PART II
AHADITH ABOUT RAJM
In Part I we saw that if we start by accepting rajm as truly an Islamic punishment for
adultery prescribed by God and his Messenger, then there is no reasonable
explanation of why the Qur`an prescribes 100 lashes for zina` without ever
mentioning rajm. Most supporters of rajm say
that the Qur`anic penalty is for the unmarried person and rajm is
for the married one. But as we saw in Chapter 1 there is incontrovertible
evidence that the Qur`an covers both cases when it talks about zina` and its
punishment. Moreover, this view does not offer a reasonable explanation of why
the Qur`an left out the more important married case. This leads to the
conclusion that there is real conflict between the penalty of rajm and the Qur`an. Recognizing this,
some supporters of rajm have resorted
to other explanations – that the Qur`an was abrogated by the ahadith about rajm or that the Qur`an did prescribe
the penalty but the relevant verse was removed or got lost. But these explanations
were seen to be no more tenable than the one that limits the Qur`anic penalty
of 100 lashes to the unmarried case.
The reason that a
vast majority of Muslims came to accept rajm
is that they accepted the authenticity of ahadith that talk about it. But in
view of the fact that the penalty of rajm
is in conflict with the Qur`an or is at least problematic in the light of the Qur`an,
the authenticity of the ahadith about rajm
comes under serious suspicion. This requires
that at the very least we should carefully examine these ahadith for their
authenticity before accepting them, if not to reject them outright because of
their contradiction with the Qur`an. But such an examination has not been done
by the supporters of rajm. They are
simply content to make a general appeal to the argument that rajm is prescribed or assumed in a large
number of ahadith found in many Hadith collections with varied asanid and that therefore these ahadith are
authentic.
This
general argument is based on the common but mistaken idea that a large number
of traditions found in large number of books have to be substantially
historical. But it is a well-known phenomenon that once an idea gets created it
begins to find many different expressions with time and even begins to generate
various mistaken reports of events supporting the idea. For example, once the
idea of flying saucers was created it generated an increasing number of
sightings of such alien objects. This large number of reports of sightings is
no proof that the flying saucers come to earth from outer space on a regular
basis. Another example is provided by Jesus’ crucifixion, which is
mentioned in a great variety of Christian and even non-Christian traditions.
These traditions are documented within decades of Jesus’ departure from this
world, in contrast to the ahadith about rajm whose documentation starts no earlier than hundred
years after the Holy Prophet. There are long accounts of how Jesus was
arrested, how he was tried, sentenced, and flogged, and how he was taken to a
place outside the city of Jerusalem and then crucified there and how his
clothes were divided by the executioners and he was given vinegar to drink and was mocked and how he finally died. There
are many precise details with names of places and persons involved and with
references to dates and times of the day at which various events took place.
These details are far more extensive than the details provided in the ahadith
about rajm that
sometimes mention names of persons stoned for adultery and of places where the stoning
took place. Just as the traditions about rajm are found in most Hadith books
so also the traditions of Jesus’ crucifixion are found in all the canonical
gospels, in most apocryphal gospels, and in many other early Christian
documents. In many cases one can even provide asanid that look even better than the asanid for the traditions about rajm.
For example, the first canonical gospel, which records a detailed
account of the crucifixion, is said to be written by Matthew who was an
eyewitness of the events of Jesus life. The same is true about the fourth
gospel which is said to be written by John, another eyewitness disciple of
Jesus. The second gospel is written by Mark who is said to have learnt the
gospel traditions from Peter who was an eyewitness disciple. These asanid look better than those in the
ahadith about rajm because
they have at most one link between a document and an eyewitness, whereas in
case of ahadith about rajm we have
in most cases more than two links.
Yet when
you go beyond the first impression created by the ubiquity of the references to
the crucifixion in the Christian writings from the earliest times and subject
the various traditions to a critical and historical analysis, to make sense of
them within the context of other related events, it becomes clear that the
crucifixion and hence its elaborate accounts are fictional (see my book, The Mysterious Disappearance of Jesus and the Origin
of Christianity). The Qur`anic rejection of the crucifixion of
Jesus in fact makes it an Islamic belief that an incident reported in many ways
in many different sources and accepted and commemorated by millions of people can
be fictional. To hold otherwise and accept an event as historical simply
because it is found in many varied reports and a great many people believe in
it is, therefore, inconsistent with the Qur`an.
It is
also worth noting here that the Hadith literature itself provides examples of
ahadith that have come down to us in many different forms and with many
different chains of transmission from numerous Companions and that are recognized by scholars to be unreliable.
Thus, al-Nawawi in the Introduction of his famous collection of 40 ahadith says:
It has
been related to us from ‘Ali bin Abi Talib, ‘Abd Allah bin Mas ‘ud, Mu ‘adh ibn
Jabal, Abi al-Darda`, Ibn ‘Umar, Ibn ‘Abbas, Anas bin Malik, Abu Hurayrah, Abu
Sa‘id al-Khudri through many lines of transmission and in varied forms that the
Messenger of God said: “Whoever memorized for my ummah
40 traditions relating to their religion will be raised by God on the day
resurrection in the company of jurists and scholars”. … Scholars of Hadith (huffaz) are agreed that this is a weak
tradition despite its many lines of transmission. … Religious scholars are
agreed on the permissibility of putting a weak hadith in practice if it
concerns virtuous actions.
Thus
multiplicity of reports about an incident or saying is no proof of its
authenticity. So what is the criterion to decide whether a series of ahadith
supporting an idea is reliable?
When we
have a large number of reports repeating a theme, we need to look at each
report separately. The reliability of the whole group of reports is no
greater than that of the most reliable of the individual reports.
Consequently, if we do not find any one tradition that can be confidently
declared as reliable, the whole group cannot be declared reliable. Moreover, in
case of ahadith about rajm we need
to use the strictest possible standards of reliability, since, as noted several
times earlier, there are strong objections to their reliability on the basis of
the Qur`an and since accepting them means taking a human life by a very painful
method.
In this
part of the book we examine the ahadith about rajm and show that none of them meets
the required standard of reliability and therefore the penalty of rajm cannot be reliably attributed to
the Prophet of Islam. It should be rejected in favor of the penalty prescribed
in the Book of God.
Chapter 5
Death
Penalty For Homosexuality, Incest, And Bestiality
Some scholars of Shafi‘i and Maliki school of fiqh have defined zina` to include the homosexual act and/or bestiality (sex with animals).
Incest, of course, is zina`, at
least in the heterosexual case. We begin this part of the book with a chapter
on the punishment for these acts for the following reason: The
death penalty for these acts prescribed in some ahadith is rejected by a
majority of scholars and the ahadith themselves can be easily seen to be
fabricated. This should be helpful for those readers who
find
it impossible to imagine that the stories of the Prophet stoning people for zina` could have been fabricated either
deliberately or as a result of a series of gross mistakes. They should be able
to see at least the possibility that the stoning penalty for adultery entered
Islam without any teaching from God and his Messenger just as the death penalty
for the homosexual act, incest, and bestiality entered Islam without any such
teaching.
Death
Penalty for Bestiality
There
is nothing about the punishment for bestiality in Muwatta, Bukhari or Muslim.
We find some ahadith on the subject in books of Abu Da`ud, Tirmidhi, Ibn Majah,
and Ahmad and, of these muhaddithun those who do express opinions on the
authenticity of ahadith they record, do not have a favorable opinion of these particular
ahadith.
There
is essentially one hadith prescribing death penalty for bestiality:
‘Abd Allah bin Muhammad al-Nufayli related to
us:
‘Abd al-‘Aziz bin Muhammad related to us: ‘Amr bin Abi ‘Amr related to me from
‘Ikrimah
from Ibn ‘Abbas that the Messenger of God said: “If anyone has sexual
intercourse with an animal, kill him and kill it along with him.” (‘Ikrimah)
said: “I asked him (Ibn ‘Abbas): ‘Why the animal?’ He
replied: ‘I think (the Prophet) disapproved of its
flesh being eaten when such a thing had been done to it’[1].”
Abu Da`ud said, This is not strong. (Abu
Da`ud 3871)
Narrations
of this hadith with variations are also found in Tirmidhi (1374), Ibn Majah
(2554), and Musnad Ahmad (2294, 2591). They all are narrated from ‘Amr bin Abi
‘Amr from ‘Ikrimah from Ibn ‘Abbas. One narration in Ahmad comes from ‘Abbad bin
Mansur instead of ‘Amr bin Abi
‘Amr but in that narration the Prophet is not mentioned and the words quoted
are understood to be the words Ibn ‘Abbas:
‘Abd al-Wahhab related to us:
‘Abbad bin Mansur informed us from ‘Ikrimah from Ibn ‘Abbas that concerning the one who has sex with an animal he said: “kill the fa`il and maf`ul
bihi”. (Ahmad 2597)
But
in al-Hakim a narration from
the same ‘Abbad bin Mansur from ‘Ikrimah in which the saying of
Ibn ‘Abbas becomes a hadith of the Prophet:
From‘Abbad
bin Mansur from ‘Ikrimah from
Ibn ‘Abbas that he mentioned (dhakara)
the Prophet that concerning the one who has sex with an animal he said: “kill the fa`il and maf`ul
bihi” (Al-Hakim, quoted from ‘Awn al-Ma‘bud 3869).
Note
that this narration is the same as the one from Ahmad except for the words, “he
mentioned the Prophet”. These words are awkward and vague, not clearly stating
that the death penalty was prescribed by the Prophet. They are a timid attempt
to turn a view attributed to Ibn ‘Abbas into a hadith.
It is even doubtful that Ibn ‘Abbas held this
view, since in the following narration, Ibn ‘Abbas in fact says something
completely different:
Ahmad bin Yunus related to us that Sharik, Abu al-Ahwas and Abu
Bakr bin ‘Ayyash related to them from
‘Asim (bin Bahdalah Abi al-Najud) from Abu Razin from Ibn ‘Abbas who said: “There is no prescribed punishment for one who has
sexual intercourse with an animal.” Abu Da`ud said: “‘Ata also said so.”
Al-Hakam said: “I think he should be
flogged, but the number should not reach the prescribed punishment (for zina`, that is, 100 lashes)”.
Al-Hasan said: “He is like al-zan.”
Adu Da`ud said: “This hadith of ‘Asim
weakens the hadith of ‘Amr bin ‘Amr.” (Abu Da`ud 3872)
The following facts about the above
narrations, when taken together, leave little doubt that the hadith prescribing
the death penalty for sex with animals is a fabrication resulting from some
mistake or an outright lie:
First,
the hadith is narrated only on the authority of Ibn ‘Abbas (d. 68) in the first
generation, only on the authority of ‘Ikrimah (d. 104) in the second
generation, and then mostly from ‘Amr bin Abi ‘Amr (d. 144) in the third generation
and very rarely from ‘Abbad bin Mansur (d. 152). Imams Malik, Bukhari,
Muslim either did not know about it or did not trust it.
Third, in one narration in Musnad Ahmad, also from ‘Ikrimah from Ibn ‘Abbas,
the “hadith” is found as a saying of Ibn ‘Abbas and NOT a saying of the Holy
Prophet. So there is a distinct possibility that an opinion of Ibn ‘Abbas was
attributed to the Prophet by a later transmitter such as ‘Amr bin Abi ‘Amr.
Fourth, it is doubtful that Ibn ‘Abbas believed in the death penalty for bestiality,
since in another tradition Ibn ‘Abbas himself says clearly, “there is no
prescribed punishment for sex with an animal”.
Fifth, as noted in ‘Awn al-Ma‘bud, the four Sunni schools of fiqh are unanimous that death is not
prescribed for one who commits sexual intercourse with an animal, but may be
given some other punishment (yu‘azzar wa
la yuqtal). Such an agreement among the fuqaha` would have been difficult to develop if they
generally knew and accepted a hadith, in which the Prophet ordered to kill the one who has sex
with an animal.
Although, in view of the above
considerations, there can be little doubt the hadith in question is a false
hadith, yet some later scholars accept the hadith and then try to reconcile it
with the opinion of the fuqaha`. Thus some say that killing is mentioned in the hadith only as a
threat not meant to be carried out. Some say that the killing of the man is
only a threat but killing of the animal is to be carried out in actuality. In
contrast to such artificial explanations of later scholars, Abu Da`ud and
Tirmidhi themselves show better sense. Abu Da`ud, facing the obvious, declares: the tradition of ‘Asim (in which it is denied that
there is any prescribed punishment for sex with animals) weakens the tradition
of ‘Amr bin Abi ‘Amr (in which the death penalty is prescribed). Tirmidhi also shows reservation about the hadith by noting: “We do not find this hadith except from ‘Amr bin ‘Amr and he from
‘Ikrimah and he from Ibn ‘Abbas and he from the Prophet.”
It is necessary that when the weakness of a hadith
reaches the level shown above we should have the courage to call it a false
hadith, something that many scholars do not do. The authentic teaching of
Islam, meant to guide humanity for all times to come, could not have been
transmitted in this weak way. If we do not declare such ahadith as false then
this means that we cannot free ourselves from the errors and lies of some
Muslims in the past and therefore cannot faithfully interpret and implement
what God and his Messenger have taught us. This in turn means that we cannot
move forward as a civilization.
The real source of the death penalty for bestiality
We have shown above that the death penalty
for bestiality does not come from God and his Messenger. So where does it come
from? The most likely answer is that the penalty was borrowed from the Jewish
tradition. Compare the “hadith” discussed above and what the Bible says. The
“hadith” says:
“If anyone has sexual
intercourse with an animal, kill him and kill it along with him.” (Abu Da`ud)
In the Bible we read:
If a man
has sexual relations with an animal, he shall be put to death; and you shall
kill the animal. (Lev 20:5)
The
parallel is striking and, in view of the fact that the hadith is not authentic,
strongly suggests that some Muslims took the penalty from the Biblical
tradition and shamelessly attributed it to the Prophet of Islam.
Some
scholars, such as Dr. Israr in our times, opine that a law found in earlier
revelations remains valid in the Islamic Shari‘ah unless it is expressly
modified and they use this principle to justify rajm for adultery. But it is easy to see that this opinion is
incorrect:
The
principle that Muslims are bound by the earlier laws unless they are abrogated
or modified by the Islamic sources clearly has far reaching consequences for
the practice of Islam. It is therefore expected to be stated clearly in the
Qur`an or at least in some demonstrably authentic ahadith and we also expect
scholars to generally accept it. But we find no statement of the principle in
the Qur`an and the authentic ahadith. And the fact that the scholars have
generally rejected the death penalty for bestiality despite the fact that this
penalty is explicitly stated in the Torah and even in some ahadith shows that
the scholars do not accept the principle.
Death Penalty for Incest
Incest
of course is zina`, at least in the heterosexual case, and if any
perpetrator of the crime is married, then he or she deserves the death penalty
according to the supporters of rajm.
But there is a hadith that goes further and prescribes the death penalty for
incest regardless of the marital status. This hadith is found in Tirmidhi,
Musnad Ahmad and Ibn Majah.
Muhammad bin Rafi‘ related to us: Ibn Abi Fudayk related to us from
Ibrahim bin Isma’il ibn Abi Habibah
from Da`ud bin al-Husayn from ‘Ikrimah
from Ibn ‘Abbas
from the Prophet who said: “If anyone calls another (Muslim)‘O Jew!’ strike him
20 times; if anyone calls him ‘O eunuch!’, strike him 20 times; and whoever has
sex with a mahram, kill him.”
The above narration is from
Trmidhi. The narrations in Ahmad and Ibn Majah are:
Abu al-Qasim bin Abi al-zinad related to us saying: (Ibrahim bin Isma’il) ibn Abi Habibah informed me from Da`ud bin al-Husayn
from ‘Ikrimah
from Ibn ‘Abbas who
said: The Messenger of
God said: Kill the one who commits the action of the people of Lut and the one to whom it is
done and (kill) the animal and the one who has sex with that animal; and
whoever has sex with a mahram,
kill him. (Ahmad 2591)
‘Abd al-Rahman bin Ibrahim al-Dimashqi
related to us: Ibn Abi Fudayk related to us from Ibrahim bin Isma’il ibn Abi Habibah from Da`ud bin al-Husayn
from ‘Ikrimah
from Ibn ‘Abbas who
said: The
Messenger of God said: Whoever has sex with a mahram, kill him and whoever has sex with an animal kill him
and kill the animal. (Ibn Majah 2554)
There seems to be greater
support among scholars for the death penalty in case of incest than in case of bestiality.
But this is not because the hadith in case of incest is more reliable. Indeed,
for the following reasons the above hadith is even weaker than the one
concerning sex with animals:
First, while the hadith
in case of bestiality has only one narrator for the first two generations
of transmitters and at most two in the third generation, the above hadith has
only one narrator for the first four generations. Only Ibn ‘Abbas is
said to narrate it from the Prophet, only ‘Ikrimah is said to narrate it from
Ibn ‘Abbas, only Da`ud bin Husayn from ‘Ikrimah, and only Ibrahim
bin Isma‘il from Da`ud. Since Ibrahim bin Isma‘il died around 165, we are
obliged to conclude that for about one and a half century after the departure
of the Prophet from this world the knowledge of this hadith remained limited to
one or a very few persons. Moreover, since Malik, Bukhari, Muslim, Abu Da`ud,
and probably also al-Nasa`i were either
ignorant of this hadith or they did not consider it reliable, the hadith
remained unknown or under suspicion for another century or so.
Second, one link in the isnad, Ibrahim bin
Isma‘il, is far less reliable than any in the hadith about sex with animals.
Yahya bin Ma‘in, Tirmidhi, and al-Nasa`i consider him da‘if while
Bukhari and Abu Hatim consider
him munkar al-hadith. Hardly, any
scholar has something positive to say about him.
We can conclude with complete
confidence that the hadith in question is a fabrication resulting from a
mistake or a lie against the blessed Prophet. We must forcefully and categorically reject this hadith – and for that
matter other similarly weak ahadith. For, otherwise, we would for ever remain
mental hostages to the errors and lies of some irresponsible people in earlier
times and will not be able to obey God and his Messenger as we should.
The execution of a man who
married his father’s wife
Commenting on the hadith
discussed above, Tirmidhi says:
“We do not know of
this hadith except through this chain (wajh)
and Ibrahim bin Isma'il is considered weak in hadith. It has been narrated from
the Prophet through a different chain by al-Bara` ibn ‘Azib and Qurrah ibn Iyas
al-Muzanni that a man married the wife of his father and the Prophet ordered
his execution. This is the basis of actual action among our associates. They
said: ‘Whoever knowingly
has sex with a mahram deserves
the death penalty.’ Ahmad said: ‘Whoever married his mother is to be killed.’ Ishaq
said: ‘Whoever has sex
with a mahram is to be
killed.’ (Tirmidhi 1382)
That is, scholars who support
the death penalty for incest do so not on the basis of the hadith of Ibn
‘Abbas, which is considered weak, but on the basis of the tradition of the
execution by the Prophet of a man who married his father’s wife (after his
father died or divorced the wife). This tradition is examined more fully in
Appendix I to this chapter. Here we note the following:
First, it is not
justified to deduce the death penalty for incest generally from the execution
for marrying the wife of one’s father after his death. Such a marriage, which
was practiced before Islam, would not simply be a violation of the law of God
but a rebellion against it.
The Holy Qur`an has commanded:
Marriage is by its very nature
a public matter: it is a declaration by a man and a woman that they
are entering in a sexual relationship. In the face of the above law of God it
would be an intolerable act of defiance. The man who was reportedly executed
for such a marriage must have clearly contracted the marriage after the commandment
had come, since the Holy Qur`an explicitly exempts “what has already passed”.
There is the possibility that the knowledge of the law did not reach the man.
But we can safely assume that in such a case he would not have been executed before
he was given a chance to repent and undo what he had done. Thus the man must
have rejected the law itself and not simply violated it out of some weakness.
We can compare his case to those “Muslims” who soon after the death of the
Prophet refused to pay zakah in defiance of the clear commandments
of God.
That the man was executed, if
at all, as a rebel is further supported by the manner of execution: beheading. In a
narration in Tirmidhi the Prophet is alleged to have commanded that the man’s
head be brought to him. In ancient times this type of treatment was done to the
rebels and not to perpetrators of sexual offences. Although the detail about
the head of the culprit is not found in any other narration of the story and is
certainly secondary, it nevertheless shows that some transmitters understood
the execution as a case of death for a rebel.
Third, it is not certain
that the execution took place in the time of the Prophet. It would be more
understandable if it took place after the time of the Prophet, say in the time
of Sayyidna Abu Bakr, because in that time some insincere and recent converts
took advantage of the death of the Prophet and rebelled against Islam in
various ways.
We therefore conclude that the
death penalty for incest is not prescribed by God and his Messenger.
The real source of the death penalty for incest
As in the case of bestiality,
so also for incest the real source of the death penalty is not God or his
Messenger but the Jewish law, not all of which is from God or from the Prophet
Musa:
The man who
lies with his father's wife has uncovered his father's nakedness; both of them
shall be put to death; their blood is upon them. If a man lies with his
daughter-in-law, both of them shall be put to death; they have committed
perversion, their blood is upon them. If a man takes a wife and her mother
also, it is depravity; they shall be burned to death, both he and they, that
there may be no depravity among you. If a man takes his sister, a daughter of
his father or a daughter of his mother, and sees her nakedness, and she sees
his nakedness, it is a disgrace, and they shall be cut off in the sight of
their people; he has uncovered his sister's nakedness, he shall be subject to
punishment. (Lev 20:11-12, 14, 17)
Death Penalty for the Homosexual act
The
pattern of attributing to the Holy Prophet death penalties borrowed from the
Torah that he never himself prescribed continues in case of the homosexual act.
Unlike the death penalty for incest and bestiality, for the homosexual act we
do find the penalty mentioned in a relatively early book – Muwatta. But this
early mention is found only as an opinion of Ibn Shihab, and not as a prophetic
hadith or as a word of a Companion:
Malik related to me that he asked
Ibn Shihab about someone who committed the homosexual act (‘amal qawm lut,
the deed of the people of Lut).
Ibn Shihab said, "He is to be stoned, whether or not he is married (muhsan)." (Muwatta 41/11, reproduced in Ahmad 1297)
Here Ibn Shihab does not indicate whether the opinion he is
expressing is his own or it comes from something that the Prophet or a
Companion said. This recalls what Rabi‘ah used to say to Ibn Shihab:
Rabi‘ah would say to Ibn
Shihab: When you
narrate something according to your own opinion, always inform the people that
this is your own view. And when you narrate something from the Prophet, always
inform them that it is from the Prophet so that they do not consider it to be
your opinion. (Khatib al-Baghdadi, Al-Faqih
wa al-Mutafaqqih, vol. 1, Lahore:
Dar al-Ahya al-Sunnah, p. 148).
One possible, if not probable, reason that Ibn Shihab is
not quoting any saying of the Prophet or a Companion on the question raised by
Malik is that he does not know any such saying. The same can be said even with
greater confidence about Malik, since had he known a hadith or a saying of a
Companion, which he considered authentic, he would not have asked Ibn Shihab
about the matter or, at least recorded this hadith or saying instead of, or in
addition to the word of Ibn Shihab. But in his Muwatta he does not quote anyone
except Ibn Shihab.
Bukhari and Muslim also do not contain any hadith or saying
on the matter. But in later books the legal opinion expressed in Muwatta by Ibn
Shihab becomes an opinion of a Companion, none other than the ubiquitous Ibn
‘Abbas who like Abu Hurayrah became in the tradition a convenient spokesman of
every kind of opinion:
Ishaq bin
Ibrahim bin Rahawayh related to us: ‘Abd al-Razzaq related to us: Ibn Jurayj informed us:
Ibn Khuthaym informed me saying:
I heard Sa‘id
ibn Jubayr and Mujahid relate from
Ibn ‘Abbas in the matter of an unmarried person (al-bikr) who is caught in the homosexual act (al-lutiyyah). He said:
“He is to be stoned”. (Abu Da`ud 3870).
Here it is understood that a married
person who is guilty of the homosexual act is to be stoned. The question is what is to be done with a
person who is unmarried. By answering that he is to stoned, Ibn ‘Abbas
is saying exactly what Ibn Shihab opined.
In later books a view similar to
that of Ibn Shihab is found as a hadith of the Holy Prophet. Most preferred
narration of this hadith is from ‘Abd al-‘Aziz bin Muhammad from ‘Amr bin Abi
‘Amr from ‘Ikrimah from Ibn ‘Abbas and its contents read:
The
Messenger of God said: “If you find anyone doing as the people of Lut did, kill the one who does it, and the one to whom it
is done.” [2] (Abu
Da`ud 3869, Tirmidhi 1376, Ibn Majah 2551)
Since
the narration in Abu Da`ud 3870 does not attribute the death penalty for the homosexual
act to the Prophet but only to Ibn ‘Abbas, it is quite possible that the
tradition originally was not marfu‘
(attributed to the Prophet) but became so only at a later time. Earlier we
noted a similar situation in case of a hadith from ‘Abbad bin Mansur
about bestiality. In one narration (Ahmad 2597) the death penalty for this misdeed
is attributed to Ibn ‘Abbas while in another narration, reported in al-Hakim, it becomes a hadith. This evidence
strongly suggests that death penalties for sexual crimes were not originally based
on the words of the Prophet but of some Companions. We can even go further: since the death penalty at least for the
homosexual act was not known to al-Zuhri or Imam Malik as a hadith or even as an
opinion of a Companion but as an opinion of some fuqaha` among the Successors, it is quite possible that even its
attribution to a Companion such as Ibn ‘Abbas is not historical. Certainly, in
case of bestiality we have seen evidence showing that Ibn ‘Abbas did not think
that there was any prescribed penalty.
It
is also worth noting that all the ahadith about the death penalty for deviant
sex, i.e. sex with animals, a mahram,
or a member of one’s own gender come from the same very small group of
transmitters in the first four generations:
Ibn ‘Abbas, ‘Ikrimah, Da`ud bin al-Husayn, ‘Amr bin Abi ‘Amr,
Ibrahim bin Isma‘il etc. If the Prophet prescribed the death penalty for all these
crimes, it is strange that its knowledge in all three cases remained limited to
a few Hadith students for about one and a half century.
The reliability of the hadith prescribing the death
penalty for the homosexual act is further called into question by the fact that
scholars in all ages have shown ignorance or reservation about it. We have
already noted that in the first century al-Zuhri shows no knowledge of it, as
also Imam Malik in the second century, even
though both were clearly interested in the question of punishment for the
homosexual act, since they talked about it. Bukhari and
Muslim in the third century did not know the hadith or did not accept it, since
they do not include it in their collections. In addition to Malik other early fuqaha`
also probably did not know or did not accept any hadith on the subject. Thus Abu Hanifah or early Hanafi fuqaha` turned not to any hadith but to
Qur`an 4:16 for guidance about the penalty for the homosexual
act. Al-Sindi in his commentary on Ibn Majah notes:
“The
famous view of Abu Hanifah is that [the one who engages in the
homosexual act] is disciplined (yu`addab)
but there is no hadd for him. His
followers have argued this on the basis of the word of the Most High:
‘And the two (alladhan) among you, who commit it (fahishah),
punish (`adhu) them both. And if the
two repent and do good, leave them alone’.”
It
is unlikely that Abu Hanifah arrived at the position that the
homosexual act requires only discipline and no prescribed death penalty if he
knew and accepted the hadith with the clear words of the Prophet: “kill the one who does it and the one
with whom it is done”. Hence the hadith either did not exist in the time of Abu Hanifah (d. 150) or it was unknown/unacceptable to him. Later scholars of his school, of course, knew
about the hadith but still a majority of them maintained that there is no
prescribed death penalty for the homosexual act, which means that they did not
take the hadith seriously enough. Some of them, it seems, accepted the hadith
and attributed to Abu Hanifah a view incorporating the hadith. Thus Thana Allah
Panipati in commenting on Qur`an 4:15-16 mentions another view attributed to Abu Hanifah[3]: if a person persists in homosexual acts, he can be
killed.[4]
Shafi‘i
also does not seem to have used this hadith. According to Sharh al-Sunnah there are two views attributed to him.
According to one view, considered the most authentic by some[5],
the punishment of one who performs the homosexual act is the punishment for zina`[6] --
rajm if the man is married and 100
stripes if unmarried. For the one with whom it is performed the punishment is
100 stripes and exile for a year whether or not he is married. This view is not
based on any hadith, since no hadith supports the distinctions made by Shafi‘i on
the basis of married or unmarried or on the basis of being a fa‘il
or maf‘ul bi hi. This view represents ijtihad done by Shafi‘i without the use of
any hadith. But later another view was attributed to Shafi‘i, according to which
both partners in the homosexual act are to be stoned. But even this view shows
no knowledge of a hadith on the subject, since it is supported not on the basis
of a hadith of the Prophet but an action of ‘Ali, the fourth khalifah.
Muhammad bin ‘Abd al-Rahman Mubarakpuri,
in his commentary on Tirmidhi (Tuhfah al-`Ahwadhi bi Sharh Jami‘ Tirmidhi) says:
Al-Bayhaqi records about
‘Ali that he stoned a Luti. Shafi‘i said that it is on this basis we hold that the a Luti
is to be stoned whether married or unmarried.
It
is natural to think that this second view was attributed to Shafi‘i
after some ahadith and traditions about the Companions appeared and became
known and gained some acceptability.
Tirmidhi
includes the hadith in his collection but shows reservation about it in the
following words:
Abu
‘Isa [al-Tirmidhi] said: It is through this line (wajh) that this hadith is known and
Muhammad bin Ishaq reported this hadith from 'Amr bin Abi 'Amr, in which he
said "he who does the act of the people of Lut is
cursed" but did not mention killing and in that hadith it was also said
that he who has sex with an animal is cursed. This hadith has also been
reported from 'Asim bin 'Umar from Suhayl bin Abi Salih
from his father from Abu Hurayrah from the Prophet who said, “Kill the one who
performs the act and the one on whom it is performed”. Abu ‘Isa [al-Tirmidhi] said:
the isnad of this hadith is a matter of contention; we do not know anyone
who reported it from Suhayl bin Abi Salih
except ‘Asim bin ‘Umar al-‘Umari and 'Asim bin 'Umar is considered weak in
hadith before his hifz.
And people of knowledge have differed regarding the penalty for one who
does the homosexual act. Some of them said that he is to be stoned
regardless of whether or not he is married. This is the view of Malik and Shafi‘i
and Ahmad and Ishaq. And some people of knowledge among the fuqaha`
of the Successors, including al-Hasan al-Basri and Ibrahim al-Nakh‘i
and ‘Ata bin Abi Rabah
said the hadd for a luti
is hadd of zan
and that is the view of Thawri and the scholars of Kufa.
Al-Sindi
in his commentary on Ibn Majah interprets Tirmidhi’s comments to mean that he “has considered this hadith
weak”.
We
have discussed above the most preferred hadith about death penalty for the
homosexual act and shown that this hadith is falsely attributed to the Prophet.
There are some other ahadith on the subject but they do not talk about the
death penalty and/or are even weaker[7].
A story about ‘Ali
That the Prophet never prescribed any death penalty
for the homosexual act is also assumed in a story about ‘Ali by Al-Bayhaqi (d.
458):
“Ibn Abu al-Dunya from ‘Abd al-‘Aziz ibn Abi Hazim from Da`ud ibn Bakr
from Muhammad ibn al-Munkadir:
Khalid ibn al-Walid wrote
to Abu Bakr concerning a man with whom other men had sexual intercourse.
Thereupon, Abu Bakr gathered the Companions of the Prophet and sought their
opinion. `Ali was the strictest of all, saying, 'Only one nation disobeyed God
by committing such sin and you know how God dealt with them. I see that we
should burn the man with fire.’ The Companions unanimously agreed on this.” (Al-Bayhaqi,
Shu`ab al-Iman).
This incident is also mentioned by al-Waqidi
under the subject of apostasy at the end of the section on the apostasy of Banu
Salim. The story clearly assumes that the Prophet never prescribed any penalty
for the homosexual act, since none of the Companions gathered by Abu Bakr quotes
any hadith during the consultation.
Many unhistorical traditions
have some historical incident that lies behind them, which they radically
transform. But there are some traditions that represent stories created
entirely from imagination. The above tradition is an example. There is
absolutely no historical basis for this story. This is because:
n
If all the Companions sat down and decided on any
matter of law, it is impossible that we would not read about this decision in
any of the books such as Muwatta, Bukhari, Muslim, Abu Da`ud, Tirmidhi, al-Nasa`i,
Ibn Majah, Musnad Ahmad. It is also impossible that so many fuqaha will go against this ijma‘ of the Companions and suggest other types of punishments such
as stoning, or 100 lashes, or exile etc.
n
The burning of the people of Lut is not mentioned in the
Qur`an, which mentions rain of stones of baked clay
(11:82; see also 7:84, 15:74, 27:58, 29:34, 51:33,
54:34). Burning is implied in the Bible, since the
Bible says that God sent sulphur and fire on the people of Lot (Gen 19:24).
n
The story is at odds with other traditions in which
some Companions allegedly suggest penalties different from the one on which
they supposedly agreed in the above story. We have
already referred to the tradition that ‘Ali stoned a man guilty of the
homosexual act. It is strange that after suggesting to the other Companions,
and obtaining agreement from them for, burning the culprit in accordance with
what God did to the people of Lut, ‘Ali himself applies the penalty of stoning! No wonder scholars do not take any of the two
traditions about ‘Ali seriously. None of the commentaries – ‘Awn al-Ma‘bud, Tuhfah
al-`Ahwadhi etc mention the story in which the Companions agree on death by
burning. As for the tradition that ‘Ali stoned a Luti, Tuhfah
al-`Ahwadhi alone mentions it only to dismiss it with a brief comment: “As for the stoning by 'Ali of a Luti, it is his action”.
Other
Proposed Penalties
Ibn Abi Shaybah (d. 235?) in his Musannaf and al-Bayhaqi record
the saying of Ibn ‘Abbas that a person guilty of the homosexual act should be
thrown down from the highest building in town and then showered with stones
(Panipati). ‘Awn al-Ma‘bud mentions
similar penalties but without attributing it to Ibn ‘Abbas: “It has been said
of the manner of their execution that it is by demolishing a building over them
or throwing them from a high place (shahiq)
as it was done to the people of Lut.” These
penalties are based on the Qur`anic statement that the town of Lut was demolished and rained with stones made of
baked clay, so that some of the sinners died under the rubble of demolished
buildings and others by falling from height and those who survived succumbed to
the raining stones. This leads to the punishments of throwing the culprits from
a high building – further suggested by the fact that for “demolishing” the
Qur`an uses the expression “made its high its low” -- or demolishing buildings
over them and if they survive showering them with stones. These penalties provide examples of how some fuqaha used unsound logic to arrive at their rules that some Muslims regard as
will of God. It is clearly an unsound procedure to devise penal codes from the
way God punished past nations. Muslim fiqh
is full of rules of this type and there is a need to re-examine the whole
process by which fiqh was built in
the past and to thus rebuild it on a foundation more faithful to the Qur`an,
the authentic Sunnah, and reason.
Ibn Zubayr is reported to have
said that the two culprits should be locked up in a place full of very
obnoxious smell till they die. (Panipati).
This comes from Qur`an 4:15 with the addition that the place of imprisonment be
filled with a bad odor, probably to reflect the fact that the culprits prefer
to have sex involving the anus, which is full of refuse and bad smell.
All this diversity of punishments
proposed shows that imagination of some irresponsible early Muslims rather than
inspiration from God is at play in these traditions.
The real source of the death penalty for the
homosexual act
The
situation now becomes clear:
Sometimes towards the end of the first century Muslims began to think about the
punishment for the homosexual act. Some used analogy, comparing it with zina`. This ijtihad led to the view that a Luti is to
be given 100 lashes or to the view that he is to be stoned if married and given
100 lashes if unmarried. But some fuqaha`
made a distinction between zina` and
homosexual act. These fuqaha` either
turned to the Qur`an (4:15-16) or
to the Bible for a penalty. The Qur`an suggested a penalty other than death
such as harsh beating or imprisonment (see below). But the Bible suggests the
death penalty:
If a man
lies with a male as with a woman, both of them have committed an abomination;
they shall be put to death; their blood is upon them. (Lev 20:13)
The
Bible is very keen to prescribe the death penalty. This is partly because the
Biblical law represents an altered form of the laws originally given by God or
the Prophet Musa and partly because the laws of Torah were sometimes given in
response to the hardness of the hearts of the children of Israel (Qur`an 6:146, Ezekiel 20:24-26) and are therefore specially harsh. The Qur`an, on the other
hand, is meant to be a mercy for all nations and for all times (21:107, 33:40). It rarely prescribes the death penalty. Even for such crimes
as sedition, robbing, killing, death is only one of several possible penalties.
However, some earlier Muslims did not rise to a better understanding of the
Qur`an and so they brought from the Torah in its altered form death penalty for
all kinds of sexual misconduct.
Notice
that the Biblical passage cited above makes no distinction between married or
unmarried persons or between the one who does the homosexual act and to whom it
is done. This is exactly what the “hadith” says: “If
you find anyone doing as the people of Lut did, kill the one who
does it (fa‘il), and the one to whom it is
done (maf‘ul bi hi).” Also, notice that this hadith just like
the Biblical verse does not specify the actual manner of death.
Even before the Biblical law
became a “hadith” it probably influenced fuqaha`
and there were speculations about the manner of execution. Some used a limited
analogy with zina` and arrived at
stoning, which, in the case of zina`
was itself borrowed from non-Muslim sources, as we shall argue in future
chapters. Others turned to the story of Lut and
conceived penalties similar to those suffered by the people of Lut either in the Qur`an or in the Bible.
That some Muslims were in touch with non-Muslim
traditions and under their influence fabricated traditions is shown more
clearly by the story, discussed earlier, of how Abu Bakr convened a meeting of
all the Companions and how the Companions unanimously decided upon a suggestion
of ‘Ali that the homosexuals be burnt alive like the people of Sodom and
Gomorrah. As we noted earlier, the Qur`an does not mention fire or burning in
connection with the people of Lut, but the Bible does.
Not only this but even the use of the Biblical story to arrive at the
punishment of death by burning had been made some centuries earlier. In 390 CE
the punishment of burning alive had been decreed for homosexuals by the
Christian emperors, first for homosexual prostitutes and then by 559 CE for all
homosexuals.
The Qur`anic Penalty for the Homosexual Act
We earlier encountered the view
of some Hanafi scholars that
Qur`an 4:15-16 gives
a penalty for the homosexual act. The majority of scholars have come to reject
this view, but the view has been held from very early times, as we see from the
following comment in Ibn Kathir’s tafsir:
“Then [in
4:16, God]
said that if this lewd deed is done by two men among them, punish them, i.e.
scold them verbally and beat them. This order also stayed in force until God
abrogated it by lashes and stoning. ‘Ikrimah, ‘Ata`, Hasan, ‘Abd Allah
bin Kathir say that this (verse) also refers to a man and a woman. Al-Suddi says that it refers to young unmarried
men. Mujahid also says that this verse
is about the homosexual act. The Prophet said that if you find some persons
doing the deed of the people of Lut, kill
them both.”
Abu Muslim Isfahani
also believed that the verses are about unnatural sex. In recent times the view
is held by Yusuf ‘Ali, Thana Allah Panipati, and Muhammad Asad, the last two
saying that the passage includes both heterosexual and homosexual misconduct.
We now argue that this view is substantially correct and that the two verses are
talking about unnatural sex including homosexuality.
The verses read:
Those
among your women, who commit fahishah, provide against them four
witnesses from among you. Then if they testify, confine them to the houses till
death takes them or God provides for them a way out. And the two (alladhan) among you who commit it (fahishah), punish
(`adhu) them both. And if the two
repent and do good, leave them alone. Surely, God is most accepting of
repentance and most merciful.
As is well-known fahishah
is a very general concept. It refers to every kind of lewdness, indecency etc
in speech or action. In particular, it refers to illicit or deviant sexual
conduct of every kind. Fornication and adultery is fahishah (4:25), marriage with the wife of
one’s father is fahishah (4:22) as also the homosexual act (29:28). In every verse the context
clarifies what is meant. In 4:25, which is talking about
slave women committing fahishah after marriage, the reference is
to adultery.