Islamic Fiqh > Penalties (hudud) > Conditions for applying the penalties > Who applies the punishments and where
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Updated on 24 September 2026 at 12:48 AM
This section is part of the full chapter: All sections of this chapter.
The fuqaha agree on this point: no fixed penalty may be applied except by the imam or his deputy, whether the penalty is a right of Allah, like the penalty for fornication, or a right of human beings, like the penalty for false accusation. The reason: it requires interpretive effort and the risk of partiality cannot be ruled out, so it must be entrusted to the imam; and the Prophet (peace and blessings of Allah be upon him) himself applied the fixed penalties during his lifetime, his caliphs did the same after him, and the imam's deputy stands in his place in this matter (Mawahib al-Jalil 6/137; Sharh Ibn Battal 8/224-225; al-Muhadhdhab 2/269; Majmu' al-Fatawa 34/175-176).
But what if no imam exists for the people, or one exists who is a disbeliever: may the religious judges, once their conditions are met, apply the penalties? Some fuqaha have expressly stated: whoever is able to do so may apply the fixed penalties.
The shaykh al-islam Ibn Taymiyya (may Allah have mercy on him) develops the point: Allah addressed the believers about the fixed penalties and the rights in absolute terms:
« The male thief and the female thief: cut off the hand of each of them as a punishment for what they earned. »
Surah al-Ma'ida, 38
« The fornicatress and the fornicator: flog each of them a hundred lashes. »
Surah an-Nur, 2
« Those who accuse chaste women and do not produce four witnesses, flog them with eighty lashes », and « never accept their testimony thereafter ».
Surah an-Nur, 4
Now, he continues, the one addressed by the command must necessarily be able to fulfill it, and those unable are not bound by it. This obligation is communal, like jihad; it is even a form of jihad: the verses « Fighting is prescribed for you », « Fight in the way of Allah », « If you do not march out, He will punish you » follow the same rule: a communal obligation resting upon those able (Surah al-Baqara 216 and 190; Surah at-Tawba 39).
Ability, here, is authority. That is why applying the penalties falls to the holder of authority and his deputies. The Sunna is that the Muslims have one imam, the others being his deputies. But suppose the community departed from this order, through disobedience of some and inability of the rest, to the point of having several imams: then each imam must apply the fixed penalties and have the rights enforced; this is why the scholars say that the rulings of the rebels are executed like the rulings of the just. Likewise if they share power in factions: each faction must do so among those who obey it. And even without split, if obedience to the senior commander is not complete, the obligation still does not fall: they must establish these penalties. If some rulers are unable or neglect them, the obligation passes to whoever is able. Saying that « none applies the fixed penalties except the ruler and his deputies » holds when they are able and act with justice: just as the guardian of orphans' wealth, if he squanders it or is incapable of it, must not be entrusted with it when it can be preserved without him, so too the commander who neglects the penalties or is incapable of them: they must not be entrusted to him when they can be applied without him.
The principle is that these obligations be performed in the best manner: as soon as one commander can apply them, two are not needed; and if they can only be performed by a number without a ruler, they are performed, provided their performance causes no evil greater than neglecting them: this belongs to enjoining good and forbidding evil. If the resulting evil, from rulers or ruled, would exceed that of neglect, one does not repel corruption with a greater corruption, and Allah knows best (Majmu' al-Fatawa 34/175-176).
The sheet attaches to this question another point: one who holds a right over the public treasury (bayt al-mal) or the booty, and lays his hand on part of that treasury or booty: is it lawful for him to take it? The majority of the scholars of the four schools have stated it in writing: it is lawful for him to take it, in matters of religion.
Imam Ibn Abidin (may Allah have mercy on him) devotes a research to one who holds a right over the treasury and lays hold of part of it. It is reported in al-Qunya, from Imam al-Wabri: one who holds a share in the public treasury and finds something whose return goes back to the treasury may take it for himself, in matters of religion. Al-Halwani versified it in al-Wahbaniyya, and it is in al-Bazzaziyya: if someone holds a deposit and the depositor dies without heir, he may, in our time, pass the deposit to his own account; for if he handed it to the public treasury it would be lost: its officers do not spend it on its proper uses. If he is among those entitled, he takes it; otherwise he directs it to its proper use.
The commentator placed this passage in the chapter of the tithe, in the book of zakat: one who has a share in the treasury, through poverty, knowledge or the like, and finds property whose return goes back to the treasury, from any of the four treasuries, may take it by way of seizure, in our time, his taking not being limited to the specific treasury from which his right derives. For if it were so limited, no entitled person would take anything: the public treasury, in our time, is not organized into ordered accounts, and returning what one finds to the treasury would lead to its loss, since it is not spent on its proper uses.
On this principle: if he buys a female slave from the booty, and he is among those entitled to the fifth, he may pass her to his own account by virtue of his right to the fifth; if he is not entitled to it but has another title, like the wealthy scholar, it is fitting that he transfer her ownership to a poor person entitled to the fifth, then buy her back from him, or transfer to him her fifth then buy it back; for if he took her directly, the fifth would remain in her and he could not have relations with her. One may say, however, that after being secured, the booty becomes common among the fighters and the holders of the fifth; but since the entitled have become unknown and there is no hope of knowing them, its return goes to the public treasury and it becomes one of the rights of the treasury, like the rest of its property due to the whole body of Muslims, by way of entitlement and not ownership: for one who dies holding a right over the treasury, that right is not inherited.
Ibn Abidin further reports having seen an epistle by the Shafi'i verifier, sayyid al-Samhudi: his father had bought him a female slave for concubinage and had consulted the verifier of the age, Jalal al-Mahalli, about the booty and buying from the treasury's proxy. His father said: we take her by way of seizure, because of the right due to us which we cannot reach in the public treasury; for this slavegirl, supposing she came from a booty not divided by lawful division, has reverted to the treasury, the impossibility of knowing her entitled holders being established. Al-Mahalli replied: yes, you have rights in her from several aspects. This agrees with what is reported from al-Qunya and al-Bazzaziyya, and Allah knows best (Hashiyat Ibn Abidin 4/159; al-Bahr al-Ra'iq 9/20).
Al-Dardir says in al-Sharh al-Kabir: not part of the forbidden misappropriation (ghulul) is the taking of the amount due to him when the commander is unjust and does not divide by lawful division: that is permitted if he fears nothing for himself; then he says after that: it is permitted for the needy among the fighters to take from the booty, even if his need does not reach absolute necessity, whether the imam authorizes him or not, as long as the imam does not prevent him. Al-Dusuqi, commenting on the prohibition when the imam forbids it, specifies: what is in al-Mudawwana is that if the imam forbade them and then need compelled them, it is permitted for them to take it, no regard being paid to his prohibition; Abu al-Hasan said: for the imam is then a sinner. Al-Bannani adds: the needy man's taking is permitted only if he takes out of need, not treachery, that he intended to return what he took, and that the object taken be customary for the like of him: not a precious belt like the belts of kings, whose taking is not permitted (Hashiyat al-Dusuqi ala al-Sharh al-Kabir 2/180; Manh al-Jalil 3/155).
Al-Jamal says in his commentary: it is apparent that one who holds a right over the public treasury may take the slavegirl by way of seizure, for her return then goes to the treasury, ignorance of the entitled being established. And in the words of Taj ibn al-Firkah: misappropriation from the booty is forbidden as long as the booty is divided by the lawful procedure; but when the situation changes, one who lays hold of the equivalent of his right, or less, may take it and keep it silent; what follows from this: the permission of seizure in the booty, all the more in the treasury.
However the author of al-Majmu' reports from al-Ghazali and endorses it: if the ruler does not deliver to all the entitled their rights from the public treasury, may one of them take a share of it? There are four views. The first: no, for it is common property and he does not know his share, be it a grain or a danq; al-Ghazali: this is an inadmissible excess. The second: he takes each day what suffices him. The third: what suffices for a year. The fourth: he takes what is given to him as his right, the others remaining wronged; and this, says al-Ghazali, is the analogical solution: for it is not common property like booty and inheritance, which are his property, to the point that if the holders die it is divided among their heirs; whereas the holder of a right to the treasury, if he dies, his heir claims nothing there; and this holds when what is passed to him suits his situation. Ibn Abd al-Salam settled on the first view in his Qawa'id, which amounts to treating this wealth as common property and forbidding the seizure of what is due from the public treasury, even when the entitled has been refused his due; al-Zarkashi reports this prohibition from him, consistent with what precedes from him.
In the fatwas of the author of al-Majmu': if the ruler gives a man of the army a share of the booty without having taken the fifth or divided the rest by lawful division, the fifth is due on what accrued to that man, and he may not benefit from the rest until he knows that each fighter received his share of it; if redistribution to the entitled is impossible for him, he must hand over what accrued to him to the judge, as with other lost property; this when the ruler did not give it to him by way of accessory donation under its condition. Ibn Hajar al-Haytami (may Allah have mercy on him) concludes: the preference of an-Nawawi and al-Ghazali (may Allah have mercy on them) goes to the fourth view, the analogy being manifest there; it follows that seizure is permitted, whether there exists someone more needy than him, as al-Baghawi's words implied, or not; this is against al-Subki's view. Ibn al-Firkah and Ibn Jumaa expressly admitted it: concerning lost property, in the absence of a just judge, the one holding it may pass it to his own account if it is in that state and he knows the legal rules, limiting himself to what suits his situation. Al-Adhra'i admitted it as well, by analogy with the creditor's property, rather more fittingly. What is reported from the verifier of his age, Jalal al-Mahalli, goes toward permission: it is the relied-upon view. And what al-Zarkashi reports from Ibn Abd al-Salam as an absolute prohibition of seizure from the public treasury concerns one who takes without knowing the legal rules or takes beyond his right; otherwise his absolute wording is weak (Hashiyat al-Jamal 5/491-492; Nihayat al-Muhtaj 8/444; al-Fatawa al-Fiqhiyya al-Kubra 2/234-235; see I'anat at-Talibin 2/206).
Al-Ruhaybani (may Allah have mercy on him) says: the pious endowments of emirs and sultans do not follow their conditions, for they own nothing: what they hold comes either from exactions, or from booty, or from the poll tax, or from property without heir and the like; in every case, nothing of what they hold belongs to them: it belongs to the Muslims, devoted to general interests. If they buy real estate with what they hold and endow it with conditions attached, one is not bound to apply their conditions: one who has a right over the public treasury and is turned away from it may take his subsistence from their endowments, even against their conditions (Matalib Uli an-Nuha 4/313).
The fuqaha differed on applying the penalty to a Muslim who commits fornication, theft, slander of a Muslim or wine drinking in the land of war.
According to the Malikis, the Shafi'is, al-Layth ibn Sa'd and Abu Thawr, the imam is bound to apply the penalty to him; for applying the fixed penalties is an obligation, like prayer, fasting and zakat, and the land of war exempts him from none of it (al-Mudawwana al-Kubra 16/291; Tafsir al-Qurtubi 6/171; al-Awsat 11/278 and 280; ad-Dakhira 3/411). If a Muslim kills a Muslim in the land of war, retaliation is exacted from him, and the ruling is as if they were in the land of Islam.
It comes in al-Mudawwana al-Kubra: Malik was asked about the commander of the army who enters enemy territory: if some steal from others, or drink wine, or commit fornication, does the commander apply the penalties to them? Malik said: the army commander applies the penalties to them in enemy territory, and that is firmer for him in the truth, just as the penalties are applied in the land of Islam. And if Muslim merchants enter enemy territory under safe-conduct, one steals from another, and upon coming out toward the Muslims they testify against the thief: the penalty is applied to the thief, for Malik pays no regard to the difference between the two territories: they are Muslims subject to the rules of Islam, they are not in the position of the polytheists who do not recognize the rules of the Muslims. Likewise if one of these merchants commits fornication or drinks wine in enemy territory, and after their exit testimony is given against him: the imam applies the penalty to him (al-Mudawwana al-Kubra 16/291).
Ibn al-Mundhir (may Allah have mercy on him) reports: Imam al-Shafi'i (may Allah have mercy on him) said: if the Muslims are under safe-conduct or captives in enemy territory, and one kills another, or commits fornication with other than an enemy woman, the ruling upon them is the ruling that would be upon them in the land of Islam; it would only be waived if one of them committed fornication with an enemy woman while claiming ambiguity. The land of war waives no obligation from them, no more than it waives fasting, prayer or zakat. And if a man incurs a fixed penalty while he is besieging the enemy, it is applied to him: fear that he join the polytheists does not prevent us from applying the penalty of Allah, may He be exalted; to act prudently by abstaining for fear of his anger would amount to never applying Allah's penalty, for he can at any moment cross into enemy territory by any route, and the command of Allah, glorious is His praise, would be left suspended concerning him. The Messenger of Allah (peace and blessings of Allah be upon him) gave judgments, and he applied the fixed penalty in Madina while polytheism was close to it and present there in great number, in a state of truce; and he had the wine drinker flogged at Hunayn, and polytheism was close to it (al-Awsat 11/278 and 280; al-Umm 4/287).
Al-Layth ibn Sa'd (may Allah have mercy on him) says: I have seen no one, nor learned that anyone ever rejected a fixed penalty that was to be applied in enemy territory, neither in the past nor recently, once it was due from the one who incurred it. And concerning Muslim captors: let one of their own be placed over them to apply the penalties among them when they are left to it. Abu Thawr (may Allah have mercy on him) says: the territory makes nothing lawful or unlawful: fornication, theft, wine and everything Allah forbade them in the land of Islam is forbidden to them in the land of war, and Allah's ruling applies to whoever commits one of these acts, in every territory and every place where it befalls him: Allah's ruling is annulled only by the Book, the Sunna or consensus.
It is likewise reported that Umar (may Allah be pleased with him) wrote to Abu Ubayda to have a wine drinker given eighty lashes while he was in Syria, which counts among the frontier marches (al-Mughni 9/284; Sharh Muntaha al-Iradat 3/342; Matalib Uli an-Nuha 6/172).
According to the Hanafis, the penalty is not applied to him, even after his return to the land of Islam; for the imam cannot apply the penalties in the land of war, for lack of jurisdiction, and it is not applied to him after return to the land of Islam because the act did not generate the obligation in the first place. Likewise if he kills a Muslim there: he undergoes no retaliation, even if the killing is intentional, because execution is impossible; and because his presence in the land of war produced an ambiguity in the obligation, and retaliation is not due in the presence of an ambiguity. He guarantees the blood money, taken from his own property and not from the solidarity group (aqila): for blood money devolves upon the killer primarily, then the solidarity group bears it by way of mutual aid, from the mutual support binding them; now there is no mutual support when the territories differ (al-Mabsut 10/75; Bada'i' as-Sana'i' 7/131-132; Mukhtasar Ikhtilaf al-Ulama by at-Tahawi 3/473; Sharh Fath al-Qadir 5/266; Tabyin al-Haqa'iq 3/182).
Imam al-Kasani (may Allah have mercy on him) details: if the Muslim commits fornication in the land of war, or steals, or drinks wine, or slanders a Muslim, none of that is held against him, for the imam cannot apply the penalties in the land of war, for lack of jurisdiction. If he commits one of these acts then returns to the land of Islam, the penalty is not applied either, for the act did not generate the obligation in the first place; but if he acts in the land of Islam then flees to the land of war, he answers for it, for the act generated the obligation of the penalty, which flight does not remove. If he kills a Muslim there, he undergoes no retaliation, even intentional, execution being impossible for lack of protection: one faces one, and protection is absent; and the ambiguity in the obligation means retaliation is not due. He guarantees the blood money, whether the killing be erroneous or intentional, from his own property and not from the solidarity group: for blood money devolves upon the killer primarily, which is why retaliation and expiation devolve upon the killer and no other; the solidarity group then bears it by way of mutual aid, in return for the benefits his life procures him: aid, strength and honor through the multitude of kin and their kindness to them; now these meanings disappear when the two territories differ. Likewise, if he is emir of a detachment or commander of an army, and one of the men commits fornication, theft, wine drinking, or kills a Muslim erroneously or intentionally, the emir applies none of that to him, for the imam did not delegate to him the application of penalties and retaliation, knowing that he cannot apply them in the land of war; only, he makes him guarantee the stolen object if he destroyed it, and the blood money in killing, for he can execute financial guarantees. If the caliph, or the emir of Syria, goes on campaign and a man of the army commits one of these acts, he applies the penalty to him, exacts retaliation for intentional killing and has the blood money guaranteed from his own property for erroneous killing: applying the penalties belongs to the imam, and he can accomplish it by the force and might at his disposal, through the gathering of armies and their obedience to him: his camp follows the rule of the land of Islam. And if a man strays from the army and commits one of these acts, the penalty and retaliation are warded off him, for the imam's jurisdiction is limited to the camp. On this rule rests the case of the enemy who converts in the land of war without emigrating to us, whom a Muslim then kills intentionally or erroneously: no retaliation upon the Muslim, for protected standing is acquired among us only in the land of Islam: it rests on might, and there is no might but through the protection of the Muslims (Bada'i' as-Sana'i' 7/131-132).
The Hanbalis likewise say: the fixed penalties and retaliation are due, but they are not executed in the land of war: they are executed upon him after his return from the land of war. Their proof: what Sa'id ibn Mansur reports in his Sunan, that Umar (may Allah be pleased with him) wrote to the people: « Let no commander of an army or a detachment flog a Muslim man for a fixed penalty while on campaign, until the return after crossing the pass, lest the fervor of satan seize him and drive him to join the disbelievers » (Sunan Sa'id ibn Mansur 2500). Ibn Qudama (may Allah have mercy on him) says: as for his return, the penalty is applied to him by virtue of the generality of the verses and reports; it was only deferred for an impediment, just as it is deferred for illness or occupation: once the impediment is gone the penalty is applied, its cause existing and its impediment removed; this is why Umar (may Allah be pleased with him) said: until he crosses the pass, returning.