Nafy (exile and banishment)

النَّفْي (التغريب والإبعاد)

Nafy, in the lexicon, is banishment, driving out and removal. ¹ The Qur'anic phrase about exile has three readings: wandering through the lands, favoured by the Hanbalis and in one Shafi'i view; imprisonment, favoured by the Hanafis, Shafi'is and some Hanbalis; and a combination of removal and imprisonment, favoured by Malik. ¹ ² Exile is established by the Qur'an, the Sunna and consensus. It is required for banditry, permitted as discretionary punishment, and according to most jurists required for fornication by an unmarried free person, though the Hanafis treat it as discretionary. ³ ⁴ For fornication its term is a year according to the majority; for banditry it lasts until repentance is evident; for discretionary exile the judge decides. ⁵ ⁶ It ends with the term, death, insanity, a fatal illness, pardon or intercession, with details. ⁷ ⁸ ⁹ Women are not exiled by the Hanafis and Malikis; the Shafi'is and Hanbalis exile a woman only with a mahram or trustworthy women. ¹⁰ ¹¹

Summary

Nafy, in the lexicon, is banishment, driving out and removal. ¹

Basis and nature

Established by the Qur'an, the Sunna and consensus, with the reports of the Companions' practice of combining lashes and exile. ³ ⁴ Required in banditry and for an unmarried free fornicator by most jurists; permitted as discretionary punishment. ⁴

Length and place

Fornication: a year by the majority, counted from arrival at the place of exile. Banditry: until repentance is evident, or death. Discretionary exile: as the judge sees fit. ⁵ ¹² Place: exile to a distance that shortens prayer, under supervision, or imprisonment, according to the schools. ¹² ¹³

Ending, pardon and repentance

It ends with the term, death, or insanity (majority), and with a fatal illness (Muhammad's view). ⁷ ⁸ Pardon removes exile when it is a private right but not for fornication; intercession is allowed in discretionary exile. ⁸ ⁹

Exile of women

The Shafi'is and Hanbalis exile a woman only with a mahram or trustworthy women; the Hanafis and Malikis do not exile women. ¹⁰ ⁷

Sources

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.15947

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.15948

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.15949

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.15950

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.15952

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.15953

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.15959

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.15960

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.15961

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.15957

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.15958

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.15955

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.15956

Habs (imprisonment and detention)

In the technical sense habs is holding a person back, preventing him from acting for himself and going about his affairs. Jurists agree that it is lawful. Most treat it as a branch of discretionary punishment (ta'zir), used either as a penalty or to secure a suspect, and most set no upper limit on its length, leaving that to the judge. It may be open-ended or for life, and it ends with death, repentance or the pardon of the person wronged. Jurists also set rules for women, ambiguous and juvenile detainees, the prisoner's transactions, maintenance and oaths, the prohibited forms of discipline, and the jailer's qualities and the state's duty to oversee prisons.