Al-MaturTdT on Corporal Punishment
Al-Maturidi acknowledged that the Quran prescribes corporal punishments, but insisted that those punishments were not about justice. He reasoned that they could not possibly be, since punishments are only just if they fit the crime.
Qu- ranically-prescribed corporal punishments, said al-Maturidi, do not fit their related crimes. In the case of theft, for instance, he said that amputation has nothing to do with the crime itself. He felt that justice would be better served if the thief were to give the victim restitution. Cutting off the hand of a thief might deliver personal satisfaction, but it does not restore the victim her property, nor make up for the time she lost with her property, nor alleviate the trauma of being a victim of theft?6Al-Maturidi conceded that amputating a thief’s hand might prevent repeat offences, but said that imprisonment would just as easily serve that purpose, as would public humiliation. There is nothing special about amputating the hands of a thief that is more just or more fitting than those other modes of punishment. Besides, he said, if deterrence and justice are best achieved by amputating an appendage related to a crime, why not amputate the genitalia of convicted adulterers?[56] Why does whipping adulterers stop adultery whereas amputation stops theft? Why not amputate adulterers and whip thieves? For that matter, why corporally punish convicted criminals at all?
To those who would argue that society runs well when thieves and adulterers are corporally punished, al-Maturidi answered that, in fact, the exact opposite would be true. He said that the Quran commands believers to treat one another with kindness/[57] and so Muslims should strive to create a community wherein criminals are pardoned and treated well, rather than stigmatised and punished.3[58] With respect to punishing murder, for example, the Quran affirms the right for the victim’s family to either exact retribution or forgive the offender (Q.
2:178), and counsels forgiveness as the best option (Q. 16:126). Why doesn’t that same logic apply to the lesser crimes of theft and adultery?Some of al-Maturidi’s detractors offered a spiritual answer, claiming that punishment in this life alleviates punishment in the afterlife. The thinking here is that if someone is whipped for adultery during their lifetime, they might be spared God’s wrath in the afterlife. For al-Maturidi, this was a dubious proposition. Recall that in the Hanafi framework, sin does not lessen someone’s faith, and so long as sinning believers repent their crimes, they are forgiven and are blameless in the sight of God. Corporal punishment, then, would have no otherworldly benefit if convicted criminals showed remorse and repented, because they would have already been forgiven.[59] Thus, for al-Maturidi, corporal punishment promotes neither societal nor spiritual justice. In fact, since believers are forgiven their sins by simply repenting, and believers should strive to create a culture of compassion amongst themselves, society would benefit most if criminals were encouraged to repent, and forgiveness were the order of the day. What, then, is the point of corporal punishment?
The answer for early Hanafis was: we don’t know. All that is known is that God included corporal punishment in the Quran as one method for maintaining social order. Given this, al-Maturidi suggested a way of thinking about corporal punishment that is not about justice per se, but rather about sentencing limits. Al-Maturidi pointed out that corporal punishments are referred to in the scriptures as hudud, literally ‘limits’, as in Q. 2:229, ‘these are the limits (hudud) of God, so do not exceed them’. Al-Maturidi argued that corporal punishments mentioned in the Quran are the outer limits of the kinds of sentences that believing judges can hand down to convicted criminals.41 Rather than being prescriptions that must be obeyed in all cases, the hudud are limits that should not be exceeded.
A thief, for example, cannot be killed, because the outermost limit for punishing theft is amputation. Should the community decide on a lesser punishment than amputation — such as imprisonment or a fine — that would be perfectly acceptable, so long as the severity of the punishment decided upon by the community does not exceed amputation.The community and its leaders, then, have to decide on appropriate punishments within the limits prescribed in the Quran. And so, if leaders determine that adulterers should be imprisoned, or banished, or pardoned, that is their prerogative, so long as they do not exceed the limit of whipping, or, according to some, stoning.42 The particular punishment that is decided upon is irrelevant with respect to Divine Justice; rather, justice is found in devising laws for the Muslim community, and then abiding by them, whatever they are. Again, we see that early Hanafis conceived of Islamic law as a social contract according to which dar al-Islam functions, and not a metaphysical law that is inherently just and leads one to paradise.