafi‘i jurists al-Mawardi and Muhammad al-Muzi‘i note that the verse that discusses the fixed punishment for brigandage (Q. 5:33-34) should not be 211 Ibn al-Faras, 2:401-403. 212 The majority of scholars believe that the punishment for fornication in Q. 4:16 is abrogated by Q. 24:2. 72 understood in the context of other verses that explain the fixed punishment for nonbrigandage crimes.213 Their argument is based on the principle that there is a difference between the crime of brigandage and other non-brigandage crimes, which can be seen in three factors. First, God does not mention righteous conduct after repentance in Q. 5:3334 and therefore repentance would be legally valid even if the repentant brigand does not perform righteous acts after his repentance.214 Nevertheless, God mentions righteous conduct in a non-brigandage context, such as theft (Q. 5:38-39). The second factor that distinguishes brigandage from other crimes is that the brigand commits his violation openly and is not under the ruler’s control. Therefore, his pre-arrest repentance would apparently be sincere and would not be driven by dissimulation (taqiyya). Nevertheless, a non-brigand commits his violation covertly and he is under the ruler’s control. Consequently, there might be suspicion (tuhma) that he declares his repentance for fear of punishment. This suspicion will be dispelled if his repentance is accompanied by righteous conduct. Muhammad al-Muzi‘i discerns the third factor that renders brigandage unique to other crimes. Accepting the pre-arrest repentance of a brigand, according to Muhammad al-Muzi‘i, would save the state from further aggression and bloodshed.215 This is not the case with non-brigandage crimes. The thief, for instance, can be easily caught and punished and the damage he does is not as serious as that of a brigand. However, the ruler 213 Al-Mawardi, al-Hawi 2:819-820; al-Muzi‘i, 2:751. 214 Ibn Hajar cites this reason; Ibn Hajar 4:153. 215 The Arabic term used by al-Muzi‘i is fitna, which would mean in this context “further violations against people’s life and property”; al-Muzi‘i, 2:751. 73 must employ massive armed efforts in order to capture the brigand as the damage he causes is extremely enormous.216 To recapitulate, jurists have laid down certain conditions and made them mandatory for the validity of a brigand’s repentance. Without the fulfillment of these conditions, repentance would lose its legal force and thus the repentant brigand would face the fixed punishment for brigandage. Scholars are unanimous in stipulating that a brigand must declare his repentance before arrest, but they differ on recognizing other conditions—such as going to the ruler, securing a pledge of safety from the ruler, fleeing to a non-Muslim land, the ability to protect oneself from capture either independently or through a powerful group, and righteous conduct. The majority’s opinion of recognizing the first condition while disregarding other stipulations seems to be valid as Q. 5:34 does not discuss any condition other than pre-arrest repentance. 2.6 Repentance and other crimes This section examines the possibility of extending the laws of pre-arrest repentance in the case of the fixed punishment for brigandage to the fixed punishments for theft, fornication, and consumption of intoxicants given that all of these penalties are examples of God’s right. Almost all the exegetical works under review discuss this possibility in their interpretation of Q. 5:33-34. The analysis shows that the majority of jurists (Group A) confines the scope of the mitigating impact of repentance to the fixed punishment for brigandage, whereas some jurists (Group B) extend the legal force of 216 Ibn al-‘Arabi says that the ruler needs an army in order to capture the brigands, who usually live in protected places in the desert; Ibn al-‘Arabi, 2:102. 74 repentance in the case of brigandage to the cases of theft, fornication, and consumption of intoxicants. Group A is represented by the Hanafis, Malikis, Shafi‘is (in one opinion), Zahiris, Zaydis, and Ibadis, whereas Group B is represented by the Shafi‘is (in one opinion), Hanbalis, and Imamis.217 Table 2.9: Mitigating Impact of Repentance upon the Fixed Punishments for Theft, Fornication and Consumption of Intoxicants Pre-arrest Repentance Cancels the Fixed Punishments for Theft, Fornication and Consumption of Intoxicants Hanafis No Malikis No Shafi‘is 217 Yes No Hanbalis Yes Zahiris No Zaydis No Imamis Yes Ibadis No Al-Mawardi, al-Hawi, 2:817-824; Ibn Hajar, 4:153; Ibn Hazm, al-Muhalla, 12:22; al-Thula’i, 3:109110; al-Suyuri, part 4, 43-44. 75 Figure 2.3: Mitigating Impact of Repentance upon the Fixed Punishments for Theft, Fornication and Consumption of Intoxicants 31% Punishments Cancelled Punishments Not Cancelled 69% Group B draws an analogy between the offences of brigandage, theft, fornication, and consumption of intoxicants, whereas Group A deems this analogy invalid. In order to support their stance, jurists from Group B advance three main arguments. First, there is similarity between brigandage, theft, and fornication since God excludes repentant offenders in these cases from receiving the fixed punishment.218 In the case of brigandage, God says: “Except for those who repent before you gain control over them” (Q. 5:34). After mentioning the punishment for theft, God says: “If one repents after his injustice and acts righteously, surely God will accept his repentance” (Q. 5:39). Moreover, the right hand is cut off for stealing property in the cases of brigandage and theft. Similarly, repentance terminates the punishment for fornication as God says: “Yet, in case they [both] repent and act righteously, then leave them alone” (Q. 4:16). Likewise, the Prophet told the sahaba that they should have stopped inflicting the 218 Al-Mawardi, al-Hawi, 2:817-819. 76 punishment for fornication on a convict who retracted his confession.219 Group B generalizes the mitigating impact of repentance upon any fixed punishment considered to be God’s right.220 Pursuing an a fortiori argument, Group B maintains that all fixed punishments that are construed as God’s right should be cancelled by reason of pre-arrest repentance because the fixed penalty for brigandage is cancelled owing to pre-arrest repentance.221 Since the fixed penalty for brigandage is the severest punishment in the category of God’s right, other punishments that are less severe should also be cancelled. Moreover, the crime of brigandage is the most serious offence in that category; therefore, other less serious crimes should be cancelled.222 The third argument that Group B cites is that God does not punish repentant offenders since they are no longer sinners.223 The Prophet says, “The one who repents of a sin is like a sinless person.”224 Furthermore, the Prophet did not enforce a fixed punishment upon a person who confessed of a crime that deserves a fixed punishment. After praying with the Prophet, the man renewed his request that the punishment be inflicted on him, but the Prophet told the man that God has forgiven his sin.225 219 Al-Razi, al-Tafsir al-Kabir. 220 Peters, 27-28; Jaffal, 193-194. 221 Al-Mawardi, al-Hawi, 2:817-819; Ibn al-Qayyim, 3:308. 222 Ibn al-Qayyim, 3:308. 223 Al-Mawardi, al-Hawi, 2:817-819; Ibn al-Qayyim, 3:308-310. 224 This hadith is narrated by Ibn Maja and al-Tabarani; <http://dorar.net/enc/hadith>. 225 This hadith is narrated by al-Bukhari in his Sahih; Ibn al-Qayyim, 3:310; <http://dorar.net/enc/hadith>. 77 Nevertheless, Group A states that drawing an analogy between the case of brigandage and other cases in the category of God’s right is invalid owing to the unique particularities surrounding the case of brigandage. The most important feature that distinguishes a brigand from other offenders is that he is outside the ruler’s control and that the state needs to amass significant troops in order to capture a gang of brigands. This very fact leads jurists to appreciate the sincerity of the pre-arrest repentance by a brigand and to doubt the authenticity of the pre-arrest repentance by a non-brigand. Group A observes that God does not mention righteous conduct after repentance in Q. 5:34 but mentions it in Q. 5:39 and Q. 4:16 to signify that a brigand would be sincere in his repentance. Moreover, stipulating that repentance has to take place before capture is declared by Q. 5:34 rather than Q. 5:39 and Q. 4:16, which attests to the uniqueness of brigandage. Furthermore, a thief’s hand is cut off because he steals property in a covert and clandestine way, whereas a brigand’s hand is cut off because he steals property openly. Therefore, the fixed punishments for brigandage and theft are legislated for two different reasons.226 Group A generalizes their contention and postulates that repentance does not cancel any fixed punishment perceived as God’s right, save brigandage.227 However, this scholarly group cites the fixed punishments for apostasy and abandoning prayer as exceptions to this general rule.228 These exceptions prove that the mitigating impact of repentance upon fixed punishments represents a case of casuistry. Concerning the textual 226 Al-Mawardi, al-Hawi, 2:817-819; Ibn Hajar, 4:153. 227 Ibn al-Faras, 2:423-424. 228 Ibn Hajar, 4:153; al-Thula’i, 3:109-110. 78 evidence cited by Group B, it should be noted that repentance may cancel the punishment in the Hereafter, but this does not necessarily mean that it would cancel the fixed punishment in this world. God may forgive the offender’s sin and save him from punishment in the Hereafter, but He may hold him responsible for his crime in this world. The ethical and legal implications of repentance are separate and should not be conflated. In addition, it was the convict’s retraction of his confession to fornication rather than his repentance that prompted the Prophet to declare that the sahaba should have stopped stoning him. Were the crime established through witnesses, the Prophet would not have advised that the punishment be terminated. Furthermore, the Prophet ordered that the punishment for fornication be inflicted upon the woman who confessed of her crime. This woman is perceived by jurists as repentant because she came voluntarily to the Prophet, confessed of her offence, and requested that the fixed penalty for fornication be inflicted upon her. Despite her repentance, she received the punishment.229 As for the man who came voluntarily to the Prophet and requested that he receives a fixed punishment, the Prophet did not inflict a fixed punishment upon him because he did not specify which crime he committed. Were his offence clearly stated, he would have received the fixed penalty. The arguments of Group A seem to outweigh those of Group B. 229 Ibn al-Qayyim, 3:311. 79 2.7 Conclusion Brigandage is basically defined as committing murder and robbery openly and is punished by execution, cutting off the right hand and left foot, putting onto a cross after execution, or exile. If a brigand repents prior to arrest, he would not receive any of the four punishments, but he would be liable for the blood he shed and the property he stole during brigandage in case the victim or his family demands justice. In other words, a prearrest repentant brigand would be subject to the laws of retaliation that grant the family of a murdered person three options: to kill the murderer, to obtain blood money from him, or to pardon him. Moreover, a pre-arrest repentant brigand has to return the stolen property to its rightful owner upon the victim’s request. Across the eight schools, jurists and exegetes are virtually unanimous that prearrest repentance totally cancels the fixed punishment for brigandage. Nevertheless, scholars express various opinions concerning the liability of pre-arrest repentant brigands for their crimes during brigandage. Although Q. 5:34 makes it clear that pre-arrest repentance cancels the fixed punishment for brigandage, jurists differ as to whether it also indicates the cancellation of liability. The athar reports cited by those who deny the liability are undermined by virtue of another report in which a sahabi is said to have recognized the liability of pre-arrest repentant brigands. This is why the issue of liability can be open to ijtihad and assigned different rulings by different judges. In order to be valid and have a mitigating impact, repentance in the case of the fixed punishment for brigandage has to take place before arrest, or else the brigand would receive the punishment. The only exception to this rule is the termination of exile by 80 reason of post-arrest repentance given that this punishment is mainly perceived by jurists as a non-fixed disciplinary punishment. Jurists and exegetes are unanimous in stipulating that a brigand must declare his repentance before arrest, but they differ on recognizing other conditions—such as going to the ruler and securing a pledge of safety from him, fleeing to a non-Muslim land, the ability to protect oneself from capture either independently or through a powerful group, and righteous conduct. Owing to the peculiarities surrounding the fixed punishment for brigandage, the majority of jurists asserts that the laws of pre-arrest repentance cannot be extended by analogy to other fixed punishments that are construed as God’s right—such as the fixed penalties for theft, fornication, and consumption of intoxicants. Unlike other offenders, brigands are beyond the ruler’s control and this is why their pre-arrest repentance is potentially sincere. Nonetheless, some jurists perceive similarities between brigandage and other cases and apply the laws of pre-arrest repentance to all fixed punishments that are construed as God’s right. In most of these cases, God excludes the repentant offender from receiving the fixed punishment. These two opposing scholarly attitudes prove that the mitigating impact of repentance upon fixed punishments constitutes a case of casuistry. The analysis of the mitigating impact of repentance upon the fixed punishment for brigandage reveals the centrality of the Qur’an and hadith in the legal discourse across the eight schools as well as among jurists and exegetes who do not belong to a certain legal school. The verse cluster that discusses the fixed punishment for brigandage and the exemption from punishment in the case of pre-arrest repentance (Q. 5:33-34) is used as 81 evidence by all jurists and exegetes in their discourse on the mitigating impact of repentance upon the fixed punishment for brigandage, the liability of repentant brigands, and the conditions for the validity of brigands’ repentance. The linguistic analysis of this verse cluster in terms of its syntax and lexis is a significant tool that all jurists have deployed in deducing the pertinent legal rulings. Additional five Qur’anic verses and five hadith reports are cited by scholars in their debate, especially concerning the application of repentance laws in the case of brigandage to the fixed punishments for theft, fornication, and consumption of intoxicants. These additional texts prove that jurists work within a complex network of evidence in order to draw legal conclusions. This intricate network of evidence is also composed of athar reports on the authority of sahaba and tabi‘un. In their assessment of the legal significance of repentance in the case of the fixed punishment for brigandage, jurists and exegetes have provided numerous athar reports on the authority of tabi‘un. Of more importance in the legal discourse are the athar reports on the authority of sahaba. Scholars have presented five athar reports on the authority of four sahaba: ‘Umar b. al-Khattab, ‘Ali b. Abi Talib, Abu Musa al-Ash‘ari, and Abu Hurayra. The first athar demonstrates the mitigating impact of post-arrest repentance upon terminating the punishment of exile, whereas the rest of the reports address the issue of liability on the part of pre-arrest repentant brigands. The binding nature of athar reports on the authority of sahaba has always been a subject of scholarly debate in the field of Islamic legal theory.230 230 See Sha‘ban Isma‘il, Usul al-Fiqh al-Muyassar, vol. 1 (Beirut: Dar Ibn Hazm, 2008) 584-597. 82 Another integral part of the elaborate network of evidence is analogy. Jurists have used analogical reasoning several times in their debate on the mitigating impact of repentance upon the fixed punishment for brigandage as well as in their examination of the possibility of enforcing the laws of pre-arrest repentance upon all fixed punishments, save qadhf. For instance, drawing an analogy between the cases of brigandage and theft has led some jurists to enforce the punishment of hand-cutting despite brigands’ prearrest repentance as these scholars do not recognize the mitigating impact of repentance upon the fixed punishment for theft. Ironically, this very analogy has prompted other scholars to rule that pre-arrest repentance cancels all fixed punishments that are construed as God’s right. Besides, the a fortiori arguments remarkably appeared in the juristic discourse on the mitigating impact of repentance in the case of brigandage. For example, some jurists argue that the right hand of repentant brigands would not be cut off because the whole fixed punishment for brigandage is cancelled because of repentance. The analysis of the mitigating impact of repentance upon the fixed punishment for brigandage shows that almost all jurists across the eight schools have utilized the complex network of evidence and have advanced similar arguments, virtually following the same line of reasoning. In the case of a scholarly debate, each scholarly camp that typically consists of several schools shares the same evidence and arguments notwithstanding school affiliation and theological orientation. This shared legal tradition unanimously appreciates the legal significance of repentance in terms of its mitigating impact upon the fixed punishment for brigandage. The overwhelming majority of jurists postulates that repentant brigands have to return the stolen property and have to be 83 subject to the laws of retaliation although they are exempted from receiving the four punishments that comprise the fixed punishment for brigandage. Moreover, these jurists stress that repentance has to take place before arrest, or else brigands would receive the punishment. The formulation of two opposing paradigms that govern the mitigating impact of repentance proves that the legal significance of repentance constitutes a case of casuistry. The highly sophisticated legal discourse on the mitigating impact of repentance upon the fixed punishment for brigandage demonstrates that jurists exercise the highest degree of caution before they assign legal significance to the ethical concept of repentance. Guided by a complex network of evidence and an elaborated discipline of legal theory, jurists debate whether repentance could acquire legal force and cancel the fixed punishment for brigandage. They also debate whether repentance could cancel each and every component of this fixed penalty. After discussing the liability of repentant brigands to the state, jurists debate whether repentant brigands would be liable to the victims and their families. Furthermore, their careful attention to the sincerity of repentance on the part of brigands leads them to discuss the required conditions for the validity of repentance. 84 CHAPTER 3: REPENTANCE AND THEFT This chapter assesses the legal significance of repentance in terms of its mitigating impact upon the fixed punishment for theft under Islamic law. It attempts to answer three main questions. First, is the fixed punishment for theft cancelled by reason of repentance? Second, would a repentant thief be liable for the property he stole? Third, is a thief’s repentance subject to certain conditions that render it valid from a legal perspective? The analysis reveals that the majority of jurists maintains that repentance does not cancel the fixed punishment for theft. However, some jurists opine that a repentant thief would not have his right hand cut off, but he has to return the stolen property to its rightful owner (see Table 3.1 below). These scholars stipulate that a thief’s repentance becomes valid only when it takes place before arrest or before the crime is established before the judge. 85 Table 3.1: Mitigating Impact of Repentance upon the Fixed Penalties for Theft Cutting off the Right Hand Cancelled by Repentance Liability Cancelled by Repentance Hanafis No - Malikis No - Shafi‘is No Yes No Hanbalis Yes No Zahiris No - Zaydis No - Imamis Yes No Ibadis No - Figure 3.1: Mitigating Impact of Repentance upon the Fixed Penalties for Theft 8 Ibadis 7 Imamis 6 Zaydis Zahiris 5 Hanbalis 4 Shafi'is 3 Malikis 2 Hanafis 1 0 Cutting the Right Hand Cancelled Financial Liability Cancelled 86 3.1 Definition of theft Under Islamic law, theft refers to stealing somebody’s property in a way that is surreptitious and non-violent without the use of arms.231 If theft is perpetrated openly or violently with the use of arms, it becomes an act of brigandage.232 If the element of oppression is present, the crime becomes usurpation (ghasb) as the victim is made to give up his property in a way that indicates that he seemingly does so voluntarily.233 Jurists have laid down various conditions in their definitions of theft, chief among which are the amount of stolen property and where the stolen item is originally kept.234 Extensive citation of these definitions is beyond the scope of this research. 3.2 Fixed punishment for theft In Q. 5:38, God says: “[As for] the male thief and the female thief: cut off the hands of both.” The majority of jurists understands from this verse that the fixed punishment for theft is cutting off the right hand.235 These jurists also believe that the liability for stolen property is an integral part of the penalty. Nonetheless, Abu Hanifa opines that hand-cutting is the only punishment for theft and that a thief would not be 231 In Mu‘jam Lughat al-Fuqaha’, theft (sariqa) is defined as taking somebody’s property in a clandestine way; Qal‘aji et al., 217. 232 Al-Rawandi, 2:388. 233 Qal‘aji et al., 300-301; each of the similar crimes of usurpation, theft, and brigandage has different legal consequences. 234 235 Peters, 56. The Imamis contend that only the fingers of the right hand—excluding the thumb—should be cut. There are other opinions whose discussion is beyond the scope of this research; al-Suyuri, part 4, 42. 87 liable for the stolen property if his hand is cut off.236 Overall, jurists construe handcutting as a right of God, but they perceive the liability for stolen property as an individual’s right.237 A large number of scholars postulate that a thief whose hand was cut off is punished by imprisonment if he repeats his crime and that his repentance terminates the punishment of imprisonment. For instance, ‘Ata’ (d. ca. 114/732)238 applies this punishment in the second instance of theft, whereas Abu Hanifa, Ahmad b. Hanbal, and Abu al-Hawari (d. ca. 3rd/9th century) enforce it in the third instance.239 Imprisonment is imposed when a thief commits his crime for the fifth time—as stated by Abu Bakr alSiddiq (in one narration), Qatada (d. 118/736),240 Malik and al-Shafi‘i.241 All these scholars clearly state that a thief is released upon his repentance. The fact that a thief’s repentance terminates his imprisonment proves that repentance has a mitigating impact upon the procedure of the fixed punishment for theft. This pattern of imprisonment terminated by repentance is almost identical in the two cases of theft and brigandage.242 236 The contention of Abu Hanifa and the Hanafis casts doubt on Ibn al-Mundhir’s claim that there is a scholarly consensus that a thief has to return the stolen property to the rightful owner even if his hand is cut off; Lucas, 357. 237 Al-Mawardi, al-Hawi, 1:430. 238 ‘Ata’ is an independent jurist, who lived in Mecca. His name is ‘Ata’ b. Abi Rabah b. Safwan, and his kunya is Abu Muhammad. 239 Al-Dah al-Shinqiti attributes this opinion to the Hanafis and Hanbalis; al-Dah al-Shinqiti, 72-73; alBaghawi, Ma‘alim al-Tanzil; Ibn ‘Atiyya, al-Muharrar; al-‘Ulaymi, 2:293; Abu al-Hawari, 171. 240 Qatada is an independent jurist and exegete, who lived in Basra. His name is Qatada b. Di‘ama b. ‘Aziz, and his kunya is Abu al-Khattab. 241 Al-Baghawi, Ma‘alim al-Tanzil; al-Jassas, Ahkam al-Qur’an, 4:71; al-‘Ulaymi, 2:293. 242 See the discussion about exile under section 2.2. 88 3.3 Mitigating impact of repentance This section attempts to answer a crucial question as to whether repentance cancels the fixed punishment for theft. Moreover, it analyzes the reasons and evidence cited by jurists and exegetes that justify the mitigating impact of repentance upon the fixed punishment for theft. It also provides the counterarguments by other scholars who believe that repentance does not cancel the fixed punishment for theft. The analysis shows that the majority of jurists states that the fixed punishment for theft is not cancelled by reason of repentance. It also demonstrates that the opposing scholarly camp draws an analogy between the fixed punishment for theft and that for brigandage. Before discussing the mitigating impact of repentance upon the fixed punishment for theft, it should be noted that repentance in this context refers to feelings of remorse rather than returning the stolen item to its rightful owner. The majority of jurists postulates that a thief’s hand would be cut off even if he returns the stolen property to the rightful owner because fulfillment of individuals’ rights does not cancel God’s rights.243 Moreover, taking an item out of its guarded custody (hirz) is the reason why a thief’s hand is cut off. Therefore, returning the stolen item to its guarded custody would not cancel the punishment of hand-cutting.244 Nevertheless, Abu Hanifa, Sufyan al-Thawri (d. ca. 161/777),245 and the Hanafis contend that returning the stolen item cancels the 243 Al-Baghawi, Ma‘alim al-Tanzil. 244 Al-Mawardi, al-Hawi, 1:538-539; Ibn ‘Atiyya, al-Muharrar. 245 Sufyan al-Thawri is an independent jurist, who lived in Kufa. His name is Sufyan b. Sa‘id b. Masruq b. Habib, and his kunya is Abu ‘Abd Allah. 89 punishment of hand-cutting.246 Given that Abu Hanifa asserts that repentance does not cancel the punishment for theft, it would follow that he perceives repentance in the context of theft as feelings of remorse rather than returning the stolen property to the rightful owner. The majority of exegetes and jurists is of the opinion that repentance does not cancel the fixed punishment for theft.247 Nonetheless, some jurists appreciate the legal significance of repentance in the case of theft and argue that the right hand of a repentant thief would not be cut off. As far as the eight schools are concerned, the second opinion is primarily espoused by the Hanbalis and the Imamis, whereas the first opinion is mainly adopted by the Hanafis, Malikis, Zahiris, Zaydis, and Ibadis. Within the literature of the Shafi‘is, both opinions are advocated. The opinions of the eight schools are illustrated in Table 3.2 and Figure 3.2 below. 246 247 Al-Shirbini, 1:433; al-Mawardi, al-Hawi, 1:538-539. Al-Baghawi, Ma‘alim al-Tanzil; al-Khazin, Lubab al-Ta’wil; Abu Hayyan, al-Bahr; al-Naysaburi, Ghara’ib al-Qur’an; al-Tha‘alibi, al-Jawahir; Ibn ‘Adil, al-Lubab; al-Razi, al-Tafsir al-Kabir; al-Baydawi, Anwar al-Tanzil wa Asrar al-Ta’wil, <http://www.altafsir.com/>; Ibn ‘Ashur, al-Tahrir; al-Shirbini, 1:433; al-Muzi‘i, 2:759; al-Baydawi is a Shafi‘i jurist, exegete and judge, who lived in Shiraz and Tabriz. His name is ‘Abd Allah b. ‘Umar b. Muhammad b. ‘Ali al-Baydawi. He died in 685/1286. 90 Table 3.2: Mitigating Impact of Repentance upon Hand-cutting in the Fixed Punishment for Theft Cutting off the Right Hand Cancelled by Repentance Hanafis No Malikis No Shafi‘is Yes No Hanbalis Yes Zahiris No Zaydis No Imamis Yes Ibadis No Figure 3.2: Mitigating Impact of Repentance upon Hand-cutting in the Fixed Punishment for Theft 31% Hand-cutting Cancelled Hand-cutting Not Cancelled 69% 91 At the individual level, scholars who support the first opinion (Group A) as well as those who adopt the second opinion (Group B) are mentioned in Table 3.3 below and arranged in chronological order. Table 3.3: Mitigating Impact of Repentance upon Hand-cutting in the Fixed Punishment for Theft Group A (Hand-Cutting is not Cancelled by repentance) Scholar Death Date Abu Hanifa Malik Al-Shafi‘i Al-Jassas Abu Ishaq al-Tha‘labi Makki b. Abi Talib Ibn Hazm Ibn al-‘Arabi Ibn ‘Atiyya Ibn al-Faras Al-Qurtubi Fakhr al-Din al-Najri Al-Biqa‘i Al-Suyuti Abu al-Su‘ud Isma‘il Haqqi Al-Shawkani Al-Alusi Atfiyyash Ibn ‘Ashur 150/767 179/796 204/820 370/980 427/1035 437/1045 456/1064 543/1148 546/1151 597/1200 671/1272 877/1472 885/1480 911/1505 982/1574 1127/1715 1250/1834 1270/1854 1332/1913 1393/1972 Group B (Hand-Cutting is Cancelled by repentance) Scholar Death Date Al-Sha‘bi ‘Ata’ Al-Shafi‘i Ahmad b. Hanbal Al-Samarqandi Al-Tusi Sa‘id al-Rawandi Al-Haddadi Ibn Mutawwaj al-Bahrani Muhammad al-Muzi‘i Al-Kashani Ahmad al-Jaza’iri Al-Janabidhi ca. 100/718 ca. 114/732 204/820 241/855 375/985 460/1067 573/1177 ca. 800/1398 820/1417 825/1422 1090/1679 1150 /1737 14th/19th cent. The scholarly opinions over the mitigating impact of repentance upon the fixed punishment for theft are mentioned here again at the levels of both schools and individual jurists in order to demonstrate the sources that cite these scholars. The first opinion that does not recognize the mitigating impact of repentance is espoused by Abu Hanifa,248 248 Al-Zamakhshari, al-Kashshaf; al-A‘qam, Tafsir al-A‘qam, <http://www.altafsir.com/>; Atfiyyash, Hamayan al-Zad; al-‘Ulaymi, 2:293-295; al-Suyuri, part 4, 43; al-Thula’i, 3:121; al-Jaza’iri, 3:383-84; al- 92 Malik,249 al-Shafi‘i (in one opinion),250 Ibn Hazm;251 al-Jassas,252 Abu al-Su‘ud,253 Isma‘il Haqqi,254 al-Alusi;255 Makki b. Abi Talib,256 Ibn al-‘Arabi,257 Ibn ‘Atiyya,258 Ibn al-Faras,259 al-Qurtubi,260 Ibn ‘Ashur;261 al-Biqa‘i,262 Abu Ishaq al-Tha‘labi,263 alSuyuti;264 al-Shawkani;265 the Hanafis;266 Fakhr al-Din al-Najri;267 and Atfiyyash.268 A‘qam is a Zaydi jurist and exegete, who lived in Yemen. His name is Ahmad b. ‘Ali b. Muhammad b. ‘Ali al-A‘qam. He died in the 9th/15th century; ‘Abd al-Salam al-Wajih, A‘lam al-Mu’allifin al-Zaydiyya, <http://www.dawacenter.net/index.php?sub=detail_books&RecordID=39>. 249 Ibn Juzayy, al-Tashil; Ibn ‘Ajiba, al-Bahr al-Madid fi Tafsir al-Qur’an al-Majid, <http://www.altafsir.com/>; al-‘Ulaymi, 2:293-295; Ibn ‘Ajiba is a Maliki exegete, who lived in Morocco. His name is Ahmad b. Muhammad b. al-Mahdi b. ‘Ajiba, and his kunya is Abu al-‘Abbas. He died in 1224/1809. 250 Ibn ‘Ajiba, al-Bahr; al-‘Ulaymi, 2:293-295; al-Muzi‘i, 2:759; al-Suyuri, part 4, 43; al-Jaza’iri, 3:383-84. 251 Ibn Hazm, al-Muhalla, 12:22. 252 Al-Jassas, al-Fusul, 1:270-71. 253 Abu al-Su‘ud, Irshad al-‘Aql. 254 Isma‘il Haqqi, Ruh al-Bayan. 255 Al-Alusi, Ruh al-Ma‘ani. 256 Makki b. Abi Talib is a Maliki exegete, linguist and jurist, who lived in al-Qayrawan (Tunisia), Egypt, Mecca and al-Andalus. His name is Hammush b. Muhammad b. Mukhtar. He died in 437/1045; Makki b. Abi Talib, al-Hidaya ila Bulugh al-Nihaya, <http://www.altafsir.com/>. 257 Ibn al-‘Arabi, 2:115. 258 Ibn ‘Atiyya, al-Muharrar. 259 Al-Suyuti, al-Iklil, 2:634. 260 Al-Qurtubi, 7:472-473. 261 Ibn ‘Ashur, al-Tahrir. 262 Al-Biqa‘i, Nazm al-Durar. 263 Al-Tha‘labi, al-Kashf. 264 Al-Mahalli and al-Suyuti, Tafsir al-Jalalayn; al-Suyuti, al-Iklil, 2:634. 265 Al-Shawkani, Fath al-Qadir. 93 The second opinion that recognizes the mitigating impact of repentance is adopted by al-Sha‘bi,269 ‘Ata’,270 al-Shafi‘i (in one opinion),271 Ahmad b. Hanbal;272 alSamarqandi,273 al-Haddadi;274 Muhammad al-Muzi‘i,275 the Shafi‘is (in one opinion of the school);276 al-Tusi,277 Sa‘id al-Rawandi,278 Ibn Mutawwaj al-Bahrani,279 alKashani,280 Ahmad al-Jaza’iri,281 al-Janabidhi,282 and the Imamis.283 To recapitulate, 266 Al-Zamakhshari, al-Kashshaf. 267 Al-Najri, 1:248. 268 Atfiyyash, Hamayan al-Zad. 269 Al-Sha‘bi is an independent jurist, who lived in Kufa. His name is ‘Amir b. Sharahil b. ‘Abd b. Dhi Kibar, and his kunya is Abu ‘Amr. He died in ca. 100/718; al-Tha‘labi, al-Kashf. 270 Abu Hayyan, al-Bahr; al-Tha‘labi, al-Kashf; Ibn ‘Ashur, al-Tahrir; al-Qurtubi, 7:472-473. 271 Abu Hayyan, al-Bahr; al-Tha‘alibi, al-Jawahir; Abu al-Su‘ud, Irshad al-‘Aql; Ibn Juzayy, al-Tashil; alZamakhshari, al-Kashshaf; Ibn ‘Ajiba, al-Bahr; al-A‘qam, Tafsir al-A‘qam; Atfiyyash, Hamayan al-Zad; Ibn ‘Ashur, al-Tahrir; al-Alusi, Ruh al-Ma‘ani; al-Qurtubi, 7:472-473; al-Najri, 1:247; Ibn al-‘Arabi, 2:115; al-Thula’i, 3:121. 272 Al-‘Ulaymi, 2:293-295. 273 Al-Samarqandi is a Hanafi jurist and exegete, who lived in Samarqand (now a city in Uzbekistan). His name is Nasr b. Muhammad b. Ibrahim al-Samarqandi, and his kunya is Abu al-Layth. He died in ca. 375/985; al-Samarqandi, Bahr al-‘Ulum, <http://www.altafsir.com/>. 274 Isma‘il Haqqi, Ruh al-Bayan. 275 Al-Muzi‘i, 2:759. 276 Al-Qurtubi, 7:472-473; Ibn al-‘Arabi, 2:115. 277 Al-Tusi, al-Tibyan. 278 Al-Rawandi, 2:385. 279 Al-Bahrani, 375. 280 Al-Kashani is an Imami jurist and exegete, who lived in Qom, Kashan and Shiraz. His name is Muhammad Muhsin b. Murtada b. Mahmud, and he is commonly known as “al-Fayd al-Kashani.” He died in 1090/1679; al-Kashani, al-Safi fi Tafsir Kalam Allah al-Wafi, <http://www.altafsir.com/>. 281 Al-Jaza’iri, 3:383-384. 94 Group B that supports the second opinion is mainly represented by the Shafi‘is (in one opinion within the school), Hanbalis and Imamis, whereas Group A that advocates the first opinion is primarily represented by the Hanafis, Malikis, Shafi‘is (in one opinion within the school), Zahiris, Zaydis, and Ibadis. 3.3.1 Evidence This section analyzes the reasons and evidence cited by jurists and exegetes concerning the mitigating impact of repentance upon the fixed punishment for theft. It presents the arguments of scholars who recognize this impact (Group B) as well as the counterarguments of those who deny it (Group A). The analysis shows that both scholarly camps use the text of Q. 5:39 as a support of their arguments. In addition to the Qur’an, Group B draws an analogy between the cases of brigandage and theft and provides an athar report in which a thief was exempted from punishment upon his confession. However, Group A responds by presenting three hadith reports revealing the necessity to enforce the fixed punishment for theft once the crime is established before the authorities. Group B understands God’s declaration of forgiveness in Q. 5:39 as a cancellation of the fixed punishment for theft.284 Upon describing the fixed punishment for theft in Q. 5:38, God says: “If one repents after his injustice and acts righteously, surely God will 282 Al-Janabidhi is an Imami exegete, who lived in Khorasan and Najaf. His name is Muhammad b. Haydar b. Muhammad al-Janabidhi. He died in the 14th/19th century; al-Janabidhi, Bayan al-Sa‘ada fi Maqamat al‘Ibada, <http://www.altafsir.com/>. 283 Ahmad al-Jaza’iri affirms that there is a consensus of opinion among Imami jurists over this point; alJaza’iri, 3:383-84; al-Suyuri, part 4, 43. 284 Al-Razi, al-Tafsir al-Kabir; al-Najri, 1:247-248; al-Bahrani, 376; this argument is advanced by the majority of jurists when they discuss the liability of pre-arrest repentant brigands; see section 2.4.1. 95 accept his repentance. Surely God is Ever-Forgiving, Ever-Merciful” (Q. 5:39). Moreover, Group B postulates that Q. 5:39 should be understood in the context of Q. 5:34 which excludes pre-arrest repentant brigands from facing the fixed punishment for brigandage. This understanding has led al-Shafi‘i (in one opinion), for instance, to rule that pre-arrest repentance cancels the fixed punishment for theft in analogy to the prearrest repentance that cancels the fixed punishment for brigandage.285 Similarly, al-Sha‘bi and ‘Ata’ declare that if a thief returns the stolen property before arrest, he would not receive the fixed punishment for theft because God says, “Except for those who repent before you gain control over them.”286 Citing the verse that discusses brigandage while answering a question on theft clearly reveals the centrality of Q. 5:34 in the legal discourse of Group B concerning the mitigating impact of repentance upon the fixed punishment for theft. In addition to the Qur’an, the Imamis cite an athar report in which ‘Ali b. Abi Talib exempted a thief who confessed of his crime from receiving the fixed punishment for theft.287 In this report, ‘Ali asked the thief whether he had memorized any part of the Qur’an, and the man said that he had memorized the second chapter (surat al-Baqara). ‘Ali then said: “I give [up cutting] your hand for [memorizing] the chapter of al-Baqara (wahabt yadak li-surat al-Baqara).” Al-Ash‘ath (d. ca. 40/660)288 was present and he asked ‘Ali whether he refuses to enforce a punishment fixed by God. However, ‘Ali 285 Ibn ‘Atiyya, al-Muharrar; Ibn al-Faras, 2:423; al-Najri, 1:247-248. 286 Al-Tha‘labi, al-Kashf; al-A‘qam, Tafsir al-A‘qam. 287 Al-Bahrani, 375; al-Suyuri, part 4, 43; al-Jaza’iri, 3:384-85. 288 Al-Ash‘ath is a sahabi. His name is al-Ash‘ath b. Qays b. Ma‘d Yakrub al-Kandi. 96 explained to him that a ruler cannot pardon a thief if his crime is established through evidence (bayyina), but in case theft is established through confession (iqrar), the ruler would have the choice to either pardon or punish the thief. 289 This report has led the Imamis (in one opinion in the school) to conclude that repentance cancels the fixed punishment for theft before the evidence is established against the thief.290 Nevertheless, Group A does not perceive Q. 5:39 as a cancellation of the fixed punishment for theft mainly because it lacks the syntactic structure of an exceptive clause as opposed to Q. 5:34.291 For instance, al-Jassas and al-Shawkani believe that the conditional sentence in Q. 5:39 means that God accepts the repentance of thieves, but it does not imply the cancellation of the punishment of hand-cutting.292 Al-Jassas observes that the structure of a conditional sentence is not as conclusive as the structure of an exceptive clause in signifying contrastive implication. Moreover, he states that the independence of the conditional structure does not make it mandatory to understand Q. 5:39 in the context of the preceding verse. This structure is independent because it can produce a proper meaning if it stands alone by itself.293 By contrast, the structure of an exceptive clause in Q. 5:34 needs to be incorporated within the context of the preceding 289 ‘Ali said: “If evidence is established, the imam (ruler) is not entitled to pardon [the thief]. If the man [the thief] confesses, it would be up to the ruler to either pardon [the thief] or cut [the thief’s hand].” The term “evidence” refers to witnesses; al-Jaza’iri, 3:384-85. 290 Al-Bahrani, 375; al-Suyuri, part 4, 43; al-Jaza’iri, 3:384-85; al-Tusi, al-Tibyan; al-Rawandi, 1:368. 291 Al-Jassas, Ahkam al-Qur’an, 4:59-60; al-Harrasi, 2:69-70; Ibn al-Faras, 2:423; al-Shawkani, Fath alQadir; Atfiyyash, Hamayan al-Zad. 292 Al-Jassas, Ahkam al-Qur’an, 4:60; al-Shawkani, Fath al-Qadir. 293 Al-Harrasi, 2:69-70. 97 verse as it cannot stand alone by itself.294 This is why the structure of an exceptive clause in Q. 5:34 exempts repentant brigands from facing the punishment, whereas the structure of a conditional sentence does not necessarily exempt repentant thieves from having their hands cut off. Furthermore, Group A asserts the invalidity of drawing an analogy between the cases of theft and brigandage owing to the peculiarities surrounding each case. For example, Ibn al-‘Arabi notes that a thief is under the ruler’s control, whereas a brigand is beyond the ruler’s control.295 He adds that the ruler exerts massive armed efforts in order to capture the offender in the case of brigandage rather than theft. Similarly, Ibn ‘Ashur opines that the mitigating impact of repentance in the case of brigandage cannot be extended to the case of theft because the two respective verses address two different issues.296 Owing to this difference, Q. 5:39 should not be understood in the context of Q. 5:34. Along the same line, the Maliki jurist Ibn al-Faras postulates that Q. 5:34 demonstrates that repentance cancels the fixed punishments for crimes that are committed in an open way, such as brigandage, rather than offences that are perpetrated in a covert and clandestine way, such as theft.297 In addition to their linguistic and legal analyses that highlights the difference between the two cases of theft and brigandage represented by Q. 5:38-39 and Q. 5:33-34, jurists and exegetes from Group A cite three hadith reports that demonstrate that a 294 Al-Jassas, Ahkam al-Qur’an, 4:60. 295 Ibn al-‘Arabi, 2:115. 296 Ibn ‘Ashur, al-Tahrir. 297 Ibn al-Faras, 423-424. 98 convict would receive the fixed punishment if his case is reported to the authorities. In the first report, a thief was brought to the Prophet. Although the thief confessed to his crime, the Prophet said to him: “I don’t think you committed theft.” However, the man stated that he did perpetrate theft. Thereupon, the Prophet ordered that the thief’s hand be cut off.298 In the second report, a Makhzumi woman had her hand cut off because she committed theft.299 Commenting on this hadith, Ibn ‘Ashur remarks that the woman received the punishment despite her repentance.300 In the third hadith, the Prophet advised people not to expose themselves if they committed a crime that deserves a fixed punishment. The Prophet said that he would enforce the punishment if an offender reports his case to him.301 The Prophet made this statement in the context of the fixed punishment for fornication. The Ibadi jurist Atfiyyash suggests that this hadith eliminates the role of repentance as a mitigating factor in the case of theft.302 Similar to this hadith is the athar report on the authority of ‘Amr b. Shu‘ayb (d. 118/736) in which he describes a case of theft that was established before the 298 This hadith is mentioned in Sunan Abi Dawud and Sunan al-Nasa’i; al-Khazin, Lubab al-Ta’wil; Hud al-Hawwari, Tafsir Kitab Allah al-‘Aziz, <http://www.altafsir.com/>; <http://dorar.net/enc/hadith>; Hud alHawwari is an Ibadi exegete, who lived in Algeria. His name is Hud b. Muhakkam al-Hawwari, and his famous work is Tafsir Kitab Allah al-‘Aziz; Muhammad Baba‘ammi et al., 2:443 299 This hadith is mentioned in Sahih Muslim, Sunan Abi Dawud and Sunan al-Nasa’i; <http://dorar.net/enc/hadith>. 300 Ibn ‘Ashur, al-Tahrir. 301 This hadith is mentioned in Sunan al-Bayhaqi and Ibn ‘Abd al-Barr’s al-Istidhkar; <http://dorar.net/enc/hadith>. In this hadith, Zayd b. Aslam (d. 136/753) is quoting the Prophet. Therefore, this hadith is mursal (i.e. the link between a tabi‘i and the Prophet is missing). 302 Atfiyyash, Hamayan al-Zad. 99 Prophet through witnesses.303 When the plaintiff asked the Prophet to exempt the thief from punishment, the Prophet told him that the ruler cannot refrain from enforcing the punishment if the crime was established before him. He also informed the plaintiff that he could have relinquished his right before bringing the defendant to him.304 Each of Group A and Group B cites Q. 5:39 to prove or refute the role of repentance as a mitigating factor in the case of the fixed punishment for theft. Group B construes the conditional sentence in Q. 5:39 as stating an exception for repentant thieves from facing the punishment. However, Group A refutes this argument by comparing this verse to Q. 5:34 and stressing that Q. 5:39 does not exclude repentant thieves from punishment because it lacks the syntactic structure of an exceptive clause that Q. 5:34 has. Moreover, Group B uses analogy and extends the mitigating impact of repentance upon the fixed punishment for brigandage to the case of theft. Nevertheless, Group A asserts that it is invalid to draw such an analogy owing to the peculiarities of each case. Furthermore, the Imami scholars from Group B cite an athar report in which ‘Ali b. Ali Talib exempted a thief from receiving the punishment of hand-cutting. Nevertheless, Group A provides three hadith reports which reveal that the fixed punishment should be enforced once the crime is established. Two of these reports show that the fixed punishment for theft was inflicted upon the offender when the crime was 303 304 According to al-Suyuti, this hadith is mentioned in ‘Abd al-Razzaq’s Musannaf; al-Suyuti, al-Durr. This remark is highlighted in a similar hadith in which the Prophet said: “You should exempt one another from the fixed punishments, since whatever crime deserving a fixed penalty comes to my attention, [its penalty] must be executed.” This hadith is mentioned in Sunan Abi Dawud and Sunan al-Nasa’i; <http://dorar.net/enc/hadith>. The rendition of this hadith is provided by Scott Lucas in his “Abu Bakr ibn al-Mundhir, Amputation, and the Art of Ijtihad,” 355. Few minor changes have been introduced in order to maintain consistency throughout the research. 100 established through confession in the first case and through evidence in the second. Moreover, Group A provides an athar report in which the Prophet was reported to have declared that the ruler cannot refrain from enforcing the fixed punishment once the crime is established. The arguments of Group A seem to be stronger than those of Group B due to the hadith reports they cite and to their refutation of the possibility of drawing an analogy between the cases of theft and brigandage. Although I have not found the athar report that the Imamis cite in the available sources of the seven schools, I have encountered a juristic opinion by a Hanbali jurist that espouses the same idea presented in the athar report. Explaining his paradigm that governs the mitigating impact of repentance upon fixed punishments, Ibn al-Qayyim concludes that the ruler would have the option to either pardon or punish a repentant convict when the crime is established through confession.305 Ibn al-Qayyim’s contention is almost identical with what the Imamis believe concerning the mitigating impact of repentance upon the fixed punishment for theft. The Imamis (in one trend in the school) affirm that the ruler can pardon or punish a repentant convict of theft if the crime is established through confession. They add that the ruler would not have this option if the crime was established through evidence. 305 Ibn al-Qayyim, 3:311-312; the evidence advanced by Ibn al-Qayyim is discussed under 2.6. 101 3.4 Liability of repentant convicts All jurists and exegetes from Group B that recognize the mitigating impact of repentance upon the fixed punishment of hand-cutting in the fixed punishment for theft hold repentant thieves liable for the property they steal. For instance, al-Shafi‘i declares that a thief is liable for what he steals whether or not his hand is cut off and whether or not the stolen item exists.306 Similarly, the Imami jurist Miqdad al-Suyuri says: “As for the right of the owner, it is never cancelled by reason of repentance.”307 Likewise, the Imami jurist al-Tusi maintains that a repentant thief would be requested to return the stolen item.308 Along the same line, the Imami jurist Sa‘id al-Rawandi stresses that a repentant thief has to return the stolen property to its rightful owner.309 3.5 Conditions for the validity of convicts’ repentance This section answers a crucial question as to whether repentance in the case of the fixed punishment for theft is subject to certain conditions that render it valid from a legal perspective. The analysis shows that almost all jurists from Group B that recognizes the mitigating impact of repentance upon the fixed punishment for theft stipulate that repentance has to take place before arrest—with reference to Q. 5:34. The Imamis phrase their stipulation in a slightly different way and maintain that repentance has to occur 306 Al-Mawardi, al-Hawi, 2:707. 307 Al-Suyuri, part 4, 43. 308 Al-Tusi, al-Tibyan. 309 Al-Rawandi, 2:385. 102 before theft is established before the court. Some Shafi‘i and Imami jurists add that prearrest repentance has to be accompanied by righteous conduct. Jurists from Group B that espouse the cancellation of hand-cutting by reason of repentance specify a time frame during which repentance in the case of the fixed punishment for theft can be legally valid. For example, al-Shafi‘i (in one opinion) and the Imami jurist al-Kashani postulate that repentance in the case of the fixed punishment for theft has to take place before arrest, or else the thief’s hand would be cut off.310 Shifting the focus of the time frame, Ahmad b. Hanbal and the Imamis (in one opinion) require that repentance should occur before the crime of theft is established before the judge, either through confession or evidence.311 Furthermore, the Imamis (in another opinion) state that repentance has to take place before the evidence is established against the thief.312 Emphasizing the reason why the Imamis stipulate this condition, Ahmad alJaza’iri argues that a thief’s repentance might not be genuine if he declares it after the evidence is established against him.313 Acting upon the apparent meaning of Q. 5:39, some Shafi‘i and Imami jurists contend that righteous conduct is a condition for the validity of repentance. For instance, the Shafi‘i jurist al-Mawardi opines that repentance would not be accepted until it becomes manifest through performing righteous acts during a period of time in which it is 310 Al-Mawardi, al-Hawi, 2:818-19; al-Kashani, al-Safi; Abu Hayyan, al-Bahr. 311 Al-‘Ulaymi, 2:293-95; al-Jaza’iri, 3:383-84. 312 If theft is established through confession, the judge would have the option to either pardon or punish the offender; al-Suyuri, part 4, 43; al-Bahrani, 375; al-Rawandi, 2:385. 313 Al-Jaza’iri, 3:383-84. 103 possible to establish the sincerity of a thief’s righteousness.314 The Imami jurist Ahmad al-Jaza’ri cites an opinion in the Imami school which states that this period should be around five months.315 If a thief does something good during this period, he would not receive the fixed punishment for theft. Fixing a period of time to test a thief’s righteousness clearly demonstrates the juristic concern for establishing the sincerity of a thief’s repentance. 3.6 Conclusion Unlike brigandage, theft lacks the elements of violence and terror. Nevertheless, some jurists draw an analogy between the two crimes concerning the mitigating impact of repentance. The Shafi‘is (in one opinion), Hanbalis, and Imamis contend that a repentant thief would not have his right hand cut off, but he would have to return the stolen property to the rightful owner. The Shafi‘is qualify this exemption by stipulating that repentance has to take place before arrest, whereas the Hanbalis and the Imamis (in one opinion) state that repentance has to occur before theft is established before the judge— whether the crime is established through confession or evidence. Moreover, the Imamis (in another opinion) postulate that repentance should take place before the evidence is established against the thief. They add that the ruler would have the option to either pardon or punish the repentant thief if theft is established through confession. 314 Al-Mawardi, al-Hawi, 1:819; al-Muzi‘i, 1:579. 315 Al-Jaza’iri, 3:383-84. 104 Nonetheless, the Hanafis, Malikis, Shafi‘is (in one opinion), Zahiris, Zaydis, and Ibadis declare that a thief would have his right hand cut off even if he repents. The analysis of the mitigating impact of repentance upon the fixed punishment for theft reveals the centrality of the Qur’an in the legal discourse across the eight schools as well as among jurists and exegetes who do not belong to a certain legal school. The two opposing scholarly camps cite Q. 5:39 as a support of their argument. Moreover, jurists who espouse the cancellation of the punishment cite Q. 5:34 and draw an analogy between the two cases of theft and brigandage. However, it is not clear why these jurists do not adhere to the several hadith reports that the majority of scholars provides to demonstrate that repentance does not cancel the fixed punishment for theft. These reports show that the fixed punishment for theft was enforced once the crime was established before the Prophet—regardless of whether the crime was established through confession or evidence. The majority of scholars believes that the convicts in these reports were repentant because they wanted to be purified from their sin through receiving the punishment. Furthermore, these scholars stress that in one incident a thief came to the Prophet and confessed of his crime. Confession, according to these jurists, serves as a marker for repentance. Jurists who believe in the mitigating impact of repentance upon the fixed punishment for theft may construe these hadith reports as evidence for enforcing the punishment upon the establishment of crime. They may not perceive any relationship between repentance and these reports as these historical precedents do not mention that a thief declared his repentance then was arrested after the crime was established before the 105 judge. The influence of Q. 5:34 upon the discourse of these scholars may support my hypothesis. 106 CHAPTER 4: REPENTANCE AND ACCUSATION OF FORNICATION (QADHF) This chapter assesses the legal significance of repentance in terms of its mitigating impact upon the fixed punishment for the accusation of fornication (qadhf) under Islamic law. It attempts to answer two main questions. First, is the fixed punishment for qadhf cancelled by reason of repentance? Second, is repentance in this case subject to certain conditions that render it valid from a legal perspective? The discussion in this chapter is based on the assumption that the plaintiff does not confess to committing fornication and the defendant is unable to support his accusation with four witnesses. The analysis reveals that the majority of jurists maintains that repentance does not cancel the punishment of flogging, but cancels the rejection of testimony and the label of being “immoral.” Moreover, most of these jurists stipulate that repentance becomes valid only when the convict declares that he was lying in his accusation. 107 Table 4.1: Mitigating Impact of Repentance upon the Fixed Penalties for Qadhf Flogging Eighty Times Cancelled Eternal Rejection of Testimony Cancelled Labeling as Immoral Cancelled Hanafis No No Yes Malikis No Yes Yes Shafi‘is No Yes Yes Hanbalis No Yes Yes Zahiris No Yes Yes Zaydis No Yes Yes Imamis No Yes Yes Ibadis No Yes Yes Figure 4.1: Mitigating Impact of Repentance upon the Fixed Penalties for Qadhf 8 7 Ibadis 6 Imamis Zaydis 5 Zahiris 4 Hanbalis 3 Shafi's 2 Malikis Hanafis 1 0 Flogging Eighty Times Cancelled Eternal Rejection of Testimony Cancelled Labeling as Immoral Cancelled 108 4.1 Definition of qadhf Lexically, qadhf means “to hurl, to allege, or to insult.”316 Under Islamic law, qadhf refers to an allegation in the form of an insult against somebody’s chastity in order to bring shame on the insulted person (‘ala sabil al-ta‘yir).317 More specifically, it refers to accusing a person of committing fornication (zina).318 Some jurists extend the definition of qadhf to cover accusations of any sexual activity outside the context of a valid marriage—such as homosexuality, lesbianism, bestiality, anal intercourse between a man and a woman, and prostitution. Moreover, the offence of qadhf refers to denying a person’s paternity and to accusing a person’s parent of committing fornication,319 as stated by several jurists.320 Qadhf is not necessarily a false accusation because it can be true and can be supported with evidence. Only when the defendant is unable to produce four witnesses to prove his claim can his accusation be considered as false.321 316 Arabic Language Academy, al-Mu‘jam al-Wasit, 4th ed. (Cairo: Maktabat al-Shuruq al-Dawliyya, 2004) 721; al-Fayruzabadi, Basa’ir Dhawi al-Tamyiz fi Lata’if al-Kitab al-‘Aziz, ed. Muhammad al-Najjar, vol. 4 (Beirut: al-Maktaba al-‘Ilmiyya) 250. 317 Ibn Hazm, al-Muhalla, 12:261; this chapter does not discuss the legal consequences for accusing one’s wife of adultery. This topic is separately addressed by jurists and exegetes under the category of li‘an (reciprocal cursing). See Q. 24:6-9. 318 Qal‘aji et al., 327; Basically, Abu Hanifa defines fornication as unlawful vaginal intercourse between a man and a woman who is not his wife. However, the majority of jurists contend that fornication refers to unlawful intercourse—vaginal or anal—between a man and a woman who is not his wife, and to anal intercourse between two men. 319 Under Islamic law, a valid marriage establishes paternity. Therefore, if a child is born out of wedlock, he would not be considered as the son of the biological father. Insulting a person by telling him that his father commits fornication might imply that the insulted person was born out of wedlock and thus is not a son of his father. Insulting a person by telling him that his mother commits fornication could imply that the insulted person was born as a consequence of adultery and thus he would not be a son of his father whose name he bears. This is why accusing a person’s parent of committing fornication could make a case for qadhf—from the perspective of jurists who consider denying a person’s sonhood to his father as qadhf. 320 Ibn Hazm, al-Muhalla, 12:220-223. 109 4.2 Fixed punishment for qadhf When the victim of qadhf brings the case to the court’s attention, the defendant would receive the fixed punishment for qadhf if he is unable to prove his accusation through four upright witnesses. If the defendant substantiates his accusation with such evidence,322 he would not receive the fixed punishment for qadhf. This stipulation of four witnesses is stated very clearly in Q. 24:4 in which God says: “[As for] those who hurl [insults at]323 chaste women, then they do not come up with four witnesses, flog them eighty times and do not accept any testimony of theirs ever, and those are the ones who are immoral (fasiqs).” This chapter is based on the assumption that the defendant is unable to support his accusation with four witnesses and that the victim of qadhf brings the case to the court and demands the enforcement of the fixed punishment for qadhf. The fixed punishment for qadhf, as stated in Q. 24:4, consists of three components: flogging the convict eighty times; rejecting his testimony forever; and describing him as a fasiq (immoral person). To be a fasiq signifies that a person commits 321 In Q. 24:13, God says: “If they had come up with four witnesses against it—yet as they did not come up with the witnesses, then those, in the Reckoning of God, are the liars.” The translation of this verse is mainly the rendition of Ghali, <http://Quran.com/>. 322 These four witnesses have to clearly state that at one incident each and every one of them did see the plaintiff’s penis into the vagina of a woman and that this woman is not the plaintiff’s wife. Since this very detailed description is highly unlikely to be advanced by four men at the same time, the defendant is highly likely to receive the fixed punishment for qadhf. Ibn ‘Atiyya remarks that God stipulates the condition of four witnesses in order not to expose His slaves and to have mercy on them; Ibn ‘Atiyya, al-Muharrar. 323 “Those who hurl” is the English equivalent for the Arabic phrase “al-ladhin yarmun” in the Qur’anic text of Q. 24:4. A large number of exegetes in the available sources interpret “al-ladhin yarmun” as “those who insult” (al-ladhin yasubbun). For example, see al-Qurtubi, 122. To retain the euphemistic figurative Qur’anic style of “al-ladhin yarmun,” the English word “hurl” is used as an equivalent. To give a hint of what type of hurling is meant by the verse, the phrase “insults at” is put in parenthesis after the word “hurl.” These insults implicitly refer to the accusation of fornication. 110 major sins, persists in committing minor sins, or has an immoral character.324 In general, the legal significance of the label “fasiq” is that a person who fits this description cannot have his testimony accepted before the court owing to the lack of moral integrity; moreover, such a person is denied access to key positions in the state and he cannot serve as a legal guardian (wali). Furthermore, most jurists do not recognize a fasiq’s validation of the marriage contract of his daughter.325 In other words, an immoral person is not given authority over people, whether through his testimony, guardianship, or being in power. By and large, most jurists consider the fixed punishment for qadhf as an individual’s right, which would imply that the fixed punishment would be cancelled if the victim grants a legal pardon to the offender.326 However, Abu Hanifa perceives the fixed punishment for qadhf as God’s right, which would imply that the fixed punishment would be enforced even if the victim legally pardons the offender.327 Moreover, Malik (in one opinion) regards the fixed punishment for qadhf as a right for God and people and contends that it could not be cancelled if the victim pardons the offender after the case is 324 Qal‘aji et al., 307. 325 The majority of jurists perceive the guardian’s consent as a condition for the validity of the marriage contract of his daughter. If a guardian does not approve of the marriage, the contract would be null and void from its inception. A woman, as stated by the majority of jurists, has to seek her guardian’s approval of marriage, regardless of her age and regardless whether she consummated a previous marriage. 326 Al-Muzi‘i, 2:984-85; Ibn al-Jawzi, Zad al-Masir. 327 Al-Jassas, Ahkam al-Qur’an, 5:114. 111 reported to the ruler.328 Throughout this research, the offence of qadhf is considered as an individual’s right. 4.3 Mitigating impact of repentance This section attempts to answer a crucial question as to whether repentance cancels the three penalties comprising the fixed punishment for qadhf. Moreover, it analyzes the reasons and evidence cited by jurists and exegetes that justify or deny the mitigating impact of repentance upon the three components of the fixed punishment for the accusation of fornication. The analysis shows that almost all jurists state that repentance does not cancel the punishment of flogging, but it cancels the punishment of labeling the convict of qadhf as immoral. Moreover, the majority of scholars believes that repentance cancels the punishment of eternal rejection of testimony. The linguistic rule governing the anaphoric reference of an exceptive clause when preceded by a sequence of coordinated sentences is a main reason why jurists express opposing views on accepting the testimony of a repentant convict of qadhf. Upon describing the fixed punishment for qadhf in Q. 24:4, God states an exception for those who repent of their crime in Q. 24:5: “Except for those who repent after that and act righteously. Surely God is Ever-Forgiving, Ever-Merciful.” The apparent meaning of the verse suggests that repentant convicts would neither be flogged, have their testimony rejected, nor be described as immoral. Nevertheless, there is virtual unanimity of opinion among jurists and exegetes that a repentant convict of qadhf would 328 Ibn al-Faras, 3:340. 112 be flogged despite his repentance.329 This unanimity is achieved across the eight schools as well as independent jurists who are not affiliated with a certain legal school. Nonetheless, al-Sha‘bi, al-Janabidhi, and a few Shafi‘i jurists contend that a repentant convict of qadhf would not be flogged.330 These contentions—though weakened by the overwhelming majority of jurists—could constitute a minor trend in Islamic law that suggests that all fixed punishments are cancelled by reason of repentance. Figure 4.2: Repentance Paradigms in Islamic Criminal Law 8 7 Ibadis 6 Imamis 5 Zaydis 4 Zahiris 3 Hanbalis Shafi's 2 Malikis 1 Hanafis 0 Repentance Cancels all Repentance Cancels No Repentance Cancels all Fixed Punishments, save Fixed Punishment, save Fixed Punishments, even Qadhf Brigandage Qadhf 329 Al-Jassas, Ahkam al-Qur’an, 5:115; Ibn al-Faras, 3:342-343; al-Muzi‘i, 2:983; al-Tabarani, al-Tafsir alKabir; al-Suyuti, al-Iklil, 3:1008; Ibn Hazm, al-Muhalla, 12:22; al-Thula’i, 4:384-385; al-Rawandi, 2:389, 1:428; al-Suyuri, part 4, 38; Atfiyyash, Hamayan al-Zad. 330 Al-Qurtubi, 15:133-134; al-Baghawi, Ma‘alim al-Tanzil; al-Shirbini, 2:665; al-Janabidhi, Bayan alSa‘ada; al-Mawardi, al-Hawi, 2:823-824; al-Mawardi did not mention the names of the Shafi‘i jurists who espouse the cancellation of flogging because of repentance. 113 Figure 4.3: Repentance Paradigms in Islamic Criminal Law 4% 29% First Paradigm: Repentance Cancels all Fixed Punishments, save Qadhf Second Paradigm: Repentance Cancels No Fixed Punishment, save Brigandage Third Paradigm: Repentance Cancels all Fixed Punishments, even Qadhf 67% The position of the fixed punishment for qadhf in the dichotomous theory of rights leads almost all jurists and exegetes to deny the mitigating impact of repentance upon flogging. Scholars argue that flogging in the fixed punishment for qadhf is an individual’s right and therefore it cannot be cancelled by reason of repentance in the same way retaliation is not cancelled by the convict’s repentance.331 Furthermore, Ibn Hazm suggests that the lexis of the exceptive clause in Q. 24:5 precludes the possibility that flogging would be cancelled because of the convict’s repentance. He argues that if absolute repentance cancels flogging, the exceptive clause would hypothetically read “except for those who repent” instead of “except for those who repent after that.”332 Ibn Hazm asserts that the prepositional phrase “after that” means “after the convict is flogged eighty times, after his testimony is rejected, and after he is labeled as immoral.” 331 Al-Biqa‘i, Nazm al-Durar; al-Baghawi, Ma‘alim al-Tanzil; al-Khazin, Lubab al-Ta’wil; al-Tabari, Jami‘ al-Bayan; al-Muzi‘i, 2:983; al-Alusi, Ruh al-Ma‘ani; al-Najri, 2:428; Muhammad b. al-Qasim, 403; alThula’i, 4:384-385; al-Tusi, al-Tibyan. 332 Ibn Hazm, al-Muhalla, 12:22. 114 Therefore, repentance has a mitigating impact in the case of qadhf after—not before—the enforcement of flogging. Jurists unanimously agree that a repentant convict of qadhf would no longer be described as immoral and that he would become an upright (‘adl) person.333 Nevertheless, scholars express two main opinions concerning the cancellation of the eternal rejection of the convict’s testimony by reason of repentance, which are in fact just the opposite of one another. First, repentance renders the testimony of the convict of qadhf valid. Second, repentance does not render the testimony of the convict of qadhf valid. As far as the eight schools are concerned, the second opinion is primarily espoused by the Hanafis, whereas the first opinion is mainly adopted by the Malikis, Shafi‘is, Hanbalis, Zahiris, Zaydis, Imamis, and Ibadis. The opinions of the eight schools are illustrated in Table 4.2 and Figure 4.4 below. 333 Al-Suyuti, al-Iklil, 3:1008; al-Muzi‘i, 2:983; al-Qurtubi, 15:133; Ibn Juzayy, al-Tashil; Ibn Hazm, alMuhalla, 12: 22; al-Thula’i, 4:384-385; Muhammad b. al-Qasim, 403. 115 Table 4.2: Mitigating Impact of Repentance upon Rejection of Future Testimony in Qadhf Eternal Rejection of Convict’s Testimony Cancelled Hanafis No Malikis Yes Shafi‘is Yes Hanbalis Yes Zahiris Yes Zaydis Yes Imamis Yes Ibadis Yes Figure 4.4: Mitigating Impact of Repentance upon Rejection of Future Testimony in Qadhf 13% Rejection of Testimony Cancelled Rejection of Testimony Not Cancelled 87% 116 At the individual level, scholars who support the first opinion (Group A) as well as those who adopt the second opinion (Group B) are mentioned in Table 4.3 and arranged in chronological order. Given that some authorities are reported to have declared both opinions, the names of these scholars are highlighted. Table 4.3: Mitigating Impact of Repentance upon Rejection of Future Testimony in Qadhf Group A (Rejection of Testimony is Cancelled by Repentance) Scholar Death Date ‘Umar b. al-Khattab ‘Ali b. Abi Talib Masruq Ibn ‘Abbas Ibn ‘Umar ‘Abd Allah b. ‘Utba Shurayh Sa‘id b. al-Musayyib Sa‘id b. Jubayr Al-Sha‘bi ‘Umar b. ‘Abd al-‘Aziz Al-Dahhak Mujahid Al-Qasim b. Muhammad ‘Ikrima Salim Tawus Sulayman b. Yasar Mu‘awiya b. Qarra Muhammad al-Baqir ‘Ata’ Muharib Al-Zuhri Abu al-Zinad Ibn Abi Najih ‘Uthman al-Batti Ja‘far al-Sadiq Al-Layth b. Sa‘d Malik Al-Shafi‘i Abu ‘Ubayda Abu ‘Ubayd Ishaq b. Rahawayh 23/644 40/661 ca. 62/681 68/687 73/692 74/693 78/697 93/711 94/712 100/718 101/719 ca. 102/720 ca. 104/722 ca. 105/723 105/723 106/724 106/724 ca. 107/725 113/731 114/732 ca. 114/732 116/734 124/741 130/747 131/748 143/760 148/765 175/791 179/796 204/820 209/824 224/838 238/853 Group B (Rejection of Testimony is not Cancelled by Repentance) Scholar Death Date Ibn ‘Abbas Shurayh Sa‘id b. al-Musayyib Sa‘id b. Jubayr Ibrahim al-Nakha‘i Al-Sha‘bi Mujahid ‘Ikrima Muhammad b. Sirin Al-Hasan al-Basri Makhul Qatada Zayd b. ‘Ali Abu Hanifa Ibn Jurayj ‘Abd al-Rahman b. Zayd b. Jabir Zufar Sufyan al-Thawri Al-Hasan b. Salih Abu Yusuf Al-Farra’ Al-Samarqandi Abu Hayyan Ibn ‘Ajiba 68/687 78/697 93/711 94/712 96/715 100/718 ca. 104/722 105/723 110/728 110/728 ca. 112/730 118/736 122/739 150/767 ca. 150/767 ? 158/774 ca. 161/777 ca. 167/783 182/798 207/822 375/985 745/1344 1224/1809 117 Ahmad b. Hanbal Abu Thawr Abu al-Hawari Al-Tabari Al-Zajjaj Al-Qassab Ilkiya al-Harrasi Abu Talib Makki b. Abi Talib Ibn Hazm Al-Tusi Sa‘id al-Rawandi al-Mansur bi-Allah Al-Qurtubi Ibn Mutawwaj al-Bahrani Miqdad al-Suyuri Fakhr al-Din al-Najri Al-Khatib Al-Shirbini Al-Shawkani Atfiyyash Al-Tabataba’i 241/855 246/860 ca. 3rd/9th cent. 310/923 ca. 311/923 ca. 360/970 405/1014 424/1032 437/1045 456/1064 460/1067 573/1177 614/1217 671/1272 820/1417 826/1422 877/1472 977/1569 1250/1834 1332/1913 1402/1982 The scholarly opinions over the mitigating impact of repentance upon the eternal rejection of convict’s testimony in the fixed punishment for qadhf are mentioned here again on the levels of both schools and individual jurists in order to demonstrate the sources that cite these scholars. The first opinion that recognizes this mitigating impact is advocated by ‘Umar b. al-Khattab,334 ‘Ali b. Abi Talib,335 Masruq,336 Ibn ‘Abbas (in one opinion),337 Ibn ‘Umar,338 ‘Abd Allah b. ‘Utba,339 Shurayh (in one opinion),340 Sa‘id b. 334 Al-Baghawi, Ma‘alim al-Tanzil; al-Khazin, Lubab al-Ta’wil; Ibn ‘Adil, al-Lubab; al-Suyuti, al-Durr; Makki b. Abi Talib, al-Hidaya; al-Tabari, Jami‘ al-Bayan; Ibn al-‘Arabi, 3:345; al-Tabarsi, Majma‘ alBayan; al-Tusi, al-Tibyan. 335 Atfiyyash, Hamayan al-Zad. 336 Masruq is an independent jurist, who lived in Kufa. His name is Masruq b. al-Ajda‘ b. Malik b. Umayya b. ‘Abd Allah. He died in ca. 62/681; al-Suyuti, al-Durr; al-Tha‘labi, al-Kashf; Ibn ‘Ajiba, al-Bahr; alTabari, Jami‘ al-Bayan; al-Tabarsi, Majma‘ al-Bayan; al-Tusi, al-Tibyan. 337 Al-Baghawi, Ma‘alim al-Tanzil; al-Khazin, Lubab al-Ta’wil; Ibn ‘Adil, al-Lubab; al-Suyuti, al-Durr; Makki b. Abi Talib, al-Hidaya; al-Tabari, Jami‘ al-Bayan; al-Shirbini, 2:665; al-Muzi‘i, 2:984; al-Tabarsi, Majma‘ al-Bayan; Hud al-Hawwari, Tafsir Kitab Allah; Atfiyyash, Hamayan al-Zad. 118 al-Musayyib (in one opinion),341 Sa‘id b. Jubayr (in one opinion),342 al-Sha‘bi (in one opinion),343 ‘Umar b. ‘Abd al-‘Aziz,344 al-Dahhak,345 Mujahid (in one opinion),346 alQasim b. Muhammad,347 ‘Ikrima (in one opinion),348 Salim,349 Tawus,350 Sulayman b. 338 Al-Shirbini, 2:665. 339 ‘Abd Allah b. ‘Utba is an independent jurist, who lived in Kufa. His name is ‘Abd Allah b. ‘Utba b. Mas‘ud b. Ghafil b. Habib, and his kunya is Abu ‘Abd al-Rahman. He died in 74/693; Ibn Sa‘d, al-Tabaqat al-Kubra, 5:58-59, <http://shiaonlinelibrary.com/>; al-Shirazi, 60; al-Tha‘labi, al-Kashf; Makki b. Abi Talib, al-Hidaya; al-Tabari, Jami‘ al-Bayan. 340 Shurayh is an independent jurist, who lived in Kufa. His name is Shurayh b. al-Harith b. Qays al-Kandi. He died in 78/697; al-Samarqandi, Bahr al-‘Ulum; al-Alusi, Ruh al-Ma‘ani. 341 Sa‘id b. al-Musayyib is an independent jurist, who lived in Medina. His name is Sa‘id b. al-Musayyib b. Abi Wahb b. ‘Amr b. ‘A’idh b. ‘Imran. He died in 93/711; al-Samarqandi, Bahr al-‘Ulum; al-Baghawi, Ma‘alim al-Tanzil; al-Khazin, Lubab al-Ta’wil; Ibn ‘Adil, al-Lubab; al-Tha‘labi, al-Kashf; Makki b. Abi Talib, al-Hidaya; al-Tabari, Jami‘ al-Bayan; Ibn Kathir, Tafsir al-Qur’an al-‘Azim, <http://www.altafsir.com/>; al-Tusi, al-Tibyan. 342 Sa‘id b. Jubayr is an independent jurist, who lived in Kufa. His name is Sa‘id b. Jubayr b. Hisham. He died in 94/712; al-Baghawi, Ma‘alim al-Tanzil; al-Khazin, Lubab al-Ta’wil; Ibn ‘Adil, al-Lubab; alTha‘labi, al-Kashf; al-Tabari, Jami‘ al-Bayan; al-Thula’i, 4:385; al-Alusi, Ruh al-Ma‘ani; al-Tabarsi, Majma‘ al-Bayan; al-Tusi, al-Tibyan; Atfiyyash, Hamayan al-Zad. 343 Al-Samarqandi, Bahr al-‘Ulum; al-Baghawi, Ma‘alim al-Tanzil; al-Khazin, Lubab al-Ta’wil; Abu Hayyan, al-Bahr; Ibn ‘Adil, al-Lubab; al-Suyuti, al-Durr; al-Tha‘labi, al-Kashf; Ibn ‘Ajiba, al-Bahr; Makki b. Abi Talib, al-Hidaya; al-Tabari, Jami‘ al-Bayan; Ibn Kathir, Tafsir al-Qur’an; al-Shawkani, Fath al-Qadir; al-Jassas, Ahkam al-Qur’an, 5:118; al-Muzi‘i, 2:984; al-Thula’i, 4:385; al-Alusi, Ruh al-Ma‘ani; al-Tabarsi, Majma‘ al-Bayan; al-Tusi, al-Tibyan; al-Amin al-Shinqiti, Adwa’ al-Bayan. 344 ‘Umar b. ‘Abd al-‘Aziz is an independent jurist, who lived in Medina. His name is ‘Umar b. ‘Abd al‘Aziz b. Marwan b. al-Hakam b. Abi al-‘As b. Umayya. He died in 101/719; al-Baghawi, Ma‘alim alTanzil; al-Khazin, Lubab al-Ta’wil; Ibn ‘Adil, al-Lubab; Makki b. Abi Talib, al-Hidaya; al-Tabari, Jami‘ al-Bayan; al-Alusi, Ruh al-Ma‘ani; al-Tusi, al-Tibyan. 345 Al-Dahhak is an independent jurist and exegete, who lived in Khorasan. His name is al-Dahhak b. Muzahim al-Hilali. He died in ca. 102/720; al-Tha‘labi, al-Kashf; al-Tabari, Jami‘ al-Bayan; Ibn Kathir, Tafsir al-Qur’an; al-Shawkani, Fath al-Qadir; al-Thula’i, 4:385; al-Tusi, al-Tibyan; al-Amin al-Shinqiti, Adwa’ al-Bayan. 346 Mujahid is an independent jurist and exegete, who lived in Mecca. His name is Mujahid b. Jabr. He died in ca. 104/722; al-Baghawi, Ma‘alim al-Tanzil; al-Khazin, Lubab al-Ta’wil; Abu Hayyan, al-Bahr; Ibn ‘Adil, al-Lubab; al-Tha‘labi, al-Kashf; Makki b. Abi Talib, al-Hidaya; al-Jassas, Ahkam al-Qur’an, 5:118; al-Muzi‘i, 2:984; al-Alusi, Ruh al-Ma‘ani; al-Tabarsi, Majma‘ al-Bayan; al-Tusi, al-Tibyan; Atfiyyash, Hamayan al-Zad. 119 Yasar,351 Mu‘awiya b. Qarra,352 Muhammad al-Baqir,353 ‘Ata’,354 Muharib,355 al-Zuhri,356 Abu al-Zinad,357 Ibn Abi Najih,358 ‘Uthman al-Batti,359 Ja‘far al-Sadiq,360 al-Layth b. 347 I think that al-Qasim b. Muhammad is a reference for al-Qasim b. Muhammad b. Abi Bakr al-Siddiq. He is an independent jurist, who lived in Medina. He died in ca. 105/723; Abu Hayyan, al-Bahr; al-Jassas, Ahkam al-Qur’an, 5:118. 348 ‘Ikrima is an independent jurist and exegete, who lived in Mecca. His name is ‘Ikrima b. ‘Abd Allah, and his kunya is Abu ‘Abd Allah. He died in 105/723; al-Baghawi, Ma‘alim al-Tanzil; al-Khazin, Lubab alTa’wil; Ibn ‘Adil, al-Lubab; al-Alusi, Ruh al-Ma‘ani. 349 I think that “Salim” is a reference to Salim b. ‘Abd Allah b. ‘Umar b. al-Khattab. He is an independent jurist, who lived in Medina. He died in 106/724; Abu Hayyan, al-Bahr; al-Jassas, Ahkam al-Qur’an, 5:118. 350 Tawus is an independent jurist, who lived in Yemen. His name is Tawus b. Kaysan. He died in 106/724; al-Samarqandi, Bahr al-‘Ulum; al-Baghawi, Ma‘alim al-Tanzil; al-Khazin, Lubab al-Ta’wil; Abu Hayyan, al-Bahr; Ibn ‘Adil, al-Lubab; al-Suyuti, al-Durr; al-Tha‘labi, al-Kashf; Makki b. Abi Talib, al-Hidaya; alJassas, Ahkam al-Qur’an, 5:118; al-Muzi‘i, 2:984; al-Thula’i, 4:385; al-Alusi, Ruh al-Ma‘ani; al-Tabarsi, Majma‘ al-Bayan; al-Tusi, al-Tibyan. 351 Sulayman b. Yasar is an independent jurist, who lived in Medina. He died in ca. 107/725; al-Baghawi, Ma‘alim al-Tanzil; al-Khazin, Lubab al-Ta’wil; Ibn ‘Adil, al-Lubab; al-Tha‘labi, al-Kashf; Ibn ‘Ajiba, alBahr; al-Tabari, Jami‘ al-Bayan. 352 Mu‘awiya b. Qarra is an independent jurist, who lived in Basra. His name is Mu‘awiya b. Qarra b. Iyas b. Hilal b. Ri’ab. He died in 113/731; al-Alusi, Ruh al-Ma‘ani. 353 Muhammad al-Baqir is an independent jurist, who lived in Medina. He is a member of the Prophet’s family. His name is Muhammad b. ‘Ali Zayn al ‘Abidin b. al-Husayn b. ‘Ali b. Abi Talib, his kunya is Abu Ja‘far, and his laqab is al-Baqir. He died in 114/732; al-Tabarsi, Majma‘ al-Bayan; al-Tusi, al-Tibyan. 354 Al-Samarqandi, Bahr al-‘Ulum; al-Baghawi, Ma‘alim al-Tanzil; al-Khazin, Lubab al-Ta’wil; Abu Hayyan, al-Bahr; Ibn ‘Adil, al-Lubab; al-Suyuti, al-Durr; al-Tha‘labi, al-Kashf; Ibn ‘Ajiba, al-Bahr; Makki b. Abi Talib, al-Hidaya; al-Jassas, Ahkam al-Qur’an, 5:118; al-Suyuti, al-Iklil, 3:1009; al-Muzi‘i, 2:984; al-Thula’i, 4:385; al-Tabarsi, Majma‘ al-Bayan; al-Tusi, al-Tibyan. 355 Muharib is an independent jurist, who lived in Kufa. His name is Muharib b. Dithar b. Kardus b. Qarwash. He died in 116/734; al-Alusi, Ruh al-Ma‘ani. 356 Al-Zuhri is an independent jurist, who lived in Medina. His name is Muhammad b. Muslim b. ‘Ubayd Allah b. Shihab al-Zuhri. He died in 124/741; al-Baghawi, Ma‘alim al-Tanzil; al-Khazin, Lubab al-Ta’wil; Abu Hayyan, al-Bahr; Ibn ‘Adil, al-Lubab; al-Suyuti, al-Durr; Makki b. Abi Talib, al-Hidaya; al-Tabari, Jami‘ al-Bayan; al-Jassas, Ahkam al-Qur’an, 5:118; al-Thula’i, 4:385; al-Alusi, Ruh al-Ma‘ani; al-Tabarsi, Majma‘ al-Bayan; al-Tusi, al-Tibyan. 357 Abu al-Zinad is an independent jurist, who lived in Medina. His name is ‘Abd Allah b. Dhakwan. He died in 130/747; Makki b. Abi Talib, al-Hidaya. 120 Sa‘d,361 Malik,362 al-Shafi‘i,363 Ahmad b. Hanbal,364 Makki b. Abi Talib,365 al-Qurtubi,366 Abu Thawr,367 Ilkiya al-Harrasi,368 al-Khatib Al-Shirbini,369 Ishaq b. Rahawayh,370 the 358 Ibn Abi Najih is an independent jurist and exegete, who lived in Mecca. His name is ‘Abd Allah b. Yasar, and his kunya is Abu Yasar. He is commonly known as Ibn Abi Najih. He died in 131/748; alTabari, Jami‘ al-Bayan. 359 ‘Uthman al-Batti is an independent jurist, who lived in Basra and Kufa. His name is ‘Uthman b. Sulayman al-Batti, and his kunya is Abu ‘Amr. He died in 143/760; al-Dhahabi, Siyar A‘lam al-Nubala’, <http://www.islamweb.net/newlibrary/>; al-Shirazi, Tabaqat; al-Jassas, Ahkam al-Qur’an, 5:118. 360 Ja‘far al-Sadiq is an independent jurist, who lived in Medina. He is a member of the Prophet’s family. His name is Ja‘far b. Muhammad al-Baqir b. ‘Ali Zayn al-‘Abidin b. al-Husayn b. ‘Ali b. Abi Talib, his kunya is Abu ‘Abd Allah, and his laqab is al-Sadiq. He died in 148/765; al-Tabarsi, Majma‘ al-Bayan; alTusi, al-Tibyan. 361 Al-Jassas, Ahkam al-Qur’an, 5:118. 362 Al-Mawardi, al-Nukat wa al-‘Uyun, <http://www.altafsir.com/>; al-Baghawi, Ma‘alim al-Tanzil; alKhazin, Lubab al-Ta’wil; Abu Hayyan, al-Bahr; Ibn ‘Adil, al-Lubab; Ibn Juzayy, al-Tashil; Makki b. Abi Talib, al-Hidaya; Ibn Kathir, Tafsir al-Qur’an; al-Jassas, Ahkam al-Qur’an, 5:118; Ibn al-‘Arabi, 3:345; alShirbini, 2:665; al-‘Ulaymi, 2:287; al-Muzi‘i, 2:983; al-Thula’i, 4:385; al-Alusi, Ruh al-Ma‘ani; al-Amin al-Shinqiti, Adwa’ al-Bayan. 363 Al-Mawardi, al-Nukat; al-Baghawi, Ma‘alim al-Tanzil; al-Khazin, Lubab al-Ta’wil; al-Naysaburi, Ghara’ib al-Qur’an; Ibn ‘Adil, al-Lubab; al-Tha‘labi, al-Kashf; al-Samin al-Halabi, al-Durr; Ibn ‘Ajiba, al-Bahr; Makki b. Abi Talib, al-Hidaya; al-Zamakhshari, al-Kashshaf; al-Razi, al-Tafsir al-Kabir; Ibn Kathir, Tafsir al-Qur’an; al-Jassas, Ahkam al-Qur’an, 5:118; Ibn al-‘Arabi, 3:345; al-Shirbini, 2:665; al‘Ulaymi, 2:287; al-Suyuti, al-Iklil, 3:1009; al-Muzi‘i, 2:983; al-Thula’i, 4:385; al-Rawandi, 1:429; alSuyuri, part 4, 37; al-Jaza’iri, 3:374; al-Alusi, Ruh al-Ma‘ani; al-Tabarsi, Majma‘ al-Bayan; al-Tusi, alTibyan; Atfiyyash, Hamayan al-Zad; al-Amin al-Shinqiti, Adwa’ al-Bayan. 364 Makki b. Abi Talib, al-Hidaya; Ibn Kathir, Tafsir al-Qur’an; al-‘Ulaymi, 2:287; al-Alusi, Ruh alMa‘ani; al-Amin al-Shinqiti, Adwa’ al-Bayan. 365 Makki b. Abi Talib, al-Hidaya. 366 Al-Qurtubi, 15:137. 367 Makki b. Abi Talib, al-Hidaya. 368 Al-Harrasi, 2:300. 369 Al-Shirbini, 2:665. 370 Ishaq b. Rahawayh is a scholar of hadith, who lived in Khorasan, Nishapur, Iraq, Hejaz, Sham, and Yemen. His name is Ishaq b. Ibrahim b. Makhlid b. Ibrahim, and his kunya is Abu Ya‘qub. He died in 238/853; Makki b. Abi Talib, al-Hidaya. 121 Shafi‘is,371 Abu ‘Ubayda,372 Abu ‘Ubayd,373 al-Tabari,374 al-Zajjaj,375 al-Qassab,376 alShawkani,377 Ibn Hazm,378 Fakhr al-Din al-Najri,379 Abu Talib,380 al-Mansur bi-Allah,381 the Zaydis,382 al-Tusi,383 Sa‘id al-Rawandi,384 Ibn Mutawwaj al-Bahrani,385 Miqdad alSuyuri,386 al-Tabataba’i,387 the Imamis,388 Abu al-Hawari,389 Atfiyyash,390 and the Ibadis.391 371 Ibn ‘Ajiba, al-Bahr; Muhammad b. al-Qasim, 404; al-Tabarsi, Majma‘ al-Bayan; al-Tusi, al-Tibyan. 372 Abu ‘Ubayda is a scholar of syntax, who lived in Basra. His name is Ma‘mar b. al-Muthanna al-Taymi. He died in 209/824; al-Shawkani, Fath al-Qadir; Hud al-Hawwari, Tafsir Kitab Allah. 373 Abu ‘Ubayd is a linguist and jurist, who lived in Heart (Afghanistan), Kufa, Baghdad, Tartus (Syria), and Khorasan. His name is al-Qasim b. Sallam b. ‘Abd Allah. He died in 224/838; Makki b. Abi Talib, alHidaya. 374 Al-Tabari, Jami‘ al-Bayan. 375 Al-Zajjaj is a Hanbali linguist, who lived in Baghdad. His name is Ibrahim b. al-Sari b. Sahl al-Zajjaj, and his kunya is Abu Ishaq. He died in ca. 311/923; al-Zajjaj, Ma‘ani al-Qur’an wa I‘rabuh, ed. ‘Abd alJalil Shalabi, vol. 4 (Beirut: ‘Alam al-Kutub, 1988) 31-32; al-Shawkani, Fath al-Qadir. 376 Al-Qassab, 2:415-421. 377 Al-Shawkani, Fath al-Qadir. 378 Ibn Hazm, al-Muhalla, 12:22. 379 Al-Najri, 2:428. 380 Abu Talib is a Zaydi jurist, who lived in Amol (Iran). His name is Yahya b. al-Husayn al-Haruni. He died in 424/1033; Muhammad b. al-Qasim, 404; <http://www.hukam.net/family.php?fam=2>. 381 Al-Mansur bi-Allah is a Zaydi jurist, who lived in Yemen. His name is ‘Abd Allah b. Hamza. He died in 614/1217; Muhammad b. al-Qasim, 404; <http://www.hukam.net/family.php?fam=2>. 382 Muhammad b. al-Qasim, 404; al-Thula’i, 4:385. 383 Al-Tusi, al-Tibyan. 384 Al-Rawandi, 1:429. 385 Al-Bahrani, 362, 371. 386 Al-Suyuri, part 4, 37. 122 The second opinion that denies the mitigating impact of repentance upon the eternal rejection of convicts’ testimony in the fixed punishment for qadhf is supported by Ibn ‘Abbas (in one opinion),392 Shurayh (in one opinion),393 Sa‘id b. al-Musayyib (in one opinion),394 Sa‘id b. Jubayr (in one opinion),395 Ibrahim al-Nakha‘i,396 al-Sha‘bi (in one opinion),397 Mujahid (in one opinion),398 ‘Ikrima (in one opinion),399 Muhammad b. 387 Al-Tabataba’i is an Imami exegete and philosopher, who lived in Tabriz, Najaf, and Qom. His name is al-Sayyid Muhammad Husayn al-Tabataba’i. He died in 1402/1981; al-Tabataba’i, al-Mizan fi Tafsir alQur’an, <http://www.altafsir.com/>; Hamid Algar, “‘Allama Sayyid Muhammad Husayn Tabataba’i: Philosopher, Exegete, and Gnostic,” Journal of Islamic Studies 17.3 (2006): 326-351. 388 Al-Jaza’iri, 3:374. 389 Abu al-Hawari, 160. 390 Atfiyyash, Hamayan al-Zad. 391 Hud Al-Hawwari, Tafsir Kitab Allah. 392 Al-Samarqandi, Bahr al-‘Ulum; al-Suyuti, al-Durr; al-Tha‘labi, al-Kashf; al-Tabarani, al-Tafsir alKabir; Ibn ‘Ajiba, al-Bahr; Makki b. Abi Talib, al-Hidaya; al-Jassas, Ahkam al-Qur’an, 5:118. 393 Al-Baghawi, Ma‘alim al-Tanzil; Ibn ‘Atiyya, al-Muharrar; al-Khazin, Lubab al-Ta’wil; Abu Hayyan, al-Bahr; Ibn ‘Adil, al-Lubab; al-Tha‘labi, al-Kashf; al-Tabarani, al-Tafsir al-Kabir; Ibn ‘Ajiba, al-Bahr; Makki b. Abi Talib, al-Hidaya; al-Tabari, Jami‘ al-Bayan; al-Qurtubi, 15:133; Ibn Kathir, Tafsir alQur’an; al-Shawkani, Fath al-Qadir; al-Jassas, Ahkam al-Qur’an, 5:118; Ibn al-‘Arabi, 3:345; al-Shirbini, 2:665; al-Thula’i, 4:385; al-Tabarsi, Majma‘ al-Bayan; al-Tusi, al-Tibyan; al-Amin al-Shinqiti, Adwa’ alBayan. 394 Abu Hayyan, al-Bahr; al-Suyuti, al-Durr; al-Tabari, Jami‘ al-Bayan; al-Jassas, Ahkam al-Qur’an, 5:118; al-Thula’i, 4:385; al-Suyuri, part 4, 37; al-Jaza’iri, 3:374; al-Alusi, Ruh al-Ma‘ani; al-Tusi, alTibyan; Hud al-Hawwari, Tafsir Kitab Allah. 395 Al-Samarqandi, Bahr al-‘Ulum; Abu Hayyan, al-Bahr; al-Suyuti, al-Durr; Ibn ‘Ajiba, al-Bahr; Makki b. Abi Talib, al-Hidaya; Ibn Kathir, Tafsir al-Qur’an; al-Shawkani, Fath al-Qadir; al-Jassas, Ahkam alQur’an, 5:118; al-Alusi, Ruh al-Ma‘ani; al-Amin al-Shinqiti, Adwa’ al-Bayan. 396 Al-Samarqandi, Bahr al-‘Ulum; al-Mawardi, al-Nukat; al-Baghawi, Ma‘alim al-Tanzil; Ibn ‘Atiyya, alMuharrar; al-Khazin, Lubab al-Ta’wil; Abu Hayyan, al-Bahr; Ibn ‘Adil, al-Lubab; al-Suyuti, al-Durr; alTha‘labi, al-Kashf; al-Tabarani, al-Tafsir al-Kabir; Ibn ‘Ajiba, al-Bahr; Makki b. Abi Talib, al-Hidaya; alTabari, Jami‘ al-Bayan; al-Razi, al-Tafsir al-Kabir; Ibn Kathir, Tafsir al-Qur’an; al-Shawkani, Fath alQadir; al-Jassas, Ahkam al-Qur’an, 5:118; al-Shirbini, 2:665; al-Suyuti, al-Iklil, 3:1009; al-Thula’i, 4:385; al-Tabarsi, Majma‘ al-Bayan; al-Tusi, al-Tibyan; Atfiyyash, Hamayan al-Zad; al-Amin al-Shinqiti, Adwa’ al-Bayan. 397 Al-Mawardi, al-Nukat; Atfiyyash, Hamayan al-Zad. 123 Sirin,400 al-Hasan al-Basri,401 Makhul,402 Qatada,403 Zayd b. ‘Ali,404 Abu Hanifa,405 Ibn Jurayj,406 ‘Abd al-Rahman b. Zayd b. Jabir,407 Zufar,408 Sufyan al-Thawri,409 al-Hasan b. Salih,410 Abu Yusuf,411 al-Farra’,412 al-Samarqandi,413 the Hanafis,414 Ibn ‘Ajiba,415 and 398 Al-Samarqandi, Bahr al-‘Ulum. 399 Al-Suyuti, al-Durr. Muhammad b. Sirin is an independent jurist, who lived in Basra. He died in 110/728. His kunya is Abu Bakr; al-Suyuti, al-Durr; al-Alusi, Ruh al-Ma‘ani. 400 401 Al-Hasan al-Basri is an independent jurist, who lived in Basra. His name is al-Hasan b. Yasar, and his kunya is Abu Sa‘id. He died in 110/728; Ibn ‘Atiyya, al-Muharrar; Abu Hayyan, al-Bahr; al-Suyuti, alDurr; al-Tabarani, al-Tafsir al-Kabir; al-Tabari, Jami‘ al-Bayan; al-Razi, al-Tafsir al-Kabir; al-Shawkani, Fath al-Qadir; al-Jassas, Ahkam al-Qur’an, 5:118; al-Thula’i, 4:385; al-Rawandi, 1:429; al-Suyuri, part 4, 37; al-Jaza’iri, 3:374; al-Tabarsi, Majma‘ al-Bayan; al-Alusi, Ruh al-Ma‘ani; al-Tusi, al-Tibyan; Hud alHawwari, Tafsir Kitab Allah. 402 Makhul is an independent jurist, who lived in Sham. His name is Makhul b. ‘Abd Allah, and his kunya is Abu ‘Abd Allah. He died in ca. 112/730; al-Suyuti, al-Durr; Ibn Kathir, Tafsir al-Qur’an; al-Shawkani, Fath al-Qadir; al-Amin al-Shinqiti, Adwa’ al-Bayan. 403 Al-Tabarsi, Majma‘ al-Bayan. 404 Al-Thula’i, 4:385. 405 Al-Mawardi, al-Nukat; Ibn ‘Atiyya, al-Muharrar; Abu Hayyan, al-Bahr; al-Naysaburi, Ghara’ib alQur’an; Ibn ‘Adil, al-Lubab; al-Tha‘labi, al-Kashf; al-Samin al-Halabi, al-Durr; al-Tabarani, al-Tafsir alKabir; Ibn ‘Ajiba, al-Bahr; al-Zamakhshari, al-Kashshaf; al-Razi, al-Tafsir al-Kabir; Ibn Kathir, Tafsir alQur’an; al-Shawkani, Fath al-Qadir; al-Harrasi, 2:300; al-Jassas, Ahkam al-Qur’an, 5:118; Ibn al-‘Arabi, 3:345; al-‘Ulaymi, 2:287; al-Suyuti, al-Iklil, 3:1009; Ibn al-Faras, 3:343; al-Muzi‘i, 2:983; al-Najri, 2:428; al-Thula’i, 4:385; al-Suyuri, part 4, 37; al-Jaza’iri, 3:374; al-Tabarsi, Majma‘ al-Bayan; al-A‘qam, Tafsir al-A‘qam; Atfiyyash, Hamayan al-Zad; al-Amin al-Shinqiti, Adwa’ al-Bayan. 406 Ibn Jurayj is an independent jurist, who lived in Mecca. His name is ‘Abd al-Malik b. ‘Abd al-‘Aziz b. Jurayj. He died in ca. 150/767; al-Suyuti, al-Durr. 407 I have not found biographical information on ‘Abd al-Rahman b. Zayd b. Jabir, but I found some information on ‘Abd al-Rahman b. Yazid b. Jabir, who is an independent jurist in Damascus (d. ca. 153/770); Ibn Kathir, Tafsir al-Qur’an; al-Shawkani, Fath al-Qadir; al-Amin al-Shinqiti, Adwa’ al-Bayan. 408 Zufar is a Hanafi jurist, who lived in Kufa, Asbahan and Basra. His name is Zufar b. al-Hudhayl b. Qays, and his kunya is Abu al-Hudhayl. He died in 158/774; al-Jassas, Ahkam al-Qur’an, 5:118. 409 Ibn ‘Atiyya, al-Muharrar; Abu Hayyan, al-Bahr; Ibn ‘Adil, al-Lubab; Makki b. Abi Talib, al-Hidaya; al-Razi, al-Tafsir al-Kabir; al-Shawkani, Fath al-Qadir; al-Jassas, Ahkam al-Qur’an, 5:118. 410 Al-Hasan b. Salih is an independent jurist, who lived in Kufa. His name is al-Hasan b. Salih b. Hayy b. Muslim b. Hayyan, and his kunya is Abu ‘Abd Allah. He died in ca. 167/783; Abu Hayyan, al-Bahr; Ibn 124 Abu Hayyan.416 To recapitulate, Group B that supports the second opinion is mainly represented by the Hanafis, whereas Group A that advocates the first opinion is primarily represented by the Malikis, Shafi‘is, Hanbalis, Zahiris, Zaydis, Imamis, and Ibadis. 4.3.1 Evidence This section analyzes the reasons and evidence cited by jurists and exegetes concerning the mitigating impact of repentance upon the eternal rejection of testimony in the fixed punishment for the accusation of fornication. It presents the arguments of scholars who recognize this impact (Group A) as well as the counterarguments of those who deny it (Group B). The analysis shows that both scholarly camps use the text of Q. 24:4-5 as a support of their arguments. The implications of the lexis and syntactic structure of Q. 24:4-5 have been the subject of considerable debate among scholars. In addition to the Qur’an, Group A cites an athar report in which the testimony of two ‘Adil, al-Lubab; al-Razi, al-Tafsir al-Kabir; al-Jassas, Ahkam al-Qur’an, 5:118; Atfiyyash, Hamayan alZad. 411 Abu Yusuf is a Hanafi jurist, who lived in Kufa. His name is Ya‘qub b. Ibrahim b. Habib b. Sa‘d. He died in 182/798; al-Jassas, Ahkam al-Qur’an, 5:118. 412 Al-Farra’ is a linguist, who lived in Kufa and Baghdad. His name is Yahya b. Ziyad b. ‘Abd Allah b. Manzur, and his kunya is Abu Zakariyya. He died in 207/822; al-Farra’, Ma‘ani al-Qur’an, 3rd ed., vol. 2 (Beirut: ‘Alam al-Kutub, 1983) 245-246. 413 Al-Samarqandi, Bahr al-‘Ulum. 414 Al-Baghawi, Ma‘alim al-Tanzil; al-Khazin, Lubab al-Ta’wil; Abu Hayyan, al-Bahr; Ibn ‘Adil, alLubab; al-Tha‘labi, al-Kashf; al-Tabarani, al-Tafsir al-Kabir; Ibn ‘Ajiba, al-Bahr; Makki b. Abi Talib, alHidaya; al-Razi, al-Tafsir al-Kabir; al-Shirbini, 2:665; al-Tabarsi, Majma‘ al-Bayan; al-Alusi, Ruh alMa‘ani. 415 Ibn ‘Ajiba, al-Bahr. 416 Abu Hayyan, al-Bahr. 125 repentant convicts of qadhf was accepted after receiving the punishment of flogging. However, Group B responds by presenting two hadith reports that demonstrate that the testimony of a person who received a fixed punishment is invalid. Group B contends that repentance is not considered as a mitigating factor concerning the eternal rejection of the testimony of a convict of qadhf because the exceptive clause in Q. 24:5 does not refer to the rejection of the convict’s testimony in Q. 24:4. Jurists of Group B maintain that if an exceptive clause is preceded by a sequence of coordinated sentences, it would refer only to the immediate preceding sentence unless there is a contextual clue that necessitates that the exceptive clause should refer to the whole sequence.417 In Q. 24:4, there are three coordinated sentences: “flog them eighty times,” “reject their testimony forever,” and “they are immoral.” These sentences are coordinated with the conjunction “and” (wa-) that appears in the Arabic text before each of the second and third sentences. These three sentences, according to Group B, cannot be treated as one entity and thus the exceptive clause would not refer to the whole sequence. Rather, the exceptive clause would only refer to the immediate preceding sentence. Group B asserts that the linguistic function of the wa- connecter before the third sentence in Q. 24:4 is to start off a new sentence (ibtida’) rather than to coordinate between the second and third sentences (‘atf).418 Consequently, Q. 24:4-5 would read “flog them eighty times and reject their testimony forever. They are immoral unless they 417 Al-Naysaburi, Ghara’ib al-Qur’an; al-Razi, al-Tafsir al-Kabir; Abu al-Thana’ al-Asbahani, 2:554-559; al-Qurtubi, 15:135; al-Thula’i, 4:386; Muhammad b. al-Qasim, 404. 418 Al-Jassas, Ahkam al-Qur’an, 5:121-122. 126 repent.” Moreover, this sequence of three sentences cannot be treated as one entity because the third sentence is declarative and describes the moral character of the convict, whereas the other two sentences are imperative and discuss the fixed penalty that he should incur. Therefore, the exceptive clause in Q. 24:5 would not refer to the whole sequence and thus the immediate preceding sentence would be the only antecedent of the exceptive clause. As a consequence, a repentant convict of qadhf would not be considered as immoral, but he would have his testimony rejected.419 To support their position, scholars from Group B cite similar verses from the Qur’an in which an exceptive clause refers to the immediate preceding sentence in a sequence of coordinated sentences. For example, there is virtual unanimity of opinion among jurists and exegetes over the anaphoric reference of the exceptive clause in Q. 4:92 in which God describes the punishment for unintentional killing: “If one killed a believer by mistake, then [it is incumbent upon him to] free a slave believer and to hand blood money to his family—except when they give [up their right as] charity.”420 Accordingly, the killer would still be required to free a slave even if the family of the deceased absolves him from paying the blood money. By analogy, the anaphoric reference of the exceptive clause in Q. 24:5 would entail that a repentant convict of qadhf would have his testimony rejected even if he is no longer considered as immoral. 419 Al-Jassas, Ahkam al-Qur’an, 5:122-123; al-Baghawi, Ma‘alim al-Tanzil; Ibn ‘Atiyya, al-Muharrar; Ibn ‘Adil, al-Lubab; Ibn Kathir, Tafsir al-Qur’an; al-Shawkani, Fath al-Qadir; al-Tha‘labi, al-Kashf; Ibn alFaras, 3:343; al-Jaza’iri, 3:374; al-Zamakhshari, al-Kashshaf; al-Thula’i, 4:384-385; Muhammad b. alQasim, 404. 420 Al-Qurtubi, 15:136. 127 Furthermore, Group B perceives flogging as the reason why the testimony of a convict of qadhf becomes invalid. Jurists of Group B construe the pronoun “that” in the exceptive clause as a reference to “flogging.” Therefore, Q. 24:5 would mean “except for those who repent after having been flogged eighty times.” Consequently, a convict’s testimony would become unacceptable as soon as the flogging comes to an end.421 Moreover, Group B maintains that the adverb “forever” in “reject their testimony forever” means “as long as they are alive.” Consequently, the testimony of a convict of qadhf who was flogged eighty times would be rejected for the remainder of his life whether or not he repents.422 In order to substantiate their argument, jurists of Group B cite hadith reports in which the Prophet is quoted to have declared the invalidity of a person’s testimony as a consequence of receiving the punishment of flogging in a fixed punishment. For instance, the Hanafi jurist al-Jassas provides a hadith report in which the Prophet says: “Muslims are upright except for a person who received the fixed punishment for qadhf [i.e. flogged].”423 Al-Jassas notes that the Prophet does not make an exception for repentant convicts in his statement and therefore a repentant offender in the case of qadhf would have his testimony rejected if he was punished by flogging. Moreover, al-Jassas cites a 421 Al-Zamakhshari, al-Kashshaf. 422 Al-Zamakhshari, al-Kashshaf; al-Naysaburi, Ghara’ib al-Qur’an; al-Muzi‘i, 2:983; al-Thula’i, 4:384385; Muhammad b. al-Qasim, 404. 423 The chain of narrators for this hadith, as stated by al-Jassas, is al-Hajjaj b. Arta’a ← ‘Amr b. Shu‘ayb ← his father ← his grandfather ← the Prophet; al-Jassas, Ahkam al-Qur’an, 5:126; al-Naysaburi, Ghara’ib alQur’an. Al-Qassab believes that this hadith does not indicate the invalidity of the testimony of repentant convicts of qadhf as the text of this report does not mention the issue of repentance. Besides, both alQassab and Ibn Hazm do not consider this hadith as sound; al-Qassab, 2:420-421; http://dorar.net/enc/hadith. 128 similar hadith in which the Prophet clearly states that the testimony of a person who was previously flogged in a fixed punishment should be rejected.424 Nevertheless, Group A affirms that repentance is considered as a mitigating factor concerning the eternal rejection of the testimony of a convict of qadhf because the exceptive clause in Q. 24:5 refers to the rejection of the convict’s testimony in Q. 24:4. Jurists of Group A maintain that if an exceptive clause is preceded by a sequence of coordinated sentences, it would refer to the whole sequence unless there is a contextual clue that necessitates that the exceptive clause should only refer to the immediate preceding sentence.425 In Q. 24:4, there are three coordinated sentences: “flog them eighty times,” “reject their testimony forever,” and “they are immoral.” These sentences are coordinated with the conjunction “and” (wa-) that appears in the Arabic text before each of the second and third sentences. These three sentences, according to Group A, can be treated as one entity and thus the exceptive clause would refer to the whole sequence. Group A asserts that the linguistic function of the wa- connecter between each of the three sentences in Q. 24:4 is coordination (‘atf). Consequently, each of these three sentences would be eligible to be a recipient of the ruling of exception. However, the exceptive clause would not refer to the first sentence because flogging is perceived as an 424 The chain of narrators for of this hadith, as stated by al-Jassas, is al-Jassas ← ‘Abd al-Baqi b. Qani‘← Hamid b. Muhammad ← Shurayh ← Marwan ← Yazid b. Abi Khalid ← al-Zuhri ← ‘Urwa ← ‘A’isha ← the Prophet; al-Jassas, Ahkam al-Qur’an, 5:126-127. Al-Qassab does not grade this hadith as sound. The text of this report reads: “It is not permissible [to accept] the testimony of a dishonest male person or female person, [the testimony of] a person who received a fixed punishment, nor [the testimony of] a person who has a grudge against his brother.” Al-Muzi‘i observes that this hadith—if sound—would mean that the testimony of these people would be invalid unless they repent. He provides this hadith report with the following chain: ‘Amr b. Shu‘ayb ← his father ← his grandfather ← The Prophet. Moreover, he does not consider this hadith as sound; al-Muzi‘i, 2:983-984; al-Qassab, 2:420-421. 425 Al-Naysaburi, Ghara’ib al-Qur’an; al-Razi, al-Tafsir al-Kabir; Abu al-Thana’ al-Asbahani, 2:554-559; al-Qurtubi, 15:135; al-Biqa‘i, Nazm al-Durar; al-Thula’i, 4:386; Muhammad b. al-Qasim, 404. 129 individual’s right. Therefore, Q. 24:4-5 would read “flog them eighty times, reject their testimony forever (unless they repent), and they are immoral unless they repent.” Moreover, this sequence of three sentences can be treated as one entity because they have one purpose, which is vengeance on and humiliation of the offender who accuses others of committing fornication.426 Hence, the exceptive clause in Q. 24:5 would refer to the whole sequence and thus a repentant convict of qadhf would not be considered as immoral and would not have his testimony rejected.427 The two scholarly approaches of Group A and Group B towards the textual analysis of Q. 24:4-5 are demonstrated in Table 4.4 below. Table 4.4: Textual Analysis of Q. 24:4-5 Sentences 1-2 & Sentence 3 Interrelated Function of wainter-connecter One entity Anaphoric Reference of Exceptive Clause Group A Yes Coordination Yes Sentences 2 & 3 Group B No Starting a new sentence No Sentence 3 To support their position, scholars of Group A cite similar verses from the Qur’an in which an exceptive clause refers to the whole sequence of the preceding coordinated sentences. For example, there is virtual unanimity of opinion among jurists and exegetes 426 Al-Qarafi, al-Istighna’ fi al-Istithna’, ed. Muhammad ‘Ata (Beirut: Dar al-Kutub al-‘Ilmiyya, 1986) 560-575; Ibn Hazm, al-Ihkam fi Usul al-Ahkam, ed. Muhammad ‘Abd al-‘Aziz, vol. 1 (Cairo: Maktabat ‘Atif, 1978) 523-529; al-Qarafi is a Maliki jurist and legal theorist, who lived in Egypt. His name is Ahmad b. Idris b. ‘Abd al-Rahman al-Qarafi, his kunya is Abu al-‘Abbas, and his laqab is Shihab al-Din. He died in 684/1285. 427 Al-Baghawi, Ma‘alim al-Tanzil; Ibn ‘Atiyya, al-Muharrar; al-Zamakhshari, al-Kashshaf; Ibn ‘Adil, alLubab; Ibn Kathir, Tafsir al-Qur’an; al-Shawkani, Fath al-Qadir; al-Tabarani, al-Tafsir al-Kabir; alTha‘labi, al-Kashf; Ibn al-Faras, 3:343; al-Suyuti, al-Iklil, 3:1008; al-Thula’i, 4:384-385; al-Suyuri, part 4, 37; al-Jaza’iri, 3:374. 130 over the anaphoric reference of the exceptive clause in Q. 5:33-34 in which God describes the punishment for brigandage: Surely, the penalty for those who wage war against God and His Messenger and endeavor to do corruption in the land is that they should be massacred or crucified, or that their hands and legs should be cut asunder alternately or that they should be exiled from the land. That is a disgrace for them in this world, and in the Hereafter they will have a tremendous torment—except for those who repent before you gain control over them. Accordingly, a pre-arrest repentant brigand would not be executed, crucified, punished by alternate cutting of hands and feet, exiled, nor tormented in the Hereafter. Group A observes that the exceptive clause in Q. 5:34 refers to the whole sequence of the preceding sentences in Q. 5:33 although it consists of imperative and declarative sentences. Therefore, the different types of sentences do not have an impact on whether a sequence of sentences can be treated as one entity—as opposed to what Group B stipulates.428 By analogy, the anaphoric reference of the exceptive clause in Q. 24:5 would entail that a repentant convict of qadhf would not have his testimony rejected nor be considered as immoral.429 Furthermore, Group A declares that being an immoral person (fasiq) is the rationale for the invalidity of the testimony of convicts of qadhf.430 Jurists of Group A construe the pronoun “that” in the exceptive clause as a reference to “the act of committing qadhf.” Therefore, Q. 24:5 would mean “except for those who repent after 428 Al-Jassas from Group B responds by saying that God’s statement in Q. 24:4 “Surely, the penalty for those who wage war against God and His Messenger” is an order in the shape of a declarative sentence. Because the imperative sentences in this verse have the shape of declarative sentences, al-Jassas postulates that the exceptive clause in Q. 24:5 refers to all of the preceding sentences; al-Jassas, Ahkam al-Qur’an, 5: 122. 429 Al-Qurtubi, 15:136; al-Razi, al-Tafsir al-Kabir. 430 Al-Razi, al-Tafsir al-Kabir; al-Qurtubi, 15:137; al-Shawkani, Fath al-Qadir; al-Thula’i, 4:387. 131 committing qadhf.” Consequently, a convict’s testimony would become unacceptable as soon as he commits qadhf. Moreover, Group A maintains that the adverb “forever” in “reject their testimony forever” means “as long as they do not repent.”431 Consequently, the testimony of a convict of qadhf would be accepted as soon as he repents. The two lines of reasoning adopted by Group A and Group B concerning the rationale behind rejecting the testimony of a convict of qadhf and its impact on the validity of testimony are illustrated in Table 4.5 below. Table 4.5: Textual Analysis of Q. 24:4-5 Why Testimony Becomes Invalid When Testimony Becomes Invalid Meaning of “That” in Q. 24:5 Meaning of “Forever” in Q. 24:4 When Testimony Becomes Valid Group A Committing qadhf Once a person commits qadhf Committing qadhf As long as the convict does not repent Once the convict repents Group B Flogging After the end of flogging Having been flogged As long as the person is alive Never In order to substantiate their argument, jurists of Group A cite an athar report in which two repentant convicts of qadhf had their testimony accepted after they were flogged. In this historical precedent, ‘Umar b. al-Khattab—the caliph during that time— flogged three out of four witnesses who came to him and reported a case of fornication.432 He flogged them because he detected a lack of exact details in the testimony of the fourth witness. Upon flogging the witnesses, ‘Umar asked them to repent so that their testimony 431 Al-Baghawi, Ma‘alim al-Tanzil; al-Zamakhshari, al-Kashshaf; Ibn ‘Adil, al-Lubab; al-Tabarani, alTafsir al-Kabir; Abu al-Su‘ud, Irshad al-‘Aql; Muhammad b. al-Qasim, 404. 432 Al-Razi, al-Tafsir al-Kabir. 132 would be accepted in the future.433 Two of the three repented and therefore their testimony was accepted afterward.434 However, the third witness—Abu Bakra (d. ca. 51/671)435—refused to repent and consequently his testimony was not accepted thereafter.436 The eight legal schools—including the Imamis—cite this athar report in support for the opinion that the testimony of a convict of qadhf becomes valid once he repents.437 The Shafi‘i jurist Fakhr al-Din al-Razi states that no sahabi disapproved of ‘Umar’s judgment, indicating that there is a consensus among sahaba (the Prophet’s companions) over ‘Umar’s opinion. In the same vein, the Maliki jurist al-Qurtubi asserts that this incident was widely known throughout Muslim territories and argues that the sahaba would have objected to ‘Umar’s judgment if Q. 24:4 meant that the testimony of repentant convicts of qadhf is rejected for the remainder of their lives.438 It should be noted that Abu Bakra and the other witnesses were reporting what they had seen to the 433 Al-Jassas does not consider this athar report as sound and postulates that ‘Umar may have made this request before flogging took place. He also observes that Sa‘id b. al-Musayyib appears in the chain of narrators for this athar, which means that Sa‘id advocates the opinion of ‘Umar and Group A in general. Given that Sa‘id is reported to have said that the testimony of a repentant convict of qadhf is not accepted, al-Jassas asserts that Sa‘id may have changed his opinion owing to stronger evidence; al-Jassas, Ahkam alQur’an, 5:118-119. 434 Al-Naysaburi, Ghara’ib al-Qur’an; Ibn al-Faras, 3:343; al-Muzi‘i, 2:983; al-Thula’i, 4:384-385. 435 Abu Bakra is a sahabi, who lived in Basra. His name is Nufay‘ b. al-Harith al-Thaqafi. 436 Al-Tha‘labi, al-Kashf; Ibn al-Faras, 3:343; al-Muzi‘i, 2:983. 437 Al-Suyuri, part 4, 37. 438 Al-Qurtubi, 15:137. 133 authorities. They did not commit qadhf in the literal sense of the word as they did not insult the person whom they believed that he was committing fornication.439 In addition to the athar report, al-Suyuti cites a hadith in which the Prophet is quoted to have said: “God and His Messenger decreed that neither the testimony of three [people] nor two [people] nor one [person] concerning fornication could be accepted. They should be flogged eighty times each. Their testimony should never be accepted until their sincere repentance and righteous conduct becomes evident to Muslims.”440 This report demonstrates that the testimony of a convict of qadhf cannot be accepted unless the offender repents of his crime. Overall, all jurists and exegetes in the available sources cite the athar report in their discussion of the impact of repentance upon the validity of testimony. However, they do not provide the hadith report cited by al-Suyuti.441 Jurists and exegetes express opposing opinions on the validity of the testimony of a repentant convict of qadhf. Both scholarly camps engage in a detailed linguistic analysis of Q. 24:4-5 in order to assess the mitigating impact of repentance upon the punishment of eternal rejection of testimony in the fixed punishment for the accusation of fornication. Whereas Group B asserts that the exceptive clause in Q. 24:5 does not refer to the sentence about testimony in Q. 24:4, Group A establishes this anaphoric reference and thus declares the testimony as valid upon repentance. Both groups cite Qur’anic 439 Al-Dhahabi, Siyar. 440 The chain of narrators for this hadith, as explained by al-Suyuti, is ‘Abd al-Razzaq ← ‘Amr b. Shu‘ayb ← the Prophet; al-Suyuti, al-Durr. Ibn Hazm considers this hadith as munqati‘ (i.e. there is a missing link in the chain); http://dorar.net/enc/hadith. 441 Al-Razi also cites another hadith report in this vein, “The one who repents of a sin is like a sinless person.” He affirms that a sinless person would definitely has his testimony accepted; al-Razi, al-Tafsir alKabir. 134 verses that have the same syntactic structure of Q. 24:4-5. Surprisingly, the examples they provide prove their respective arguments and receive unanimous support from both groups. Nevertheless, each group infers from Q. 24:4-5 a different reason behind the invalidity of testimony in the case of qadhf. This inference has resulted in various interpretations of this verse with different legal conclusions. In addition to their rigorous analysis of the text of Q. 24:4-5, both of Group A and Group B cite hadith and athar reports in order to substantiate their arguments. Group B cites two hadith reports in which the Prophet invalidates the testimony of a person who was flogged in a qadhf case and also invalidates the testimony of anyone who received any fixed punishment. However, these reports do not discuss the impact of repentance upon the validity of testimony. Furthermore, Group A provides an athar report that explicates the impact of repentance upon the validity of testimony. In this historical precedent, two convicts of qadhf had their testimony accepted after their repentance. Nonetheless, the testimony of the third witness was rejected because he refused to declare his repentance. He believed that he was saying the truth when he reported what he had seen to the authorities. The linguistic analysis of Q. 24:4-5 on the levels of syntax and semantics that both Group A and Group B performed yields two opposing results. Linguistically speaking, both results can be valid because the text of the verse allows the inference of these two possibilities. Moreover, the Qur’anic verses that are structurally similar to Q. 24:4-5 substantiate the arguments of both groups. The decisive factor in this case is based on the athar report in which ‘Umar validated the testimony of repentant convicts of 135 qadhf. The seemingly opposing hadith reports that Group B provides discuss the invalidity of testimony in general without referring to the issue of repentance. This is why some jurists of Group A argue that the content of these reports is applicable in case the convict does not repent of his crime. Hence, the arguments of Group A seem to be stronger than those of Group B. 4.4 Scope of validity of repentant convicts’ testimony The majority of jurists within Group A does not restrict the scope of validity of the testimony of repentant convicts of qadhf to specific court cases. These jurists hold this opinion because the text of Q. 24:4-5 does not specify certain domains where the testimony of previous convicts would be considered as valid.442 However, some Maliki jurists within this scholarly camp restrict the scope of validity of such testimony.443 For instance, Ibn al-Majishun (d. 213/828), Mutarrif (d. 220/835),444 Asbagh (d. 225/839)445 and Sahnun (d. 240/854)446 stipulate that the testimony of a repentant convict of qadhf would not be valid if he gives it in a case of qadhf.447 Likewise, a person who was flogged because of committing fornication cannot give testimony in the future in a 442 Ibn ‘Atiyya, al-Muharrar. 443 Al-Qurtubi, 15:134-135. 444 Mutarrif is a Maliki jurist, who lived in Medina. His name is Mutarrif b. ‘Abd Allah b. Mutarrif b. Sulayman b. Yasar, and his kunya is Abu Mus‘ab. 445 Asbagh is a Maliki jurist, who lived in Egypt. His name is Asbagh b. al-Faraj b. Sa‘id b. Nafi‘, and his kunya is Abu ‘Abd Allah. 446 Sahnun is a Maliki jurist and a scholar of hadith, who lived in al-Qayrawan and Medina. His name is ‘Abd al-Salam b. Sa‘id b. Habib al-Tanukhi, his kunya is Abu Sa‘id and his laqab is Sahnun. 447 Ibn al-Faras, 3:343; Ibn ‘Atiyya, al-Muharrar; al-Qurtubi, 15:135. 136 similar court case in the future in which another person is accused of committing the same crime. These jurists have laid down a principle that a person who receives a fixed punishment for a certain offence cannot give testimony in the future regarding the same offence for which he was punished. Unexpectedly, some Hanafi jurists within Group B specify some exceptions where the testimony of a repentant convict of qadhf can be accepted. They maintain that the testimony can be valid in matters related to the acts of worship.448 For instance, a repentant convict of qadhf would have his testimony accepted if he testifies before the court that he saw the crescent of the month of Ramadan. Based on his testimony, the month would officially start and people would start fasting. Nevertheless, the famous opinion within the Hanafi school is that the testimony of a repentant convict of qadhf is invalid in all legal cases, including the acts of worship. The rejection of testimony in the fixed punishment for qadhf does not have an impact upon the authenticity of hadith reports that a convict of qadhf narrates.449 Almost all scholars of hadith and legal theory state that if a person received the fixed punishment for qadhf, the hadith reports that he narrates would still be accepted.450 The rationale behind this scholarly contention is that the act of giving testimony is different from the 448 Al-Alusi, Ruh al-Ma‘ani. 449 Al-Amin al-Shinqiti, Tafsir Surat al-Nur (Jadda: Dar al-Mujtama‘, 1990) 50-51. 450 Ibn Qudama, Rawdat al-Nazir wa Jannat al-Munazir fi Usul al-Fiqh, ed. ‘Abd al-Karim al-Namla, 2nd ed., vol. 2 (Riyadh: Maktbat al-Rushd, 1993) 405; Ibn Qudama is a Hanbali jurist and legal theorist, who lived in Juraselem, Damascus and Baghdad. His name is ‘Abd Allah b. Ahmad b. Muhammad b. Qudama, his kunya is Abu Muhammad, and his laqab is Muwaffaq al-Din. He died in 620/1223. 137 act of narrating a hadith report.451 Because the legal consequences of qadhf do not apply to the narration of hadith, scholars of hadith—such as al-Bukhari and Muslim—narrate hadith reports on the authority of Abu Bakra, who was once flogged in a qadhf case.452 It should be noted that this scholarly unanimity applies whether or not a convict of qadhf repents. The jurists who stipulate that repentance is a precondition for the acceptance of hadith reports by a convict of qadhf restrict this rule to offenders who committed qadhf in the literal sense of the word. In other words, this condition applies only when the offender insults a person concerning his chastity. However, it does not apply to witnesses who report a case of fornication then receive the fixed punishment for qadhf.453 4.5 Conditions for the validity of convicts’ repentance This section answers a crucial question as to whether repentance in the case of the fixed punishment for the accusation of fornication is subject to certain conditions that render it valid from a legal perspective. The analysis shows that a large number of jurists act upon the athar report on the authority of ‘Umar and stipulate that repentance should 451 Abu al-Ma‘ali al-Juwayni, Kitab al-Talkhis fi Usul al-Fiqh, ed. ‘Abd Allah al-Nibaly and Shubbayr al‘Umari, vol. 2 (Beirut: Dar al-Basha’ir; Mecca: Maktabat Dar al-Baz, 1996) 381; Ibn Rashiq, Lubab alMahsul fi ‘Ilm al-Usul, ed. Muhammad Jabi, vol. 1 (UAE: Dar al-Buhuth, 2001) 355; al-Juwayni is a Shafi‘i jurist and legal theorist, who lived in Nishapur, Baghdad and Mecca. His name is ‘Abd al-Malik b. ‘Abd Allah b. Yusuf b. Muhammad al-Juwayni, and his kunya is Abu al-Ma‘ali. He died in 478/1085. Ibn Rashiq is a Maliki jurist and legal theorist, who lived in Egypt. His name is al-Husayn b. ‘Atiq b. al-Husayn b. ‘Atiq b. Rashiq, and his kunya is Abu ‘Ali. He died in 632/1234. 452 Ibn Qudama, 2:405; Fatima Mernissi rejects a hadith report narrated by Abu Bakra and recorded by alBukhari in which the Prophet indicated that people would not prosper if they appointed a woman as their leader. Breaking a scholarly consensus, Mernissi argues that the hadith reports of Abu Bakra should be rejected because he received the fixed punishment for qadhf; Fatima Mernissi, The Veil and the Male Elite: A Feminist Interpretation of Women’s Rights in Islam (Canada: Addison-Wesley Publishing Company, 1991) 59-61. 453 Ibn Qudama, 2:405. 138 take the form of declaring oneself as a liar. However, other scholars act upon the apparent meaning of 24:5 and maintain that repentance should be perceived in its basic form, namely the feeling of regret. Furthermore, a few jurists note that repentance should be accompanied by righteous conduct. Influenced by the judgment of ‘Umar b. al-Khattab in a qadhf case, a large number of jurists and exegetes—such as al-Sha‘bi, Tawus, al-Zuhri, al-Shafi‘i, and alQurtubi—require that a convict of qadhf should declare that he was lying in his accusation.454 Al-Sha‘bi clearly states that the convict’s testimony would not be accepted if he does not declare himself a liar because God says: “If they had come up with four witnesses against it—yet as they did not come up with the witnesses, then those, in the Reckoning of God, are the liars” (Q. 24:13). Moreover, al-Dahhak remarks that the convict has to make this confession when he is flogged.455 In a similar vein, the Imami jurist al-Kashani and the Ibadi jurist al-Hawwari (d. 3rd/9th century) assert that this declaration should be made in public.456 Furthermore, scholars debate the exact wording of repentance that a convict of qadhf should observe. For instance, the Shafi‘i jurist al-Istakhri (d. 328/939)457 maintains 454 Al-Tabari, Jami‘ al-Bayan; al-Razi, al-Tafsir al-Kabir; al-Mawardi, al-Nukat; Ibn ‘Atiyya, alMuharrar; al-Qurtubi, 15:133-134; al-Tha‘labi, al-Kashf; Ibn al-Faras, 3:343; al-Jaza’iri, 3:374-76; alSuyuti cites a relevant hadith in which the Prophet explains that the repentance of offenders in the case of qadhf can be accepted if they declare themselves liars. The chain of narrators for this hadith, as stated by al-Suyuti, is the Prophet ← Ibn ‘Umar ← Ibn Mardawayh. In the available sources, al-Suyuti is the only scholar who provides this hadith; al-Suyuti, al-Durr. 455 Al-Tabari, Jami‘ al-Bayan. 456 Al-Tabari, Jami‘ al-Bayan; al-Kashani, al-Safi; Hud al-Hawwari, Tafsir Kitab Allah. 457 Al-Istakhri is a Shafi‘i jurist, who lived in Baghdad. His name is al-Hasan b. Ahmad b. Yazid b. ‘Isa b. al-Fadl b. Yasar al-Istakhri, and his kunya is Abu Sa‘id. 139 that the convict should say: “I lied in what I said, and I would not do it again.”458 Nonetheless, Abu Ishaq al-Marwazi maintains that the offender should not say that he lied in his accusation because he might have said the truth.459 He suggests that the convict should say, “I regret for what I said, I retract it, and I would not do it again.” The opinions of the Shi‘i jurist Ibn Mutawwaj al-Bahrani as well as Miqdad al-Suyuri can be seen as a hybrid between the opinions of al-Istakhri and Abu Ishaq. Al-Bahrani and alSuyuri postulate that a convict of qadhf should say “I made a mistake” if he believes that he is truthful in his accusation. Otherwise, he should declare himself as a liar.460 Acting upon the apparent meaning of Q. 24:5, several scholars do not consider the condition of declaring oneself a liar as a prerequisite for the validity of repentance in the case of the fixed punishment for qadhf.461 These jurists observe that repentance means that the convict becomes righteous, regrets committing qadhf, seeks God’s forgiveness, and refrains from committing qadhf again.462 Malik, al-Tabari, Ibn al-Faras, and alShawkani advocate this opinion. The Maliki jurist Ibn al-Faras notes that the basic meaning of repentance is reversion (ruju‘) from the state of disobedience to the state of 458 Al-Razi, al-Tafsir al-Kabir; al-Thula’i, 4:389. 459 Al-Razi, al-Tafsir al-Kabir. 460 Al-Bahrani, 362, 371; al-Suyuri, part 4, 38. 461 Ibn ‘Atiyya, al-Muharrar; al-Qurtubi, 15:134; al-Tabari, Jami‘ al-Bayan; Ibn al-Faras, 3:343. 462 Al-Tabari, Jami‘ al-Bayan; al-Mawardi, al-Nukat; al-Shirbini, 2:665; al-Qurtubi, 15:134; Ibn al-Faras, 3:343. 140 obedience and that this reversion can be effected through regret and righteousness in the case of qadhf as God does not mention a specific type of reversion in Q. 24:5.463 Furthermore, al-Biqa‘i and al-Khatib al-Shirbini stipulate that the righteousness of a repentant convict of qadhf should cover a period of time, after the elapse of which one can ascertain that the convict has become righteous.464 Along the same line, al-Qushayri (d. 465/1072)465 explains that during this period the convict should become widely known for his righteousness in the same way his accusation that violated Muslims’ honor is widespread.466 Moreover, al-Biqa‘i and al-Khatib al-Shirbini suggest that this period should be one year during which the convict’s character can be tested by the four seasons that unveil personal traits.467 These scholars fix this time frame in analogy to other shari‘a rulings that involve a one-year period, such as zakat (mandatory alms-giving).468 4.6 Conclusion When a person insults somebody and accuses him of committing fornication, he would receive the fixed punishment for qadhf that comprises three penalties: flogging eighty times, eternal rejection of testimony, and labeling as immoral. If this person repents of his crime, he would still be flogged, but he would no longer be considered as 463 Ibn al-Faras, 3:343. 464 Al-Shirbini, 2:665; Ibn ‘Adil, al-Lubab; al-Razi, al-Tafsir al-Kabir; al-Biqa‘i, Nazm al-Durar. 465 Al-Qushayri is a Shafi‘i jurist, legal theorist and a scholar of Sufism, who lived in Nishapur. His name is ‘Abd al-Karim b. Hawazin b. ‘Abd al-Malik b. Talha al-Qushayri, and his kunya is Abu al-Qasim. 466 Al-Qushayri, Lata’if al-Isharat, <http://www.altafsir.com/>. 467 Al-Shirbini, 2:665; al-Razi, al-Tafsir al-Kabir; al-Biqa‘i, Nazm al-Durar; Ibn ‘Adil, al-Lubab. 468 Al-Razi, al-Tafsir al-Kabir. 141 immoral. The validity of his testimony in the future has been the subject of considerable scholarly debate. Jurists who advocate the cancellation of this punishment believe that Q. 24:5 exempts repentant offenders from facing this penalty, whereas scholars who deny the mitigating impact assert that the exceptive clause in Q. 24:5 does not refer to the sentence about testimony in Q. 24:4. Each group of scholars bases its contentions upon textual analysis of Q. 24:4-5. Group A construes the offence of qadhf as the reason why the testimony becomes invalid. When the offender repents, he would become upright and thus his testimony would become valid. Nevertheless, Group B perceives the act of flogging as the rationale behind the rejection of testimony. Therefore, repentance would not constitute a mitigating factor after the culprit is flogged eighty times. Furthermore, hadith and athar reports are utilized by the two opposing sides. Group A mainly depends on an athar report in which a sahabi caliph accepted the testimony of a convict of qadhf after declaring repentance. In contrast, Group B cites two hadith reports in which the Prophet explains that the testimony of a person who received a fixed punishment, especially qadhf, would be rejected. These reports, as stated by Group A, do not address the impact of repentance upon invalid testimonies. Rather, they demonstrate the types of testimonies that should be considered as invalid. Therefore, they apply in case a convict does not repent of his offence. The analysis reveals the centrality of the Qur’an, hadith and athar reports, and Arabic grammar in the juristic discourse across the eight schools regarding the mitigating impact of repentance upon the three penalties that comprise the fixed punishment for the accusation of fornication. 142 Among the jurists who cancel the penalty of eternal rejection of testimony are some scholars who stipulate that convicts of qadhf cannot give their testimony in some cases, especially those related to fornication and qadhf. Even the Hanafis, who do not recognize the mitigating impact, allow convicts of qadhf to give testimony in cases related to the acts of worship. However, the predominant opinion in the school is that these offenders would not be eligible to give any testimony in any court case. Furthermore, almost all scholars from Group A and Group B do not apply the laws of rejection of testimony to the sphere of hadith narration. Therefore, a convict of qadhf may have his testimony rejected, but the hadith reports that he narrates would be accepted. Overall, there is a tendency among jurists to closely follow the athar report on the authority of ‘Umar. This has led them to consider declaring oneself a liar as a precondition for the validity of repentance in the case of qadhf. Unexpectedly, this athar report is cited by the Imamis in support for their arguments. 143 CHAPTER 5: CONCLUSION One facet of the legal significance of repentance is its role as a mitigating factor in the context of worldly punishments. This thesis attempted to assess this significance by analyzing in depth the mitigating impact of repentance upon a representative sample of punishments in the field of Islamic law, namely the fixed punishments for brigandage (hiraba), theft, and the accusation of fornication (qadhf). These penalties fit the two categories of the Islamic theory of rights: God’s right and individuals’ rights. The focus of this research was to find out whether these fixed punishments can be cancelled when the offender repents of his crime. This study compared the views of independent jurists and exegetes as well as scholars who belong to any of the eight legal schools, namely the Hanafis, Malikis, Shafi‘is, Hanbalis, Zahiris, Zaydis, Imamis, and Ibadis. It used a wide array of primary sources in the genres of Qur’anic exegesis (tafsir), Islamic law (fiqh), and legal theory (usul al-fiqh). The exegetical works constitute the core of this thesis as the impact of repentance upon the punishments under review is not widely discussed in the other two genres. I consulted various types of exegetical works: A-Z exegesis that explains the entirety of the Qur’an chapter by chapter and verse by verse; law-centered exegesis that focuses on the Qur’anic verses that contain legal rulings; language-centered exegesis that pays special attention to linguistic considerations while explaining the Qur’an; and Sufi exegesis that provides symbolic readings of the Qur’anic text. I was able to utilize eighteen references in the sub-genre of legal exegesis across the eight schools with the exception of the Zahiris as I have not found any published material that fits this category 144 of exegesis in the Zahiri literature. In order to compensate for this lack of Zahiri sources, I benefited from Ibn Hazm’s analysis of the Qur’anic verses around which the thesis revolves—namely Q. 5:33-34, 5:38-39, and 24:4-5—in his famous book al-Muhalla. One contribution that this research makes is the citation of several legal commentaries that may have not been utilized in scholarly works written in English. Notwithstanding its focus on classical Islamic law, the thesis brings to the scope of analysis some contemporary works in Qur’anic exegesis. In Chapter 1, I provided an introduction to the topic of my research and surveyed the available literature in Arabic and English. Chapter 2 assessed the mitigating impact of repentance upon the fixed punishment for brigandage. It concluded that scholars are unanimous that a repentant brigand would be exempted from receiving the four penalties that comprise the fixed punishment for brigandage, namely execution, cutting off the right hand and left foot, putting onto a cross after execution, and exile. However, jurists debate as to whether repentant brigands would be subject to the laws of retaliation and financial liability in case the victim or his family demands justice. Another point over which unanimity is achieved is that repentance has to take place before arrest, or else repentant brigands would face the fixed punishment for brigandage. Moreover, the case of brigandage has prompted several scholars to declare that repentance would cancel all fixed penalties that are perceived as God’s right (Paradigm 1). Nevertheless, the majority of jurists construes the case of brigandage as an exception to the general rule that fixed punishments are not mitigated by repentance (Paradigm 2). 145 The mitigating impact of repentance upon the fixed punishment for theft was analyzed in Chapter 3. The Shafi‘is (in one opinion), Hanbalis, and Imamis exempt repentant thieves from the penalty, whereas the majority of jurists states that convicts would have their right hand cut off despite their repentance. The scholarly camp that recognizes the mitigating impact of repentance obliges repentant thieves to return the stolen property to the rightful owner. Furthermore, the notion of pre-arrest repentance is invoked by these jurists and declared by the Shafi‘is as a condition for the validity of repentance. In the same vein, the Hanbalis and Imamis (in one opinion) require that repentance should take place before the crime is proven in court, or the thief would face the punishment. Differentiating between two scenarios, the Imamis (in another opinion) assert that repentance should take place before the offence is established through evidence. If the crime is proven through confession, the ruler would have the option to either punish or pardon the repentant thief. Following the same line of reasoning, the Hanbali jurist Ibn al-Qayyim maintains that the ruler would have this choice in all cases of fixed punishments when the offence is established through confession. I examined in Chapter 4 the mitigating impact of repentance upon the fixed punishment for the accusation of fornication (qadhf). Unanimously, all jurists and schools rule that repentance cancels two out of three penalties that comprise the fixed punishment for qadhf, namely flogging the offender eighty times and labeling him as immoral. Rejecting the convict’s testimony for the remainder of his life is the remaining penalty for qadhf. The majority of jurists affirms that repentant offenders would be eligible to give testimony in the future, whereas the Hanafis and several independent scholars stress that 146 the convicts of qadhf would never have their testimony accepted even were they to repent. The scholarly camp that relieves repentant offenders from this punishment requires that they declare themselves liars so that their testimony would be accepted in the future. Moreover, some jurists from this camp consider the testimony of repentant convicts as invalid in some cases, whereas some scholars from the opposing camp perceive this testimony as valid in some cases. Both camps do not apply the rules that govern the validity of testimony in the case of qadhf to the sphere of hadith narration. Thus, the hadith reports that a convict of qadhf narrates would not be rejected notwithstanding the potential invalidity of his testimony. In the main, the fixed punishment for qadhf (flogging) is not mitigated by repentance. However, a few scholars contend that repentance cancels this penalty as well as any other punishment without exception (Paradigm 3). It seems that the three paradigms that govern the mitigating impact of repentance upon fixed punishments emerged during the era of tabi‘un (2nd Muslim generation) then was refined later during the era of legal schools. For instance, al-Sha‘bi (d. ca. 100/718) may be considered as a proponent of the third paradigm as he cancels flogging in the case of qadhf when the convict repents and declares himself a liar. Later, this opinion constituted a minor trend within the Shafi‘i school. Likewise, ‘Ata’ (d. ca. 114/732) may be perceived as an advocate of the second paradigm as he cancels hand-cutting in the case of theft when the offender repents and returns the stolen item to the rightful owner before the case is reported to the authorities. Later, the Hanbalis and Imamis postulated that this penalty is cancelled when the culprit repents before the offence is proven in court. 147 The mitigating impact of repentance upon the fixed punishments for brigandage, theft, and qadhf constitutes a case of casuistry as jurists assign legal significance to the concept of repentance in the case of brigandage rather than the case of qadhf. Scholars unanimously agree on the cancellation of the four penalties that comprise the fixed punishment for brigandage because of convicts’ repentance. They also agree on the enforcement of the penalty of flogging in the fixed punishment for qadhf despite convicts’ repentance. This unanimity of opinion transcends both school affiliation and theological orientation as the eight legal schools assign legal significance to the concept of repentance in the case of brigandage rather than qadhf. Even when jurists are not unanimous in the case of theft, we have not seen that there is a single school that holds an opinion that is contrary to the contention of the remaining seven schools. The Shafi‘is (in one opinion), Hanbalis, and Imamis cancel the penalty of hand-cutting if the thief repents, whereas the Hanafis, Malikis, Shafi‘is (in another opinion), Zahiris, Zaydis, and Ibadis enforce this penalty despite offenders’ repentance. 148 APPENDIX A: AUTHORS AND BOOKS (ALPHABETICAL) Name of Scholar Date of Death School Affiliation ‘Abd al-Rahman al-Tha‘alibi 875/1470 Maliki Abu al-Hawari 3rd/9th century Ibadi Abu al-Ma‘ali alJuwayni 478/1085 Shafi‘i Kitab al-Talkhis fi Usul al-Fiqh Abu al-Su‘ud 951/1544 Hanafi Irshad al-‘Aql al-Salim ila Mazaya al-Kitab al-Karim Abu al-Thana’ al-Asbahani 749/1348 Shafi‘i Bayan al-Mukhtasar Abu Hayyan 754/1353 Shafi‘i Al-Bahr al-Muhit Abu Ishaq al-Tha‘labi 427/1035 Shafi‘i Al-Kashf wa al-Bayan Ahmad al-Jaza’iri 1150/1737 Imami Qala’id al-Durar fi Bayan Ayat al-Ahkam bi-al-Athar Al-‘Ulaymi 928/1521 Hanbali Fath al-Rahman fi Tafsir al-Qur’an Al-A‘qam 9th/15th century Zaydi Tafsir al-A‘qam Al-Alusi 1270/1853 Hanafi Al-Amin al-Shinqiti 1393/1973 Maliki Al-Amin al-Shinqiti 1393/1973 Maliki Ruh al-Ma‘ani fi Tafsir alQur’an al-‘Azim wa al-Sab‘ al-Mathani Adwa’ al-Bayan fi Idah alQur’an bi-al-Qur’an Tafsir Surat al-Nur Al-Baghawi 516/1122 Shafi‘i Ma‘alim al-Tanzil Al-Baydawi 685/1286 Shafi‘i Al-Biqa‘i 885/1480 Shafi‘i Al-Dah al-Shinqiti 1403/1982 Maliki Al-Farra’ 207/822 ? Ma‘ani al-Qur’an wa I‘rabuh Al-Fayruzabadi 817/1414 Shafi‘i Tafsir al-Qur’an Title of Work Al-Jawahir al-Hisan fi Tafsir al-Qur’an Al-Diraya wa Kanz al-Ghinaya fi Muntaha al-Ghaya wa Bulugh al-Kifaya fi Tafsir Khamsumi’at Aya min al-Qur’an al-Karim Anwar al-Tanzil wa Asrar alTa’wil Nazm al-Durar fi Tanasub alAyat wa al-Suwar Al-Ayat al-Muhkamat fi alTawhid wa al-‘Ibadat wa alMu‘amalat Category of Work A-Z Exegesis Lawcentered Exegesis Legal Theory A-Z Exegesis Legal Theory A-Z Exegesis A-Z Exegesis Lawcentered Exegesis A-Z Exegesis A-Z Exegesis A-Z Exegesis A-Z Exegesis Exegesis A-Z Exegesis A-Z Exegesis A-Z Exegesis Lawcentered Exegesis Languagecentered Exegesis A-Z Exegesis 149 Languagecentered Exegesis A-Z Exegesis Lawcentered Exegesis Legal Theory Sufi Exegesis Al-Fayruzabadi 817/1414 Shafi‘i Basa’ir Dhawi al-Tamyiz fi Lata’if al-Kitab al-‘Aziz Al-Janabidhi 14th/19th century Imami Bayan al-Sa‘ada fi Maqamat al‘Ibada Al-Jassas 370/980 Hanafi Ahkam al-Qur’an Al-Jassas 370/980 Hanafi Al-Fusul fi Usul al-Fiqh Al-Kashani 1090/1679 Imami Al-Khatib al-Shirbini 977/1569 Shafi‘i Al-Khazin 725/1324 Shafi‘i Al-Mahalli and al-Suyuti 864/1459 and 911/1505 Shafi‘i Tafsir al-Jalalayn A-Z Exegesis Al-Mawardi 450/1058 Shafi‘i Al-Nukat wa al-‘Uyun A-Z Exegesis Al-Mawardi 450/1058 Shafi‘i Kitab al-Hudud min al-Hawi alKabir Law Al-Qarafi 684/1285 Maliki Al-Istighna’ fi al-Istithna’ Legal Theory Al-Safi fi Tafsir Kalam Allah alWafi Al-Siraj al-Munir fi al-I‘ana ‘ala Ma‘rifat ba‘d Ma‘ani Kalam Rabbina al-Hakim al-Khabir Lubab al-Ta’wil fi Ma‘ani alTanzil Nukat al-Qur’an al-Dalla ‘ala al-Bayan fi Anwa‘ al-‘Ulum wa al-Ahkam wa al-Munbiya ‘an Ikhtilaf al-Anam Al-Jami‘ li-Ahkam al-Qur’an wa al-Mubayyin li-ma Tadammanah min al-Sunna wa al-Furqan Al-Qassab ca. 360/970 None Al-Qurtubi 671/1272 Maliki Al-Qushayri 465/1072 Shafi‘i Lata’if al-Isharat Al-Samarqandi ca. 375/985 Hanafi Bahr al-‘Ulum Al-Samin al-Halabi 756/1355 Shafi‘i Al-Shawkani 1250/1616 None Al-Suyuti 911/1505 Shafi‘i Al-Suyuti 911/1505 Shafi‘i Al-Iklil fi Istinbat al-Tanzil Al-Tabarani 360/970 None Al-Tafsir al-Kabir Al-Tabari 310/923 None Jami‘ al-Bayan ‘an Ta’wil Ay alQur’an Al-Durr al-Masun fi ‘Ulum alKitab al-Maknun Fath al-Qadir al-Jami‘ bayn Fannay al-Riwaya wa al-Diraya min ‘Ilm al-Tafsir Al-Durr al-Manthur fi al-Tafsir bi-al-Ma’thur A-Z Exegesis A-Z Exegesis Lawcentered Exegesis Lawcentered Exegesis Sufi Exegesis A-Z Exegesis A-Z Exegesis A-Z Exegesis A-Z Exegesis Lawcentered Exegesis A-Z Exegesis A-Z Exegesis 150 Al-Tabarsi 548/1153 Imami Majma‘ al-Bayan fi Tafsir alQur’an Al-Tabataba’i 1401/1980 Imami Al-Mizan fi Tafsir al-Qur’an Al-Tusi 460/1067 Imami Al-Tibyan al-Jami‘ li-‘Ulum alQur’an Al-Zajjaj ca. 311/923 Hanbali Ma‘ani al-Qur’an wa I‘rabuh Al-Zamakhshari 538/1143 Hanafi Al-Kashshaf ‘an Haqa’iq Ghawamid al-Tanzil wa ‘Uyun al-Aqawil fi Wujuh al-Ta’wil Al-Zarkashi 794/1348 Shafi‘i Al-Bahr al-Muhit Atfiyyash 1332/1913 Ibadi Fakhr al-Din al-Najri 877/1472 Zaydi Fakhr al-Din Al-Razi 606/1209 Shafi‘i Al-Tafsir al-Kabir Ibadi Tafsir Kitab Allah al-‘Aziz Hanbali Al-Lubab fi ‘Ulum al-Kitab rd Hud al-Hawwari Ibn ‘Adil Hamayan al-Zad ila Dar alMa‘ad Shafi al-‘Alil Sharh alKhamsumi’at Aya min al-Tanzil th 3 /9 century ca. 880/1475 Ibn ‘Ajiba 1224/1809 Maliki Al-Bahr al-Madid fi Tafsir alQur’an al-Majid Ibn ‘Ashur 1393/1973 Maliki Al-Tahrir wa al-Tanwir Ibn ‘Atiyya 546/1151 Maliki Al-Muharrar al-Wajiz fi Tafsir al-Kitab al-‘Aziz Ibn al-‘Arabi 543/1148 Maliki Ahkam al-Qur’an Ibn al-Faras 597/1200 Maliki Ahkam al-Qur’an Ibn al-Jawzi 597/1200 Hanbali Zad al-Masir fi ‘Ilm al-Tafsir Ibn al-Qayyim 751/1349 Hanbali Ibn Hajar al-Haytami 973/1565 Shafi‘i Ibn Hazm 456/1064 Zahiri I‘lam al-Muwaqqi‘in ‘an Rabb al-‘Alamin Tuhfat al-Minhaj bi-Sharh alMinhaj Al-Muhalla bi-al-Athar Ibn Hazm 456/1064 Zahiri Al-Ihkam fi Usul al-Ahkam Ibn Hubayra 655/1257 Hanbali Al-Fiqh ‘ala Madhahib alA’imma al-Arba‘a Ibn Juzayy 741/1340 Maliki Al-Tashil li-‘Ulum al-Tanzil Ibn Kathir 774/1372 Shafi‘i Tafsir al-Qur’an al-‘Azim A-Z Exegesis A-Z Exegesis A-Z Exegesis Languagecentered Exegesis A-Z Exegesis Legal Theory A-Z Exegesis Legal Exegesis A-Z Exegesis A-Z Exegesis A-Z Exegesis Sufi Exegesis A-Z Exegesis A-Z Exegesis Lawcentered Exegesis Lawcentered Exegesis A-Z Exegesis Legal Theory Law Law Legal Theory Comparative Law A-Z Exegesis A-Z Exegesis 151 Ibn Mutawwaj al-Bahrani 820/1417 Imami Minhaj al-Hidaya fi Bayan Khamsumi’at al-Aya Ibn Qudama 620/1223 Hanbali Rawdat al-Nazir wa Jannat alMunazir fi Usul al-Fiqh Ibn Rashiq 632/1234 Maliki Lubab al-Mahsul fi ‘Ilm al-Usul Ilkiya al-Harrasi 504/1110 Shafi‘i Ahkam al-Qur’an Isma‘il Haqqi 1127/1715 Hanafi Ruh al-Bayan fi Tafsir al-Qur’an Makki b. Abi Talib 437/1045 Maliki Al-Hidaya ila Bulugh al-Nihaya Miqdad al-Suyuri 826/1422 Imami Kanz al-‘Irfan fi Fiqh al-Qur’an Muhammad al-Muzi‘i 825/1422 Shafi‘i Taysir al-Bayan li-Ahkam alQur’an Muhammad b. alQasim 1067/1656 Zaydi Muntaha al-Maram fi Sharh Ayat al-Ahkam Nizam al-Din alNaysaburi 728/1327 Shafi‘i Ghara’ib al-Qur’an wa Ragha’ib al-Furqan Sa‘id al-Rawandi 573/1177 Imami Fiqh al-Qur’an Siddiq Hasan alQannuji 1307/1890 None Nayl al-Maram fi Tafsir Ayat al-Ahkam Yusuf al-Thula’i 832/1428 Zaydi Al-Thamarat al-Yani‘a wa alAhkam al-Wadiha al-Qati‘a Lawcentered Exegesis Legal Theory Legal Theory Lawcentered Exegesis Sufi Exegesis Sufi Exegesis Lawcentered Exegesis Lawcentered Exegesis Lawcentered Exegesis A-Z Exegesis Lawcentered Exegesis Lawcentered Exegesis Lawcentered Exegesis 152 REFERENCES Abou El Fadl, Khaled. Rebellion and Violence in Islamic Law. United Kingdom: Cambridge University Press, 2001. Abu al-Hawari, Muhammad. 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