The hudud are not obligatory except upon an adult, sane, committed, and knowledgeable person who is aware of the prohibition

The Shaykh : Is the execution of the hudud obligatory or not?
The author says "The hudud are not obligatory except upon an adult". I wish the author had said, "The hudud are obligatory upon every adult," yes, because affirmation is better than negation. Because his statement, "The hudud are not obligatory except upon such-and-such," implies that the original state is that the hudud are not obligatory. But if he had said, "The hudud are obligatory upon every adult, sane, committed, and knowledgeable person who is aware of the prohibition," that would have been better. Because the establishment of the hudud is obligatory by the Book, by the Sunnah, and by scholarly consensus. Allah the Exalted said , and the command indicates obligation, so that no one would dare to steal after that, He concluded it with Majesty so that He might have authority, Mighty and Majestic, and Wisdom so that it would not be said, "This is foolishness. Why cut off his hand for a quarter of a dinar? Cut off a hand for a quarter of a dinar? If he cut it off in a case of injury, he would pay five hundred dinars. He would pay five hundred dinars, or not, O 'Abd al-Rahman?"

The questioner : Yes.

The Shaykh : If he steals, his hand is cut off for a quarter of a dinar. And if he cuts it off in a case of injury, he pays five hundred dinars. Yes, to protect wealth, it is cut off for a quarter of a dinar, and to protect lives, five hundred dinars are obligatory for cutting it off. Yes, fine. The hudud are obligatory. And He the Exalted said . Do not say, "Have mercy on this man." You flog him one hundred lashes. An old shaykh, you flog him one hundred lashes. You see, he did not marry. If he had married, stones would have married him, but he did not marry. An old shaykh, you flog him one hundred lashes. Have mercy on him, O son of al-Halal. I say, I do not have mercy on him, because who is more merciful than I? He commanded me to flog him and forbade me to be lenient with him . Fine, flog him in the house, in secret, no one... no one, and not at the center so no one finds out. He said, No . And the One who legislated these hudud is Allah, and He is more merciful to the creation than a mother is to her child. Because in establishing the hudud there are immense benefits that cannot be counted. There is deterrence in them, and there is purification. Some of the atheists and heretics say, "If we cut off the hand of the thief, half the people would be handless... these people come to you, ten pass by you, five of them... Where are the factories? Where is the harvest? Where is the planting? Where is the loading? He has only his left hand. Is that good? What do we say to him? It means that the man admitted that half of his people are thieves and robbers. And if he had cut off one of these, the others would have been deterred, and there would have been no theft. But the son of Adam, due to the shortness of his vision, looks at the present and does not look at the future.
We mentioned two proofs from the Qur'an regarding the obligation of the hudud. And He the Exalted said regarding those who cut off the road . This means their punishment is only this, because "inna" is a tool of restriction. And 'Umar (may Allah be pleased with him) said while addressing the people on the pulpit of the Messenger (peace and blessings be upon him) . And did the people deny 'Umar (may Allah be pleased with him)? No, they agreed with him that it is an obligation from the obligations of Allah that must be executed. But there is a noble, honorable, and good man, from a good lineage, whose soul allowed him to steal a quarter of a dinar, and it was established against him. The man is good, noble, and kind, from a noble and high lineage. What do you say about this?

The questioner : It is cut off.

The Shaykh : Wait, he reached the sultan, but people came to him... and said, "This is a good, noble man from a good lineage. And how will he open the door for people when guests come? How will he open the door?" We say, he opens with the left hand, there is no problem. It is said, "The hudud are established upon him, upon the noble and the lowly, upon the rich and the poor, upon the male and the female, upon the free and the slave. There is no difference, because Allah, Mighty and Majestic, did not differentiate . As long as he stole, this is his punishment. In fact, if someone said, "If this noble man had not been for the fact that Allah set a limit, we would have said his other hand should be cut off because he is noble. His defilement by theft is greater than the defilement of the lowly," is that not so?

The questioner : Yes.

The Shaykh : Yes, indeed. For this reason, it passed us in... that the fornication of a gray-haired man and the arrogance of a poor man are more severe than the fornication of a young man and the arrogance of a rich man. This man is noble and from a noble lineage, how can he steal? Or how can he fornicate, for example? So, is there no difference between the rich and the poor, and the young and the old? No, pay attention to the words of the author... First, that he be an adult, so the hudud are not obligatory upon one who is below the age of maturity. Maturity is achieved by one of three things: either the emission of semen, or the growth of pubic hair, or the completion of fifteen years. And the proofs for that have preceded us in the chapter on guardianship. So when a person reaches maturity, he is looked at regarding the remaining conditions so that the hudud may be established upon him. As for one who is below the age of maturity, there is no hudud upon him, even if he fornicates or steals, due to the hadith . This is a proof. And the reasoning is that he is not qualified for punishment due to the lack of full intention from him, because he is deficient in conception and deficient in action. For this reason, Allah prevented them from approaching their wealth with their own hands so that they would not waste it. But this does not mean that the young person is not given discretionary punishment. Rather, he is given discretionary punishment, and discretionary punishment is not the hudud. For this reason, the Messenger (peace and blessings be upon him) said , so he ordered them to be struck before maturity. So discretionary punishment is one thing, and establishing the hudud is another. And on this basis, if a young person commits a sin, we do not say, "This hudud is not obligatory upon him, leave him." Rather, he must be given discretionary punishment that deters him and his like from this act. And likewise, if he steals, he is not left alone. Rather, if he corrupts something less than that, he is not left without discretionary punishment. So discretionary punishment is one thing, and the hudud is another. Sane, the opposite of which is the insane. So the insane person is not subject to the hudud, due to the hadith , and because he does not have full intention by which he knows what benefits him and what harms him, so he proceeds or refrains. And is he given discretionary punishment?

The questioner : No.

The Shaykh : Why?

The questioner : He does not benefit.

The Shaykh : Because if he were given discretionary punishment, he would not benefit. So do we leave him to corrupt the wealth of people, to burn the shops, to break the watermelons, or what do we do?
Yes, he must be prevented, even by imprisonment, either with his guardian or in public prison. The important thing is that he is not left to corruption, because Allah, Mighty and Majestic, says , . So what Allah does not love, it is not permissible for us to enable it, ever. All corruption, whether for religion or for the world, it is obligatory upon the rulers and upon whoever is able among those who are not rulers to prevent it, because Allah does not love it. So if Allah does not love it, how can we enable it? So the insane person is not subject to the hudud, and is not given discretionary punishment. Or do we say he is given discretionary punishment that restrains his harm?
The students: ...

The Shaykh : This is it. Because imprisoning this insane person who wants to have complete freedom in his actions... Fine, he said "committed," meaning committed to the rulings of Islam, whether he is a Muslim or a disbeliever. So who is the committed one? The committed one is the Muslim and the dhimmi only. And this is not the inviolable. The inviolable were presented to us as four categories: the Muslim, the dhimmi, the mu'ahad, and the musta'min. But the committed one is only two categories: the Muslim and the dhimmi. Because the dhimmi is committed to the rulings of Islam, but the hudud are not established upon him except in what he believes to be forbidden. As for what he believes to be lawful, the hudud are not established upon him, even if it is forbidden among the Muslims. For this reason, we do not establish the hudud upon them for drinking intoxicants. And we establish the hudud upon him for fornication, because fornication is forbidden in every shari'ah. There is nothing in the shari'at that permits fornication, ever. And on this basis, if the dhimmi fornicates with a woman who is not a Muslim, a Jewish or Christian woman, and she is willing, then we establish the hudud upon him. Why? He is not a Muslim, and the hudud, you said, is purification? But we say that the hudud has two causes: prevention from falling into such a thing, and the second is expiation. So this does not have expiation, so the second cause remains, which is prevention. For this reason, the Prophet (peace and blessings be upon him) established the hudud upon the two Jews who fornicated, because they believe it is forbidden, so the hudud is established upon them. But if we suppose that this sin is forbidden among them, and this sin is a cause for the hudud in Islam but not a cause for the hudud in their shari'ah, if we suppose this, do we establish the hudud upon them according to Islam or not? The answer is no, we do not establish the hudud upon them according to Islam, just as we do not establish the hudud upon them in what they believe to be lawful. So if their shari'ah does not obligate the hudud in such a sin, then we do not establish it upon them, but we give them discretionary punishment, because discretionary punishment is obligatory in every sin that does not have a hudud or an expiation.
Now, the fourth condition is that the person is an adult, of sound mind, committed to the religion, and aware of the prohibition. This condition excludes the one who is ignorant of the prohibition; no fixed punishment (hadd) is applied to him. But how do we know whether he is ignorant or aware of the prohibition? Because if we simply say he must be aware of the prohibition, everyone would claim they were not aware, saying, "I did not know that theft was forbidden, or that unlawful sexual intercourse was forbidden." What do we do? We look at whether he has lived in the lands of Islam. If so, his claim of ignorance regarding obvious matters is not accepted, and his statement is not heeded. However, if he is a new convert to Islam, or if he grew up in a remote desert area where he is unaware of the conditions of Muslims, then we accept his claim of ignorance. If someone like him is ignorant of it, we accept his claim and lift the fixed punishment from him. If we are in doubt about this matter—whether he is one who would be ignorant of such things or not—the original state is the absence of knowledge, so we do not establish the fixed punishment upon him, because it is necessary to verify the condition, which is that he must be aware of the prohibition. Is it required that he be aware of the punishment?

The questioner : It is not a condition.

The Shaykh : It is not required. If this married man who committed unlawful sexual intercourse said, "If I had known that the fixed punishment was stoning, I would never have committed it, but according to the ruling, it is flogging, and I said, 'I will endure the flogging,'" what do we say? Do we stone him or not? We stone him, because awareness of the punishment is not required if he is aware of the prohibition. This means that he consented to violate the sanctities of Allah, and Allah the Exalted has made the punishment obligatory for this perpetrator of this sin, and he has no excuse now.