. IÚ IÛJ ':?Ü?I Iljj ,H c.,tÝ (cont.)

However, al-Bugha and Mistu state, if a person does carry out the death penalty without governmental authority, then that person is also to be punished but he is not to receive the death penalty himself, since he killed someone who legally deserved to be killed.1 • The above point leads to another very important question: Is the death penalty and other prescribed punishments to be implemented in non­ Islamic lands?2 That is, if a Muslim commits, for example, adultery in a non-Islamic state, are the Muslims there supposed to execute him? On this opinion, there is a difference of opinion among the scholars.3 The first opinion to be presented here is that of ibn al-Qayyim. His opinion is somewhat unique but it is strongly rooted in the evidences related to this question. According to ibn al-Qayyim, if a person commits a crime for which there is a prescribed punishment in a non-Islamic state, then he is not to be punished by the Muslims for that crime until he returns to the Islamic state. Furthermore, if that took place during jihad and the person afterwards does acts of bravery against the disbelievers and he shows signs of repentance, then the punishment may be dropped completely from him. The opinion of Ahmad, Ishaaq, al-Auzaa'ee and others is that the prescribed punishment is not to be carried out in the non-Islamic lands but will be carried out when the people return to the Islamic land. One of the reasons that they give for that is that the prescribed punishment may drive the guilty Muslim to leave the Muslims and join the ranks of the disbelievers. That is, there is more harm than good in enforcing such penalties in non-Islamic lands. Hence, they do not allow such an act in the lands of the non-Muslims. One of the proofs for this position is the following hadith from Sunan al-Tirmidhi and elsewhere, in which the Prophet (peace be upon him) said, ·.1i1 . %$\ t6;7 c ੘ /'"' c$- r.,? / • "Do not cut the hands [of the thieves] in battle."4 This hadith is understood by some scholars to imply that in all of the lands of the enemies, the prescribed punishments are not to be implemented. This was the 1 Al-Bugha and Mistu, p. 94. 2 Non-Islamic lands are known in the literature as Daar al-Harb (Y .;:JI J.i) or Daar al-Kufr ( ).i ..)Sll). These are the lands where Islamic law is not being enforced and the affairs of the state are not in the hands of Muslims. 3 For this question, the author greatly relied upon Bakr Abu Zaid, Al-Hudood wa al-Taziraat ind ibn al-Qayyim (Riyadh: Daar al-Asimah, 1415 A.H.), pp. 39-68. 4 According to al-Albani, this hadith is sahih. Al-Albaani, sahih al-Jaami, vol. 2, p. 1233. Commentary on the Forty Hadith of al-Nawawi application by the Companions of this hadith. In fact, according to al­ Maqdisi, there is a consensus on this point. The Hanafis are of the view that the prescribed punishments are not to be executed in non-Islamic lands unless the caliph is actually present with the Muslims. They argue that without the ability and authority to implement the penalties, they may not be performed. However, if the caliph is actually with them, they will have the ability and authority to do it. Note that they do not consider it sufficient that the caliph's governor or military ruler is present with them. The Malikis (and one narration from Imam al-Shafi'ee1) are of the view that the prescribed punishments must be implemented no matter where or when the crime takes place. They say that the commands to implement them are general and must be applied anywhere. However, they themselves admit that the general commands may be specified in many cases. In particular, they are strong advocates that if an act leads to more harm than good, it should not be performed. The conclusion for today's world is that the prescribed punishments are not to be carried out in non-Islamic lands-- although the acts themselves, obviously, are still not permissible for Muslims. The Muslims neither have the authority, true Islamic leadership or ability to carry them out. Furthermore, the harm of performing such punishments greatly outweighs the benefit of them. If a person commits such heinous crimes as these described, the Muslim community should make him realize how great the crime he committed is and do their best to guide him to the road of repentance and reform. Allah knows best. Summary of the Hadith • The life of a Muslim is inviolable and protected by law. No one has the right to take his life unless he commits a crime that calls for the death penalty. • The committing of adultery, murder and apostasy are such heinous crimes that Islamic Law, which otherwise safeguards life, has deemed that those who commit such crimes no longer deserve to live. • One of the purposes of the death penalty is to protect the sanctity and lives of all Muslims.