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PUNISHMENT FOR ADULTERY IN
A Detailed Examination
By: Dr. Ahmad Shafaat
The Claim That for Married Persons the Sunnah/Hadith Abrogated the Qur`anic Penalty or Prescribed A Second Penalty
Earlier we listed the following ways in which supporters of rajm deal with the Qur`anic penalty for zina`:
I) The Qur`anic penalty 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 about it was not included in the Qur`an or was removed from it.
In Chapter 1 we examined the first of these explanations and saw that if the Qur`an is allowed to speak for itself, we cannot restrict its penalty for zina` to the unmarried case. We must conclude that the maximum penalty for any case of zina` in the Qur`an is 100 lashes. The next two views (II and III) agree with this interpretation of the Qur`an. But, as we show in this the chapter, this does not mean that they are any more tenable.
The claimed abrogation of the Qur`anic penalty by the Sunnah/Hadith
The view that the ahadith about stoning abrogate the Qur`anic penalty is very rarely encountered. It is associated with the name of Jassas, the author of Ahkam al-Qur`an.
The very idea of a sunnah/hadith abrogating the Qur`an is highly problematic. It is a claim of great importance, which, if accepted, will have far reaching consequences for our interpretation and practice of Islamic teachings. Consequently, if true, we expect the sources of Islam to confirm it in clear terms. But the view finds no support whatsoever in the Qur`an or the Hadith, or even in ijma‘, at least if ijma‘is understood as agreement among all recognized scholars.
There are two verses in the Qur`an mentioning abrogation:
Any ayah that we abrogate or cause to be forgotten, we bring something better or similar to it. Do you [singular] not know that God is capable of all things? (2:106).
And when we change an ayah in place of another ayah – and God knows best what he sends down – they say, you are a forger! Nay, but most of them do not know (16:101).
In both verses only the possibility of an ayah abrogating another ayah is admitted. The word ayah is not used to refer to ahadith in the Qur`an or elsewhere in Islamic sources. This means that the Qur`an talks only of the possibility of a part of it abrogating another part.
Likewise, there seems to be no hadith admitting the possibility of a sunnah/hadith abrogating a part of the Qur`an. But there are ahadith found in Daraqutni (306-385 H) that reject this possibility:
It is related from Jabir that God’s Messenger said: My word does not abrogate the word of God, but God’s word abrogates my word. Also, one part of his word abrogates another part. (Quoted from Mishkat al-Masabih)
It is related from Ibn ‘Umar that the Messenger of God said: “Some of our traditions (ahadith) abrogate others like the Qur`an (parts of which abrogate other parts of it)”. (Quoted from Mishkat al-Masabih)
Finally, ijma‘ also does not support the view in question. Some scholars such as the commentator Abu Muslim al-Isfahani reject abrogation of every kind. Imam Shafi‘i, as we noted in Chapter 1, allows abrogation of the Qur`an by the Qur`an and the Sunnah/Hadith by the Sunnah/Hadith but not of the Qur`an by the Sunnah/Hadith or vice versa.
To the general considerations presented above against the whole idea of abrogation of the Qur`an by the Sunnah/Hadith, we may add the following consideration against the particular claim of abrogation of the Qur`anic penalty for zina` by the Sunnah/Hadith.
When a law is changed, there is need for some comments explaining the change, for, otherwise, people are likely to get confused. This is the case for the clear cases of abrogation of Qur`anic verses by other Qur`anic. For example, consider the following verses:
O you wrapped in garments,
Stand (for prayer) during night, except a little part of it,
Half of it or a little less than that,
Or a little more … (73:14)
This passage is generally regarded as abrogated by:
Surely your Lord knows that you pass in prayer nearly two-thirds of the night or half of it, or a third of it, and (also) a party of those with you; and God measures the night and the day. He knows that you are not able to do it, so he has turned to you (mercifully); therefore read what is easy of the Qur`an. He knows that there may be among you sick, and others who travel in the land in search of God’s bounty, and still others who fight in God’s way, therefore read as much of it as is easy (for you), and establish regular prayer and regular charity and loan to God a goodly loan, and whatever of good you send forth beforehand for yourselves, you will find it with God, better and greater in reward; and ask forgiveness of God; surely God is forgiving, merciful. (73:20)
Here the earlier expectation or practice of standing in prayer for about one to two-third of the night is being modified and an understandable explanation is given. In contrast, the penalty of rajm seems to appear in the Hadith out of nowhere with no understandable reason why the earlier Qur`anic penalty of 100 lashes is being replaced by rajm.
The claim that the Sunnah prescribes rajm in parallel to the Qur`anic penalty of 100 lashes
Imam Ahmad ibn Hanbal, Da`ud Zahiri, and Ishaq bin Rahawayh are among those who hold that there are two penalties for zina` for a married person: 100 lashes followed by rajm, one stated in the Qur`an and the other in the Hadith. This view thus rejects the first two views we have discussed so far -- the view that the Qur`anic penalty is limited to the unmarried person and the view that the Sunnah/Hadith has abrogated the Qur`anic penalty. It asserts that the Qur`anic penalty of 100 lashes indeed applies to the married person but this penalty is only one of two penalties as far as a married person is concerned. The second penalty is found in the Sunnah/Hadith in the form of rajm. In contrast to the first two views, this view is based on a tradition attributed to a companion. The tradition is found in several narrations including the following:
Muhammad bin Ja‘far related to us: Sa‘id (bin Abi ‘Arubah) related to us from Qatadah from (‘Amir) al-Sha‘bi:
Sharahah al-Hamdaniyyah came to ‘Ali and said, I have committed zina`. He said, Perhaps you are mistaken, perhaps you dreamt it, perhaps you were forced. She replied all the time, No. So he had her flogged on Thursday and stoned to death on Friday and said: I flogged her in accordance with the Book of God and stoned her in accordance with the sunnah of the Prophet of God. (Ahmad #1124)
Husayn bin Muhammad related to us: Shu‘bah related to us from Salamah (bin Kuhayl) and al-Mujalid (bin Sa‘id) that the two heard al-Sha‘bi relate that
when ‘Ali stoned to death the woman from al-Kufah he beat her on Thursday and stoned her to death on Friday and said: I flog her according to the Book of God and I stone her according to the Sunnah of the Messenger of God. (Ahmad #678; also 798, 897, 898, 931, 1129, 1248).
The tradition is also found in Hakim and Nasa`i. Bukhari also shows knowledge of it:
Adam related to us: Shu‘bah related to us: Salamah bin Kuhayl related to us saying:
I heard al-Sha‘bi relate from ‘Ali that when he stoned a woman on a Friday, he said, "I have stoned her according to the Sunnah of God’s Messenger" (8/803).
Here the words, “when he stoned a woman on a Friday” clearly allude to some story that Bukhari is not narrating in its complete form. The assumed story is most probably like the one quoted above from Musnad Ahmad. Ibn Hajar al-‘Asqalani explains the above tradition in Bukhari by quoting the following: When a woman guilty of adultery was brought before ‘Ali, he first carried out flogging and then rajm. Someone said: “but you have inflicted two penalties!” ‘Ali replied, “I stoned her in accordance with the Sunnah of the Prophet and flogged her in accordance with the Book of God.” (Fath al-Bari; compare Ahmad #897, where a very similar story is told about a man guilty of adultery and not a woman.)
The above story and the view presented in it have several serious problems:
First, the story comes only from one Successor, ‘Amir bin Sharahil al-Sha‘bi (d. 104) and comes in narrations that contradict each other. Thus in the narration in Ahmad #1124 (quoted earlier) the woman herself comes to ‘Ali and confesses her crime while in another narration (Ahmad #931) she is brought by someone else. Also, in most narrations the person who is flogged and stoned is a woman but in one version (Ahmad #897) the person is a man.
Second, combining the two penalties seems very artificial, since it is unnecessary to flog someone who is about to be stoned to death. Bukhari’s narration shows that some scholars, possibly including Bukhari himself, found it problematic that the woman was flogged before being stoned to death, for that version omits any mention of flogging on Thursday.
Third, why does the Qur`an not mention both penalties? Why does it mention only the lesser one and leaves the much severer one to the Sunnah/Hadith?
Fourth, a majority of scholars do not accept the decision of ‘Ali because in the reported cases of rajm by order of the Prophet, the sentenced person is never flogged. Some scholars have tried to harmonize the tradition of ‘Ali with the stories of rajm by the Prophet, but without any convincing success. For example, Thana Allah Pani Pati in his Tafsir Mazhari says: “May be ‘Ali did not know that the woman was married and so he flogged her. Then he learnt that she was married and so he stoned her.” But this is a pure speculation. Nothing in the report suggests anything of the kind and no Hadith scholar has understood the story in that way.
Fifth, the tradition does not agree well with another, much better attested tradition about ‘Ali, which shows that for ‘Ali the primary sources of guidance were the Qur`an and reason and that he probably did not entertain the possibility that the Sunnah/Hadith could add to the Qur`an something so new as death by stoning. Here are three of many narrations of this tradition:
[Ahmad bin Yunus related to us: Zuhayr related to us: Mutarrif related to us that ‘Amir al-Sha‘bi related to them from Abu Juhayfah who said: I said to ‘Ali and] Sadaqah bin al-Fadl related to us: Ibn ‘Uyaynah informed us: Mutarrif related to us: I heard al-Sha‘bi relate that
I heard Abu Juhayfah say: I asked ‘Ali: "Do you have anything (of the religious knowledge) not contained in the Qur`an?" (Or, "apart from what the people have?" as ‘Uyaynah once said). ‘Ali said: "By him who split the grain and created the soul, we have nothing except what is in the Qur`an and the ability of understanding God's Book that is bestowed on a man and what is written on this sheet of paper (al-sahifah)." I asked, "What is on this paper?" He replied: "The legal regulations concerning blood-money and the (ransom for) captives, and (the rule) that no Muslim is killed in qisas for killing a kafir (disbeliever)." (Bukhari 9/50).
Muhammad ibn Bashshar related to us: ‘Abd al-Rahman related to us: Sufyan related to us from al-A‘mash from Ibrahim al-Taymi from his father
from 'Ali who said: We have nothing except the Book of God and this written paper (al-sahifah) from the Prophet (which states): Madinah is a sanctuary from (the mountain of) ‘Ayr to such and such a place. Whoever innovates in it a heresy or gives shelter to an innovator in it, on him is the curse of God, the angels, and all the people and none of his compulsory or optional good deeds of worship will be accepted. And he also said, the asylum (of protection) is granted by Muslims all together and whoever betrays a Muslim in this respect, on him is the curse of God … and whoever befriends (take as masters) other than his manumitters without their permission, on him is the curse of God … . (Bukhari 3/94).
Abu Bakr bin Abi Shaybah related to us: Abu Khalid al-Ahmar Sulayman bin Hayyan related to us from Mansur bin Hayyan from Abu al-Tufayl (‘Amir ibn Wathilah) who said:
We said to ‘Ali bin Abi Talib: Inform us about something that God's Messenger told you in secret. He said: He told me nothing in secret which he hid from the people, but I heard him say: “God cursed him who sacrificed for anyone besides God; God cursed him who accommodated an innovator; God cursed him who cursed his parents and God cursed him who changed the boundary lines (ghayyara al-manar) (of the land possessed by him). (Muslim #3658, also #3657 and #3659, Nasa`i #4346; in the narration in Nasa`i ‘Ali gets red with rage after hearing the request to inform him about something that God’s Messenger told him in secret. )
Similar traditions on the authority of Abu Juhayfah, Abu Tufayl, al-Ashtar, al-Harith bin Suwayd, Ibrahim Taymi (from his father), Jariyah bin Qudamah, Tariq ibn Shihab and Qays bin ‘Abbad are found in Musnad Ahmad, Amwal, Mustadrak Hakim, Nasa`i, Tabarani, Daraqutni, Tarikh Ibn Abi Khaythamah. This is the sort of tradition that the supporters of rajm cannot reject.
In the first version from Bukhari on the authority of Abu Juhayfah the idea comes out very clearly that for ‘Ali the primary sources of guidance were the Qur`an and reason. This idea gets diluted in some other versions, which leave room for the orally transmitted Sunnah as another source of guidance. However, it is probable that this dilution is the result of later changes, since we often find that an earlier tradition mentions only the Qur`an as the primary source of guidance while a later tradition adds “Sunnah” as another source. ‘Ali would not have denied that the Sunnah/Hadith provides the context for the Qur`anic teaching or gives some details concerning the general guidance revealed through the Qur`an, but he would not have agreed with later scholars that the Sunnah/Hadith could provide something fundamentally different from the Qur`an on any matter of importance or any matter on which the Qur`an has spoken. In particular, he would not have agreed that the Sunnah/Hadith could prescribe rajm while the Qur`an prescribes 100 lashes.
The contents of the sahifah that he is said to possess is described differently in the various versions, but in all cases they deal with:
n details about Qur`anic laws (e.g. “regulations concerning blood-money” or in some narrations, “the ages of the camels”, given as zakah or as blood money)
n statements easily derivable from the Qur’an (e.g. “God cursed him who cursed his parents”), or
n regulations concerning matters on which the Qur`an gives no guidance (e.g. “Madinah is sanctuary from ‘Ayr to such-and-such place”).
They do not mention anything so radically unexpected in the face of explicit Qur`anic guidance as rajm for adultery.
Why are there two sources?
The views of the supporters of rajm discussed in this and the last chapter assume a relationship between the Sunnah/Hadith and the Qur`an whereby one can move from one source to the other as if there is no difference between the two and none of the two has any priority over the other. But such an assumption begs the question: Why are there two sources in Islam? If there is no difference between the two and there are no priorities among them, then why was the whole teaching not given in a single source revealed in the same way and preserved to the same extent? Why is the one source called the word of God and is preserved with complete faithfulness while the other source is described as the words/actions of the Prophet and is preserved so poorly that even the traditions in the earliest and most reliable books come in versions with significant differences and sometimes even with contradictions? And why are some things mentioned in the Qur`an while others are not? The supporters of rajm do not generally discuss these basic questions because if they did they would no longer be able to maintain their support for rajm. But the questions are clearly relevant and must be answered in a sensible way. The only sensible answer to these questions is that while most, if not all the words and actions of the Prophet were divinely inspired, God Most High decided that he himself will formulate some parts of the revelation in a book of such size as can be memorized and preserved with complete faithfulness and that will contain in summary form, or refer to, all the important teachings of Islam. In this way the Qur`an provides a solid foundation on which the edifice of Islamic beliefs and practices is to be constructed. The function of the Sunnah/Hadith is to provide some details and explanations that though important are not so important that the Sunnah/Hadith had to be preserved with the same degree of faithfulness as the Qur`an. For if we hold on to the Qur`an firmly then any uncertainty about the reliability of ahadith can either be resolved or it becomes harmless.
 Notice the narration in Bukhari and those in Ahmad 678 and 798 all come from Shu‘bah from Salamah bin Kuhayl from al-Sha ‘bi. It is most likely that Bukhari or his immediate source Adam has ignored the reference to flogging on Thursday.
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