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Al-Shawkaani said:

It was narrated from Abu’l-Zinaad from his father that the fuqaha’ of the people of Madeenah used to say that no one should carry out any of the hadd punishments except the ruler, unless it is a man carrying out the hadd punishment for zina on his male or female slave. Nayl al-Awtaar, 7/295, 296.

https://islamqa.info/en/answers/8980/who-is-the-one-who-should-carry-out-the-hadd-punishment-for-zina

Usually if one did zina, the case is analysed and witnesses will be assessed by the state to give hudud. But is it the same when it comes to a slave doing zina? The quote above seems to imply that the state is not involved in giving the hudud punishments on the slave and it is only the owner who decides. What if the owner is unjust?

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There is disagreement on whether an owner can enforce hudud punishments on a slave that he\she owns. The main madhabs being:

  • The owners can enforce all hudud punishments on their slaves. This is the view of the Shafi'is and one view of the Hanbalis. The Shafi'is have explicitly stated that this can be done even without the permission of the caliph (Fath al-Bari: يقيمها السيد ولو لم يأذن له الإمام).

    The evidence of this madhab includes:

    أن رسول الله صلى الله عليه وسلم سئل عن الأمة إذا زنت ولم تحصن قال إذا زنت فاجلدوها ... ثم إن زنت فاجلدوها، ثم بيعوها ولو بضفير

    The verdict of Allah's Messenger (ﷺ) was sought about an unmarried slave girl guilty of illegal intercourse. He replied, "If she commits illegal sexual intercourse, then flog her ... and if she commits illegal sexual intercourse (for the third time), then flog her and sell her for even a hair rope.

    Bukhari

    Here the Prophet is addressing the owners and the apparent meaning is that the owner is the one who carries out the hadd. What applies to Zina also applies to other hudud by analogy.

    أقيموا على أرقائكم الحد من أحصن منهم ومن لم يحصن

    Impose the prescribed punishment upon your slaves, those who are married and those not married,

    Muslim Abu Dawud

    This hadith (which is either marfoo' or at least mawqoof) is also addressed to the owners and implies that they are the ones who enforce the hudud.

    Further there are traditions that some of the sahaba enforced hudud on their slaves:

    فسئل العبد عن ذلك فاعترف فأمرت به عائشة زوج النبي صلى الله عليه وسلم فقطعت يده

    The slave was asked about it and confessed. A'isha, the wife of the Prophet, may Allah bless him and grant him peace, gave the order and his hand was cut off.

    Muwatta Malik

    أن عبدا، لعبد الله بن عمر سرق ... ثم أمر به عبد الله بن عمر فقطعت يده

    A slave of Abdullah ibn Umar stole ... then Abdullah ibn Umar gave the order, and his hand was cut off.

    Muwatta Malik

    أن حفصة، زوج النبي صلى الله عليه وسلم قتلت جارية لها سحرتها وقد كانت دبرتها فأمرت بها فقتلت

    Hafsa, the wife of the Prophet, may Allah bless him and grant him peace, killed one of her slave-girls who had used sorcery against her. She was a mudabbara. Hafsa gave the order, and she was killed.

    Muwatta Malik

  • The owners can enforce the Hudud involving flogging (for fornication, adultery, drinking of wine and slander) but they can not enforce execution for apostasy or amputation for theft. This is the view of the Malikis and Hanbalis.

    The evidence for this stance is that the original rule is that only the caliph has the power to enforce hudud, flogging is made an exception to this by the above mentioned hadith while everything else remains in the power of the Imam by default. And the fact that flogging is a form of beating to admonish which the owner has a right to do, whereas amputation and execution are causing a permanent loss of life or limb which the owner does not have the right to do.

  • The owner can not enforce Hudud rather the caliph or his appointed deputy enforces them. An owner only carries out the hadd when the caliph commands him and appoints him as the enforcer. This is the view of the Hanafis.

    The evidence for this madhab is that the original rule is that only the Imam has the power to enforce Hudood. This applies by consensus to free miscreants and by analogy should also apply to slave miscreants. And it is based on generalizing the traditions that Jummuah, Zakat, Fay and Hudud are the responsibility of the Imam. As for the ahadith they interpret them to mean a ta'zeer rather than the hadd, or they understand them to mean that 'bring the slave to the authorities so that they will punish them'.

Note that there are other minor variations in the madhabs and nuances when going into detail which are not mentioned here for sake of brevity, such as whether an owner who is not eligible to hold authority can enforce the hudud, or the case when there is conflict between the owner and the slave, or the case of a married slave woman or a slave with multiple owners.

You asked:

Usually if one did zina, the case is analysed and witnesses will be assessed by the state to give hudud. But is it the same when it comes to a slave doing zina?

A master like the state can only carry out the punishment when he has evidence such as a confession, witnesses or other forms of evidence which are disagreed upon. In case of an accusation from someone else he may check the trustworthiness of the witnesses if he knows them otherwise he would pass the case to the state.

The owner must also know the requirements for enforcing the hadd (such as penetration for fornication) and must verify them. In case of not meeting the requirements for the hadd a ta'zeer may be carried out for both a free person or a slave.

And you asked:

"What if the owner is unjust?"

And if the state enforces the punishment then what if the caliph himself is unjust? In case the enforcer is the owner the slave has a legal remedy in that he\she can complain against the owner to a higher authority such as the governor or caliph who can prevent the owner from being unjust or can punish the owner and compensate the slave if any injustice has already been committed.

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  • Thank you for these words of wisdom. Allahumma barik
    – user56846
    Nov 29, 2023 at 13:32

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