Classical Maliki jurisprudence and sentencing factors for the crime of hirabah

By Ismail Royer

To what extent should a sentence reflect the characteristics of the criminal and not merely the crime? An example of how classical Islamic jurists addressed this question is found in the work of jurists of the Maliki madhab concerning the crime of hirabah. This offense and its punishment are described in the Quran, Surah Maidah 5:33:

إِنَّمَا جَزَاءُ الَّذِينَ يُحَارِبُونَ اللَّهَ وَرَسُولَهُ وَيَسْعَوْنَ فِي الْأَرْضِ فَسَادًا أَن يُقَتَّلُوا أَوْ يُصَلَّبُوا أَوْ تُقَطَّعَ أَيْدِيهِمْ وَأَرْجُلُهُم مِّنْ خِلَافٍ أَوْ يُنفَوْا مِنَ الْأَرْضِ ذَٰلِكَ لَهُمْ خِزْيٌ فِي الدُّنْيَا وَلَهُمْ فِي الْآخِرَةِ عَذَابٌ عَظِيمٌ

The punishment of those who wage war against God and His Messenger, and strive with might and main for mischief through the land is: execution, or crucifixion, or the cutting off of hands and feet from opposite sides, or exile from the land: that is their disgrace in this world, and a heavy punishment is theirs in the Hereafter.

Among the issues that arise with respect to this offense are defining its scope and determining the appropriate punishment from the range of punishments enumerated in this verse. As for the scope of the offense, the Maliki jurist Ibn Àbd al-Barr (d. 463 AH/1070 CE) stated that the one who commits hirabah (i.e., the muharib) is he who “disturbs free passage in the streets and renders them unsafe to travel, striving to spread corruption in the land by taking money, killing people or violating what God has made it unlawful to violate…” Dr. Sherman Jackson explains that “it is terror, or the spreading of fear and helplessness, that lies at the heart of hirabah.”

The jurists of Islamic law differed on how to decide which of the alternative punishments enumerated in the Quran are to be applied. The Malikis held that the muharib is liable for execution even if he has not killed anyone. In his recension of the Muwatta, Ibn Wahb (d. 197 AH/812 CE) reported:

سمعت مالكا يقول في المحارب الذي يقطع السبيل وينفر بالناس في كل مكان ويعظم فساده في الأرض إنه إذا ظهر عليه قتل ، وإن لم يقتل أحدا ، وقد كان أعظم الفساد وأخاف السبيل وذهب بأموال الناس.

I heard Malik say about the muharib who disrupts the roads and frightens the people in every place, and magnifies his corruption in the earth: “Verily, if he is overtaken, then he is killed, even if he did not kill anyone. For surely the most grievous corruption is spreading fear in the streets and making off with people’s wealth.”

The Malikis did not consider execution mandatory in this case, however. Sahnun (d. 240 AH/854 CE)  reports in the Mudawana that Imam Malik said regarding the muharib who terrorizes but has not seized wealth or murdered:

إذا أخافوا السبيل كان الإمام مخيرا إن شاء قتل وإن شاء قطع…ورب محارب لا يقتل وهو أخوف وأعظم فسادا في خوفه ممن قتل

وتأول مالك هذه الآية قول الله تبارك وتعالى في كتابه : { أنه من قتل نفسا بغير نفس أو فساد في الأرض فكأنما قتل الناس جميعا } سورة المائدة قال : فقد جعل الله الفساد مثل القتل

If they terrorize the streets, the imam has a choice. If he wishes he can execute them or if he wishes he can amputate [their hands and feet from opposite sides]…And it may be that a muharib who does not murder is more terrorizing and more corrupting in his terrorizing than one who murders…

And Malik interpreted this verse, the saying of Allah in His book: “Verily the one who kills a soul other than as recompense for a soul or for sowing corruption in the earth, then it is as if he has killed all of mankind,” from Surah Maidah, saying: “Allah has made corruption equivalent to murder.”

While Maliki jurists held that the muharib could be executed without having committed murder, they elucidated the factors a leader should take into account in deliberating on the appropriate sentence for hirabah, with respect to the severity of the crime and especially the characteristics of the offender. The Andalusian jurist Ibn Rushd (d. 595 AH/1198 CE) explained in Al-Bidayat al-Mujtahid how the latter was relevant to the gradations of punishment:

فإن كان المحارب ممن له الرأي والتدبير ، فوجه الاجتهاد قتله أو صلبه ; لأن القطع لا يرفع ضرره . وإن كان لا رأي له وإنما هو ذو قوة وبأس قطعه من خلاف . وإن كان ليس فيه شيء من هاتين الصفتين أخذ بأيسر ذلك فيه وهو الضرب والنفي

Thus, if the muharib is one of those who have a doctrine and organization, the option of ijtihad is execution or crucifixion, as amputation would not do away with his harm. In case he does not have a doctrine, but is strong and powerful, his limbs are to be amputated from alternate sides. If neither of these two traits is found in him, the least punishment is adopted, which is lashing and exile.

Thus, in the view of the Malikis, the muharib’s violent, schismatic doctrine (ra’y), combined with membership in an organized group, posed a danger that the mere amputation of his limbs would fail to remove, triggering the application of the death penalty.  Doctrine (ra’y) here refers to an idea or opinion that impelled the muharib to defect from the community and launch his war on them, as occurred with sects such as the khawarij.

The Shafi’i jurist al-Mawardi (d. 450 AH/1058 CE) described in Hawi al-Kabir the Maliki school’s consideration of the muharib’s doctrine and other characteristics as a sentencing factor:

والمذهب الثاني : وهو مذهب  مالك أنه يقتل إذا كان من أهل الرأي والتدبير دون البطش والقتال : لأنه لا يكف عن التدبير إلا بالقتل ، وتقطع يده ورجله من خلاف إذا كان من أهل البطش والقتال دون الرأي والتدبير : لأنه يتعطل ، وإن كان مكثرا لا تدبير فيه ولا قتال نفي ، ونفيه : أن يخرج إلى بلد آخر ، يحبس فيه . فاعتبر الحد بصفة الفاعل ، ولم يعتبره بصفة الفعل.

And the second madhab is that of Malik: that he is killed if he is from the people of doctrine and organization, without [having engaged in] assaults or fighting: because nothing suffices for [mitigating the threat of] organization but execution. And amputation of the hands and feet from opposite sides [is imposed] if he is one who assaults and fights without a doctrine and organization, because it neutralizes him. And if he has many accomplices without organization or fighting, he is exiled. And “exiled” means: he is expelled to another area, and imprisoned therein. So the punishment (hadd) takes into account the characteristics of the actor, and does not take into account the characteristics of the act.

Al-Mawardi’s formula “the punishment takes into account the characteristics of the criminal” (“اعتبر الحد بصفة الفاعل”) neatly encapsulates Maliki sentencing philosophy for hirabah. In apparent contradiction to other points in his summary, however, the madhab did take into account the characteristics of the offender’s conduct, and it permitted, but did not require, execution for the muharib with doctrine and organization who had not committed murder. Ibn Wahb relates the following in his Muwatta:

وبلغني عن عمر بن عبد العزيز أنه كتب في خارجي خرج بخرسان فأشار بسيفه فأخذ ، إن كان قتل قتل ، وإن كان جرح جرح ، وإلا استودع السجن ، فاجعلوا أهله قريبا منه حتى يتوب من رأيه السوء.

It reached me from Umar ibn Abdul Aziz that he wrote regarding one of the khawarij who revolted in Khurasan and brandished his sword, and he was seized: “If he killed, he is to be killed, and if he wounded, he is to be wounded; otherwise he is to be imprisoned, and his family placed near him, until he repents from his evil doctrine.”

Ibn Rushd’s grandfather, known as Ibn Rushd al-Jadd (d. 520 AH/1126 CE), provides a detailed explication of the madhab’s sentencing philosophy for hirabah in his work Al-Bayan wat-Tahsil, including the relative weight afforded to the muharib’s motivating doctrine:

والإمام مخير عنده في المحارب إذا أخاف السبل، ولم يأخذ مالا، ولم يقتل بين أن يقتله وأن يصلبه أو يقطعه بخلاف، أو يجلده أو ينفيه، وليس معنى تخييره في ذلك أن يعمل فيه بالهوى، وإنما معناه أن يتخير من العقوبات التي جعلها الله جزاءه ما يرى أنه أقرب إلى الله، وأولى بالصواب، فكم من محارب لم يقتل هو أضر على المسلمين ممن قتل في تدبيره وتأليبه على قطع طرق المسلمين، فإن كان المحارب ممن له الرأي والتدبير فوجه الاجتهاد فيه قتله وصلبه؛ لأن القطع لا يدفع ضرره عن المسلمين، وإن كان ممن لا رأي له، ولا تدبير، وإنما يخوف ويقطع السبيل بذاته، وقوة جسمه قطعه من خلاف ولم يقتله؛ لأن ذلك يقطع ضرره عن المسلمين، وإن لم يكن على هذه الصفة، وأخذ بحضرة خروجه أخذ فيه بأيسر ذلك، وهو الضرب والسجن. وإن قتل فلا بد من قتله، ويخير بالاجتهاد بين صلبه أو قتله، وإن لم يقتل وأخذ المال، فلا تخيير للإمام في نفيه، وإنما يخير الإمام بالاجتهاد بين قتله أو صلبه أو قطعه من خلاف.

And as to the muharib who terrifies the streets, but does not seize wealth or murder, the imam has an option between executing him, crucifying him, amputating his hands and feet on opposite sides, flogging him, or exiling him. And the meaning of “option” here is not that he acts according to his whims, but rather its meaning is that he chooses from those punishments that Allah has made as a recompense, which he sees as closest to Allah and most befitting. For how many a muharib never kills but is more harmful to the Muslims than the one who kills, in his organization and incitement in cutting off the roads of the Muslims? So if the muharib is from those with a doctrine and organization then the option of ijtihad in the matter is between execution or crucifixion, because amputation will not repel his harm from the Muslims. And if he is from those who have neither doctrine nor organization, but rather he terrifies and cuts off the streets by himself and the strength of his body, then his hands and feet are amputated from opposite sides and he is not executed, because that will cut off his harm from the Muslims. And if he does not have these characteristics, and he is seized in the vicinity of his rebellion, then the lightest of these is applied herein, and that is flogging and imprisonment. So if he murders, then he must be executed, and one chooses by ijtihad between execution and crucifixion. And if he seizes wealth but does not murder, then the imam does not have the option of exiling him, rather he may choose by ijtihad between executing him, crucifying him, or amputating his hands and feet from opposite sides.

Thus, consideration of the works of classical Maliki jurists concerning the sentence for the crime of hirabah yields interesting observations. The most obvious is the overarching priority attached to the coherence of society and the security of its members, a priority reflected in the severity of the punishments prescribed by the Lawgiver ﷻ for actions that threaten it. This priority is further reflected in the fact, in the Maliki view, the spread of fear and loss of security alone was a justification for the death penalty, even when no lives or wealth had actually been taken by the muharib. It is also noteworthy that, even with the severity of the punishments, one observes at work the doctrine that the punishment imposed should be sufficient but not greater than necessary to achieve the aim of the law: removing the muharib’s harm from the community. Finally, Maliki jurists recognized that in a crime such as hirabah where a leader has discretion in imposing a punishment, he should take into account not only the characteristics of the offense but also the relevant characteristics of the defendant. In particular, these jurists recognized the unique threat posed by violent sectarian doctrine, especially when combined with organizational strength.

 

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