34
ResearchBib IF - 11.01, ISSN: 3030-3753, Volume 2 Issue 8
REVIEW OF THE CONCEPTS AND SCOPE OF THE RULE “IDRĀʾ AL-ḤUDŪD BI
AL-SHUBUHĀT” (DEFERRAL OF HUDŪD DUE TO DOUBTS)
Mohmmad Younes Nadaie
Master’s Student of Criminal Law and Criminology, Faculty of
Law and Political Science, Jami University, Herat, Afghanistan
Mohammad Younes Mohammadi
Graduate, Department of Judiciary - Attorney General, Faculty of Law and Political Science,
Jami University, Herat, Afghanistan
mohammadyounesmohammadi2024@gmail.com
Senior Teaching Assistant:
Abdul Qadeer Nadei
Department of Criminal Law, Law and political Science Faculty, Herat University.
https://doi.org/10.5281/zenodo.17045541
Abstract. In jurisprudential terminology, doubt means confusion and error in religious
rulings, in such a way that a matter seems permissible from one perspective and forbidden from
another. One of the important types of doubt is doubt of the path, which results from the
ijtihadist disagreement of jurists based on conflict or convergence of evidence. In such a case,
due to the impossibility of definitively preferring one of the opinions, the issue remains in a state
of ambiguity that makes it difficult to apply the Islamic hadd to it. From the perspective of
jurisprudential principles, the principles of abolishing the limits in doubt of the path include the
principles of precaution, consideration of differences, conflict of evidence, and the principles of
ratification and error. The purpose of this research is to examine the concept and scope of the
rule of the adre al-hudud based on doubts. The question raised in this research is: What is the
concept and scope of the rule of the adre al-hudud based on doubts? It seems that the rule of
"adrā' al-hudūd bil-shubahat" is one of the fundamental principles of Islamic criminal
jurisprudence, which aims to prevent the implementation of hadīth punishments in case of doubt.
This research was conducted using library tools and an analytical-descriptive method. The
findings of the research show that whenever jurisprudential opinions on a hadīth issue are
formed based on strong but conflicting reasons, this same difference will lead to the removal of
the hadīth, because in Sharia, the application of hadīth punishment requires certainty in the
verdict. The aforementioned rule, in line with the principle of caution in blood, property and
honor, plays an important role in protecting defendants against hadīth punishments.
Keywords: hadīth, darā', doubt, punishment.
Introduction
In the Islamic penal system, criminal sanctions have been classified from different
dimensions. One of the most common and, indeed, the most important classifications is the
division of punishments into ḥadd and taʿzīr. This categorization is significant in that it examines
the responses to crimes in the public domain, while the domain of ḥaqq al-nās (private rights)
receives less attention. Islamic jurists have established the criterion for this classification on the
basis that, in ḥadd crimes, the type and amount of punishment have already been determined by
the Divine Legislator. Therefore, neither the ḥākim al-sharʿ (religious authority) nor the judge
has the discretion to alter, increase, or decrease them.
35
ResearchBib IF - 11.01, ISSN: 3030-3753, Volume 2 Issue 8
Upon conducting research in this field, the author has found that several works and
articles have been written on the principle Idraʾ al-Ḥudūd fī al-Shubuhāt. Among them is the
article The Scope of “Shubha” in the Rule of Darʾ authored by Mahmoud Pourbāfarānī and
Hamed Rostamī Najafābādī in 2020. The findings of this research show that in jurisprudence
there exists a type of doubt called shubhat al-tawbah (doubt concerning repentance), whereby if
there is uncertainty about the validity of repentance, the ḥadd is waived. Likewise, doubt at the
stage of execution of the sentence is also influential and may result in suspension of the penalty,
especially in circumstances where social justice is not fully established. Therefore, in addition to
shubuhāt mawḍūʿiyyah (factual doubts) and shubuhāt ḥukmiyyah (legal doubts), other types
such as mistake and coercion, doubt of the judge and the accused, doubt regarding repentance,
and doubt at the stage of enforcement of judgment are also recognized as new branches within
the rule of darʾ. Another article, entitled The Role of Shubhat al-Ṭarīq in the Averting of Ḥudūd
from the Perspective of Ahl al-Sunnah authored by Sālim Afsarī and Abūbakr Aḥmadī in 2019,
demonstrates that jurisprudential disagreement in ḥadd cases, so long as the existing opinions are
supported by sound reasoning, results in the prevention of enforcement of the ḥadd. Similarly,
another article that has addressed this subject is An Examination of the Rule of Darʾ from the
Perspective of Shīʿa and Sunni Jurisprudence authored by Ḥusayn Khorramdell and Nāder
Mokhtārī Afrākītī in 2016. The findings of this study reveal that in the application of the rule of
darʾ to factual doubts there is no room for disagreement, while with regard to legal doubts,
differences exist between Sunni and Shīʿa jurisprudence. In particular, when ignorance is
excusable (jahl quṣūrī), the rule applies; but if ignorance is due to negligence (jahl taqṣīrī) in
learning the rulings, then the rule does not apply.
The aim of this research is to examine the concept and scope of the principle Idraʾ al-
Ḥudūd fī al-Shubuhāt. The research questions posed are as follows: first, what is the
jurisprudential basis of this principle? Second, under what circumstances is ḥadd averted on the
basis of doubts in Islamic jurisprudence? Third, is the view of Sunni jurists regarding the
averting of the ḥadd of theft in cases of doubt one of consensus or disagreement? Fourth, from
the perspective of Islamic jurisprudence, when ḥudūd such as theft, qaḏf (false accusation of
fornication), ḥirābah (armed robbery), or other ḥudūd are averted by doubts, is the offender still
subject to taʿzīr? The basis of the principle Idraʾ al-Ḥudūd fī al-Shubuhāt is the Prophetic ḥadīth:
«
ٱ
اوُء َرْد
ٱ
َدوُدُحْل
بٱ
تاَهُبُشل
», upon which Sunni jurists have consensus. They maintain that in cases such
as the acquisition of property by usurpation, embezzlement and denial of deposits, theft of the
Qur’an, theft of burial shrouds, theft of items of low value, theft from places of worship, theft
outside of secure custody (ḥirz), theft of prohibited items and instruments of amusement, denial
by the owner of the stolen property, and similar cases, the ḥadd punishment for theft is averted.
However, regarding the aforementioned cases, both consensus and disagreement exist among
Sunni jurists. This research has been conducted through library-based resources and by using an
analytical–descriptive method.
1-
The Concept and Scope of the Rule in the Words of Jurists and the Explanation of
Its Applied Terminology
The rule of tadrāʾ (“darʾ”) is among the principles frequently applied in Islamic
jurisprudence and has acquired wide jurisprudential usage. The foundation of this rule is formed
by the ḥadīth of the Holy Prophet
,)ﷺ( and it has been accepted by Sunni jurists. Before
examining the applications of this rule in the crime of theft, this section will first present the
statements of jurists concerning this rule, and then analyze the terminology employed within it.
36
ResearchBib IF - 11.01, ISSN: 3030-3753, Volume 2 Issue 8
1-1-
The Foundation of the Rule
The foundation of this rule is the noble Prophetic ḥadīth, narrated by Imām al-Tirmidhī
from ʿĀʾishah
,)اهنع الله يضر( in which the Prophet
)ﷺ( said
«:
نِإَف ،ْمُتْعَطَتْسٱ اَم َنيِمِلْسُمْلٱ ِنَع َدوُدُحْلٱ اوُء ِرْدٱ
ْخُي ْنَأ َماَمِ ْلْٱ َّنِإَف ،ُهَليِبَس اوُّلَخَف ٌج َرْخُم ُهَل َناَك
ِةَبوُقُعْلٱ يِف َئِطْخُي ْنَأ ْنِ م ٌرْيَخ ِوْفَعْلٱ يِف َئِط
»
Meaning: “Avert the prescribed punishments from the Muslims as much as you can; if there is a
way out for him, then let him go, for it is better for the Imam (ruler) to err in granting pardon
than to err in imposing punishment”.
Imām al-Tirmidhī stated that a group of the Companions of the Prophet
)ﷺ( narrated similar
opinions and held the same view. In Sunan Ibn Mājah, it is narrated from Abū Hurayrah
الله يضر(
)هنعthat the Prophet
)ﷺ( said
:
«
اًعَفْدَم ُهَل ْمُّتدَج َو اَم َدوُدُحْلٱ اوُعَفْدٱ
»
Meaning: “Ward off the prescribed
punishments as long as you can find a way out”.
Moreover, Imām al-Suyūṭī, in his al-Ashbāh, transmitted another noble ḥadīth
:
«
َدوُدُحْلٱ اوُء َرْدٱ
ِتاَهُبُّشلٱِب
»
Part of the narration of Ibn ʿAdī from the ḥadīth of Ibn ʿAbbās
,)امهنع الله يضر( meaning:
“Avert the prescribed punishments on the basis of doubts.” (Zaydān, n.d.: 115–116).
1-2-
The Concept of the Rule from the Perspective of Jurists
The phrase « ِتاَهُبُّشلٱِب َدوُدُحْلٱ اوُء َرْدٱ
»
has been narrated in various forms in both Sunni and
Imāmī ḥadīth sources. In this article, considering the title, the foundation of this rule will be
examined solely based on Sunni sources:
1.
Al-Tirmidhī, in his Sunan, which is one of the reliable ḥadīth sources among the
Sunnis, narrates from ʿĀʾishah ( )اهنع الله يضرthat the Messenger of Islam ( )ﷺsaid:
«
َم ِمِلْسُمْلِل َد ِج ُو نِإَف ْمُتْعَطَتْسٱ اَم َدوُدُحْلٱ اوُعَفْدٱ
يِف َئِطْخُي ْنَ َلَ َماَمِ ْلْٱ َّنِإَف ،ُهَليِبَس اوُّلَخَف ٌج َرْخ
ِوْفَعْلٱ
يِف َئِطْخُي ْنَأ ْنِ م ٌرْيَخ
ِةَبوُقُعْلٱ
»
Translation: “Ward off the prescribed punishments from the Muslims as much as you
can. If you find a way of escape for him, then let him go; for the ruler’s mistake in granting
pardon is better than his mistake in imposing punishment.” (Muḥaqqiq Dāmād, 1386: 44).
2.
Ibn Mājah (Muḥammad ibn Yazīd ibn Mājah al-Qazwīnī), in Sunan al-Muṣṭafā,
narrates from Abū Hurayrah (:)هنع الله يضر
َر َلاَق
َِّللّٱ ُلوُس
« :)ﷺ(
اًعَفْدَم ُهَل ْمُّتدَج َو اَم َدوُدُحْلٱ اوُعَفْدٱ
»
(Muḥaqqiq Dāmād, 1386: 44).
3.
Jalāl al-Dīn al-Suyūṭī reports from the Prophet (
:)ﷺ
«
ِتاَهُبُّشلٱِب َدوُدُحْلٱ اوُء َرْدٱ
»
This ḥadīth has also been transmitted in other forms, such as: «
ٱ ْد
َدوُدُحْلٱ اوُء َر
« ,»
َدوُدُحْلٱ اوُء َرْدٱ
ِةَهْبُّشلٱِب
,»
and « ْمُتْعَطَتْسٱ اَم ِ َّللّٱ ِداَبِع ْنَع َلْتَقْلٱ َو َدوُدُحْلٱ اوُء َرْدٱ
( »
Muḥaqqiq Dāmād, 1386: 44).
4.
Ibn Masʿūd ( )هنع الله يضرnarrates from the Prophet ( )ﷺthat he said:
«
َدوُدُحْلٱ اوُء َرْدٱ
ِةَهْبُّشلٱِب
»
(al-Wadānī, 1418 AH: 60).
5.
Ibn Masʿūd, Muʿādh ibn Jabal, and ʿUqbah ibn ʿĀmir ( )مهنع الله يضرnarrate from
the Prophet ( )ﷺthat he said:
«
َتْعَطَتْسٱ اَم ُهْأ َرْدٱَف ُّدَحْلٱ َكْيَلَع َهَبَتْشٱ اَذِإ
»
(al-Wadānī, 1418 AH: 60).
1-3-
Examination of the Terminologies Used in the Rul
As the title indicates, this rule contains several specific terminologies that function as its
key concepts. A precise understanding of the rule requires careful attention to the meanings and
implications of these terms. Therefore, in this section, we shall briefly review the particular
terminologies employed in this rule.
1-1-3 Darʾ
The word tadrāʾ, derived from the root ,اردlinguistically means to avert, repel, or ward
off (Khorramdell & Mokhtārī Afrākītī, 1395: 100). In the Holy Qur’an, it appears in the verse:
«
َةَئِ يَّسلا ِةَنَسَحْلاِب َنوُء َرْدَي َو
( »
Sūrah Raʿd, 13:22)
Meaning: “They repel evil with good.”
37
ResearchBib IF - 11.01, ISSN: 3030-3753, Volume 2 Issue 8
In another verse, it is stated:
«
َت ْوَمْلا ُمُكِسُفْنَأ ْنَع اوُء َرْداَف ْلُق
( »
Sūrah Āl ʿImrān, 3:168)
Meaning: “Say, avert death from yourselves,” indicating the averting of punishment or
calamity.
Additionally, the concept of averting punishment is mentioned in:
«
َنيِبِذاَكْلا َنِمَل ُهَّنَأ ِ َّللّاِب ٍتاَداَهَش ُعَب ْرَأ ْدَهْشَت نِإ َباَذَعْلا اَهْنَع اوُء َرْدَي َو
( »
Sūrah Nūr, 24:8)
Translation: “By testifying four times and swearing by God that that man is indeed
among the liars, the punishment is averted from her.”
The author of Majmaʿ al-Baḥrayn, commenting on the above verses and referring to the
ḥadīth «
ِتاَهُبُّشلٱِب َدوُدُحْلٱ اوُء َرْدٱ
,»
states: “Avert ( )او
ُء َرْدٱmeans ward off ( .)اَهِب اوُعَفْدٱ
”
Therefore,
linguistically, tadrāʾ (darʾ) means that through doubts, the punishment is prevented or removed
from individuals (Muḥaqqiq Dāmād, 1386: 71).
2-1-3 Ḥadd
The term ḥadd linguistically means restriction or prohibition, as this category of
punishments prevents individuals from committing the same crime again. A distinguishing
feature of these punishments is that their measure and extent are fixed, and no one may exceed
them (An-Nawawī, 1997, vol. 3: 20).
In the Islamic penal system, ḥadd refers to a punishment whose type and measure have
been explicitly determined by the Divine Legislator. The meaning of specifying the measure in
Sharʿ is that: “The Legislator Himself has determined the type and amount of the punishment;
the right to determine its type and measure is removed from the judge, who cannot reduce or
increase it, substitute it with another punishment, or suspend its execution” (ʿAwdah, 1390: 149).
Some jurists further hold that ḥadd applies to those punishments by which God restrains
humans from committing sins and prohibited behaviors, while encouraging the performance of
virtuous and commendable deeds (Al-Māwardī, 1994, vol. 13: 390).
3-1-3 Shubhah (Doubt)
Linguistically, shubhah means doubt, suspicion, error, and the confusion between right
and wrong, truth and falsehood (Muḥaqqiq Dāmād, 1386: 51). It also refers to ambiguity or
resemblance (Afsarī & Aḥmadī, 1398: 228). Jurists from different Islamic schools have provided
diverse definitions of the concept of shubhah. Some Ḥanafī jurists define it as: « سيل و تباثلا هبشي ام
تباثب
( »
Kāsānī, 1406 AH, vol. 3: 180), meaning “something that resembles an established and
clear matter, yet is not actually established or clear.” Al-Māwardī of the Shāfiʿī school defines it
as: «
ف فلاتخلْاب همکح هبتشا ام ةهبشلا
هتحابا ی
( »
Al-Māwardī, 1419 AH, vol. 33: 219), meaning
“shubhah is that whose ruling becomes doubtful due to disagreement regarding its
permissibility.” The Ḥanābilah define it as: «
هتقيقح وا همکح مادعنا عم ةروص حيبملا دوجو
( »
Ibn
Qudāmah, 1388 AH, vol. 9: 55), meaning “the presence of an appearance of permissibility while
its actual ruling or reality does not exist.” In other words, shubhah denotes the mixture or
concealment of the truth in such a way that a person cannot recognize it (Pūrbāfarānī & Rustamī
Najafābādī, 1399: 109). Shubhah therefore refers to the existence of an apparent cause of
permissibility despite the absence of its actual ruling or reality.
The majority of jurists—including Ḥanafī, Mālikī, Shāfiʿī, some Ḥanābilah, and Imāmī—
have paid particular attention to classifying types of shubhah. To avoid lengthy discussion, here
we examine shubhah from the perspective of Ḥanafī jurists:
Shubhah fiʿl (act-related doubt): This classification is recognized among Ḥanafī jurists,
though in its meaning and instances it may coincide with other types of shubhah.
38
ResearchBib IF - 11.01, ISSN: 3030-3753, Volume 2 Issue 8
It applies to a person when the permissibility or prohibition of an act is doubtful to them,
and there is no evidence confirming the permissibility of the act. For example, someone
engaging in sexual intercourse with a thrice-divorced wife or with a woman who has received a
bā’in divorce through the transfer of property (Marghīnānī, n.d., vol. 2: 344).
Shubhah maḥall (place-related doubt): The Ḥanafīs also refer to this type as shubhah
ḥukmiyyah or milk, while other jurists call it shubhah mafʿūl. It occurs when a person believes
they have a right of control over a certain place, whereas in reality they do not; for example,
taking property believing it belongs to one’s father and exercising control over it, while it
actually belongs to someone else (Ibn Ḥajar Haythamī, 1357 AH, vol. 9: 103).
Shubhah fāʿil (actor-related doubt): This type occurs when the doer of an act is mistaken
or confused in their mind. For instance, someone engaging in sexual intercourse with a woman
thinking she is his lawful wife, when she is not (Ibn Shāsh, 1423 AH, vol. 3: 1146).
1-4-
Shubhah in Qiṣāṣ
Qiṣāṣ (retaliatory punishment) is affected by doubt in the same way as ḥudūd. Just as a
ḥadd may be nullified due to doubt, qiṣāṣ may also be nullified. For example, if a person
slaughters someone who is asleep and claims that the act was performed while the victim was in
a state of unconsciousness or effectively dead, qiṣāṣ does not apply—nor does it apply in cases
where someone kills another by their own command (Zaydān, n.d.: 118).
1-5-
Results of Applying this Rule
Applying the rule ( )
ِتاَهُبُّشلاِب ِدوُدُحلا ُءا َرْدإleads to the nullification of the ḥadd from the
perpetrator in certain cases, though the perpetrator may still be subject to taʿzīr (discretionary
punishment). For example, if a person steals property from their child, although the ḥadd of theft
is nullified, they are still subject to taʿzīr. Similarly, if someone engages in sexual intercourse
with their spouse under conditions of doubt regarding place, the ḥadd is nullified, yet taʿzīr
applies. The same ruling applies if the spouse is in a state of menstruation, meaning taʿzīr is still
imposed (Zaydān, n.d.: 117).
1-6-
Applications of this Rule
Among the applications of this rule, as discussed in the context of shubhah and its types,
is the nullification of the ḥadd of qadhf (false accusation of adultery). For instance, if four
witnesses testify to a woman’s adultery and a fifth witness claims that the woman is still a virgin
and her chastity has not been violated, the ḥadd is nullified due to the doubt regarding her
virginity. Similarly, if a person claims ownership of stolen property, the ḥadd is nullified even if
their claim is not proven. Another example is when a person retracts their confession to adultery;
the ḥadd is affected by this retraction (Zaydān, n.d.: 117-118).
2-
Types of Shubhah in Islamic Jurisprudence
The majority of jurists—including Ḥanafī, Mālikī, Shāfiʿī, some Ḥanābilah, and Imāmī
scholars—have paid particular attention to classifying shubhah and explaining its types as well
as the resulting legal effects. Among these, the roles of Ḥanafī and Shāfiʿī jurists are more
prominent, while other schools primarily focus on identifying what constitutes shubhah and why
it is considered as such. Overall, all agree that shubhah cannot be fully enumerated or confined,
as it generally arises based on specific events and occurrences, which cannot be exhaustively
listed.
1-2- Shubhah al-Fi‘l (Doubt Concerning the Act)
This type of shubhah is specifically recognized by Ḥanafī jurists, although in its meaning
and instances it may overlap with other types of shubhah.
39
ResearchBib IF - 11.01, ISSN: 3030-3753, Volume 2 Issue 8
It applies to a person whose understanding of the permissibility or prohibition of an act is
uncertain, and there is no evidence indicating that the act is lawful. For example, this occurs
when someone engages in sexual intercourse with a thrice-divorced wife or a woman whose
divorce has been effected through the payment of property (ṭalāq bā’in) (Marghīnānī, n.d.:
3/344).
2-2- Shubhah al-Maḥall (Doubt Concerning the Place)
The Ḥanafīs also refer to this type of shubhah as ḥukmiyya or mulk, while other jurists
call it shubhah maf‘ūl (doubt concerning the object). Shubhah al-maḥall occurs when someone
mistakenly believes they have the right to control or dispose of a particular place or property,
whereas in reality they do not. For example, if a person takes a property believing it to belong to
their father and exercises authority over it, while the property actually belongs to another
individual (Afsarī, Aḥmadī, 1398: 230).
2-3- Shubhah al-Fā‘il (Doubt in the Actor)
This type of shubhah occurs when the actor performing an action experiences confusion
or error in their mind regarding the act. For instance, if someone engages in sexual intercourse
with a woman mistakenly believing her to be his lawful wife (Ibn Shāth, 1423 AH: 3/1146).
4-2- Shubhah al-‘Aqd (Doubt Concerning the Contract)
Some Ḥanafī jurists, in addition to the two types of shubhah—al-fi‘l and al-maḥall—have
added another type called shubhah al-‘aqd (doubt concerning the contract), and they believe that
Abū Ḥanīfah himself accepted this type (Ibn ʿĀbidīn, 1412 AH: 4/25). However, most followers
of Abū Ḥanīfah do not accept shubhah al-‘aqd and, regarding this matter, have adopted views
similar to those of other jurists (ʿUdah, 1394: 2/241).
This type of shubhah is established through the existence of a valid contract, even if
jurists unanimously consider the contract impermissible or the contract-maker fully aware of its
prohibition. Consequently, no ḥadd applies to someone who has intercourse with a woman who
is legally permissible for him through a valid marriage contract, as the existence of the contract
itself constitutes a permissive circumstance preventing the application of ḥadd. Many scholars
have strongly criticized Abū Ḥanīfah for endorsing such a shubhah, with some even claiming
that he considered zina (adultery) to be permissible.
The classifications mentioned above sometimes overlap in meaning, or one type may be
equivalent to other types in a different school of thought. In other words, the essence may be
agreed upon while the terminology differs, or vice versa. Additionally, a single shubhah may
have multiple terms in one school of thought. For example, what the Shāfiʿīs and others refer to
as shubhah al-fā‘il is called shubhah al-fi‘l al-ikhtiyā’ or shubhah al-mushābahah by the Ḥanafīs.
All schools agree on the terminology of shubhah al-maḥall, although the Ḥanafīs also refer to it
as ḥukmiyya or mulk. Moreover, shubhah al-fi‘l in the Ḥanafī school closely resembles shubhah
al-ṭarīq (doubt concerning the manner) in the Shāfiʿī school, while Abū Ḥanīfah remains unique
in his acceptance of shubhah al-‘aqd.
3-
Legitimacy of the Rule of Darr
In this section, the reasons for the legitimacy of the rule of Darr as a general principle
will be presented, which encompasses the concept of shubhah al-ṭarīq (doubt concerning the
manner). Islamic jurists have cited the following reasons in support of the legitimacy of this rule.
3-1-
Prophetic Hadiths
40
ResearchBib IF - 11.01, ISSN: 3030-3753, Volume 2 Issue 8
Jurists of the Islamic schools have relied on the following hadith to justify the legitimacy
of the rule of Darr: "Adfaʿū al-ḥudūd mā istaṭaʿtum fa-in wajadtum lil-muslim makhrajan
fakhallū sabīlah; fa-inna al-imām li-an yakhṭiʾa fī al-ʿafw khayrun min an yakhṭiʾa fī al-ʿuqubah"
“Repel the ḥudūd from the Muslims as much as you can. If you find a way for a Muslim
to escape the ḥadd, let him go, for the ruler’s error in pardon is better than his error in
punishment” (Dār Qaṭnī, 1424 AH: 4/62). This hadith has also been transmitted via other chains
of narration (Ibn Mājah, 1430 AH: 3/579). Each of these narrations on its own may be weak, but
the multiplicity of transmission routes, the consistency of their content, and their alignment with
the Prophet’s methodology and the practices of his companions have collectively established the
rule of Darr and the abrogation of ḥudūd in cases of doubt. Consequently, this rule is widely
accepted and justified among the jurists of different Islamic schools.
Within the Imāmī school, the weakness of supporting evidence is also acknowledged. In
the Imāmī hadith collections, except for the report by Shaykh Ṣadūq, which is transmitted bi-
naw‘ al-irṣāl without specifying the chain of narrators, there is no explicit report indicating the
abrogation of ḥadd due to doubt (Moqaddam Dāmād, 1395 SH: 47). Nevertheless, the rule of
Darr and adherence to its provisions have gained general acceptance among the Imāmīs, with no
apparent opposition. The consensus among the Imāmī jurists, and indeed across the broader
spectrum of Islamic jurists, indicates that whenever doubt arises in criminal matters, the Imāmī
scholars have stated: “li-annahu min al-shubhah al-dāriʾah” (Shahīd Thānī, 1410 AH: 9/117;
Ṭabāṭabāʾī, 1382: 15/523). This general agreement is considered higher than ijmāʿ (consensus)
(Mūsavī Bajnurdī, 1385: 1/135).
The Ẓāhirī school, however, does not accept the authenticity of the transmitted narration
from the Prophet (“adrū al-ḥudūd bi-l-shubhāt”) and maintains that if a ḥadd is established, it
should not be abrogated due to doubt, nor should doubt be used as a reason to enforce a ḥadd.
The ḥadd is considered ḥaqq Allāh (a right of God) and transgression is impermissible.
Thus, if a ḥadd is not established, it cannot be validated through doubt. As the Prophet
said: “Your blood, property, and honor are forbidden to others” (Bukhārī, 1422 AH: 9/50). Once
a ḥadd is established, it cannot be abrogated by doubt, as God commands: “Tilka ḥudūdu Allāh
falā taʿtadūhā” – “These are the limits set by Allah; do not transgress them” (al-Baqarah, 2:229).
2-3- Leniency in the Implementation of Ḥudūd
Another reason for the legitimacy of the rule is that the divine ḥudūd punishments are
based on leniency (musāmaḥah), because the Lawgiver (Shāriʿ) has shown tolerance and
flexibility in many cases of ḥadd crimes. For example, in proving the ḥadd of adultery, which
usually occurs in secret, the Lawgiver requires the testimony of four just witnesses. However, the
simultaneous presence of four witnesses in the same place and time is practically impossible
unless the fornicator openly commits the act of adultery. This method of the Lawgiver in proving
the ḥadd of adultery indicates that mere emergence of doubt should not lead to the enforcement
of ḥadd (Subkī, 1416 AH: 3/241).
Regarding the issue of proving ḥudūd or abrogating them due to doubt, two distinct views
exist. The Ẓāhirī school holds that if a ḥadd is established, it should not be abrogated by doubt,
because ḥudūd constitute ḥaqq Allāh (a right of God) and transgression is impermissible. In
contrast, the majority of jurists, relying on textual and rational evidence, have used doubts—
provided that these doubts are acceptable according to their standards—to abrogate ḥudūd. The
rule of Darr derives from the Lawgiver’s abstentionary approach in defining and implementing
severe corporal punishments in the domain of ḥaqq Allāh.
41
ResearchBib IF - 11.01, ISSN: 3030-3753, Volume 2 Issue 8
Therefore, the view of the majority of Islamic jurists regarding the abrogation of ḥudūd
through doubt aligns with the Lawgiver’s approach of mitigation in punishments, especially in
ḥudūd penalties.
In response to objections raised by the Ẓāhirī school, it can be argued that the intended
shubhah (doubt) that leads to the abrogation of ḥudūd is the doubt that arises during the process
of establishing and attributing an act to a person. Once the crime is fully established, no further
doubt can be invoked to annul the ḥadd.
Conclusion
The rule of “Idrāʾ al-Ḥudūd bi al-Shubuhāt” (abrogation of ḥudūd due to doubts) is one of
the fundamental principles in Islamic criminal jurisprudence, grounded in Prophetic tradition and
widely accepted among Sunni and Imāmī jurists. This rule embodies the principle of precaution
in the enforcement of ḥudūd, meaning that if there is any doubt regarding the occurrence of a
crime or the entitlement to a ḥadd punishment, the execution of that ḥadd is nullified.
The abrogation of ḥudūd by doubts constitutes a core tenet in Islamic criminal law, with
its foundations rooted in the texts of the Shariʿah, the objectives of Shariʿah (maqāṣid al-
sharīʿah), and principles of jurisprudential reasoning (ijtihād). The classification and
categorization of doubts are matters of juristic discretion and can be approached from multiple
perspectives. Doubts vary in origin, degree, and effect, which is why their types, classifications,
and terminology differ across jurisprudential sources. In Islamic jurisprudence, the rule of Darr
intersects with the principle of presumption of innocence and the rule of interpreting doubts in
favor of the accused in contemporary statutory criminal law.
Shubhat al-Ṭarīq (doubt concerning the means or process of committing a crime) is one
of the most significant types of doubts abrogating ḥudūd, receiving particular attention from the
Mālikī and Shāfiʿī schools. The purpose behind abrogating ḥadd in such cases is the observance
of differences among schools, analysis based on the objectives of Shariʿah, and strict adherence
to precaution. From the perspective of ijtihād, the rationale behind observing differences
(murāʿāt al-khilāf iḥtiyātī) reflects the fact that the correctness of one school cannot fully
guarantee the incorrectness of opposing views, even if one is confident in their own opinion.
Similarly, this approach aligns with the Shariʿah’s objectives of securing benefit and
preventing harm.
The legitimacy of this rule is supported by Prophetic traditions, the principle of leniency
in ḥudūd, and attention to the principle of idrāʾ. The diversity of juristic opinions, especially in
cases of evidentiary conflict or convergence, illustrates that in situations lacking certainty, ḥudūd
cannot be implemented. Accordingly, doubts are classified into categories such as shubhat al-
fāʿil (doubt of the actor), shubhat al-maḥall (doubt of the place), shubhat al-ʿaqd (doubt of the
contract or lawful relation), and shubhat al-ṭarīq (doubt of the method), each of which has a
specific impact on determining criminal liability.
Jurisprudential analysis indicates that in the presence of doubt regarding the commission
of a crime or the entitlement to punishment, the execution of ḥadd is nullified. Differences
among Sunni jurists regarding certain forms of doubt highlight the complexity of determining
definitive cases for ḥudūd enforcement. In some cases, although the ḥadd is abrogated, the
implementation of discretionary punishments (taʿzīr) remains possible. Ultimately, the principle
of idrāʾ in Islamic jurisprudence reflects a cautious and justice-oriented approach to ḥadd
punishments, emphasizing the prevention of harsh penalties under conditions of uncertainty.
42
ResearchBib IF - 11.01, ISSN: 3030-3753, Volume 2 Issue 8
References
Books:
1.
Ibn Ḥajar Haytami, Aḥmad ibn Muḥammad. (1357). Tuḥfat al-Muḥtāj fī Sharḥ al-Minhāj.
Cairo: Al-Maktabah al-Tijārīyah al-Kubrā.
2.
Ibn Ḥazm, ʿAlī ibn Aḥmad. (n.d.). Al-Muḥallā bil-Āthār. Beirut: Dār al-Fikr.
3.
Ibn Shās, ʿAbdullāh ibn Najm. (1432). ʿAqd al-Jawāhir al-Thamīnah fī Madhhab ʿĀlim
al-Madīnah. Beirut: Dār al-Gharb al-Islāmī.
4.
Ibn ʿĀbidīn, Muḥammad Amīn ibn ʿUmar. (1412). Radd al-Muḥtār ʿalā al-Durr al-
Mukhtār. Beirut: Dār al-Fikr.
5.
Ibn ʿAbd al-Salām, ʿAbd al-ʿAzīz ibn ʿAbd al-Salām. (1414). Qawāʿid al-Aḥkām fī
Maṣāliḥ al-Anām. Cairo: Maktabat al-Kulliyyāt al-Azhariyyah.
6.
Ibn Qudāmah, ʿAbdullāh ibn Aḥmad. (1388). Al-Mughnī. Cairo: Maktabat al-Qāhira.
7.
Ibn Mājah, Qazwīnī Muḥammad ibn Yazīd. (1430). Sunan Ibn Mājah. Beirut: Dār al-
Risālah al-ʿĀlamiyyah.
8.
Āmidī, ʿAlī ibn Abī ʿAlī. (n.d.). Al-Iḥkām fī Uṣūl al-Aḥkām. Beirut: Al-Maktab al-
Islāmī.
9.
Bukhārī, Muḥammad ibn Ismāʿīl. (1422). Ṣaḥīḥ al-Bukhārī. Damascus: Dār Ṭawq al-
Najāt.
10.
Dār Qutnī, ʿAlī ibn ʿUmar. (1424). Sunan al-Dār Qutnī. Beirut: Muʾassasat al-Risālah.
11.
Zaydān, ʿAbdulkarīm. (n.d.). 101 Qawāʿid Fiqhīyah. N.p.
12.
Subkī, ʿAbd al-Wahhāb ibn ʿAlī. (1411). Al-Ashbāh wa al-Naẓāʾir. Beirut: Dār al-Kutub
al-ʿIlmiyyah.
13.
Shahīd Thānī, Zayn al-Dīn ibn ʿAlī. (1410). Al-Rawḍah al-Bahiyyah fī Sharḥ al-Lumʿah
al-Dimashqiyyah. Qom: Kitābfurūshī Dāvarī.
14.
Ṣadr, Sayyid Muḥammad Bāqir. (1412). Durūs fī ʿIlm al-Uṣūl. Qom: Majmaʿ al-Fikr al-
Islāmī.
15.
ʿŪdah, ʿAbd al-Qādir. (1390). Jurām ʿAlāh al-Āsāyish al-ʿĀmmah. Tehran: Nashr Yād
Āvarān.
16.
Kāsānī, Abū Bakr ibn Masʿūd. (1420). Badāʾiʿ al-Ṣanāʾiʿ fī Tartīb al-Sharāʾiʿ. Beirut: Dār
al-Maʿrifah.
17.
Māwardī, Abū al-Ḥasan. (1994). Al-Ḥāwī al-Kabīr fī Fiqh Madhhab al-Imām al-Shāfiʿī.
Beirut: Dār al-Kutub al-ʿIlmiyyah.
18.
Muḥaqqiq Dāmād, Sayyid Muṣṭafā. (1395). Qawāʿid Fiqh, Criminal Section. Tehran:
Markaz Nashr ʿUlūm Islāmī.
19.
Marghīnānī, ʿAlī ibn Abī Bakr. (n.d.). Al-Hidāyah fī Sharḥ Bidayat al-Mubtadī. Beirut:
Dār Iḥyāʾ al-Turāth al-ʿArabī.
20.
Mūsavī Bajnūrdī, Sayyid Muḥammad. (1385). Qawāʿid Fiqhiyyah. Tehran: Majd.
21.
Nawawī, Yaḥyā ibn Sharaf. (n.d.). Al-Majmūʿ Sharḥ al-Muhadhab. Beirut: Dār al-Fikr.
22.
Al-Wadāʿī, Saʿīd ibn Misfar. (1418). Athar al-Shubuhāt fī Idrāʾ al-Ḥudūd. Riyadh:
Maktabat al-Tawbah.
Articles
:
1.
Afsarī, Sālim; Aḥmadī, Abū Bakr. (1398). The Role of Shubhat al-Ṭarīq in Abrogating
Ḥudūd from the Perspective of Ahl al-Sunnah. Do-Fasl-Nāmah Fiqh Muqāran, 7(13),
225–247.
43
ResearchBib IF - 11.01, ISSN: 3030-3753, Volume 2 Issue 8
2.
Khormadl, Ḥusayn; Mokhtārī Afrākatī, Nāder. (1395). A Study of the Rule of Idrāʾ from
the Perspective of Imāmī and Sunni Fiqh. Pajūhesh dar Fiqh wa Ḥuqūq, 2, 98–107.
3.
Pourbāfarānī, Maḥmūd; Rostamī Najafābādī, Ḥāmed. (1399). The Scope of “Shubha” in
the Rule of Idrāʾ. Muṭālaʿāt Fiqh wa Ḥuqūq Islāmī, 12(22), 107–136.
