I just read Ibrahim Waziri's posting on the above on kanoonline. I am
attaching my latest write-up(an advance draft of which I had given Waziri)
which is up on gamji.com and addresses a number of issues regarding hudood
sentences in the north. The article contains detailed analysis of the
Mukhtasar and its commentaries and annotates arguments I have repeatedly
made over a number of years. The conclusions are not exactly new but the
referencing would help brothers and sisters who wish to cross check
arguments and test their validity.
I will only add here in brief what I wrote to Waziri. I believe he makes a
crucial error in legal theory by overestimating the gravity of nasab-to the
extent that life may be sacrificed even if there is a shadow of doubt to
Life in Islam is sacred. Allah says in many verses in the Qur'an, for
example Al-Isra'|33 "And do not take any human being's life which Allah has
willed to be sacred except in the pursuit of justice" and this refers to
executing a legal judgement, killing in a just war or legitimate self
In each case, and more so in arriving at judgement, it is to be ensured that
where the punishment for a crime is death, that crime has been established
beyond every shadow of doubt-and this is true of homicide and zina and
apostasy etc. For zina the standards of proof, bayyinah, are even higher
than for homicide, since four eye witnesses are required as opposed to two.
Although nasab is counted as one of the dharuriyyat (necessities) by some by
jurists it is ranked lower than life and life can never be sacrificed for
nasab where a shubha exists.
But beyond that, in the science of usul, we learn that not every jurist
considers nasan (genealogy) as one of the necessities. Ibn Ashoor for
instance makes a distinction between nasl(procreation) and nasab
(genealogy). The first is necessary, the second is not.
procreation is necessary to preserve the human race which is why the prophet
Lut condemned his homosexual people for "cutting off the path(to
procreation)". Nasab gives a child a father, agnate relatives, rights to
feeding and clothing and a right to inheritance. All of these can be given
by his mother and her relations. So nasab is needed but not a necessity and
it is considered by this jurist as merely something that makes nasl complete
(ie one of the mukammilat al-nasl). I say this to show that even on the
question of nasab being one of the dharuriyyat of shariah there is a
dispute- which is not the case with life.
To suggest that nasab has so much weight that we should risk taking an
innocent life to preserve it is reflective of a superficial reading of usul
al-fiqh and the intricate debates on maqasid.
For a fuller discussion of these issues I have referred Ibrahim to Ibn
Ashoor's Maqasid al-Shari'ah and Dr Al-Yoobi's Maqasi al-Shari'ah
It seems to me, wallahu a'lam, that Maliki jurists have used this logic in
giving divorcees and widows this leeway. However for those women who are not
muhsanat, the punishment is 100 lashes so life is not at risk. Here the
jurists are willing to risk error on the side of caution because of the
overall importance of nasab which outweighs the passing pain of lashes. I
plan to give more thought to this and produce something as part of a
critical reading of Coulson.
I hope this comment and the article will serve the purpose of clarifying the
issue. I hope you will place both at the disposal of your members.