Question:
as-salamu `alaykum wa rahmatullahi ta`ala wa barakatuhu,
Dear Shaykh Gibril,
How are you? I hope all is well with you and your family insha’Allah.
I wanted to ask you a question regarding the hadith of “la qawada illa bil-sayf“. I’m not aware of its context or its legal/probative value within the shari`ah; but what role does this hadith play with regards to the ayah:
“The punishment of those who wage war against Allah and His Messenger, and strive with might and main for mischief through the land is: execution, or crucifixion, or the cutting off of hands and feet from opposite sides, or exile from the land: that is their disgrace in this world, and a heavy punishment is theirs in the Hereafter” (5:33).
Is the capital punishment of crucifixion still employed within the shari`ah or was it at some point abrogated in some way by this hadith? It may be a case where I’m totally misunderstanding what this hadith is implying by its wording.
I would appreciate your help in this regard and do apologize in advance if my question seems obscure.
BarakAllahu feekum
Answer:
Alaykum Salam, apologies for the delay in replying.
Qawad means the same as qisas, i.e. talion-law capital punishment. The hadith you mentioned means “Such punishment must be carried out by the sword only.” The vast majority of the jurists apply the rule spelled out in that hadith, which is hasan (fair) and authentic according to Ibn al-Turkmani (in the marginalia of al-Bayhaqi’s al-Sunan al-Kubra) and al-Shawkani (in Nayl al-Awtar) due to the abundance of its narrative
routes.
The Shafi`is and some Malikis however apply the exact same means used by the killer against his victim, no matter what the means, as the modality of execution for the killer once guilt and modality of the crime are firmly established. Many prominent early Malikis expressed strong rejection of that rule, however, when it came to using fire due to the
unambiguous and absolute categorical Prophetic prohibition of using fire against human beings which carries a meaning of tahrim according to the near-totality of the scholars. Imam al-Shafi`i according to al-Mawardi made qawad the sole exception to that prohibition.
As for the cutting off of hand and foot it is the hadd for inveterate thieves and brigands.
Crucifixion is post-mortem according to the vast majority of the scholars as an example for deterrence against brigandage which entails killing and robbing. The Ḥanafis (except al-Taḥawi) and Ibn Hazm, however, stipulated that crucifixion should be carried out before
execution for greater deterrence, cf. al-Marghinani, al-Hidaya with its commentary by al-`Abd al-Ḥay al-Laknawi, ed. Na`im Nur Aḥmad, 8 vols. (Karachi: Idarat al-Qur’an wal-`Ulum al-Islamiyya, 1417/1997) 4:209-211; Ibn Ḥazm, al-Muhalla, Muniriyya ed. (11:317-318); and Nik Rahim Nik Wajis, The Crime of Ḥiraba in Islamic Law, unpublished Ph.D. diss. (Glasgow: Caledonian University, 1996) pp. 87-89.
Wassalam.
Hajj Gibril Haddad
