A Decolonial Critique of the Maqāṣid-Based Approach to Sharīʿa The Call for a Moratorium on the Ḥudūd

Abstract

A polarizing symbol, the ḥudūd punishments have come to be conflated with the very essence of the sharīʿa by advocates and detractors alike. This article applies a decolonial critique to reform projects that call for the suspension of the ḥudūd, particularly those appealing to maqāṣid al-sharīʿa for internal legitimacy. Focusing on one such prominent call, I argue that the fixation on ḥudūd as divinely mandated punishments, in lieu of political punishment (taʿzīr) or the law of talion (qiṣāṣ), reflects a misplaced critique, revealing a colonial lens and the enduring coloniality of power. By analyzing ḥudūd enforcement in Saudi Arabia and Iran, I show their statistical rarity, theoretical inapplicability, and ethical dissonance with liberal sensibilities. I incorporate perspectives from contemporary and premodern scholars—including Ali Gomaa, ʿIzz al-Dīn b. ʿAbd al-Salām, and Abū al-Qāsim al-Burzulī—highlighting historical critiques and alternatives to ḥudūd. Additionally, I examine the broader implications of reform, particularly its implicit reliance on the carceral system, which remains unchallenged by reformist discourse. Engagement with critical theorists Michel Foucault, Angela Davis, and Michelle Alexander reveals the reformist concern with regulating the visibility of violence, rather than its elimination, as a hegemonic function of human rights discourse in defining the boundaries of legitimate debate.

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