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PUNISHMENT FOR ADULTERY IN ISLAM
A Detailed Examination

By: Dr. Ahmad Shafaat

(February, 2003)

[In Progress]


PART I

 

THE QUR`ANIC PENALTY FOR ZINA`

 

As noted in the Introduction, the Qur`an does not mention the stoning penalty at all but prescribes 100 lashes for zina` (24:2). This fact is so important that it must be fully faced and explained if we have to arrive at the truth. The supporters of the stoning penalty for adultery have explained this fact by one of the following five ways:  

 

I)       The Qur`anic punishment of 100 lashes is for the case of an unmarried person. For a married person we need to turn to the Sunnah/Hadith, which prescribes death by stoning.

II)     For married persons, the Sunnah/Hadith abrogated the Qur`anic penalty of 100 lashes and instead prescribed death by stoning.

III)  For married persons, the Sunnah/Hadith prescribed rajm as a second penalty which is to be combined with the Qur`anic penalty of 100 lashes.

IV)  The stoning penalty is found in the Qur`an but it is known only to scholars of great erudition capable of diving deep into the meanings of the Book of God.

V)    The Qur`an did prescribe stoning for adultery but the verse in which the law was stated was not included in the Qur`an or has been removed from it.

 

It is clear that these are five different explanations some of which contradict some others. For example, explanations II and III admit that the Qur`anic punishment is for both married and unmarried persons, thus contradicting I. Similarly, IV and V claim that rajm is Qur`anic, which is clearly denied in I, II, and III. That there are five different and conflicting explanations is already an indication of their weakness. In the next three chapters we examine these explanations and demonstrate with specific details how weak each one of them is.

 

Chapter 1

 

The Claim That The Qur`anic Punishment Is For The Case Of An Unmarried Person Only

 

 

It is universally accepted that there is nothing in the word zina` itself that restricts its application to the unmarried case. Even today, after centuries of fiqhi distinction between the married and the unmarried cases, the word is applied to both. A restriction of the meaning can therefore be done only if required by something in the context of a particular usage. But in the Qur`an there is nothing that requires restricting the word to the unmarried case. Indeed, the following arguments when taken together prove beyond a reasonable doubt that in 24:2 zina` includes illicit sexual intercourse by a married as well as an unmarried person: 

1) Outside of 24:2 the word zina` is used in 17:32, 24:3, 25:68, 60:12. In all these verses the only natural way to understand the word is that it refers to illicit sexual intercourse whether committed by a marrid person or an unmarried person. These verses read: 

“Do not go near zina`, for that is surely an abomination and evil conduct.” (17:32). “Those who do not  call on a deity other than (the one true) God and do not kill a person prohibited by God except when justified (by God’s law) and who do not commit zina` (25:68). “O Prophet! When the believing women come to you to give you pledge (bay‘ah) that they will not associate anything as partner in worship with God and they will not steal and they will not commit zina`` …” (60:12). The zani marries not but a zaniah or mushrikah and the zaniah marries not but a zani or mushrik (24:3). 

Is it possible that when the Qur`an commands not to go near zina` or says that believers do not commit zina` or talks of a pledge from women that they will not commit zina` or says that those who commit zina` or shirk marry each other, it is limiting itself only to illicit sexual intercourse on the part of an unmarried person and either ignoring the case of married person or leaving it to the Sunnah/Hadith to deal with it? If the answer to this question is in the negative, as it obviously must, then why do we take the word to refer to illicit sex by an unmarried person in the one verse, 24:2, where the penalty for zina` is prescribed? After repeated condemnation of the sinful act covering unmarried and married persons, should we not expect the Qur`an to also cover both cases when it laid down the penalty for the act? What is the wisdom behind taking up the case of an unmarried person and leaving the case of the married person? 

2) The Qur`an often deals with significant events taking place during the time of the Holy Prophet, whether good or bad, and gives guidance on the questions those events raise. It is following the same procedure in Surah 24. The verse 24:2 is one of a series of verses (24:1-34) revealed in connection with a false accusation (ifk) against umm al-mu`minin Aishah (with whom God is well pleased). The incident of ifk against Aishah, to which a reference is found in verses 11-20, naturally raised questions like: How to deal with accusations of zina`? How can the truth of such accusations be established? What to do with the accusers when the accusations cannot be established? What to do with the accused when the accusations are established? And what measures can be adopted by way of modesty of dress etc that could create an atmosphere of sexual purity in the society and prevent sexual misconduct?  Verses 1-34 outline very comprehensive guidance on such questions. Is it conceivable that the Qur`an will leave out from such a comprehensive outline the most serious case of zina` (the one committed by a married person) and the most serious penalty (death by stoning) and instead be content with dealing with the case of only unmarried persons and relatively less severe penalty of flogging? Aishah was a married woman and the accusation against her, although manifestly false, would nevertheless have raised first and foremost the question of what to do with a married person found guilty of zina`. Consequently, if the Qur`an would omit any case of zina`, it would omit the case of an unmarried person and not that of a married person. Notice also that the Qur`an omits a statement about false accusations of zina` against men. This is not only because women are much more adversely affected by such accusations than men, but also because the incident that provided the occasion for the revelation involved a woman – Aishah. Likewise, in view of the married status of Aishah the Qur`an is expected to at least cover the case of zina` by a married person if not focus on it. 

3) The Qur`an divides the cases of accusations of zina` against women in two categories: accusation by the husband and accusation by person(s) other than the husband. In case of the accusation by the husband the Qur`an says: 

As for those who accuse their wives but have no witnesses except themselves, they (must) bear witness four times (with an oath) by God that they are surely telling the truth and the fifth (oath) that they solemnly invoke the curse of God on themselves if they tell a lie. But the punishment will be averted from her if she bears witness four times (with an oath) by God that (her husband) is surely telling a lie. And the fifth (oath) that she solemnly invokes the wrath of God on herself if he is telling the truth (24:6-9). 

If we read these verses in their context, it becomes clear that the punishment that will be averted from the married woman after solemnly countering her husband’s similarly solemn accusation is the one prescribed in 24:2 -- 100 lashes. To suggest, as supporters of stoning penalty do, that the punishment that is averted from the wife is stoning is to forget that the Qur`an is a miracle of language, not only in terms of its linguistic beauty but also in terms of its clarity. The passage 24:1-34, in fact, begins and ends with the statement that God has revealed in this Surah (24:1) or in the Qur`an (24:34) `ayat bayyanat, clear signs or statements. Can we describe the verses as clear if they talk about aversion of a punishment that they have not even hinted at in any way at all? 

If someone suggests that the punishment mentioned in the verse is punishment in the hereafter, then that is an impossible suggestion. For, the oaths of the wife may be false and such oaths far from averting the punishment in the hereafter will only increase it,  since this would mean that the wife is not only guilty of zina` but also of false oaths. Only legal punishment inflicted in this life by human authotities can be averted by oaths of a person. God needs no such oaths. 

4) In 4:25 the Qur`an prescribes that a slave woman guilty of indecency (fahishah) is to receive half the punishment that muhsanat should receive for that crime. The word muhsanat can mean both “married women” and “free women”. In the present case, the word must necessarily refer to “free women”. These “free women” may be married or unmarried. The Qur`an provides absolutely no indication that it is referring to unmarried free women. If anything, there is some basis to understand the word as referring to married free women, since muhsanat are being compared with married slave women. Thus the word refers either to married free women or free women generally regardless of their marital status. The Qur`anic law can then be interpreted either as: 

            married slave women receive for zina` half the punishment that free married women should receive or as: 

married slave women receive for zina` half the punishment that free women, married or unmarried, should receive. (This interpretation implies that the punishment for free women is the same whether they are married or unmarried and this punishment common for married or unmarried free women is to be halved in case of married slave women.) 

In either case, it is established that the Qur`anic punishment for married women is 100 lashes and not death by stoning, since the latter cannot be halved. 

We may also refer to 33:30, which addresses the nisa` of the Prophet, obviously including his wives in this address, and warns them of double the punishment if they committed fahishah. This again suggests that in the Qur`an the punishment for married women is understood to be 100 lashes and not death by stoning, which cannot be doubled. It is possible that the Qur`an is talking here only of punishment in the hereafter, but the language allows reference to the legal punishment in this world. Notice that the words for punishment and for the misdeed -- ‘adhab and fahishah -- are exactly the same as in 4:25, where the legal punishment is halved for married slave women. 

5) In 4:15-16 the Qur`an says: "As for those of your women who are guilty of fahishah, call to witness four of you against them. And if they testify, then confine them to the houses until death takes them or God appoints for them a way. And the two (alladhan) who commit it (fahishah), punish (`adhu) them both. But if they repent and act righteously, leave them alone. Surely, God is ever forgiving and most merciful." Chapter 5 discusses the interpretation of these verses in detail. Here we only note that in the verses “your women” (nisa` kum) either primarily means “your wives” or at least includes wives along with some other female members of the family such as daughters[1]. So the punishment for fahishah in this passage is meant for married women or both married and unmarried women. This means that the Qur`an shows a consistent pattern in either covering both the married and unmarred cases when it talks of illicit sex or dealing primarily with the married case. Thus, as we have already noted, in numerous passages it prohibits zina` without any reference to the marital status of the persons involved; in 4:25 it explicity talks of the punishment of married slave women and compares it with that of muhsanat with some indications that muhsanat refers to married free women or at least includes married free women; in 4:15-16 it talks of punishment for fahishah on the part of “your women” and once again either deals with both married and unmarried women or primarily deals with married women; and, finally, in 33:30 it talks of the punishment for the hypothetical cases of fahishah committed by the nisa` of the Prophet and clearly deals includes married women. In view of this consistent pattern, it is natural to view 24:2 as covering both the married and unmarried cases or primarily dealing, as indicated in argument 2 above, with the married case. 

6) There is no hadith or saying of a companion that explicitly refers to the Qur`an and states that its punishment is for only unmarried persons. 

7)  The use of the definite article al before zan and zaniyah in 24:2 further suggests a  general meaning.

 

Weaknesses in the views of scholars who restrict the Qur`anic penalty to the unmarried case

 

Some readers may say that our scholars who believe that 24:2 talks of unmarried persons know the Qur`an better than us and so their opinion is more trustworthy than ours. It is difficult to respond to such an argument, since meaningful communication between people is possible only if they are willing to do at least some thinking on their own. If they suspend the use of their own thinking and delegate it to “scholars”, then the communication simply breaks down. Such suspension of thinking and its delegation to others is in any case against the teaching of the Qur`an which repeatedly tells us that its guidance is for those who think and repeatedly invites all readers, not just scholars to use their reason. 

For those readers who are willing to do some thinking on their part, I will present here the views of scholars who maintain that the Qur`anic punishment of 100 lashes is only for unmarried persons. The readers can then judge for themselves whether these scholars have done justice to the Qur`an. Of course, some Muslims will once again try to deprive you of your right to think for yourselves by telling you that you have to be a master of Arabic language and such and such other Islamic sciences before you can use your own judgements about the views of the scholars[2]. It is up to you to accept this invitation to blindness or to reject it in favor of the Qur`anic invitation to think and reason. 

Two good representatives of those who limit zina` in 24:2 to unmarried persons are Imam Shafi‘i in the classical times and A. A. Mawdudi in modern times and so it will be sufficient to discuss their views in some detail.

 

Imam Shafi‘i

 

Shafi‘i’s views are based on two assumptions: 

First, the Qur`an and the Sunnah/Hadith are completely consistent with each other so that they are to be interpreted as if they were a single source. There can be conflicting injunctions within the Qur`an due to abrogation and similarly there can be conflicts within the Sunnah/Hadith, but not between the Qur`an and the Sunnah/Hadith. This has two implications: 1) Even before trying to explain one part of the Qur`an in the light of other relevant parts one can use a hadith to explain a part of the Qur`an.  2) Abrogation is possible only within the two sources but not between them, that is, a part of the Qur`an can abrogate another part of the Qur`an and one sunnah/hadith can abrogate another sunnah/hadith but the Qur`an does not abrogate any sunnah/hadith and the Sunnah/Hadith does not abrogate any statement in the Qur`an. 

Second, the ahadith about stoning are authentic, although Shafi‘i does not discuss their authenticity. 

On the basis of these assumptions Shafi‘i postulates a series of abrogations of the Qur`an by the Qur`an and the Sunnah/Hadith by the Sunnah/Hadith. Thus he says in his al-Risalah that the first revelation concerning the punishment of sexual misconduct is found in 4:15-16, where two penalties are mentioned: a) confinement “until death takes them or God appoints for them a way”; and b) adha, some other general form of punishment. “But,” Shafi‘i says, “God abrogated confinement and adha” by 24:2. At this point in his analysis Shafi‘i makes no attempt to first try to understand zina` menioned in 24:2 in the light of the rest of the Qur`an. He rather appeals to the following hadith to restrct zina` in 24:2 to illicit sex only by unmarried persons: 

‘Abd al-Wahhab told us from Yunus bin ‘Ubayd from al-Hasan from ‘Ubadah bin al-Samit that the Messenger of God said: ‘Take it from me, take it from me, God has appointed a way: for bikr with bikr (the unmarried couple?) flogging with a hundred stripes and banishment for one year; for al-thayyab with al-thayyabah (the married couple?), flogging with a hundred stripes and [death by] stoning.’” 

This hadith, according to Shafi‘i, clarifies that the penalty of 100 lashes prescribed in 24:2 is for the unmarried person who is also to be exiled and that stoning to death is the penalty for the married person who is also to be flogged a 100 times. But there are other ahadith in which the married persons who commit zina` are not flogged before being stoned to death. So Shafi‘i concludes that these ahadith abrogate flogging before stoning. “The Prophet ordered the stoning of one Ma‘iz al-Aslami  and not his flogging, and he ordered Unays to inquire from the wife of Aslami and to stone her if she confessed adultery (without ordering flogging). This indicated that the flogging of the free adulterers was abrogated and that the stoning was confirmed, since this was a later decision.” (Here Imam Shafi‘i is refering to the well-known stories of executions by stoning which we shall discuss in detail in Chapters 7 and 9.) As for the exile of the unmarried person, Shafi‘i retains it, since in the second of the two stories he has mentioned, the guilty man was not only administered 100 lashes but also banished for a year. 

Thus we can see the following series of abrogations postulated by Shafi‘i

--- 4:15-16 (confinement and adha) abrogated by 24:2 (100 lashes)

-- 24:2 clarified by the hadith of ‘Ubadah (“Take it from me, take it from me, God has appointed a way … ”), which tells us that 24:2 is to be limited to the unmarried case,

--- The hadith of ‘Ubadah abrogated by the hadith about the “wife of Aslami” who committed adultery with an employee. This hadith gives the final law as follows: for an unmarried person 100 lashes and banishment for a year and for a married person death by stoning. 

There are several serious problems with Shafi‘is theory. 

First, as noted earlier, confinement for fahishah in 4:15 is meant for married women or both married and unmarried women. But according to Shafi‘i, 24:2 talks only about flogging of unmarried persons. This means that the confinemnet of married women has not been abrogated by 24:2. Yet, Shafi‘i tells us that confinement has in all cases been abrogated. This abrogation must be therefore assumed to be done by the hadith, contradicting Shafiis own view that only the Qur`an can abrogate the Qur`an. 

Second, Shafi‘i’s theory heavily depends on dating the various ahadith, which is very uncertain, as we see from the following agreed upon tradition: 

Musa bin Isma‘il related to us: ‘Abd al-Wahid related to us: Shaybani related to us:

I asked ‘Abd Allah bin Abi `Awfa about the stoning. He replied, "The Prophet carried out stoning." I asked, "Was that before or after the revelation of (Surah) al-Nur?" He replied, "I do not know." (This tradition was also narrated by ‘Ali bin Mus-hir, Khalid bin ‘Abd Allah, al-Muharibi and ‘Abidah bin Humayd from Shaybani. Someone among them said, (Surah) al-Ma`idah. But the first [reference, al-Nur] is sounder.)  (Bukhari 8/824).

From Abu Ishaq Shaybani who said: I asked ‘Abd Allah bin Abi Awfa if the Messenger of God carried out stoning. He said: Yes. I said: After Surahal-Nur was revealed or before that? He said: I do not know (Muslim 17/4218).

This second version is slightly different from the first in that while here Shaybani asks Ibn Abi Awfa whether the Prophet stoned and receives the reply, “yes”, in the other version he simply asks about rajm and receives the reply that the Prophet stoned. This version is also found in Bukhari without substantial change with the following isnad: Ishaq related to me: Khalid related to us from al-Shaybani (8/804).

Here I will not evaluate the authenticity of this tradition. My purpose for the present is to critically examine the views of Shafi‘i within the traditional system of thought of the supporters of rajm.

For Shafi‘i a tradition is acceptable if it has sound isnad. The tradition of al-Shaybani, a successor, has sound isnad since it is agreed upon, which means that its isnad is acceptable to both Bukhari and Muslim. Indeed, this tradition is more reliable than the hadith of ‘Ubadah bin al-Samit that Shafi‘i uses (“Take it from me, take it from me, …”), since it is agreed upon while the other is not accepted by Bukhari and other scholars such as Ibn Jarir al-Tabari also consider it weak.  According to this agreed upon tradition, a Companion, Ibn Abi Awfa, and a Successor, Abu Ishaq al-Shaybani, did not have any information about the dates of various reported incidents of stoning[3]. They did not even know whether they took place before the revelation of 24:2 or after. So how could Shafi‘i establish chronological order of the ahadith about stoning and 24:2? Notice that Shafi‘i does not mention any evidence whatsoever for his chronology. It is simply an assumption on his part.

Third, Ahmad bin Hambal in his Musnad reports from ‘Amir al-Sha‘bi that a woman named Shurahah came to ‘Ali and confessed that she is pregnant from zina`. ‘Ali had her flogged on Thursday and stoned to death on Friday and said: “We flogged in accordance with the Book of God and stoned in accordance with the sunnah of the Messenger of God.” Bukhari also considers this tradition creditable (see Chapter 2). This tradition is at least as reliable as the one Shafi‘i uses. Yet it shows that even decades after the Prophet, flogging of those who were to be stoned could be practiced, conflicting with Shafi‘i’s theory that such a flogging was abrogated. If ‘Ali, who spent about 23 years with the Prophet as a Muslim did not know whether 100 lashes before stoning of an adulterer have been abrogated, how did Shafi‘i  who died 144 years after ‘Ali know about it? 

While according to the above tradition, the flogging plus stoning that Shafi‘i considers as abrogated was done by ‘Ali, banishment plus flogging that he considers as still in force, is said to be abandoned by ‘Ali. In Ahkam al-Qur`an, Abu Bakr al-Jassas records that ‘Ali refused to banish a man and a woman for zina`, saying that banishment can be a source of fitnah. It is inconeivable that ‘Ali will describe a rule of Shari‘ah as fitnah and abandon it. 

Fourth, the series of abrogations postulated by Shafi‘i are not fitting in case of laws given by God, either through the Qur`an or the Hadith, since God knows everything about the human nature and future. In other cases of abrogations we can clearly see why the Qur`anic laws changed. Thus in some cases, abrogation results because full legislation is postponed till it becomes really necessary, as in case of prohibition of drinking. In other cases, it results from first setting high ideals and then making allowance for human weaknesses, as in case of reduction in the number of fighting persons on the enemy’s side from ten times (8:65) the believers’ strength to twice that strength (8:66); in such cases the purpose is to give realistic laws while keeping high ideals before us. But what is the purpose of first adding 100 lashes to death by stoning and then removing them? Can we say that when 100 lashes were combined with death by stoning the ummah was not ready for the penalty of death by stoning alone or that by removing 100 lashes and retaining only the death penalty an allowance was made for some human weakness? If we reflect on such questions, Shafi‘i’s series of abrogations begin to look more like human beings trying one idea after another to discover by trial and error the best law rather than the all-knowing God providing guidance through revelation. 

Fifth, the majority of scholars do not agree with the final law as formulated by Shafi‘i, since they do not accept banishment for the unmarried case.

 

A. A. Mawdudi

 

Unlike Shafi‘i, Mawdudi has written a tafsir of the Holy Qur`an in which one should expect him to deal with some of the weighty questions that have been raised above in connection with restricting the penalty in 24:2 to the unmarried case. But this expectation is not fulfilled. Some very relevant questions are not even addressed, others are raised but not really answered, while still others are answered inadequately. 

Among the questions that are not addressed at all is why everywhere else the Qur`an includes in the word zina` the case of married persons but not in 24:2. 

A question that is considered but not really answered is what punishment is averted from the married woman in 24:8 when she solemnly counters a charge of adultery levied against her by her husband. The question is considered only in passing while discussing the views of Hanafi fuqaha and not as part of understanding the Qur`an itself. Fuqaha have discussed the question: what should be the consequences for a woman who has been accused by her husband of adultery by solemn oaths (li‘an) but who refuses to counter the acccusations by solemn oaths of her own. Two different answers are attributed to Hanafi Imams: a) she should be imprisoned until she either confesses or professes her innocence through li‘an; b) she should be punished for zina`. Rejecting this latter view Mawdudi says: These Imams “derive their view from the Qur`anic statement that the penalty (‘adhab) will be averted only if she also takes the oaths. If she does not take the oaths, she is necessarily subject to punishment. The weakness in this argument is that here the Qur`an does not specify the nature of ‘adhab. If one says that this ‘adhab can only be the punishment for zina`, then the answer is that for the penalty for zina` to be applied the Qur`an has clearly stated the requirement of four witnesses. This condition is not fulfilled by four oaths of a single person.” This is all that Mawdudi says about the words of God: “and ‘adhab will be averted from her if she takes four oaths by God …”. In this evasive comment, there is no answer to the question of what ‘adhab the Qur`an is talking about. Had Mawdudi seriously and honestly examined this question in the light of the Qur`an, he would have seen that this ‘adhab cannot be anything other than the 100 lashes mentioned in 24:2 and the error of the view that 24:2 is restricted to the unmarried case would have become obvious to him. 

A question that Mawdudi does deal in some detail is the question of relationship of 24:2 with 4:25-26, which prescribes for married slave women guilty of adultery half the punishment that muhsanat should receive. But here his answer is highly inadequate. Let us examine his answer. 

Mawdudi correctly notes that in 4:25-26 “the Arabic word [muhsanat] has been used in two different senses, that is (1) ‘wedded wives’, enjoying the protection of their husbands and (2) ‘free Muslim women’, enjoying the protection of their families, even though they might not have been married.” Then he comments: “The Kharijis and those other people who do not believe in the stoning of an adulterous woman have misused this verse 25 to prove their own point of view.” “The fallacy of [their] argument becomes obvious, if one uses common sense in the application of the appropriate meaning of ‘muhsanat’. In the case of the guilty slave girl, it has been used in the sense ‘married woman’, enjoying the protection of the husband, as is plain from the subsequent clause, ‘after they have been fortified in wedlock (uhsinna)’. But in the case of the guilty Muslim woman, half of whose punishment is to be given, it means ‘free Muslim woman’, enjoying the protection of her family, and does not mean a ‘free married Muslim woman’, as has been misconceived by the opponents of the punishment of stoning.” 

Let us note here that it is not just the Khawarij and opponents of stoning who believed that the Qur`anic penalty of 100 lashes is meant for both married and unmarried cases. Even many notable supporters of stoning hold the same view. Recall the five ways in which the supporters of stoning deal with the Qur`anic penalty for zina`. Some of these ways admit that the Qur`anic penalty covers married persons. 

To continue with Mawdudi’s views, he provides the following justification for taking those muhsanat whose punishment is being halved in 4:25 as “free unmarried women”: 

“As regard the lighter punishment for an adulterous slave girl than for a free Muslim woman, it is based on the fact that the latter enjoys double protection as compared with the former – protection of the family (even though she be married). In contrast to a free woman, a slave does not enjoy any protection at all, if she is unmarried, and even her marriage does not make her position equal to that of an unmarried free Muslim woman, for the latter enjoys the protection of her status, her family, clan etc etc. Therefore, her punishment should be half that of an unmarried free woman and not half that of a free married woman

“This also shows that the punishment of one hundred stripes, prescribed for a woman guilty of fornication in 24:2 is for an unmarried free woman, half of which has been prescribed for a slave married girl. It is obvious that an adulterous married free woman deserves capital punishment for this heinous crime because she enjoys double protection of the family and of the husband, and that punishment is ‘stoning to death’. Though the Qur`an does not explicitly mention punishment of stoning her to death, it does indicate it in a subtle manner, which the Holy Prophet understood and enforced. And who else can understand the Qur`an better?” 

As a rule, Mawdudi is quite coherent in his writings, but here he is not making any sense, at least not to me. He sees in the verse a subtle reference to the stoning penalty, but fails to consider the crucial question: Why is the reference to such a serious matter as death by stoning left implicit as a subtle hint to be picked up by the Holy Prophet or the scholars?  Why not state it explicitly? In case of matters pertaining to the unseen, about which human beings have very limited and hazy experiences, we can expect the Qur`an to use unclear language, although, even in such cases the lack of clarity is not desired as an objective but is accepted as a necessity.  But in case of a legal punishment for a crime there is no reason why the Qur`an should use cryptic language. 

Moreover, in the statements quoted above, Mawdudi seems to be saying that the protection enjoyed by a married slave girl is half of the protection enjoyed by an unmarried free woman which in turn is half that enjoyed by a married free woman. So should not the penalty for married free woman be two hundred lashes instead of stoning to death? 

In his commentary on 24:2 Mawdudi makes another unsuccessful attempt to show that in 4:25 married slave women are being compared with unmarried free women. He quotes a part of 4:25: 

And those among you who do not have the means to marry believing muhsanat may marry believing girls from among those your right hands possess … And if, after being taken in wedlock (uhsinna), they are guilty of indecency, their punishment is half that of muhsanat. 

Mawdudi then comments: “Here in the same verse in a connected sequence of thought the word muhsanat  has been used twice and of necessity we must admit that it has the same meaning in both places. Now in the first sentence it is said: ‘And those among you who do not have the means to marry believing muhsanat’. Clearly, this cannot mean a married woman but only a free unmarried woman. Next in the last sentence it is said that if a slave woman commits zina` after being married she will receive half the punishment that muhsanat should receive for the crime. The context clearly shows that in this sentence also muhsanat  has the same meaning as in the first sentence, that is, an unmarried woman living under the protection of a free household and not a married free woman.” 

But the part of the verse that Mawdudi omits contains a third use of the word muhsanat that completely destroys his argument: 

God has full knowledge of your faith (and whether slave or free) you are one from another. So marry (the slave women) with the permission of their masters (or guardians) and give them their fair dowry as muhsanat and not as licentious women taking secret sex partners. 

Here the word muhsanat clearly does not mean free women, married or unmarried, since the word is applied to slave women. So in the same verse and in the same connected sequence of thought the first use of the word is for free unmarried women and the second use is for slave women. Consequently, there is absolutely no reason why the third use cannot be different from the first two and hence there is no reason why in this third use muhsanat cannot refer to married free women. Just as the meanings in the first two cases are determined by the sentences using the word, so also the meaning in the third case must be determined by the sentence using the word. This sentence allows muhsanat to be taken as free women, both married and unmarried. There is no reason to limit the word to unmarried free women. If anything it is more reasonable to limit the world to married free women, since it is much more natural to compare a married slave woman with a married free woman rather than with an unmarried free woman. [4]

 In restricting the word zina` in 24:2 to the unmarried persons, Mawdudi violates one of his own principles. Thus, in discussing the question whether the definition of zina` extends to include sodomy or anal intercourse with the wife, as scholars of Shafi‘i  and Maliki school of fiqh hold, Mawdudi formulates a principle as follows: This extension of the meaning is “removed from the generally known sense of the word zina`. The Qur`an always uses words in their generally known and widely understood meanings, except when it makes a word a special technical term, in which case it clarifies that special sense. Here (in 24:2) there is no indication that the word zina` is used in any special sense and so it is to be taken in its usual sense of natural (vaginal) but illegal intercourse with a woman. It should not be extended to other forms of sexual gratification.” The question is: if in 24:2 the word zina` is to be taken in its usual and commonly understood sense, then how can we restrict the verse to the unmarried persons? In the Qur`an, the Hadith, and in secular Arabic language from the ancient to the present times, zina` means, unless otherwise specified, illegal sexual intercourse between a man and a woman regardless of whether any one of them is married or not. Nothing in the context suggests that in 24:2 this usual meaning is to be restricted. Consequently, applying Mawdudi’s own principle we must conclude that in 24:2 the word zina` is used in its general sense. Perhaps Mawdudi’s response would be that the Sunnah/Hadith prescribes the stoning penalty and that obliges us to limit the word zina` in 24:2 to the case of the unmarried persons. We will insha allah examine the reliability of the ahadith about stoning in considerable detail in due course. For the moment, it suffices to note that the main reason the supporters of rajm accept ahadith about rajm is that their isnad are sound. Yet, many scholars, even those who support rajm, do not hesitate to reject ahadith with sound isnad found in Muslim or Bukhari. This is also the case with Mawdudi.

 

A hadith with sound isnad rejected

 

While Shafi‘i considers the hadith of ‘Ubadah bin al-Samit (“Take it from me, take it from me …”) as authentic and makes it a basis for his views on punishment of zina`, Mawdudi rejects it. He says: “Although this hadith is sound with regard to isnad, but numerous other sound traditions tell us that this was acted upon neither in the time of the Prophet nor in the time of the rightly guided khulafa. Moreover, jurists also never gave verdicts exactly on its basis. It is agreed in Islamic fiqh that the marital status of the zan and zaniah will be looked at separately. An unmarried man will be punished the same way regardless of whether he commits zina` with a married or unmarried woman. Similar is the case for the woman. …” Here despite finding no fault with the isnad of the tradition Mawdudi is suggesting that the hadith is a fabrication. 

Erroneous analogies 

In supporting the stoning penalty Mawdudi says: “Whatever is the legal weight of the words of the Qur`an, the same is the legal weight of the explanation of those words given by the Noble Prophet, provided its authenticity has been established. The Qur`an has in an absolute way (similar to flogging for zina`) stated the cutting off of the hand of  ‘the thief, male or female’. If we do not limit this commandment by the explanations provably provided by the Prophet, then its generality would require that you declare a person a thief even if he steals a needle or a berry and cut off his hand from the shoulder. At the same time, if a person steals hundreds of thousands of rupees and after being arrested says that he has changed his conduct and repents from stealing, you should release him because the Qur`an says, ‘whoever repents after his transgression and corrects his conduct, God turns to him in forgiveness’ (5:39).” 

Shafi‘i also mentions the penalty of hand cutting for stealing and the penalty of flogging for zina` as two of several examples to show that the Sunnah/Hadith sometimes specifies the circumstances under which a general command of the Qur`an is to be applied. Thus the Sunnah specifies that the generally worded command about flogging for zina` is to be applied to unmarried persons and not married persons and the general command to cut off a hand of the thief is to be applied for some types of items and for a certain value of items. In this connection Shafi‘i quotes the following hadith: “Hands should not be cut off for (the stealing of) fruits or the spadix of a palm tree, and the hand should not be cut off unless the price of what is stolen is a quarter of dinar or more.” 

We do not doubt that the Qur`an leaves certain questions of details for the Prophet to deal with or assumes some detailed teachings that the Prophet had already provided to the people and that this sometimes requires making general commands of the Qur`an more specific. Indeed, not just the Prophet but other Muslims must also sometimes deal with such questions and make the general Qur`anic and Prophetic commandments specific to certain situations. For example, the Qur`an says that fasting in the month of Ramadan should be done from dawn to dusk. But we have to make this commandment specific to the regions of the globe where days are of reasonable length. What is erroneous about the way supporters of  the stoning penalty use the function of the Prophet is that they forget that stoning to death is not a detail that any reasonable law giver, much less the all-knowing, all-wise Lord of the Universes, would leave out for the interpreters to deal with. If we talk about questions like what happens if a partner is forced to commit zina` as in a rape, or what should be the intensity of flogging, or whether pregnancy can provide proof of zina` or at what stage sexual activity becomes zina` -- if we talk about such questions, then indeed the Sunnah/Hadith and the Muslim scholars can provide answers to them and in the process make the general commandments of the Book of God more specific. But to introduce the penalty of death by stoning when the Qur`an only talks about 100 lahses goes far beyond interpreting and explaining the Qur`an. Notice that in case of stealing the Qur`anic penalty is never exceeded in the Sunnah, but in case of zina` the Sunnah vastly increases the Qur`anic penalty, which should call into question the authenticity of ahadith about rajm. 

Mawdudi mentions some other examples of the Sunnah clarifiying, restricting or extending the Qur`anic rules: 

“Similarly, the Qur`an prohibits marriage with rada‘i mother and rada‘i sister [4:23-24] (but not of rada‘i daughter). Prohibition of rada‘i daughter (found int the Hadith) will according to this argument (of the opponents of stoning) should be against the Qur`an. The Qur`an prohibits only marriage at a time with two sisters. Any one who considers marriage with a woman and her niece as haram should be accused of judging against the Qur`an. The Qur`an prohibits marriage with a step daughter when she is brought up in the house of the step father. Absolute prohibition (of marriage with any step daughter) should be declared against the Qur`an. The Qur`an allows rahn only when a person is traveling and a scribe to write the loan documents is not available. To permit rahn while not traveling and under the availability of a scribe should be against the Qur`an. The Qur`an commands in general terms: ‘Take witnesses when you make a commercial transaction’ [2:282]. Consequently, all that buying and selling should be considered unlawful that goes on in our shops night and day. These are only some of the examples that, when examined at a glance, make known the misunderstanding of those who say that rajm is against the Qur`an. In the system of Shari‘ah it is an undeniable function of the Prophet that after conveying a command of God he should tell us what is the purpose of the command, what is the way of acting upon it, in which cases it is applicable and in which cases there is a different command. Denial of this function is not only contrary to the principle of the religion but will also entail uncountable number of undesirable practical consequences.” 

Like the hand cutting, these other examples mentioned by Mawdudi, some of which are also found in the writings of Shafi‘i, are not parallel to the case of stoning to death. In all these examples, the Sunnah simply answers questions of detail or arrives at answers that are easily understandable on the basis of the Qur`an by the use of analogy and common sense. This is not the case with stoning. Furthermore, even in the case of these other examples, there is the possibility that the ahadith on the basis of which the Qur`anic statements have restricted or extended may not be authentic or may not have been properly understood.

 

Misrepresentation of the opponents’ views 

In making the main case for his support of rajm, Mawdudi says: “Among the Companions and the Successors this matter (of stoning) was agreed upon. There is not a single saying of any person which leads to the conclusion that in earlier times anyone doubted it as an established command of the Shari‘ah. After (the Companions and Succesors) the Muslim jurists of all times and lands have been in agreement that it is an establishd sunnah. This is because there are such mutawatir and strong evidences for its soundness that no knowledgeable person can deny it. In the whole history of the Muslim ummah none has denied it except the Khawarij and some Mu’tizilah and even their denial was not based on their being able to point out to any weakness in its authenticity as a command of the Prophet. Rather, they declared it against the Qur`an. But this was a fault in their own understanding.” 

Here Mawdudi, like other supporters of stoning, is claiming tawatur for the ahadith about rajm. We will examine this claim in later parts of the book. Here we comment only on his claim that the early opponents of stoning based their view only on the Qur`an and ignored the Hadith. This claim is doubtful. For the opponents of stoning the fact that the Qur`an prescribes its own different penalty for adultery was a proof that these ahadith are fabricated. In this logic, they were not alone. The following traditions, whether authentic or not, show that in earlier times there were many Muslims for whom the Qur`an was a standard to distinguish authentic ahadith from fabricated ones: 

Abu Yusuf [d. 183] records in  al-Radd ‘ala Siyar al-Awzai:

The Prophet said: The hadith about me will spread. So what comes to you about me and is in agreement with the Qur`an is from me and what comes to you about me and is in conflict with the Qur’an is not from me.

Shafi‘i in his al-Risalah records the following hadith:

The Prophet said: After my death you will split up on the basis of different opinions. When something reaches you which is attributed to me, compare it with the Qur’an; when it corresponds with the Book, it is from me; that which is at variance with it is not from me.

Abu Yusuf [d. 183] accepted this hadith as authentic but Shafi‘i [d. 204] rejected it, calling it weak.

The following hadith is also relevant:

Some companions of Mu‘adh ibn Jabal said: When the Messenger of God intended to send Mu‘adh ibn Jabal to al-Yaman, he asked: How will you judge when the occasion of deciding a case arises? He replied: I shall judge in accordance with God’s Book. He asked: (What will you do) if you do not find any guidance in God’s Book? He replied: (I shall act) in accordance with the Sunnah of God’s Messenger. He asked: (What will you do) if you do not find any guidance in the Sunnah of God’s Messenger and in the Book of God?  He replied: I shall do my best to form an opinion and I shall spare no effort. The Messenger of God then patted him on the breast and said: Praise to God who has helped the messenger of the Messenger of God to find a thing that pleases the Messenger of God. (Abu Da`ud 3119, Tirmidhi 1249, Ahmad 21084, Darimi 168).

This hadith has been rejected by some muhaddithun on the ground of weakness of its isnad. Many Muslims, including those who support rajm, however, accept it. It teaches us that we should first turn to the Qur`an for guidance and only if we do not find any clear guidance there, should we turn to the Sunnah/Hadith. The opponents of stoning note that the Qur`an provides 100 lashes for adultery. This leaves no need to turn to the Sunnah/Hadith and any hadith suggesting a penalty radically different from 100 lashes cannot be authentic. 

Ibn Ishaq records the folllowing hadith:

“By God you cannot lay anything to my charge. I allow only what the Qur’an allows and forbid only what the Qur’an forbids.”

This hadith shows that the guidance provided by the Prophet is very closely based on the Qur`an, which is not the case with rajm. The same conclusion may be derived from the following agreed upon hadith:

It is related from Jabir bin ‘Abd Allah: I fell ill and the Messenger of God and Abu Bakr came to visit me, walking on foot. He came to me while I was unconscious. Then the Messenger of God performed wudu and poured the leftover water over me whereupon I became conscious. I said, O Messenger of God! (ya rasul allah, or perhaps Sufyan narrated Jabir as saying ay rasul allah). But the Messenger of God did not give me any reply until the verse about inheritance came. (Bukhari 5219, 6228, 6765; Muslim 3031)

Just before recording the above hadith Bukhari gives the following chapter heading:

Whenever the Prophet was asked about something regarding which no verse was revealed, he would either say, “I do not know” or give no reply, but never gave a verdict based on opinion or on qiyas, and that was because of the statement of God: … (judge between people) by what God shows you” (4:105). And Ibn Mas‘ud said, “The Prophet was asked about the spirit, and he kept quiet until the verse came down.” 

Several ahadith only mention the Qur`an as a source of guidance and do not refer to the Sunnah/Hadith at all. Thus in Muslim we read: 

Then [during his farewell hajj the Prophet] came to the bottom of the valley, and addressed the people saying: “…. I have left among you the Book of God, and if you hold fast to it, you would never go astray ….” . 

Here there is no mention of the Sunnah. There is a version of the hadith in Ibn Ishaq and Muwatta in which Sunnah is added to the Qur`an as something to hold on to, but neither Ibn Ishaq nor Malik gives full isnad of their versions.

A very well-documented tradition about the khalifah ‘Umar shows that the sahabah clearly understood that the Qur`an is the primary source of Islamic guidance, although the Hadith is important (See Chapter 3). 

Thus when people in earlier and recent times reject stoning by pointing to the Qur`anic penalty, they are not necessarily rejecting the value and importance of the Sunnah/Hadith. Rather, they are simply saying that the ahadith about rajm are not authentic because in the Qur`an God has clearly stated a penalty for adultery and the Prophet would not give a fundamentally different penalty. Moreover, in reaching this conclusion, they are following a method that is taught by some widely accepted ahadith. Finally, the opponents of stoning also pointed out that the ahadith about stoning are all ahad and do not establish a law. Thana` Allah Panipati in his Tafsir represents the views of the opponents of stoning more faithfully when he says: 

“Khawarij reject (rajm) because they reject (the authority of) consensus among the Companions and ahad reports and claim that stoning to death is not established by the Qur`an. Only ahad reports have mentioned stoning and ahad reports do not make a command binding.”


 

[1] The expression nisa` kum and similar expressions “our women” (nisa` na) and “their women” (nisa` hum) are used in the Qur`an in 2:49, 187, 223, 226, 3:61, 4:23, 7:127, 14:6, and 65:4 and in almost all these verses, the expessions obviously refer to “wives”, for example, in 2:187, which says: “Permitted to you on the night of the fasts is sexual intercourse with nisa` kum”. The only exceptions are those verses in which abna` (sons or children) and nisa` are mentioned in parallel. This is the case in 3:61, where the Christians are challenged to get together with the Muslims, each side bringing their abna` and nisa` and 3:49, 7:127, and 14:6, where the Pharaoh is said to kill the abna` and spare nisa` of the Children of Israel. In 3:61, abna` may be taken as sons and nisa` as either daughters or daughters and wives. Or, abna` may be understood as children and  nisa` as wives. In the passages about the Pharaoh sparing nisa` obviously applies to women generally since Pharaoh will have no reason to spare female children but kill grown up married women. Also if only daughters were meant, the word used will be banat.

[2] I do not here downgrade the need for proper qualifications for interpreting the Qur`an and Hadith, although the traditional lists of such qualifications places too much emphasis on memory and not enough on other abilities such as analytical thinking. Informed persons of normal intelligence can follow in the main the evidence and reasoning that scholars use to arrive at their opinions. According to the extent of their study such persons should use their minds to form judgments about what scholars are saying. If the extent of their study is very limited, they may as a practical measure follow some scholars, but in that case they should not prevent others who have more time to devote to the study of Islamic literature from questioning, discussing, and re-examining scholars’ views.

[3] Ibn Abi Awfa was regarded as a scholar of some repute. He emraced Islam before the treaty of Hudaybiyah in 6 H and took part in seven battles including those of Khaybar, Makkah, and Hunayn. The incident of ifk and therefore the revelation of Surah 24 took place either in 5 H or 6H. Thus Ibn Abi Awfa seems to be in a position to know the chronological order of the the revelation of Surah 24 and the incidents of stonings, if they did occur.

[4] Mawdudi, by trying to impose some uniformity in the meanings of the various uses of the word muhsanat seems to have missed an important point. The Qur`an by using the word for slave women and for free married and unmarried women is radically changing the way people thought of slavery, freedom and chastity. In pre-Islamic cultures fornication by an unmarried woman was not considered a serious punishable misconduct. Only the man who had sexual intercourse with her was in some way penalized (see Chapter …). The Qur`an by referring to both unmarried and married free women as muhsanat is conveying the message that both should be chaste. The same message is driven home by prescribing the same punishment for zina` whether committed by married or unmarried women. Likewise, by using the word for both married slave and married free women, the Qur`an is bridging the gap between the two and raising the status of slaves. The verse also conveys this same message by the words, “(whether free or slave) you are one from another”.

 


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