Conditions for applying the penalties

Before applying a hadd, the judge verifies conditions and evidence. The encyclopedia details them for each category; their common core consists of a few rules shared by all the schools.

Penal responsibility requires full legal capacity

The jurists agree that no hadd is applied to the child or the insane person, even when the act is established. The divergence begins when a responsible adult commits the act with someone lacking capacity: the majority (Hanafis in their detailed view, Malikis, Shafi'is, Hanbalis) place the hadd on the adult alone, the other remaining exempt. The Hanafis specify: the hadd is due if the act was physically possible with a person of the same kind.

Knowledge of the prohibition

For most scholars, knowing the prohibition conditions the penalty: whoever does not know the act is forbidden incurs no hadd, since the rule only takes hold after knowledge. The caliphs Umar, Uthman and Ali taught: « No hadd except against the one who knows it » (Al-Mughni 9/56). Faced with a man claiming ignorance, Umar ordered that he swear to his ignorance and then be released. Al-Mawardi lists among acceptable claims of ignorance the recent convert and the one coming from a region where the prohibition was unknown; by contrast, the claim of a Muslim raised among scholars is rejected.

Coercion removes the penalty

Allah has waived from my community error, forgetfulness and what they are forced to do.hadith qualified sahih by the encyclopedia

All the schools agree that a woman coerced into fornication incurs no hadd. A report describes a woman coerced in the time of the Prophet: he waived the hadd from her and applied it to the aggressor (at-Tirmidhi 1453, a report judged weak in its chain). The aggressor himself incurs the hadd if proof is established, otherwise ta'zir. On the dowry owed to the victim, Malik, al-Layth and al-Shafi'i require it; Abu Hanifa, Abu Yusuf and Muhammad reject it.

The proof: confession or testimony

Theft illustrates the evidentiary regime: confession or the testimony of two free, Muslim, upright men. The confession must describe the conditions of the penalty (the threshold, the protected place, removal from that place). If the two witnesses differ over the place, the time or the object, the penalty falls, by agreement of the jurists.

The confession can be withdrawn, and the judge invites it

The four schools agree that whoever confesses theft then retracts escapes the penalty: the doubt prevails. The four schools likewise agree that the judge may suggest retraction indirectly (« I do not think you stole », « perhaps you took it from outside the protected place »), a practice going back to the Prophet and the rightly guided caliphs, reported by an-Nawawi (Sharh Sahih Muslim 11/195). One firm point: retraction does not free him from returning the goods, which is a human right. On the number of confessions: Hanafis, Malikis and Shafi'is accept a single one; Hanbalis, Abu Yusuf and Zufar require two.

Practical note

This strict evidentiary regime explains the rule repeated throughout the encyclopedia: ward off the fixed punishments by doubt. Each category then adds its own conditions, presented in the following pages.