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PUNISHMENT FOR ADULTERY IN
A Detailed Examination
By: Dr. Ahmad Shafaat
The Qur`an prescribes 100 lashes for zina`, meaning sexual intercourse between a man and a woman who are not married to each other. Ahadith prescribe death for three cases: zina` committed by a married person, sodomy, and sexual intercourse with an animal. However, since early centuries of Islam the death penalty has been opposed by some Muslims in all the three cases. For the cases of sodomy and sexual intercourse with animals the majority of scholars reject the death penalty while in case of adultery the majority have come to accept the penalty at least since the last half of the second century. In this book I examine the Islamicity of the death penalty in a thorough way, focusing particularly on the case of adultery. This issue is important not only in its own right but also because it is useful to clarify and possibly resolve some of the most fundamental questions in the interpretation of Islamic teachings: How far the ahadith found in our earliest sources are reliable and what is the relation of the Sunnah/Hadith to the Book of God.
Those Muslims who accept stoning penalty for adultery ask with some justification: How could all the varied traditions supporting rajm found in our earliest books of traditions such as those by Muwatta, Ibn Ishaq, Shafi‘i, Ibn Sa‘d, Bukhari, Muslim be inventions? Even if some of these traditions are authentic, the penalty becomes a part of Islam. The supporters of rajm also claim that eversince the times of the Companions (sahabah) and Successors (tabi‘un) there has been a consensus on their position and from this they conclude that their position is consistent with the Qur`an and the Sunnah/Hadith, for otherwise, they argue, it will be impossible for such a consensus to develop, especially in view of the hadith, in which the Holy Prophet reportedly said: “My ummah cannot unite on an error.” All this means to many supporters of rajm that no further or fresh discussion of the issue is necessary on the basis of the Qur`an and the Sunnah/Hadith. Some of them so closely identify their position with “true Islam” that they issue declarations of irtidad (apostacy) against those who oppose rajm or even want to re-examine the issue.
On the other hand, those who reject the stoning penalty, also raise some very valid questions: Why does the Qur`an prescribe 100 lashes for zina` without ever mentioning stoning to death? There are five traditional answers to this question, all of which raise further valid questions. For example, one of the earliest of these five answers is that the Qur`an did mention stoning for adultery, but the verse enjoining it was removed from the Qur`an. This raises the questions: Why was the verse removed when the practice enjoined by it was continued? Does anyone have the authority to remove anything from the Book of God? If the removal of the verse took place accidentally, then why was it not restored to its place when its omission was discovered, allegedly in the days of ‘Umar al-Faruq or earlier? Does the removal and continued absence of the verse from the Qur`an not mean that the preservation of its text has not been as faithful as it is claimed by Muslims? Regarding the numerous ahadith and traditions about the sahabah supporting rajm opponents of the penalty say that these ahadith are either not authenitc or they relate to the time before the revelation of Surah Nur and are superseded by the penalty of 100 lashes prescribed in that Surah. As for the claimed consesus, they say that in the Qur`an God has so clearly stated the penalty for adultery that a consensus on any other penalty is either not real or not valid. Just as some supporters of stoning call its opponents murtadun, so also some opponents of stoning, especially the Qur`an-only Muslims call its supporters mushrikun because they are said to use the human authority of the scholars in the same absolute way in which the authority of God should be used.
The tendency of each side is not to properly deal with questions of the other side. The opponents of the penalty seem not to examine the traditions mentioning stoning with due care. The supporters of the penalty on their part seem to dismiss without serious thought the questions raised by the fact that the Qur`an gives its own different penalty for zina`.
What is needed is a fresh examination of the Qur`an and the Sunnah/Hadith to address questions from both sides in a serious and objective way. As noted earlier, some Muslims are not inclined for such a fresh examination, but there are enough valid questions from both sides to warrant it.
The Right Niyyah (Intention)
Like every action of a Muslim, discussion of religious questions should proceed from a pure intention. Indeed, purity of intention is more important when discussing religious questions than in case of other type of activity, since results of such discussions can effect beliefs and practices of many people.
The only pure intention in examining a religious matter is to faithfully find out what God Most High and his honored Messenger have taught us on the matter and to obey them. No other motive or intention should be present in the hearts of those who write or read on the issue. We should not, for example, reject the stoning penalty because it is not an idea seen in a favorable light in our age and we want Islam to appear in a good light. Likewise, we should not insist on the penalty of stoning because we want to preserve the majority or traditional view or because we do not want to appear soft on adultery.
I have examined the controversial question of punishment for adultery in Islam with the intentions outlined above and have come to reject the stoning penalty as un-Islamic. In what follows I share with the patient and interested readers all the important details of my examination. It is hoped that this book will manifest the truth for those who are willing to guide themselves primarily by revelation and reason and not primarily by uncritically received tradition.
A Note On Transliteration Of Arabic Words
Long vowels are indicated in italics or bold, e.g. hadith or ahruf. If a word itself is in italics or bold -- (Arabic words except the most well-known ones will be written in italics) -- the long vowels are indicated by the ordinary font, e.g. hadith or ahruf. Also, note that underlining instead of dotting is used to distinguish between related letters (d and d, h and h, s and s, z and z), sahih, riyad, zuhr. When s and h or t and h occur together and represent different letters, they will be sometimes separated by – in order to avoid confusion with the letters represented by th and sh; e.g. as-hal (easier). However, if or both of any one of the letters has underlining, then no separation will be required, as, e.g., Ishaq or mushaf, athar, Buthan. Finally, once a word has been transliterated with proper diacritical indicators, such indicators may be omitted subsequently. Diacritical indicators may also be omitted from well-known words like Allah, Muhammad, Qur`an, or Hadith.
The above system of transliteration was devised to cause minimum disruption when computer files are converted for various purposes.
A Note On Dates
H is used for Hijrah and CE for Common Era. If neither H nor CE is mentioned, it is understood that the date is according to the Hijrah calendar. When both dates are mentioned, the Hijrah date is written first and both H and CE may be omitted. Some of the dates given in connection with early history of Islam are only estimates.
A Word About Sources
Our sources include the nine collections of the Hadith and commentaries found in the CD entitled, The Hadith Encyclopedia, Version 2.1, (Harf Information Technology, 2000):
Muwatta Imam Malik
Sunan Abu Da`ud
Sunan or Jami ‘ al-Tirmidhi
Sunan al-Nasa`i (al-Sughra)
Sunan Ibn Majah
Musnad Ahmad bin Hambal (compiled by his son ‘Abd Allah)
Al-Muntaqa Sharh Muwatta Malik
Fath al-Bari bi Sharh Sahih al-Bukhari
Sahih Muslim bi Sharh al-Nawawi
‘Awn al-Ma‘bud Sharh Sunan Abi Da`ud
Ta‘liqat al-Hafiz Ibn Qayyim ‘ala Sunan Abi Da`ud
Tuhfah al-Ahwadhi bi Sharh Jami‘ al-Tirmidthi
Sharh Sunan al-Nasa`i li al- Suyuti
Sharh Sunan al-Nasa`i li al-Sindi
Sharh Sunan Ibn Majah li al-Sindi
In addition we have made some use of books of history such as Ibn Ishaq’s Sirah Rasul Allah as transmitted by Ibn Hisham and Ibn Sa‘d’s Tabaqat al-Kabir or al-Tabaqat al-Kubra as well as works such as al-Risalah of al-Shafi‘i. It is fair to say that if a tradition is not found in any of these sources, then there is almost no likelihood that it is historical.
All the above-mentioned books were written in the second Islamic century or much later. A possibly earlier mention of rajm is a brief reference in a relatively little known document Sirah Salim bin Dhakwan, in which we find a brief reference to stoning. In a criticism of the Azariqah, a group of Khawarij, this document states:
wa kafaru bi al-rajm wa qad rajama rasul allah rajulan min aslam wa madat bihi al-sunnah (they reject stoning when the Messenger of God did stone a man of Aslam and the sunnah was thereby established).
This Sirah or Epistle of Salim was found in an Omani collection in the personal possession of ‘Amr Khalifah al-Nami who used it in his thesis in 1971. Its original is not found anywhere now but a photocopy exists. Based on this photocopy some orientalists have studied the document and assigned it to different dates between 70 H and 185 H. If the earlier date is accepted, then we have in the Epistle a documentation of the penalty of rajm in the first century, some 60 years after the departure of the Prophet from this world. But the references to sunnah are very rare elsewhere in the Sirah of Salim and there is the possibility that the above passage is a later addition. Moreover, the most complete study to date of the Sirah of Salim, done by Partricia Crone and Fritz Zimmermann, dates it between 134 and 177, so it was written at least 124 years after the Prophet. I have not examined the views of these orientalists and therefore it is difficult for me to express a judgment. I can only say that at least two of the orientalists who have studied the Epistle – Cook and Crone – are not competent historians with trustworthy historical judgments, as is shown by their baseless and irresponsible theory about the origin of Islam presented in the book, Hagarism.
In any case the Sirah of Salim does not provide any new information. It only provides further confirmation of the following facts, known from other sources: a) the belief in the stoning penalty existed in the latter decades of the first century and was fairly widely accepted on the basis of the reported Sunnah by the early decades of the second century (otherwise clear from the asanid in Ibn Ishaq, Muwatta, Bukhari, Muslim etc); b) the case of a man of Aslam is one of the most typical cases of reported stoning by the Prophet (again clear from extensive traditions about him in the extant Hadith collections and al-Risalah of Shafi‘i); c) some Khawarij rejected the stoning penalty, a fact known from other later writers from the 4th century onward such as Ash‘ari, Baghdadi, Shahrastani; d) the language of the Sirah of Salim suggests that the Khawarij did not reject the authority of the Sunnah/Hadith in principle, since their view is rejected by simply quoting the Sunnah; our other sources also do not accuse the Khawarij of rejecting the Sunnah of the Prophet.
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