Not only do the prisoners become hardened and brutalized from corporal punishment, but those who inflict the punishment become hardened, and so do the spectators.
—Anton Chekhov, The Island: A Journey to Sakhalin Footnote 1
While across the world today, prominent Muslim democrats invoke sharia and Islamic values to justify calls for democracy, pluralist tolerance, and gender equality,Footnote 2 radical movements cite what they insist are sharia principles to legitimize rejection of democracy, enslavement of non-Muslim women, the implementation of corporal punishment, and mass killing of so-called apostates.Footnote 3 Such actions have fueled widespread global perceptions of certain developments within Muslim communities as profoundly inhumane and deeply troubling. The prime example is found in groups like ISIS in Iraq and Boko Haram in West Africa, that, based on their literalist understanding of Islamic sources, have reintroduced slavery as an acceptable social and religious practice. Incidents that have come to public notice include, in 2015, the public flogging of Saudi blogger Raif Badawi near Al Jafali mosque for his dissemination of content deemed disruptive to the public order, religious tenets, and moral norms.Footnote 4 Similarly the 2018 punishment of a thirty-four-year-old man, identified as A. Kh., whose hand was amputated because he stole livestock and other valuable items from several villages in the province; the amputation, by guillotine, was executed at the central prison in Mashhad, Iran.Footnote 5 In 2016, Mohsen Sabzichi, a middle-aged man had four fingers on his right hand amputated by prison authorities in Iran, a country renowned for the gentle cadences of its poetry and the humanism of its literary heritage.Footnote 6 In an interview, Sabzichi recounts the devastating impact this amputation has had on his daily life.Footnote 7 He describes a life in which even the most basic tasks—eating, dressing, and tying his shoes—have become challenges. The loss of his fingers has rendered him increasingly dependent and isolated, a victim of both physical pain and psychological trauma. Sabzichi’s suffering extends beyond the physical realm. His disfigurement compels him to conceal his hand within his pocket as he navigates public spaces. This act of hiding is a poignant symbol of his internal struggle and shame. Once marked as a criminal, he now endures life as a victim—wounded not only by his past actions but by the irrevocable punishment that followed.
As a consequence of such events, Muslims have become targets of vitriol and extremist ideologies. Since the 1980s, and notably after the 2000s, there has been a resurgence of anti-Islamic sentiment in both the United States and Europe.Footnote 8 Events such as the four mentioned above have led to spikes in hate crimes against Muslims and an increase in the dissemination and frequency of anti-Islamic rhetoric and sentiment.Footnote 9 Although such sentiments have existed for centuries, the rapid dissemination of news and media coverage in the modern age has significantly exacerbated and amplified anti-Muslim sentiments.Footnote 10 Reports about the amputation of limbs and stoning, for example, spread around the world, shining a spotlight on human rights abuses in Muslim-majority countries.
The anti-Islamic far right exploits sharia-based corporal punishments to stoke prejudice against Islam and Muslims, while human rights activists repeatedly condemn the application of these punishments and denounce them as barbaric, degrading, and inhumane.Footnote 11 These punishments—known as ḥudūd—have become a cause célèbre, may lead some thinkers to portray Islam as a religion that is locked in combat with the values and principles of international human rights, as reflected in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the Convention on the Rights of the Child.Footnote 12
To assess these critiques meaningfully, one must first understand the concept of ḥudūd in Islamic law and its scriptural foundations. The term ḥudūd (sing. ḥadd) refers to both certain major crimes and their prescribed punishments in Islamic criminal law. According to Islamic legal theory, ḥudūd laws are understood to have been directly specified by God in Islam’s foundational texts, the Quran and the Sunna.Footnote 13 Historically, as Intisar A. Rabb observes, “ḥudūd laws represented a subset of divine legislation, the expression of which the Prophet and other authority figures were merely a conduit”Footnote 14 and Muslim jurists held that “ḥudūd laws were so explicit and specific that adherence to them provided a prime example of upholding divine legislative supremacy.”Footnote 15 However, Islamic fiqh traditionally establishes rigorous procedural safeguards surrounding the implementation of ḥudūd punishments, including exceptionally high evidentiary standards and the restrictive legal maxim to avoid punishment in cases of doubt (the so-called doubt canon).Footnote 16 Khaled Abou El Fadl underscores this point, noting that “the classical jurists were keenly aware that to the extent possible, an Islamic judicial system ought to avoid applying the ḥudūd punishments.”Footnote 17 He further explains: “Ḥudūd punishments were hardly ever implemented in Islamic legal history, for the most part because Muslim jurists made the evidentiary requirements and the technical pre-conditions for the enforcement of the ḥudūd practically impossible to fulfill or because they admitted so many mitigating factors to the point that only a criminal who was most determined to be punished could be made to suffer the ḥudūd penalties.”Footnote 18
Nevertheless, contemporary real-world cases—such as that of Sabzichi, among many others—demonstrate that these safeguards, which are theoretically intended to render such punishments nearly impossible to enforce, have not consistently operated as effective constraints within contemporary judicial settings.
The perception ḥudūd punishments as a threat to Western (if not universal) human rights is not merely an academic matter. Human rights organizations and the United Nation’s monitoring bodies periodically condemn the Islamic states that enforce Islamic corporal punishments for failing to respect human dignity and violating fundamental human rights.Footnote 19 A recent instance of this international censure occurred on April 10, 2025, when UN human rights experts voiced serious concern over the imminent implementation of finger amputation for three individuals detained in Iran, calling for immediate intervention to forestall the execution of this irreversible corporeal punishment.Footnote 20 It is important to recognize that objections to ḥudūd punishments are not voiced solely in the West. Many Muslims, including those who are living in Islamic countries, also voice concerns about these punishments.Footnote 21 These objections arise from several factors, including human rights considerations, interpretations of Islamic jurisprudence, and the practical implications of ḥudūd punishments in the contemporary context.
In contemporary legal frameworks, ḥudūd punishments maintain a complex presence. Some Muslim-majority countries—such as the Islamic Republic of Iran, Pakistan, Brunei, and several northern states of Nigeria—explicitly codify ḥudūd punishments within their formal legal systems. In contrast, in countries like Saudi Arabia and under the Taliban regime in Afghanistan (since 2021), ḥudūd punishments remain uncodified but are enforced through judicial practice based on Islamic fiqh.
The ḥudūd penalties include flagellation, the amputation of limbs, crucifixion, hanging, and stoning. The fact that these punishments are stipulated in the Quran and ḥadīth provides some Islamic states with justification to enforce them. These scripturally grounded punishments are often used by Islamic states to demonstrate their adherence to sharia. For this reason, it is difficult to reform penal policies associated with them. Moreover, these practices often serve political purposes, reinforcing the state’s commitment to Islamic law while bolstering its legitimacy and authority both domestically and internationally. This dynamic is clearly illustrated by General Zia ul-Haq, who, shortly after coming to power in 1979, introduced ḥudūd crimes as part of his broader effort to transform Pakistan into an Islamic state.Footnote 22
In Shiʿism Revisited, Liyakat Takim devotes a chapter, “The Concept of an Islamic Reformation,” to the reformist discourse among Shiʿi intellectuals and seminarians. He demonstrates that throughout history, Shiʿi jurists have disagreed with one another on fundamental legal issues, including the music, the purity of the People of the Book (ahl al-kītāb), ablutions (ghusl), the testimony of non-Muslims and women, and the participation of women in the public sphere (including their right to become judges and inherit land). Curiously, Takim does not substantially discuss ḥudūd punishments.Footnote 23 This relative silence points to the comparative inflexibility of Shiʿi jurisprudence on on ḥudū d punishments in contrast to the other areas of legal reform.
Generally, scholars who study ḥudūd punishments approach them from either external or internal perspectives. Those who adopt an external perspective on ḥudūd punishments often characterize Islamic laws, particularly ḥudūd punishments, as backward and rigid from the standpoints of philosophy, social sciences, economics, and, most prominently, human rights and modern criminal law principles. Some scholars who adopt this external perspective argue that the implementation of ḥudūd punishments is counterproductive because it does not prevent crime, rehabilitate offenders, and also creates a boomerang effect.Footnote 24 For instance, in “Stealing More Is Better? An Economic Analysis of Islamic Law of Theft,” the economist Moamen Gouda argues that ḥadd punishment for theft is not rational because it does not reduce levels of delinquency and social disorder.Footnote 25
The internal Muslim approach take two major orientations: conservative and reformist. According to conservative orientation, the ḥudūd punishments are impeccable and immutable, requiring no adjustment to international human rights standards.Footnote 26 Ḥudūd punishments are thus perfect. Conservative jurists maintain that the principles and rules stated in the Quran are enforceable against Muslims in the modern world, regardless of developments in science, society, and technology. For instance, even if criminologists establish that the amputation of limbs has not led to a reduction in crime, an Islamic state must still implement this punishment. By contrast, reformists seek to uncover the inner mechanisms of Islam in an effort to replace the ḥudūd punishments with modern penal methods. These scholars hold that some of the provisions articulated in the Quran and ḥadīth reports are not essential to Islam.Footnote 27 For example, Abou El Fadl distinguishes between the ethical values that punitive measures were intended to uphold and the measures themselves. He argues that it is the former—the ethical principles—that should be regarded as immutable and eternal, not the specific punitive practices.Footnote 28 Even if certain provisions in the Quran and ḥadīth are considered essential, it is possible to interpret the Quran and ḥadīth in a manner that responds to social conditions and contemporary needs. Some reformers take a contextualist and goal-oriented approach to statements attributed to the Prophet, arguing that we should critically examine the context in which they were uttered. For example, Wayel Azmeh argues that an accurate understanding of the quranic ḥudūd verses suggests that it is possible to replace ḥudūd punishments with modern penal methods without violating the quranic commandments.Footnote 29
There is also an internal middle-ground approach. In “A Conflict Between Divine texts and Human Legal Needs?,” Ahmed Meiloud does not explicitly state his position on the implementation of ḥudūd punishments. He avoids engaging with critics who view the implementation of ḥudūd punishments as outdated and incompatible with modern civilized standards, stating “to you is your religion, and to me is mine.”Footnote 30 While he acknowledges that “amputation no longer serves a public interest and is also incompatible with the [intellectual environment of the] time,”Footnote 31 he argues that the severity of the ḥudūd punishments is mitigated by a number of factors. These include their effectiveness as deterrents, their relative ease of implementation, and their efficiency compared to modern penal systems, which require significant financial resources and an extensive bureaucracy. Additionally, ḥudūd punishments arguably cause a reduction in crime and are subject to numerous requirements that significantly restrict their application.Footnote 32 He concludes that the real issue behind the concerns of those who oppose the amputation of the hands of thieves is that this kind of corporal punishment in Islamic law is not adopted in the Western developed countries. They are viewed with disgust and scorn to the point that it becomes difficult for many Muslims, especially Western educated elites, to accept these punishments.Footnote 33 This statement suggests that many Muslims oppose the implementation of ḥudūd punishments because they are westoxicated. Footnote 34
Two Shiʿi politico-juridical mechanisms—secondary rulings (ahkām-e thānavi-e) and state orders (ahkām-e hokoumati)—have received great attention in the contemporary literature devoted to the feasibility of the suspension of ḥudūd punishments in Iran.Footnote 35 Iranian reformers in support of these mechanism maintain that the Iranian theocratic state might use these two mechanisms to rehabilitate and reconstruct its jurisprudential infrastructure and institutions and to suspend the implementation of ḥudūd punishments, while remaining within the doctrinal corpus of Shiʿism.Footnote 36 The Iranian theocrats, conservative pro-ḥudūd jurists who counter this argument have supported the implementation of ḥudūd punishments in Iran since the establishment of the Islamic Republic in 1979. Indeed, these counter-arguments raise certain doctrinal challenges that diminish the chances that the implementation of ḥudūd punishments will be revisited in contemporary Iran.
Ḥudūd Punishments during the Occultation of the Twelfth Imam
As noted, in Islamic criminal law, ḥudūd denotes major offenses with divinely mandated punishments specified in the Quran and the Sunna. The first question that arises is: How many ḥudūd crimes are specified in these two sources? Shiʿi juristic treatises do not offer a clear answer to this question. According to the most prominent Shiʿi jurists, there are between three and sixteen ḥudūd crimes. According to a minimalist approach, there are only three ḥadd crimes: adultery, false accusation of unlawful sexual intercourse, and theft.Footnote 37 Some Shiʿi jurists identify six ḥudūd crimes: adultery, illicit sexual relationships, false accusation of unlawful sexual intercourse, drinking alcohol, theft, and banditry.Footnote 38 Maximalists identify sixteen ḥudūd: adultery, sodomy, non-penetrative male homosexual sex, marriage to a non-Muslim woman after marriage to a Muslim woman without her permission, kissing a young boy lustfully, tribadism, pandersim, false accusation of unlawful sexual intercourse, insulting the Prophet, claiming to be a prophet, practicing magic, drinking alcohol, theft, selling a free person (a non-slave), enmity against God, and apostasy.Footnote 39
Some jurists consider only the crimes stipulated in the Quran to be punishable by ḥudūd,Footnote 40 while others add crimes mentioned in the ḥadīth literature.Footnote 41 Many Shiʿi jurists specify eight crimes that are punishable by ḥudūd punishments of flagellation, contralateral amputation of a leg and hand, crucifixion, hanging, and stoning.Footnote 42 According to Shiʿi scholars, the punishments prescribed for ḥudūd crimes as fixed, immutable, and incontestable (irreversible) divine laws that may not be reduced, substituted, or pardoned.Footnote 43 These punishments are considered God’s inerrant word and will, universal and eternal. As Rabb notes, “Not even the Prophet, much less Shīʿī Imaāms or Sunnī authority figures—including judges and jurists—had the discretion to diverge even slightly from the letter of the ḥudūd laws.”Footnote 44 As such, they must be implemented at all times and places in order to save mankind from deadly Satanic tricks and to guide the Muslim community away from societal vice.Footnote 45
Who is qualified to preside over cases relating to the alleged perpetration of forbidden acts punishable by ḥudūd? Shiʿi jurists unanimously hold that the inerrant Prophet and the twelve imams are fully competent to carry out divinely ordained punishments. Indeed, “the function of the imam is to aid the community in commanding right, forbidding wrong, establishing justice, and administering ḥudūd.”Footnote 46 Furthermore, they understand the stipulation of ḥudūd punishments in divine scripture as evidence of the collective need for imams.Footnote 47 According to Shiʿi theology, certain holy figures are immaculate (maʿṣūm), free from all sins, small or large, from childhood to the end of their life, and they never make the mistake of misjudging people.Footnote 48 In a manner of speaking, they may cast the first stone at an adulterer because their judgment is infallible.
Shiʿi jurists have long grappled with the question of whether they are qualified to apply ḥudūd punishments during this period of the Occultation of the Twelfth Imam, an eschatological concept central to Shiʿi Islam; they have yet to reach a unanimous agreement on the issue.Footnote 49 According to Shaykh al-Mufīd (d. 431 AH/1022 CE), the imams and individuals appointed by them have the right to execute divinely ordained punishments. Imams, he continues, entrusted Shiʿi jurists (fuqahā) with the task of carrying out punishments during the occultation.Footnote 50 As time passed, more jurists addressed this issue, and some of them devoted treatises to it. Not every jurist joined Mufīd in acknowledging the competence of Shiʿi jurists, at least in the absolute way he asserted.
An examination of juristic treatises suggests that there are four distinct and often contrasting views on the competence of Shiʿi jurists: (1) jurists who, like Mufīd, approve the application of all ḥudūd punishments during the occultation (the largest category); (2) jurists who approve the application of only those ḥudūd punishments that do not result in death; (3) jurists who approve the execution of only those ḥudūd punishments that do not lead to injury; (4) jurists who hold that no one is entitled to administer ḥudūd punishments in the absence of the imam. Thus, the dynamic intra-Shiʿi debate reveals two contrasting perspectives: proponents and opponents of ḥudūd punishments.
Pro-ḥudūd Jurisprudential Arguments
Some Shiʿi jurists claim that the prevailing opinion (qawl mashhūr) among Shiʿi jurists endorses the application of ḥudūd punishments.Footnote 51 Indeed, Mohammad-Ḥasan Najafī, author of al-Jawāhir, claims that Shiʿi scholars have reached a consensus on this issue, adding that “those who cast doubt on the legitimacy of the application of ḥudūd punishments have no clue about what Islamic jurisprudence is and they learn nothing from the imams.”Footnote 52
Pro-ḥudūd jurists present both scriptural and non-scriptural arguments.Footnote 53 The pro-ḥudūd jurists cite statements attributed to the Prophet and the imams in the ḥadīths recorded in the four canonical books of Shiʿi ḥadīth, known as al-kutub al-arba’a (the four books).Footnote 54 Consider the following ḥadīth, named for Maqbūle Umar Ibn Ḥanẓala:
I [Umar Ibn Ḥanẓala] asked Imam Ṣādiq: If two Shiʿis have a dispute about religion or inheritance, is it permissible for them to refer the case to an unrighteous ruler and to the judge appointed on his behalf? The Imam replied: litigating before him means taking a case to a tyrant. In response to Ibn Ḥanẓala’s follow up question—what should these two Shiʿis do—the Imam said, they should identify someone who narrates our ḥadīths, adheres to what we have prescribed as lawful (ḥalāl) and unlawful (ḥarām), and possesses expertise in our rules and regulations. Such an individual should be recognized as a judge, as I have entrusted him with the responsibility of adjudicating among you.Footnote 55
Another ḥadīth with the same content, named for Mashhūra Abī Khāḍija,Footnote 56 is frequently referred to by Shiʿi scholars.Footnote 57 On the basis of these two ḥadīths, Shiʿi jurists argue that the infallible imams authorized them to hold the office of judge. Therefore, they are legally competent to exercise authority and adjudicate legal disputes, including applying ḥudūd punishments in the absence of the divinely inspired imam.Footnote 58
Other ḥadīths emphasize the necessity to apply ḥudūd punishments. The most frequently quoted ones are as follows: “The implementation of one of the divine ḥudūd punishments is more beneficial than forty days of rain”;Footnote 59 “Whatever was made lawful by Muhammad shall remain lawful until the Day of Resurrection, and whatever was made unlawful by him shall remain unlawful until the Day of Resurrection”;Footnote 60 “Whoever disregards my ḥudūd punishments is my enemy”;Footnote 61 “The implementation of ḥudūd punishments is more beneficial than sixty years of worship”;Footnote 62 “The ruling of God and the obligations He has imposed are the same for people who came before us and for the people who will come after us… the people after us will be asked to perform obligatory acts in the same way that people before us were asked to do so.”Footnote 63
Pro-ḥudūd Shiʿi jurists also support their position with non-scriptural arguments. According to one argument, Imam Hossein rebelled against the Umayyad caliph Yazīd and refused to swear allegiance to him because Yazīd had ceased to apply ḥudūd punishments in the House of Islam (dār al-Islām).Footnote 64 A second argument starts from the assumption that the divine rationale (ḥikmah) behind the establishment of ḥudūd punishments is the fact that the application of these punishments promotes moral probity and public benefit, while preventing social evils and corruption. It follows that the non-implementation of ḥudūd punishments would contradict their fundamental goal, maintaining moral and social order during the Occultation of the Twelfth Imam. The absence of the imam is irrelevant because the rationale for applying ḥudūd punishments is to promote justice and prevent harm. Thus, the application of ḥudūd punishments does not depend on the presence of an imam. In other words, the raison d’être of ḥudūd punishments necessitates their application during the Occultation of the Twelfth Imam.Footnote 65 Note that some Shiʿi jurists have discussed ḥudūd punishments under the rubric of amr-e be ma’rouf va nahy az monkar (the propagation of good and condemnation of evil or to enjoin right conduct and forbid indecency).Footnote 66 These jurists suggest that the application of ḥudūd punishments is a vehicle for the propagation of good and the condemnation of evil that is timeless and impervious to changing circumstances.
A third argument underscores the emphasis placed on the application of ḥudūd punishments by the imams, despite their lack of political and judicial power. This emphasis suggests that the application of ḥudūd punishments does not necessitate the presence of an infallible imam. Although ḥadīth narrators understood that the imams lacked political and judicial power,Footnote 67 they nonetheless sought guidance from the imams on ḥudūd punishments. The posing of ḥudūd-related inquiries to politically powerless imams, and their responses to these inquiries, suggest that the implementation of ḥudūd punishments does not depend on the presence of a ruling imam. Otherwise, petitioners would not have bothered the imams with such questions, and the imams would not have responded to them.Footnote 68
There is a pronounced and time-honored tradition of quietism and political disengagement in Shiʿism. This tradition stems from the idea that all political power is illegitimate in the absence of the divinely inspired imam.Footnote 69 Indeed, classical Shiʿi thinkers assumed that a righteous leader could only be appointed by God, meaning that no earthly government is righteous. Based on the assumption that sovereignty can only be legitimate under the authority of an infallible imam, the fourth argument is as follows: Some classical Shiʿi jurists expressed reservations about the implementation of ḥudūd punishments because they were governed by rulers who they regarded as illegitimate.Footnote 70 For this reason, these jurists did not support the enforcement of ḥudūd punishments. However, at the present time, when Shiʿi theocracy has been established and a spokesman, or delegate, of the Hidden Imam has seized power, those who advocate for the suspension of ḥudūd punishments should have no qualms about implementing ḥudūd punishments.Footnote 71 I refer to these thinkers as suspensionists.
Anti-ḥudūd Jurisprudential Arguments
Several Shiʿi jurists have contested the pro-ḥudūd positionFootnote 72 on the grounds that only the (absent) imam, the apocalyptic right ruler, can legitimately put sharia into effect. Politically, the doctrine of the Occultation of the Twelfth Imam reflects a denial of the de facto legitimacy of any governing power, thereby rendering the application of ḥudūd punishments during the occultation unlawful. Aḥmad Khānsārī (d. 1369 AH/1950 CE) supported this prohibition and noted that Shiʿi jurists universally agree that such punishments should be suspended during the occultation.Footnote 73 In the sixth AH/thirteenth CE century, the jurisprudent Ibn Idrīs (d. 598 AH/1202 CE) asserted that all Shiʿi scholars unanimously agreed on this matter: ḥudūd punishments may be enforced only by infallible imams or by rulers directly appointed by an imam. Thus, in the absence of this authority, no one is authorized to enforce such punishments.Footnote 74
A second argument relates to the two previously mentioned ḥadīths, Mashhūra Abī Khāḍija and Maqbūle Omar Ibn Ḥanẓala. According to pro-ḥudūd jurists, these ḥadīths authorize Shiʿi jurists to deliver judgments and apply ḥudūd punishments in the absence of the imam. In response to this argument, suspensionists argue that even if these ḥadīths were authentic, they do not provide any indication of whether the imam’s words actually refer to ḥudūd punishments; and even if that were the case, it is not certain whether the imam was giving an ad hoc solution to a specific criminal case or intended to make a general ruling. Finally, they argue that the Mashhūra Abī Khāḍija ḥadīth pertains to non-criminal private cases and is therefore irrelevant to ḥudūd punishments.Footnote 75
A third argument addresses those Shiʿi jurists who support ḥudūd punishments and adhere to the quranic verses that explicitly prescribe these punishments. The argument, as elaborated by Aḥmad Narāqi, runs as follows: While it is true that the Quran prescribes flogging (24:2), crucifixion (5:33), and amputation (5:38), it remains uncertain whether these commands (“lash each one of them,” “crucify them,” and “have their hands and feet cut off”) were addressed to Muslim jurists. True, the quranic ḥudūd verses were addressed to the Prophet, but there is no verse in the Quran that states that Muslim jurists are entitled to administer ḥudūd punishments.Footnote 76 Thus, the Quran cannot be used to justify the authority of Shiʿi jurists to apply ḥudūd punishments.
A fourth argument echoes some contemporary Western skepticism regarding deserts theory of punishment.Footnote 77 According to the fourth argument, it is unjust to apply ḥudūd punishments to criminals in societies plagued by discrimination, injustice, inequality, poverty, and government inefficiency. The ḥudūd punishments should be applied only if the basic needs of all citizens are being met. Consequently, applying ḥudūd punishments without fulfilling basic human needs and rights raises doubts about their legality.Footnote 78
A fifth argument distinguishes between divine rulings and governmental rulings. The Prophet enjoyed politico-juridical authority as the ruler of the Muslim community, coupled with his divine authority as the messenger of God. The quranic verses that were revealed to him were therefore designed either to govern his community or to convey divine decrees to the people. While some verses revealed to the Prophet were specifically addressed to his community, others were not intended for that particular community. The latter category of verses is timeless, immutable, and universal. Therefore, these jurists conclude, it is necessary to distinguish between these two types of verses in order to identify which rulings are fixed, irreversible, and incontestable divine laws, and which rulings are not.Footnote 79 This argument leaves open the question of whether the ḥudūd verses are divine rulings or administrative rulings. Some suspensionists hold that the ḥudūd verses should be regarded as the Prophet Muhammad’s prophetic rulings that were applied only in the era of his leadership.Footnote 80
Was the Birth of Shiʿi Theocracy an Opportunity for the Suspension of Ḥudūd Punishments?
In 1979, the triumphant return to Iran of the prominent Shiʿi mujtahid Ayatollah KhomeiniFootnote 81 marked a milestone in the history of Shiʿism. The Islamic Republic of Iran, established as the world’s only Shiʿi theocracy, has profoundly influenced Shiʿi thought and norms. Despite the time-honored tradition of quietism and political disengagement in Shiʿism, Ayatollah Khomeini formulated theories regarding the theocratic political rule of Shiʿi jurists.Footnote 82 A charismatic leader of immense popularity, Ayatollah Khomeini successfully united disparate groups and convinced his adherents to engage in political activism. In response, his devotees established a Shiʿi theocracy, blurring the line between state and religion.Footnote 83 The new leadership successfully paved the way for Islamic legislation, jurisprudence, doctrine, and legal education, bringing to fruition the widespread dream of many Shiʿi jurists.
The Shiʿi theocracy introduced a new politico-juridical vocabulary and a blueprint for new legal institutions and practices.Footnote 84 The constitution adopted Ayatollah Khomeini’s political theory of the velāyat-e faqīh (guardianship of the jurist), a major innovation in Shiʿi political thought, which concentrated broad oversight powers in the hands of the supreme leader, who, in the absence of the twelfth imam, exercised political and religious leadership as custodian of his community.Footnote 85 The supreme leader’s legal pronouncements are definitive, politically and legally binding, and beyond appeal.Footnote 86 Thus, the establishment of the Guardianship of the Jurist resulted in the political routinization of the voluntary socio-religious institution of marja-e taqlid (the source of emulation), the highest epistemic religious authority in Shiʿi Islam and the authoritative source of emulation in matters of jurisprudence (fiqh) and ethical conduct.Footnote 87
While the new constitution was being framed, international organizations turned the spotlight on the Islamic Republic’s position on human rights. One concern of human rights activists was whether Islamic corporal punishments, ḥudūd, should be integrated into the text of the new Iranian penal code. This concern was realized in 1982, when the parliament adopted the Law Concerning ḥudūd and Qiṣāṣ and Other Relevant Provisions. In 1991, with minor amendments, this law was incorporated into the Islamic Penal Code, together with the Law Concerning Islamic Punishment, Containing General Provisions and the Law Concerning Diyat (the latter regulates the compensation or blood money paid by a criminal to the victim or the victim’s family in cases of unintentional homicide or bodily harm). In February 2013, the parliament amended the Islamic Penal Code, and the Guardian Council approved it (the Islamic Penal Code of 2013, currently in force, is my primary point of reference whenever I refer to the Iranian penal code). Thus, the establishment of a Shiʿi theocracy introduced ḥudūd punishments, including flagellation, contralateral amputation of a leg and hand, crucifixion, hanging, and stoning.Footnote 88
Under the 2013 Islamic Penal Code, the following offenses are classified as ḥudūd crimes, carrying fixed punishments under Islamic law: insulting the Prophet or the imams (article 262); consumption of alcohol (article 265); qualifying forms of theft (article 278); false accusation of unlawful sexual intercourse (article 250); sexual relations between women (article 239); and a range of illicit sexual acts, including adultery by coercion (article 224(t)), adultery with prohibited kin (article 224(a)), adultery between a non-Muslim man and a Muslim woman (article 224(p)), and adultery with one’s stepmother (which is punishable by death, article 224(b)). Male homosexual acts are likewise criminalized under ḥudūd (article 234). As are acts considered to disturb public order or threaten national security, such as spreading corruption on earth (article 286)Footnote 89 and waging war against the state (article 287). Furthermore, the repeated commission of a ḥudūd offense, particularly upon a fourth conviction, can result in escalated penalties, including capital punishment (article 136).Footnote 90
In addition to these articles, article 220 of the Islamic Penal Code stipulates that “as regards ḥudūd punishments not mentioned in the present law, action shall be taken in accordance with Article 167 of the Constitution.” Under article 167 of the constitution, judges are empowered to issue rulings based on authoritative Islamic sources and authentic fatwās in the absence of a specific legal statute.Footnote 91 As a result, although apostasy is not explicitly criminalized in the Islamic Penal Code, a judge may still sentence an individual to death for apostasy by invoking established Shiʿi jurisprudential sources—such as al-Lumʿa al-Dimashqiyya (The Damascene Gloss)—as the legal foundation for such a ruling.Footnote 92 In this way, the constitution itself “appears to be the source of a violation of the rule of law and a watering-down of the principle of nulla poene sine lege (no punishment without law).”Footnote 93 It is also important to note that ḥudūd punishments apply to all citizens, including non-Muslims.Footnote 94 Moreover, note 1 of article 150 of the Islamic Penal Code states: “Where the perpetrator of an offense punishable by ḥudūd punishments becomes insane after issuance of a final sentence, the ḥudūd punishments shall not be vacated.” It is not conceivable to the present author how sanctioning an insane criminal (even if they become insane after the final judgment is delivered) by a harsh punishment like ḥadd can be reasonably justified. This sanction would be to imitate the Persian king Xerxes, who, according to Herodotus, sought to have the surging waves of the Hellespont disciplined with three hundred lashes during a storm.
The incorporation of ḥudūd punishments into the criminal justice system served the ideological objectives of the new theocracy, as it provided Iranian theocrats with significant political and symbolic leverage and coercive authority over the emerging institutions of the new civil order.Footnote 95 Thus, it should come as no surprise that Iranian theocrats support the pro-ḥudūd Shiʿi jurists. Considering that the ḥudūd punishments have been firmly established in the Islamic Penal Code as immutable punishments that are beyond questioning, it may seem absurd to entertain any suggestion of suspending or replacing ḥudūd punishments with modern penal methods.
Such a conclusion, according to the Iranian suspensionists, would be hasty. In their view, the establishment of the Shiʿi theocracy has laid the theoretical groundwork for renouncing the mainstream Shiʿi position (pro-ḥudūd) according to which ḥudūd punishments, whatever form they may take, must be implemented under any circumstances. At first glance, this claim appears to go against the general perception of the Islamic Republic of Iran as a state that reduces the Shiʿi faith to static fiqh. This claim also may seem to be inconsistent with the fact that ḥudūd punishments have been frequently applied by the state since the theocrats came to power.Footnote 96
There is much to discuss concerning Iran’s current penal policy regarding the ḥudūd punishments within the contemporary Iranian criminal justice system.Footnote 97 However, my focus here is the reformers’ claims about opportunities in Shiʿi politico-juridical mechanisms—secondary rulings and state order—that make it possible to suspend ḥudūd punishments, and the doctrinal challenges that hinder the application of these mechanisms.
Secondary Rulings
According to Shiʿi jurisprudence, rulings fall into two categories: primary rulings (aḥkām-e awali-e) and secondary rulings (aḥkām-e thānavi-e).Footnote 98 Primary rulings include all Islamic duties and obligations that may be deduced from the four sources: the Quran, the Sunnah, consensus (ijmāʿ), and reason (‘aql).Footnote 99 These rulings are fixed and thus are not open to discussion. They include rulings pertaining to acts of worship and to transactions, ḥudūd punishments, diyah (that is, blood money or indemnity for bodily injury), and to trial procedures, testimony, and litigation. Secondary rulings are the product of juristic inferences drawn in light of the provisional conditions of an individual or the community. These rulings are deduced by a jurist, with due consideration for the circumstances and conditions of an individual or society, based on principles such as no harm and no harassment (lā ḍarar wa-lā ḍirār), necessity (ḍarūra), averting difficulty (‘usr), distress (ḥaraj), and hardship (mashaqqa).Footnote 100 Hence, secondary rulings provide only partial and contingent amendments to legal injunctions. For instance, in times of turbulence and danger, the obligation to undertake the ḥajj pilgrimage may be suspended.Footnote 101
According to Ayatollah Khomeini, secondary rulings have both societal and individual dimensions. These rulings, he maintained, are a tool in the hands of the Islamic ruler (ḥākim) to solve practical difficulties that arise in connection with the enforcement of law and order. He did not mean to say that secondary rulings are the prerogative of the valī-ye faqīh (the guardian jurist). Rather, he meant that secondary rulings are to be issued by the state rather than by the valī-ye faqīh. The term ḥākim, in this context, refers to the legislative body of government, not to the supreme leader.Footnote 102 This interpretation of ḥākim is consistent with Ayatollah Khomeini’s recommendation to Parliament that, “in urgent cases, it is good to invite committed and pious experts to the parliamentary committees to identify issues for secondary rulings so that problems can be tackled more effectively by taking advantage of their advice.”Footnote 103 He closed his instruction with the words: “Secondary rulings have nothing to do with the valī-ye faqīh, and after the decision of Parliament and the approval of the Guardian Council, no official has the right to reject them, and the government should implement secondary rulings immediately and without any hesitation.”Footnote 104 He went on to advise the Guardian Council to give serious consideration to secondary rulings when reviewing bills proposed by Parliament.Footnote 105
The legislator is authorized to apply secondary rulings when passing, amending, and repealing laws. In recent decades, the legislator has exercised this authority on many occasions, resulting in the gradual incorporation of secondary rulings into the realm of legislation. One example of the utilization of secondary rulings in national legislation is article 225 of the Islamic Penal Code, which establishes a so-called moratorium on the application of the stoning penalty. The article permits judges to substitute execution for the ḥadd punishment of stoning when circumstances demand that stoning must not be implemented:
The ḥadd punishment for the muḥṣan and the muḥṣane is stoning. In cases where stoning cannot be applied, the muḥṣan and the muḥṣane may face the death penalty upon recommendation of the court and approval of the Judiciary Chief, provided that the crime is proven by evidence. Otherwise, they may be subject to one hundred lashes.Footnote 106
According to suspensionists, this legislative record, together with Ayatollah Khomeini’s emphasis on secondary rulings in his writings, suggests that it is technically feasible for the theocratic state, and within its power to suspend ḥudūd punishments, using the politico-juridical mechanisms of secondary rulings. The first question is: How do secondary rulings justify a suspension? As mentioned in the previous section, primary rulings can be suspended under certain circumstances in order to avert probable evil and harm (mafsada). As primary rulings, ḥudūd punishments are also subject to this rule. The next question is: How could one possibly conceive of the application of ḥudūd punishments as harming and creating evil when many Shiʿi jurists regard these punishments as a vehicle to enforce divine injunctions in society, and as a tool to propagate good and condemn evil?
Some advocates of ḥudūd punishments compare these punishments with bitter medicine that is beneficial to humans. However, suspensionists hold that these bitter medicines, when applied in specific contexts and circumstances, are horrid and violent, and they may lead some individuals to develop a negative view of Islam. Under such conditions, the punishments may lose their functionality and cease to be effective.Footnote 107 If the implementation of ḥudūd punishments proves counterproductive and leads to the vilification of Islam, causing people to view it with disdain, Muslims will have to endure the humiliation of seeing their religion defamed. The situation of Muslim minorities living in non-Muslim countries especially worrying, as they may be attacked, derided, or bullied by anti-Islam activists, who use sharia-based corporal punishments as a cudgel or weapon to beat them with.Footnote 108
In support of the defamation argument, some scholars refer to taqiya (dissimulation),Footnote 109 a Shiʿi principle that allows individuals to conceal their true beliefs or religious affiliation, particularly in situations in which revealing them might lead to persecution or harm. Taqiya is a protective measure designed to safeguard individuals’ lives and well-being in hostile environments.Footnote 110 Ayatollah Rahim Nobahar argues that taqiya is relevant in the context of ḥudūd suspension because the goal of taqiya is to preserve religion and prevent Islamophobia.Footnote 111
In January 2024, the flagellation (seventy-four lashes) of a twenty-three-year-old Iranian woman for refusing to wear the obligatory hijab in public spaces and posting a photograph on social media shook the country and sparked a wave of protest in cyber space. Remarkably, Ayatollah Mohammad-Ali Ayazi, a member of the Assembly of Qum Seminary Scholars and Researchers, condemned the application of this punishment and added that “if the imposition of a sentence causes hatred and aversion to Islam, then the exercise of such punishment is ḥarām (forbidden) and should be avoided.”Footnote 112 While Ayazi’s jurisprudential assessment targeted discretionary punishment (ta’zīr), suspensionists may argue that the essence of his statement also extends to ḥudūd punishments.
To prevent potential hostility toward Islam resulting from the implementation of ḥudūd punishments, some suspensionists have put forward a controversial proposal: it may be wise and rational to suspend ḥudūd punishments because stoning and the amputation of limbs may give rise to hostility toward Islam; prepare the ground for the cultivation of pernicious propaganda against Islam and its divinely ordained commandments; and, as a consequence, weaken Islam.Footnote 113 Theoretically, this proposal is consistent with secondary rulings—according to which primary rulings can be suspended in exceptional circumstances—assuming that the application of ḥudūd punishments will lead to the defamation of Islam (vahn-e din).
Suspensionists bolster their defamation argument by citing scriptural sources, seeking to persuade theocrats who prioritize scriptural evidence over rational discourse. Suspensionists cite Quran 24:2 to advocate for the suspension of ḥudūd punishments: “The woman or man found guilty of sexual intercourse - lash each one of them with one hundred lashes … and let a group of the believers witness their punishment.” They argue that this verse refers specifically to believers, because if unbelievers were to witness capital punishment, they might become reluctant to embrace Islam.Footnote 114 They add that the same rationale applies to a ḥadīth attributed to Imam Ali: “Divine ḥudūd should not be carried out in the territory of the enemy, for it is likely that the criminal upon whom the punishment is imposed will join the enemies of Islam.”Footnote 115 They assert that Imam Ali, renowned for his judiciousness, was mindful of the adverse repercussions that might ensue from the implementation of ḥudūd punishments.Footnote 116
According to suspensionists, it is not only theoretically plausible but also rationally justified to utilize secondary rulings to safeguard Islam from Islamophobia in the global mass media.Footnote 117 In practice, Parliament may feel obligated to take measures to prohibit the application of ḥudūd punishments. As noted, Parliament possesses a religio-political authority to prevent ignominy and global stigma by establishing a moratorium on the application of ḥudūd punishments without violating the doctrinal corpus of velāyat-e faqīh. On the same ground, the clerics who oversee the Guardian Council, which is responsible for assessing the compatibility of parliamentary bills with sharia principles and the constitution, could approve a moratorium bill proposed by Parliament without reservation.
State Orders
According to suspensionists, the theocracy in Iran has the power to issue a state order (hokm-e hokoumati) that may adapt, modify, or suspend laws according to the changing interests of the state. Whereas necessity is the basis of secondary rulings, the interest of the state is the basis of state order. The head of state takes maṣlaḥa into account when issuing state orders.Footnote 118 Maṣlaḥa, literally meaning a cause or source of good, is often translated into English as public interest. However, the scope of maṣlaḥa extends well beyond terms like public interest, welfare, or benefit. In scholarship on state orders, the term interests of the state is often referred to as maslahat-e nezām or simply maslahat and the term interests of the state is sometimes used synonymously with the interests of religion. Indeed, Ayatollah Khomeini and other theocrats have used these two terms interchangeably. For this reason, I use the umbrella term maṣlaḥa to cover all three types of interest.Footnote 119
Some argue that the application of maṣlaḥa is consistent with the Quran 5:6 and 22:78, according to which God desires ease, not difficulty, for his creatures.Footnote 120 The legitimacy (mashrūʿīya) of a state order derives from Ayatollah Khomeini’s theory of valī-ye faqīh. Footnote 121 According to this theory, the wālī (head of the state) holds the same authority in matters of the state as did the Prophet and the twelve divinely designated imams.Footnote 122 According to this understanding of valī-ye faqīh, the supreme leader may issue a state order that has the force of law, usually based on maṣlaḥa. The state order is a tool at the disposal of the head of the state, who is tasked with discerning what is beneficial or detrimental to the Shiʿi polity. The stewardship and the discretion of the valī-ye faqīh requires the head of the state to preserve the theocratic state, which is regarded as the most “religiously indispensable issue” (oujab-e vajebat).Footnote 123 For Ayatollah Khomeini, this obligation was more urgent than any other obligation because, without the theocratic state, Islam cannot be preserved. Ayatollah Khomeini justified the need for a theocratic state by asserting that Islam’s preservation and enforcement of sharia depend on having such a government. He argued that without an Islamic state governed according to religious principles, the integrity and practice of Islam would be compromised. According to Ayatollah Khomeini, only a theocratic government ensures that Islamic laws and teachings are upheld and protected from both internal and external challenges.Footnote 124 Indeed, in his opinion, the only maṣlaḥa that remains constant is the preservation of Shiʿi theocracy.Footnote 125 He states:
Protection of the Islamic government is a divine obligation incumbent upon everyone and is the most important obligation that God has given. That is, protecting the Islamic Republic is more important than saving the lives of individuals, even if that individual be the Imam of the Time ]that is, the awaited Mahdi currently in occultation[, because the Imam sacrifices his life for Islam. All Prophets, from the creation of the universe up to the present, came for the sake of the truth; they fought for the religion of God and sacrificed their lives for it.Footnote 126
The head of the state has the power to invalidate an Islamic law if, in his opinion, doing so will serve the interest of the state.Footnote 127 He emphasized that a state order, issued on the basis of maṣlaḥa, can override even primary rulings:
The government is empowered to unilaterally revoke any Sharia agreements which it has concluded with the people when these agreements are contrary to the interests of the state or religion. The government can also prevent any devotional [‘ibāda] or non-devotional affair if it is opposed to the interests of Islam and for so long as it remains so. The government can prevent the divinely imposed obligatory pilgrimage to Mecca (ḥajj), which is one of the important Divine obligations, on a temporary basis, in cases in which it is contrary to the interests of the Islamic community.Footnote 128
In a letter he sent to scholars in the Qum seminary, Ayatollah Khomeini stated that laws must change in response to changes in political and economic circumstances.Footnote 129 In his view, maṣlaḥa should be used whenever local contingencies and the exigencies of statecraft demand it. The concept of maṣlaḥa held such significance for Ayatollah Khomeini that in 1989, he issued a decree mandating the formation of the Expediency Council, later known as the Majma-e Tashkhis-e Maṣlaḥat-e Nezām (The Council for Determining the Interests of the State).Footnote 130 This council was assigned the responsibility of mediating disputes between Parliament and the Guardian Council by developing practical solutions on the basis of maṣlaḥa. Footnote 131
Since the establishment of the Shiʿi theocratic state in 1979, Iranian authorities have occasionally prioritized maṣlaḥa over sharia rulings.Footnote 132 Indeed, the growing integration of state interests into legal and political discourse has been a prominent theme in post-revolutionary scholarly literature. This shift is what the Shiʿi reformer Mohsen Kadivar identifies as “a transition from a traditional approach to religion to an approach toward end-oriented Islam.”Footnote 133 This evolving perspective stands in stark contrast to the traditional approach, which seeks to preserve the culture, exigencies, and specific circumstances of the age of revelation as fixed and immutable ideals within Islamic thought, reflecting a retrospective utopia.Footnote 134 An oft-quoted hadith of Imam Sadiq, frequently cited by traditionalists to substantiate this approach, is worth mentioning here: “Whatever was made lawful by Muhammad shall remain lawful until the Day of Resurrection, and whatever was made unlawful by him shall remain unlawful until the Day of Resurrection.”Footnote 135
Seen in this light, maṣlaḥa in the context of Shiʿi theocracy is no longer applied in the specific manner once employed by pre-modern jurists.Footnote 136 While maṣlaḥa once carried a more precise and circumscribed meaning and application in pre-modern contexts, it is now invoked in a more expansive manner, frequently serving as a tool for utilitarian justification. This is why some modern scholars of Islamic law, such as Wael Hallaq, have been dismissive of modernist appeals to maṣlaḥa, suggesting that they have taken an otherwise marginal doctrine in Islamic jurisprudence and given it pride of place, with the result being a kind of religious utilitarianism.Footnote 137
Two important aspects of maṣlaḥa-based state orders should be highlighted. First, a state order might be issued to serve a contingent maṣlaḥa. In such cases, the state order does not remain in force when there is no longer a maṣlaḥa to justify it. Second, a state order is unprecedented in Shiʿi juristic treatises because Shiʿi jurists were never rulers of Muslim states and there has never before been a Shiʿi theocracy. Indeed, the reason why classical jurists discussed state orders was that they were not engaged in political affairs.Footnote 138 The classical jurists discussed state orders under the rubric of adjudication (qaḍāʾ)—as if their understanding of a state was nothing more than a traditional legal proceeding guided by Islamic legal doctrine.
Scholars hold a diverse range of views on the status of state orders after the establishment of the Iranian Shiʿi theocracy. These differences may be partly explained by the fact that the order in question is a novel jurisprudential concept previously unknown in classical jurisprudence. Recently, some Muslim scholars have suggested that a state order is neither a primary nor a secondary ruling but rather an executive order issued by the head of the state.Footnote 139 However, according to Ayatollah Khomeini, whose scholarly view has shaped the ideology of the established theocracy, a state order is a primary ruling,Footnote 140 meaning that the head of the state can legislate and enforce laws on all citizens, based on his assessment of public welfare.Footnote 141
Ayatollah Khomeini’s opinion on the nature of a state order is supported by article 57 of the constitution, which acknowledges the absolute authority (wilāyat-e amr) of the supreme leader.Footnote 142 In fact, the constitutionally endorsed absolute authority of his command stems from Ayatollah Khomeini’s religio-political theory of absolute authority of an appointed faqih (wilāyat-e al-motlaqeh), according to which all rights exercised by the Prophet and the imams in state affairs may now be exercised by the valī-ye faqīh: Footnote 143 There is no distinction between the authority of the Prophet and that of the valī-ye faqīh, and the head of the state has the exclusive right to prevent the implementation of any law that in his judgment will undermine the interests of the state. As Kadivar explains, whenever the supreme leader determines that there is a maṣlaḥa for Islam and Muslims that is not stated in the constitution, he has the right to violate even positive law.Footnote 144 However, this is only an apparent violation, because the head of the state has not in fact violated the revealed sharia.Footnote 145 The orders of the supreme leader are tantamount to positive law, and if there is a conflict between a positive law and his order, the latter prevails.Footnote 146
Five features distinguish state orders based on the theory of wilāyat-e al-faqīh. First, unlike secondary rulings, a state order represents a politico-juridical authority exercised solely by the supreme leader. Second, a state order is based on theocratic normativity, meaning that it is justified by Shiʿi theocracy, which is based on the theo-juridical theory of wilāyat-e al-faqīh. Footnote 147 Third, a state order is based on maṣlaḥa, be it a maṣlaḥa of state, society, or Islam.Footnote 148 Fourth, all people, both mujtahids and non-mujtahids,Footnote 149 must place their unquestioning trust in the non-contentious directives of the supreme leader, that is, what he has issued as a state order. It is not only a civic duty to comply with a state order but also a religious obligation.Footnote 150 Finally, a state order may be temporary and reversible because, like secondary rulings, it is motivated by social exigencies and short-term considerations.
A state order is not merely a symbolic expression and ideological manifestation of the supremacy of the clerical authority of the supreme leader over the legislator. Indeed, the supreme leader has issued state order—albeit only occasionally—in several political arenas, such as the amendment of the law governing the amount of blood money (diyah) payable for Muslims and non-Muslims, a long-established practice under Shiʿi jurisprudence.Footnote 151 In the eyes of many observers, the unequal amount of diya paid for men and women advocated by classical (and most contemporary) Shiʿi jurists constitutes discrimination based on religious affiliation, thereby reducing non-Muslims to second- or third-class status. The 1991 Islamic Penal Code was silent regarding the amount of blood money payable for non-Muslims and did not stipulate any provisions about the blood money for non-Muslims. Thus, in practice, under article 167 of the constitution, judges have the authority to issue their judgments based on authoritative Islamic sources and authentic fatwās Footnote 152 which stipulate that blood money paid for non-Muslims is significantly less than that for Muslims.
In 2003, to resolve this legal problem, Parliament added a note to article 297 of the Islamic Penal Code. This note acknowledges that blood money is payable for religious minorities who are recognized by the Constitution (Art. 13) as equal to Muslims.Footnote 153 In 2013, this note became an independent article of the Islamic Penal Code but with the same content. Article 554 runs: “Based on the state order of the Supreme Leader, the blood for religious minorities recognized under the Constitution of the Islamic Republic of Iran shall be the same amount as the blood money of a Muslim.” Although this legal reform is consistent with international human rights standards and represents a progressive step toward civic equality, it does not apply to adherents of religions other than Zoroastrianism, Judaism, and Christianity. Nevertheless, it should be regarded as a groundbreaking move against a long-standing rule anchored in the widely accepted opinion of Shiʿi school.
Suspensionists argue that it is theoretically possible for a Shiʿi theocratic state to suspend the application of the ḥudūd punishments.Footnote 154 The central question they ask is what maṣlaḥa would be required for this to happen. They frequently point to the undesired and harmful effects of the application of ḥudūd punishments, which do not achieve their intended purpose because they are detrimental to the community in general and lead to the debilitation of Islam and the ignominy of the Shiʿi theocratic state in the eyes of global public opinion.Footnote 155 For these reasons, the supreme leader should introduce a state order that suspends the application of ḥudūd punishments.Footnote 156
Pro-ḥudūd jurists reject this argument: Instead of suspending ḥudūd punishments, the state should engage with the discourse of cultural relativism on human rights to influence public opinion and overcome the debilitation of Islam and the ignominy of the Shiʿi theocratic state.Footnote 157 However, this line of thought may not withstand scrutiny from a consequentialist perspective. Although there may be some truth in the cultural relativism argument, it is largely an academic debate, and such a voice is barely heard in the court of world public opinion. Therefore, it is unlikely that the cultural relativism argument presented by Iranian governmental representatives in international academic and human rights organizations will dissuade the millions of people who are disturbed by practices such as limb amputation and flagellation from expressing hostility toward Islam and the Islamic Republic of Iran. An additional complicating factor is that ḥudūd punishments are carried out in public, and the release of videos and photos of the public spectacle of the scaffold, chopped fingers, and a person hanging from a noose exacerbates abhorrence of and antipathy to Islam.
Suspensionists suggest that a responsible theocracy should view the consequences of applying ḥudūd punishments as detrimental to both Islam and Shiʿi theocracy.Footnote 158 The Islamophobia generated by the public spectacle of the scaffold discourages potential converts to Islam and may even cause some Muslims to abandon Islam. Regarding the type of harm that can be inflicted on the theocratic state, suspensionists argue, one may anticipate the portrayal of the Shiʿi theocracy in mass media as a barbarous and cruel violator of human rights.Footnote 159
A more tangible adverse consequence of applying ḥudūd punishments has emerged in the form of resolutions adopted by the UN Human Rights Council.Footnote 160 These resolutions have subjected the Iranian state to international political pressure and resulted in economic, commercial, and political sanctions, leading to the state’s isolation from global relations. For example, these sanctions have constrained Iran’s ability to participate in international markets, trade, and financial systems, and they have led to diplomatic isolation, diminishing the country’s influence and capacity to engage with the global community.
The Islamic Republic of Iran has not been completely indifferent to the risks and adverse consequences of applying the ḥudūd punishments. For example, when Ayatollah Khomeini was told that critics of the regime invoke stoning to ridicule Islam as barbaric and savage, he is reported to have replied that, in essence, “the courts should be instructed to resort to other punitive measures like the death penalty.”Footnote 161 Similarly, Ayatollah Hussein Al-Montazeri has, in the words of Liyakat Takim, asserted that “punitive measures such as public lashing and stoning should be replaced by more dignified forms of punishments.”Footnote 162
Moreover, to ameliorate these socially detrimental consequences of applying ḥudūd punishments and mitigate their impacts, chief justice of Iran, Ayatollah Mahmoud Shāhroudi (d. 1440 AH/2018 CE),Footnote 163 issued a decree in February 2008 that banned public punishment and any dissemination of pictures in the mass media.Footnote 164 This intervention arguably had a civic aim: to reduce the cost of penal practices. However, even ostensibly pragmatic motivations, such as this one, are based on Islamic religious principles. Note that both ayatollahs Montazeri and Shāhroudi opposed public punishments, but for different reasons. Ayatollah Montazeri based his opposition on deontological ethics, arguing that such punishments are inherently wrong due to their violation of human dignity and respect. By contrast, Ayatollah Shāhroudi based on concerns about the negative impact of public punishments on the state, including potential harm to the state’s reputation and stability. Thus, while Ayatollah Montazeri emphasizes the intrinsic morality of the punishments, Ayatollah Shāhroudi focuses on their detrimental consequences for governance. As chief justice, Ayatollah Shāhroudi could prohibit public punishment only on grounds relating to the interests of society and the state.Footnote 165 Under the constitution, his responsibilities were limited to the establishment of the organizational structure necessary for the administration of justice, drafting judiciary bills appropriate for the Islamic Republic, and similar administrative duties. However, unlike the chief justice, the supreme leader enjoys considerable leeway and unfettered discretion to suspend the application of ḥudūd punishments. He can invoke the same rationale that the chief justice used in 2008 to ban public punishment: to prevent the weakening and defamation of Islam and the theocratic state.
Doctrinal Challenges to the Suspension of Ḥudūd Punishments
Suspensionists have put forth two politico-juridical mechanisms for suspending ḥudūd punishments: secondary rulings and state orders. Arguably, the most important reason to suspend ḥudūd punishments, whether through secondary rulings or state orders, is the adverse consequences associated with applying them. As noted, such repercussions include the denigration of Islam and Muslims and the erosion of the theocratic state’s credibility on the global stage. And, as noted, it is technically possible for Parliament to make an amendment to the ḥudūd punishments section of the Islamic Penal Code by adding a note that the application of ḥudūd punishments is suspended due to the negative influence that it may have on Islam, the state, and the Muslim masses. Parliament can also adopt a less radical strategy: it could follow the same legislative policy as it did in article 225 regarding stoning: amend the penal code by adding the stipulation that ḥudūd punishments are not permitted and that a different punishment must be substituted. In addition, the supreme leader could issue a state order based on maṣlaḥa suspending the application of ḥudūd punishments.
At present, ḥudūd punishments are implemented by the Islamic Republic of Iran both in public and in prison.Footnote 166 One may ask why the Islamic Republic of Iran has not taken into consideration the two religio-political mechanisms advocated by suspensionists. While the answer to this question can be analyzed from various perspectives—political, sociological, cultural—I focus here on the doctrinal challenges that hinder the exploitation of these two mechanisms and that therefore have obstructed the suspension of ḥudūd punishments. These challenges include the principled objections raised by Shiʿi conservative and orthodox-minded jurists who maintain steadfast loyalty to ḥudūd punishments. These sharia jurists find the defamation and maṣlaḥa arguments empirically suspect and normatively unconvincing.
Note that such opposition should be viewed in the larger context of resistance to change in Islamic law. This resistance is based on the thesis that the Quran is immutable and perfect, so that any alteration or change implies an imperfection in God’s revelation. It is further asserted that such a change in Islamic law would contravene the concept of the finality of the Prophet’s mission. Such an assertion resonates strongly with the thesis advanced by the prominent philosopher and political figure Ayatollah Mesbāh Yazdi (d. 1442 AH/2021 CE). He states: “There is no need for a change in Islamic law. Sometimes, specific executive laws must be established for certain matters that are at the discretion of the Islamic ruler to decide. … Therefore, such matters can be addressed by governing rules under the supervision of valī-ye faqīh [that is, the supreme leader], but there is no need to change the immutable Islamic rules and there is no justified reason for it. Not only do we not have any reason to claim that these rules must be changed, but we also have evidence for why they must not be changed.”Footnote 167
The Defamation Argument
The conservative theocrats offer six criticisms of the defamation arguments. The first critique is that there is no reliable evidence that the application of ḥudūd punishments denigrates Islam or tarnishes the reputation of the Islamic Republic of Iran. The hostile resolutions adopted by the UN Human Rights Council and the sanctions imposed on Iran by the European Union and the United States, they argue, do not necessarily reflect global animosity toward Islam. The fact that the representatives of some Western countries express disgust at ḥudūd punishments does not consider that a significant number of Muslims will abandon Islam, or that non-Muslims will be discouraged from converting to Islam.Footnote 168
Second, even if the implementation of these punishments does give rise to the defamation of Islam, the state is not allowed to suspend them, as doing so would contradict the purpose of establishing the theocracy, which is the enforcement of divine commands. As the application of ḥudūd punishments is a religious obligation (taklīf) of the Islamic Republic of Iran, the state should disseminate pro-ḥudūd sentiments to the general public and present the implementation of these punishments as rational penal measures based on maṣlaḥa. Footnote 169
Third, the defamation of Islam argument is valid only when there is an alternative to an obligation that could possibly cause defamation. For instance, sharia stipulates that blood money is paid by giving one hundred camels—eighty female and twenty male—to the victim’s family. By contrast, the Islamic Penal Code requires the murderer to pay money to the victim’s family. However, such a substitution is not possible with ḥudū d punishments. For instance, the amputation of a limb cannot be replaced by incarceration because these two types of penal sanctions are essentially different from one another.Footnote 170
Fourth, the defamation argument primarily applies to recommended (mustaḥabb)Footnote 171 actions rather than obligatory (wājib) actions. If the defamation argument would be applied to obligatory actions, the suspension of one obligatory ruling could initiate a domino effect, leading to the suspension of all obligatory rulings and the erosion of sharia law.Footnote 172
Fifth, conservative theocrats hold that performing an obligatory act (the application of ḥudūd punishments) is not a defamatory practice because the lawgiver (God) would never require human beings to do something that leads to the defamation of Islam. Hence, the implementation of ḥudūd punishments, as mandated by God, cannot lead to the defamation of Islam. What does result in the denigration of Islam is a retreat from fulfilling obligatory sharia commands.Footnote 173
Sixth, several ḥadīths indicate that the imams insisted on conducting religious practices that were, in their opinion, obligatory, despite the fact that their companions thought that these practices would lead to the defamation of Islam.Footnote 174
The Maṣlaḥa Argument
In a Shiʿi theocracy, maṣlaḥa functions as a guide for action and policy, extending beyond the traditional purview of Muslim jurists.Footnote 175 The state assumes responsibility for applying maṣlaḥa through policy formulation and legislative action to protect essential interests. This represents a departure from the classical era, when the compatibility of rulings or actions with maṣlaḥa was primarily determined by individual jurists.Footnote 176 This shift underscores the modern nation-state’s authority in religio-legal affairs and its exclusive role in addressing socio-political challenges. State authorities are entrusted with identifying the maṣlaḥa of the polity in response to socio-political exigencies. In a Shiʿi theocracy, a time-sensitive and expansive understanding of maṣlaḥa allows for justification of state policies and actions based on perceived public interests, even if conservatives may view such policies and actions as anti-Islamic. Using the principle of maṣlaḥa, theocrats adapt sharia rulings to meet contemporary needs, addressing economic practices (including interest on loans and insurance policies) and modern laws concerning family, women, morality, and punishment.
The maṣlaḥa argument is not immune from the objections or criticisms of conservative jurists. Indeed, it has elicited critical attacks from state-sponsored clerics such as Ayatollahs Aḥmad Khātami, Mohammad-Reza Golpāygāni, Mohammad Emāmi Kāshāni (d. 1445 AH/2024 CE), and Mohammad Yazdi (d. 1442 AH/2020 CE), who viewed maṣlaḥa as an expedient mechanism that compromises sharia ideals.Footnote 177 According to these critics, public interest must be based on evidence derived from canonical sources. However, maṣlaḥa is a hermeneutical principle with no basis in the textual sources, and therefore, it is not an independent source of law. Rather, it is only invoked under extenuating circumstances.Footnote 178 Thus, any ruling issued on the ground of maṣlaḥa is conjectural (ẓannī) and may even be capricious, i.e., founded on the subjective opinions of a jurist. Such a ruling does not approximate, let alone reflect, the divine intent.Footnote 179
Based on this approach to maṣlaḥa, conservatives have put forward the following arguments. First, issuing a state order to suspend ḥudūd punishments based on maṣlaḥa is incompatible with Shiʿism because maṣlaḥa, along with istiḥsān (juridical preference),Footnote 180 maqāṣid (the objectives of Islamic law),Footnote 181 and qiyās (analogical reasoning),Footnote 182 is a Sunni methodological principle and a heuristic. Indeed, due to its association with Sunnis, the term maṣlaḥa is often viewed pejoratively by many conservative Shiʿi jurists. They maintain that maṣlaḥa is not endorsed by the revelatory sources, that Shiʿi imams regard it as invalid and unlawful,Footnote 183 and that maṣlaḥa is often shaped by the subjective evaluations and biases.
Whereas the first criticism outright rejects maṣlaḥa on the grounds that it is incompatible with Shiʿism, the second criticism seeks to constrain its use. According to conservative critics, maṣlaḥa is applicable only when the Quran and ḥadīth are either silent on a specific issue or do not sufficiently explain the provisions for an injunction’s application. This also applies to ijtihād, which is invalid when there is an explicit declaration in a sacred source (naṣṣ).Footnote 184 Indeed, jurists like Yazdi viewed the application of maṣlaḥa as “crossing the line of constitutional and religious laws … [and] committing acts against the shar‘ia and the law in response to the necessities (zaruriyāt) of the time.”Footnote 185 The idea that maṣlaḥa cannot override a clear textual injunction is echoed by contemporary scholars such as the Shiʿi exegete and theologian Ayatollah Jaʿfar Sobhāni.Footnote 186
Third, conservatives argue that divine laws are not required to validate or approve. They derive their legitimacy from divine authority, not from rational considerations that are subject to maṣlaḥa. As these laws and values are divine, their efficacy cannot be measured according to worldly scales. Unlike customary laws whose efficacy can be assessed according to considerations of public interest, divine laws are not subject to a utilitarian calculus or to the changing needs of society.Footnote 187 Conservatives conclude that incorporating divine law into the realm of customary law, where maṣlaḥa is applicable, is an error that, in practice, gives rise to the erosion of sacred values.Footnote 188 As such, there is no justification for allowing instrumental considerations to override divine law. Indeed, the more one integrates instrumental rational considerations into the theocratic state, the more one sacrifices Islamic ethical values.
Fourth, conservatives hold that Islamic laws, as understood by qualified Muslim jurists, should be enforced to promote justice, equity, compassion, and the well-being of individuals and society as a whole, guiding people toward righteousness and spiritual fulfillment in accordance with the teachings of Islam. God is the epitome of reason (ra’īs al-‘uqalāʾ), and his rulings are based on what will benefit or harm his creatures. It follows that he would not mandate anything that contravenes the dictates of reason, and he would never task human beings with applying punishments that are contrary to the well-being of humans, even though human reason cannot always perceive his reasoning.Footnote 189
Fifth, considering that the rationale behind any state order is maṣlaḥa, which is temporary and transitory, the issuance of such ad hoc orders undoubtedly will lead to an undesirable outcome, the secularization of the major part of sharia. Maṣlaḥa-based state orders, especially when issued frequently, function as a catalyst that secularizes, waters down, or dilutes the Shiʿi jurisprudence system, turning sharia into an obsolete and lifeless corpse, and eventually leading to the aberration of true and authentic Islam.Footnote 190 Conservatives complete this counterargument by posing the following questions: If the reception of scripture is conditional, what is the value of revelation? If the application of sharia changes with sociopolitical exigencies, where is sharia? If we should adhere to the dictates of maṣlaḥa and the ever-changing conditions of society, why did God bother to bestow the divine scriptures upon us?Footnote 191 Conservatives conclude that a theocracy that marries the spirit of the age will be a widower in the next!
Concluding Remarks
Although some Shiʿi juristic treatises include legal opinions that categorically prohibit the application of ḥudūd punishments during the twelfth imam’s occultation, the Islamic Republic of Iran subscribes to the theoretical position of the majority of Shiʿi jurists, who acknowledge the competence of Shiʿi jurists to implement ḥudūd punishments in the absence of the twelfth imam. conservative jurists—particularly those in positions of power—have adhered to static/non-dynamic jurisprudence (fiqh-e sonatai) as a bastion against suspensionism. Against this view, suspensionists argue that although the Iranian theocratic state has not embraced the view that supports the cancellation or non-application of ḥudūd punishments, there are still some opportunities for the state to suspend ḥudūd punishments. By using secondary rulings or state orders, a state could establish a moratorium on the application of ḥudūd punishments without abolishing those punishments.Footnote 192 Remarkably, conservative critics substantiate their arguments with both consequentialist and deontological reasoning. Whereas consequentialism assesses actions by their outcomes, evaluating them as right or wrong based on the results they produce, deontology focuses on adherence to moral rules, assessing actions as right or wrong regardless of their consequences. Whereas consequentialists prioritize the impact of actions, deontologists emphasize following ethical principles.
One may infer from the application-versus-suspension debate that consequentialist arguments in favor of secondary rulings and state orders face serious and deontological counter-arguments. In theory, the suspensionists’ arguments concerning maṣlaḥa and defamation fail to address the doctrinal challenges posed by conservative theocrats, and therefore, have been unable to convince pro-ḥudūd Shiʿi jurists of the need to suspend ḥudūd punishments in Iran.Footnote 193
One possible strategy for suspensionists would be to develop and expand the deontological arguments of the anti-ḥudūd Shiʿi jurists who categorically prohibit the application of ḥudūd punishments during the occultation. If arguments for the suspension of ḥudūd punishments, irrespective of the consequences of their application, are further reinforced and gain broader acceptance, the Shiʿi theocratic state may cease to implement of ḥudūd punishments while upholding the authority of the doctrinal corpus of Shiʿism. By adopting this strategy, the state could also avoid the accusation that it has sacrificed sharia for utilitarian and consequentialist purposes.
Elsewhere, I have undertaken a detailed critical examination of the problems of maṣlaḥa in the crucible of modern Shiʿi theocracy.Footnote 194 That analysis helps clarify why, for some scholars, appeals to maṣlaḥa cannot resolve the deeper epistemological and ontological issues underlying Islamic jurisprudence. This limitation of maṣlaḥa-based reasoning has also been theorized at a more foundational level in contemporary Iranian intellectual discourse. For instance, the Iranian reformer and philosopher Abdolkarim Soroush, adopt philosophical perspective and argue that removing jurisprudential precepts they consider outdated requires a fundamental revision of the assumptions and premises underlying Islamic jurisprudence. Any approach that fails to address the underlying cause of the condition does not ameliorate the situation; the invocation of defamation arguments and maṣlaḥa arguments is ineffective because an improvement achieved by a particular maṣlaḥa will be undermined by another more important maṣlaḥa. For Soroush, the most significant maṣlaḥa must be a fundamental revision of Shiʿi jurisprudential ontology, anthropology, and epistemology. He maintains that Iranian theocrats should rethink their core convictions and views on human rights and dignity. As long as one neglects rational scholastic theology, the application of maṣlaḥa and resort to other stratagems will result in nothing but a “disorderly and messy pragmatism.”Footnote 195
Between the two poles of pro-ḥudūd scholars and suspensionists lies a group of scholars whom I term reductionists. These scholars do not advocate the suspension or abolition of ḥudūd punishments; rather, they seek to mitigate their practical impact by reducing, in particular, the scope of capital punishment within the ḥudūd framework. Adopting such an approach, Mohsen Borhani and Mohammadamin Radmand argue that, given Iran’s high rate of executions,Footnote 196 many observers attribute this phenomenon to the application of ḥudūd punishments and consequently call for their wholesale abolition. Rejecting this position, they contend that the complete elimination of capital ḥudūd punishments is normatively undesirable because “Iran is a majority-Muslim society where the belief prevails that one of God’s attributes as the Divine Legislator is ḥikma (wisdom).”Footnote 197 Instead, they advance a minimalist strategy that emphasizes the internal capacity of Shiʿi jurisprudence to substantially curtail executions while remaining faithful to the broader framework of sharia and, more specifically, to Shiʿi fiqh.
This position, however, rests on a series of largely problematic assumptions that merit critical scrutiny. The claim that wholesale abolition would contradict the values of Iranian society as an Islamic polity raises an immediate methodological question: From what perspective is this assertion being advanced? If construed sociologically, the argument would require empirical substantiation regarding public attitudes. Yet available survey data complicates such claims. For instance, a large-scale 2020 survey found that roughly 70 percent of Iranians either oppose the death penalty altogether or accept it only in limited cases, and only a small minority support it as a fixed requirement of sharia.Footnote 198 Such findings cast doubt on the presumption that robust support for capital ḥudūd punishments constitutes a stable or dominant social value. This difficulty becomes more apparent when one considers the concrete legal provisions that such claims implicitly rely upon. One might, for example, ask whether it is reasonable to assume that a majority of Iranians would genuinely endorse ḥudūd laws under which an individual, upon a fourth conviction for alcohol consumption, becomes liable to capital punishment. Moreover, even if one were to shift from a sociological to a theological or doctrinal register, the argument remains underdeveloped. To assert that abolition is incompatible with an “Islamic society” presupposes a particular, and contestable, understanding of the relationship between sharia, social norms, and state law. Without clarifying the epistemic standpoint from which this claim is made, the reductionist position risks reproducing precisely the kind of ad hoc pragmatism that Soroush criticizes—albeit in a more restrained and internally juristic form.
Putting aside theoretical discussions, one should not neglect internal social forces. Although the Islamic Republic of Iran has carried out the stoning punishment,Footnote 199 the implementation of this punishment has gradually been reduced. Provisions relating to the punishment were included in the previous penal code; however, in practice, they were a dead letter until 2013, when article 225 of the amended penal code established a moratorium on the application of stoning. In my opinion, this so-called penal retreat may be explained inter alia by the fact that Iranian society, or at least the majority of its population, increasingly reacts with disgust to stoning and view it as a cruel punishment.
If the decline of public support for the amputation of limbs and flagellation continues, these punishments will ultimately meet a fate similar to stoning, which has already been subjected to a moratorium owing to prevailing perceptions of its cruelty. Realistically, the lens of the sociology of punishment suggests that a rabble of noisy, angry people attending public punishments in the early morning to bawl, encourage, and applaud the executioner is a sign that public punishment has had some success in engaging citizens in the punitive ideology. Iranian jurist Hasan Fallāh, who supports the public application of ḥudūd punishments, claims that the enthusiastic applause of people crowded near the scaffold proves that the implementation of ḥudūd punishments has popular support, creates a feeling of social security, and demonstrates the power of the theocracy.Footnote 200 However, should such sentiments within segments of public opinion shift, Shiʿi theocracy will have to activate the two aforementioned politico-juridical mechanisms sooner or later, despite doctrinal challenges.
The question of the suspension or non-application of ḥudūd punishments is not merely a question of technical reform within Shiʿi legal tradition. Indeed, it is reductionist to neglect the roles of public morality and social forces. To quote Owen Fiss, “[t]he analytic arguments wholly internal to the law can take us only so far. There must be something more—a belief in public values and the willingness to act on them.”Footnote 201 Putting aside theoretical opportunities and doctrinal challenges, it is tempting to suggest that if intellectual and social forces within Iranian civil society continue to intensify and consolidate around opposition to penal sanctions such as flagellation, execution, and the amputation of limbs, collective pressure may increasingly compel the theocratic state to resort to the mechanisms advocated by suspensionists.
Corporal punishments can have profound social and psychological consequences, potentially shaping public sensibilities in ways that critics argue may contribute to desensitization, alienation, or the normalization of violence.Footnote 202 Beyond these consequences, such punishments also risk violating human dignity and eroding our inherent Personlichkeit—the moral personality that, in Kantian terms, grounds our worth as autonomous and rational beings.Footnote 203 The public implementation of these punishments by the state is more than cruel; it corrupts those who watch the public spectacle of the scaffold. The denunciation and rejection of the scaffold as an official public spectacle continues the domestication of the human species that we call “civilization” and forms an integral part of the civilizing mission of modern states. Sabzichi’s poignant testimony mentioned at the beginning of this article illustrates that the amputation of limbs leaves little opportunity, if any, for re-socialization, reintegration, or the resumption of the offender’s previous life, and therefore may deprive the state of the opportunity to rehabilitate the offender, which is one of the purposes of punishment. By the categorical abolition of ḥudūd punishments—or, at the very least, their suspension—the state not only strengthens its capacity to rehabilitate and reintegrate offenders, but also affirms a vision of justice that is more aligned with the cultural and ethical soul of the nation. In a land where poetry has long shaped the moral imagination—where verses have spoken of mercy, dignity, and the complexity of the human heart—the turn away from bodily punishment would be a return to the deeper strength of Iran’s civilizational heritage.
Acknowledgments and Citation Guide
I extend my sincere gratitude to the distinguished scholars who provided invaluable feedback or institutional support during the development of this article. An earlier version was presented at a Yale Law School workshop, where I benefited from the insightful comments of Professors Owen Fiss, Aslı Bâli, Anthony Kronman, and Frank Griffel. I am also grateful to Professor David Powers for his thoughtful feedback, which significantly contributed to the final version. That version was subsequently refined during my fellowship at Harvard Law School’s Program in Islamic Law (directed by Professor Intisar A. Rabb), in a collegial research environment. Finally, I thank Silas W. Allard for his thoughtful editorial support on an early draft of this article. I have no competing interests to declare. Citations in this article follow the Chicago Manual of Style, 18th edition.
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