Hudood Laws need a new theory Probably Hashim Kamali has produced one !

Ali Salman is CEO & co-founder of Islam & Liberty Network.

Mohammad Hashim Kamali’s name needs no introduction in the field of Islamic law. Now 76, originally from Afghanistan, he has spent last three decades in Malaysia, initially at the International Islamic University Malaysia, then at the Institute of Islamic Thought and Civilisation, and finally as founder CEO of International Advanced Institute of Islamic Studies (IAIS Malaysia), where he is still based. Professor Kamali is also a great friend and supporter of Islam & Liberty Network and was keynote speaker in our 7th International Conference “Islamic Case for Religious Freedom” in Jakarta. It was humbling to see this great scholar not only speaking but listening keenly to all speakers during full two days of the conference.

His latest book is “Crime and Punishment in Islamic Law- A Fresh Interpretation” published in 2019. Kamali’s basic premise in this book is captured in these lines: “Islamic criminal law has lagged behind, due to stronghold of the imitative tradition of taqlid[1]. Instead of trying to bridge the yawning gap between the law and social reality and to address the challenges, the proponents of taqlid engaged in exaggerations… The Quranic outlook on punishment may be characterised by its emphasis on retribution, deterrence and reform.”

Clearly, Kamali finds a gap between Quranic outlook on punishment and hudood laws (Islamic penal codes) as understood by many Muslim jurists in fiqh (Islamic jurisprudence).

Kamali’s case is compellingly simple. He writes that “there are only four offences- “namely adultery, theft, slanderous accusation, and banditry/terrorism- for which the Quran has prescribed punishments and in none of the relevant passages is there a mention of hadd or hudud as such.”

On the other hand, fiqh recognizes six or even seven offences liable to hudood punishments including for apostasy and blasphemy which do not find nass (Quranic text).

Kamali emphasises that “whereas the Quran has, in all four instances where specific punishments occur, made provisions for repentance, correction and reform (tawbah and islah), juristic doctrine has either left this out altogether or reduced it to a mechanical formality that can hardly be said to be reflective of original teachings of the Quran.” 

Hashim Kamali message is bold and clear: The writings of many Muslim jurists based on a blind following of fiqh, do not reflect the Quranic spirit of dealing with crime and punishment.   

It was back in 1993, when the Malaysian state of Kelantan, ruled by the conservative Malaysian Islamic Party (PAS) moved to legislate hudood. The federal government then approached Professor Hashim Kamali to assist the government in responding to this move. His arguments proved effective in stalling PAS attempts to demonstate a taqlidi manifestation of Islamic laws. In his new book, he has updated his arguments, and has also included the status of hudood in the Muslim world. PAS continues to advocate enforcement of hudood laws in Malaysia, as explained by some taqlidi jurists.

In his inaugural presentation on 30th January at IAIS, that I had the honour of attending, Professor Kamali clarified that he is not denying the sanctity of hudood as they constitute a part of the Quran. However, he has questioned the understanding of hudood which has reached to us through fiqh. As he said “you need to change theory of hudood”. A cursory browsing of his latest book suggests that he has probably presented a new theory already, or has at least made a major contribution towards formulation of a new theory. This can be a paradigm shift in our understanding about Shariah (Islamic law) and its compatibility with the lived reality.

Hashim Kamali is also probably most prolific scholar of Islam in our times who has established a case of freedom of expression, freedom of religion and private property rights while relying on the principles of Islamic law. His work merits even more attention in a world which is grappling with conflicting approaches to Islam.

[1] It’s a vastly used term in Islamic law and denotes conformity and following one’s opinion without questioning or seeking evidence.