Commentary Summary

Written commentary compiled by volunteers utilizing Sh. Jamaal Diwan's audio commentary above and English translation of Ibn Daqiq Al-Id's commentary on The Forty Hadith of Imam al-Nawawi.

Ruling Only For Government

Someone’s blood and life is a very big issue. It is not something that you can take into your own hands; it’s not something to be decided by mere opinion. It is something that must be established and known through textual sources. The text has to be there and it is what clarifies whether or not there is any opening or discussion to these issues. In addition, they are issues of capital punishment and governance. They are not issues of personal vendettas or grudges carried out by individuals. They have to be carried out by governmental bodies.

The Prophet (pbuh) had many roles in the society, and amongst those roles he ran a state, he was a judge, and he gave opinions to people according to the religion. If it was something he did as a ruler or a judge, then we have to leave it that way, and it should not be something that applies to everyone else’s personal behavior. The topic of this hadith is a topic of governance and so it does not really apply to Muslims in the West.

How It’s Established

For the one that commits adultery, committing sexual acts outside the contract of marriage, the conditions for establishing such an act in front the court, and thereby requiring punishment, are very strict. There must be four male witnesses that witnessed the actual act itself, and they all have to come to court at the same time. If someone comes and makes this claim without having these four witnesses, then they will actually be punished for slandering the people that were accused. It’s severe because if someone is making an accusation like this, they have to make sure they have all of their evidences, otherwise the accuser themselves get punished, and this is done publicly. The other possibility is if someone confesses. Although this seems implausible, some scholars researched the court rulings that were carried out in the Ottoman Empire. They were shocked that there were people who committed adultery and then went to the court and confessed it.

As for the life for a life, there must be two reliable witnesses and it must be established by the court.

As for deciding that someone has left Islam, it is not something that is carried out by every individual. We can’t say someone said or did such-and-such, and because of it they are no longer Muslim so we have to kill them or take away their property. This is nonsense. It needs to be established by some sort of body that is official.

If the ruling is being applied, it is by a governmental body. However, the decision of whether or not a person is considered to be outside the fold of Islam needs to be done by scholars. These scholars would need to sit down with the person, ask particular questions, see what’s going on with them, and address any issues that can possibly be addressed. Once that has all taken place and there is still no reconciliation, then at that point, that particular individual can be labeled as a “kafir”, as someone who has left the religion of Islam. Again, this is not something that can be done by regular people. To go around calling someone else a kafir is absolute nonsense. Such behavior should not be accepted and steps should be taken to convince the individual of a different approach so as to limit the harm that comes from such declarations.

The Actual Punishment

The majority of scholars throughout history have said that the punishment for someone who commits adultery is death, but there is a very minority opinion that says their punishment is to be lashed, and that the government then has the option of capital punishment on top of the lashing.

There has been disagreement historically about the punishment of a life for a life. What if a slave kills a free person, what if a non-Muslim kills a Muslim, or vice versa in either case? The opinion that I believe is stronger, which I rarely say, is what is more applicable to our modern society, is that everyone is the same. Anyone that takes someone else’s life away, regardless of their social, religious, political status is eligible to receive the capital punishment. This punishment and whether it is to be carried out is in the hands of the family of the victim, whether they agree to the capital punishment or choose to forgive the offender.

The third case is where the person leaves Islam and the community. This ruling requires an entire political and religious system based on Islam. Not only do they leave their religion, but they are calling against the religion and fighting against the community. Some scholars say regardless of whether they turn against the community or not, once they leave the religion, they should receive capital punishment. Other scholars in history and modern time say it’s not applicable to someone that only leaves Islam but if they leave Islam and commit treason then they are eligible for the death penalty.

At the end of the day, these are all possibilities and the government chooses what laws it implements. Just because it’s a possibility, doesn’t mean it will be chosen. So governance and political theory get very complicated.

Overall, someone else’s life and blood are very important and cannot be touched without textual support and government-based action. On top of that there are also strict ways to establish guilt in these cases. When it comes to confessing, some scholars say it’s actually better not to confess and to keep one’s sins secret. Rather, they should make sincere repentance to Allah and move on.

May Allah (swt) give us an understanding and forgive us for our sins and shortcomings.