Tuesday, 7 July 2015
The Argument against Rajm, Stoning
بِسۡمِ ٱللهِ ٱلرَّحۡمَـٰنِ ٱلرَّحِيمِ
The Qur’an does not mention rajm, stoning, as a penalty at all. It Prescribes 100 lashes for zina.
The woman and the man guilty of adultery or fornication ― flog each of them with a hundred stripes: let not compassion move you in their case, in a matter Prescribed by Allah, if ye believe in Allah and the Last Day: and let a party of the believers witness their punishment. (Surah an-Nur:2)
The supporters of rajm have tried to justify if by saying that the Qur’anic punishment of 100 lashes is for the case of an unmarried person. They say that for a married person, we need to turn to the ahadits, which prescribes rajm. They further contend that the ahadits prescribed rajm as a second penalty to be combined with the Qur’anic penalty. Some also say that rajm is found in the Qur’an but it is known only to scholars of tafsir. Some also said that the Qur’an did prescribe rajm for adultery but the verse in question was either not included in the Qur’an or was removed.
Firstly, nothing in the word ‘zina’ itself that restricts its application to unmarried cases; the word is applied to both in fiqh. A restriction of the meaning can only be done if something in the context of a particular usage makes it so. This is not the case in the Qur’an. In addition to Surah an-Nur:2, the word ‘zina’ is also used here:
Nor come nigh to adultery: for it is a shameful (deed) and an evil, opening the road (to other evils). (Surah al-Isra’:32)
Let no man guilty of adultery or fornication marry any but a woman similarly guilty, or an unbeliever nor let any but such a man or an unbeliever marry such a woman: to the believers such a thing is forbidden. (Surah an-Nur:3)
Those who invoke not, with Allah, any other god, nor slay such life as Allah has Made Sacred, except for just cause, not commit fornication ― and any that does this (not only) meets punishment (Surah al-Furqan:68)
O Prophet! When believing women come to thee to take the oath of fealty to thee that they will not associate in worship any other thing whatever with Allah, that they will not steal, that they will not commit adultery (or fornication), that they will not kill their children, that they will not utter slander, intentionally forging falsehood and that they will not disobey thee in any just matter then do thou receive their fealty and pray to Allah for the Forgiveness (of their sins): for Allah is Oft-Forgiving, Most Merciful. (Surah al-Mumtahinah:12)
In all these verses, it refers to illicit sexual intercourse regardless of whether it was committed by married person or unmarried persons. The Qur’an Commands us to not to go near zina, emphasising how serious it is. The Qur’an addresses significant events that took place during the time of the Prophet (s.a.w.). The first 34 verses in Surah an-Nur were Revealed in connection with a false accusation against ‘Aishah (r.a.). These verses teach us how to deal with accusations of zina, how to establish the truth, what to deal with the accusers when the accusations cannot be substantiated, how to deal with the accused when the accusations are proven, and what can be done to prevent such accusations or create an opportunity for sexual misconduct. Considering how comprehensive it is, why would the punishment be less than explicit? Why leave out rajm? The language is also consistent in that it is general, and for all.
The Qur’an Distinguishes between accusations of zina against women by the husband and by other than the husband. In case of the accusation by the husband, the Qur’an States:
And for those who launch a charge against their spouses, and have (in support) no evidence but their own ― their solitary evidence (can be received) if they bear witness four times (with an oath) by Allah that they are solemnly telling the truth; and the fifth (oath) (should be) that they solemnly invoke the Curse of Allah on themselves if they tell a lie. But it would avert the punishment from the wife, if she bears witness four times (with an oath) by Allah, that (her husband) is telling a lie; and the fifth (oath) should be that she solemnly invokes the Wrath of Allah on herself if (her accuser) is telling the truth. (Surah an-Nur:6-9)
It is clear from the context of the entire passage, from the beginning of the surah, that the punishment that will be averted from the married woman after countering her husband’s accusation is the one prescribed in Surah an-Nur:2 – the 100 lashes. To suggest that the punishment that is averted by the wife is stoning is to discount the previous verses in this passage of the Qur’an. We refer to the following verse:
… if they fall into shame, their punishment is half that for free women…. (Surah an-Nisa’:25)
Here, a slave woman guilty of fahishah, indecency, is to receive half the punishment of muhswanat. The word ‘muhswanat’ can mean both ‘married women’ and ‘free women’. Here, the word refers to ‘free women’. These ‘free women’ may be married or unmarried. There is absolutely no indication that it is referring to unmarried free women only. The implication here is that married slave women receive for half the punishment for zina that married free women should receive. Here then, it is established that the penalty is 100 lashes. It cannot be death by stoning, since you cannot stone a person half to death.
In contrast, we consider this verse:
O Consorts of the Prophet! If any of you were guilty of evident unseemly conduct, the punishment would be doubled to her, and that is Easy for Allah. (Surah al-Ahzab:30)
In this case, we understand that in the unlikely event that any of the wives of the Prophet (s.a.w.) were guilty of such, the punishment is 200 lashes since a person cannot possibly be stoned to death twice.
We also note that there is no ahadits or saying of a companion that explicitly refers to the Qur’an, stating that its punishment is for only unmarried persons only.
Imam ash-Shafi’i (r.a.), for example, limited the verse on the punishment for zina to unmarried women only. Shafi’i fiqh is based on two assumptions here. The first is that the Qur’an and the ahadits are completely consistent with each other such that they are to be interpreted as if they were a single source. Shafi’i fiqh accepted that there can be conflicting injunctions within the Qur’an due to abrogation, and there can be conflicting ahadits for similar reasons. But paradoxically, they do not seem to believe there is any between the Qur’an and the ahadits. This implies that abrogation is possible only within the two sources but not between them, so a part of the Qur’an can abrogate another part of the Qur’an and one hadits can abrogate another hadits but the Qur’an never abrogates any hadits and no hadits abrogates any statement in the Qur’an.
The second assumption of this aspect of Shafi’i fiqh, is that the ahadits about rajm are authentic, although Imam ash-Shafi‘i (r.a.) does not discuss their authenticity when formulating the ruling. Imam ash-Shafi‘i (r.a.) stated in his ar-Risalah that the first Revelation concerning the punishment of sexual misconduct is found here:
If any of your women are guilty of lewdness, take the evidence of four (reliable) witnesses from amongst you against them; and if they testify, confine them to houses until death do claim them, or Allah Ordain for them some (other) way. If two persons among you are guilty of lewdness punish them both. If they repent and amend leave them alone; for Allah is Oft-Returning, Most Merciful. (Surah an-Nisa’:15-16)
Two penalties are mentioned here: confinement “until death do claim them, or Allah Ordain for them some (other) way”; and ‘adhha’, some other general form of punishment. Imam ash-Shafi‘i (r.a.) said that Allah (s.w.t.) Abrogated confinement and ‘adhha via Surah an-Nur:2. However, he then used the following ahadits to justify rajm; that ‘Ubadah ibn asw-Swamit (r.a.) said that Rasulullah (s.a.w.) said, “Take it from me, take it from me, God has appointed a way: for bikr with bikr, flogging with a hundred stripes and banishment for one year; for ath-thayyab with ath-thayyabah, flogging with a hundred stripes and rajm.”
‘Bikr’ here is roughly translated as an unmarried person or a virgin. And ‘ath-thayyab’ and ‘ath-thayyabah’ refer to the married couple. This reasoning contradicts the Qur’an since a hadits cannot abrogate any ayat. Imam ash-Shafi‘i (r.a.) stated that this hadits clarifies that the penalty of 100 lashes prescribed in Surah an-Nur: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 ahadits in which the married persons who commit zina are not flogged before being stoned to death.
Imam ash-Shafi‘i (r.a.) concluded that these ahadits abrogated flogging before rajm. He wrote, “The Prophet (s.a.w.) 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.”
Regarding the exile of the unmarried person, Imam ash-Shafi‘i (r.a.) retained it in his fatwa, 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.
In summary, Imam ash-Shafi‘i (r.a.) has stated that the Surah al-Ma’idah:15-16, the confinement and ‘adhha’ is abrogated by Surah an-Nur:2, the 100 lashes. And that Surah an-Nur:2 is expounded by the hadits of ‘Ubadah ibn asw-Swamit (r.a.), limiting the 100 lashes to the unmarried transgressors. The hadits of ‘Ubadah ibn asw-Swamit (r.a.) is further abrogated by the hadits about the wife of Aslami (r.a.) who committed adultery with an employee. The conclusion from all this is that for an unmarried person, 100 lashes and banishment for a year; and for a married person, death by stoning.
This is my contention then: confinement for fahishah in Surah an-Nur:15 applies to both married women and unmarried women. Imam ash-Shafi‘i (r.a.) stated that Surah an-Nur:2 refers only the flogging of unmarried persons. This implies that the confinement of married women has not been abrogated by Surah an-Nur:2. But Imam ash-Shafi‘i (r.a.) wrote that confinement has been abrogated in all cases. This abrogation of his can only assumed to come from the hadits. This contradicts the principle that only the Qur’an can abrogate the Qur’an.
Also, we must understand that this Shafi‘i fatwa is heavily dependent on the dating of the various ahadits pertaining to this subject. The order of these ahadits is uncertain. We do not even know in this case, which hadits abrogates which other, let alone the ayat of the Qur’an, which we cannot accept.
As recorded in Swahih al-Bukhari, Shaybani (r.a.) related, “I asked ‘Abdullah ibn Abi ‘Awfah about rajm. He replied, ‘The Prophet carried out rajm.’
I asked, ‘Was that before or after the Revelation of an-Nur?’
He replied, ‘I do not know.’”
‘Abdullah ibn Abi Awfah (r.a.) was a noted swahabah, a narrator of ahadits, and was regarded as a scholar of some repute. He converted Islam shortly before the treaty of Hudaybiyyah, 6 AH. The Revelation of Surah n-Nur occurred in 5 AH or 6 AH. He would certainly be in a good position to know the chronological order of the Revelation of Surah an-Nur, and the incidents of rajm if they occurred then.
There are several versions of this hadits though various other chains. I am not going to write them all down since the purpose of this is not to authenticate ahadits. The point here is that while we can authenticate the matn, the manaqib, the silsilah and the sanad of a hadits to the extent that we know the verifiable from the fabricated; we cannot always authenticate their point of origin in relation to the Qur’an. We have an accurate idea of every ayat of the Qur’an. We have nothing as comprehensive regarding the ahadits. This presents a problem in fiqh since in cases such as these, we can never be really sure if the penalty in the sunnah came before that in the Qur’an. As such, if there is doubt, and it seems that any of the ahadits contradict the Qur’an, it should be discarded and not enforced in the hadd. Imam ash-Shafi‘i (r.a.) did not mention any evidence for his chronology in his ar-Risalah; it is an assumption.
We must further consider that in the Musnad of Imam Ahmad ibn Hanbal (r.a.), he reported from Shaykh ‘Amir ibn ash-Sha‘bi (r.a.) that a woman named Shurahah came to ‘Ali ibn Abi Thalib (k.w.) and confessed her pregnancy through zina. ‘Ali (k.w.) tried to send her away, making excuses for her but she insisted on her punishment. Left with no recourse, he had her flogged on Thursday and stoned to death on Friday and said, “We flogged in accordance with the Book of Allah and stoned in accordance with the sunnah of the Messenger of Allah.” This is proof that mere decades after the passing of our Prophet (s.a.w.), flogging of those who were to be stoned as practiced. This conflicts with Imam ash-Shafi‘i’s (r.a.) contention that flogging before rajm was abrogated.
In contrast, banishment plus flogging, which Imam ash-Shafi‘i (r.a.) considered as still relevant and enforceable, is said to have been abandoned by ‘Ali (k.w.). Imam Abu Bakr al-Jaswswasw (r.a.) recorded in his Ahkam al-Qur’an that ‘Ali (k.w.) refused to banish a man and a woman for zina; he said banishment is a source of fitnah. This is ‘Ali ibn Abi Thalib (k.w.) here. He would consider a ruling of shari‘ah fitnah and leave it. As such, the majority of the ‘ulama do not agree with Imam ash-Shafi‘i (r.a.) and they do not prescribe banishment for the unmarried. Imam Ahmad ibn Hanbal (r.a.), Imam Dawud azh-Zhahiri (r.a.), and others hold that there are two penalties for zina for a married person: 100 lashes followed by rajm, the former from the Qur’an and the latter from the hadits. This view is based on a tradition attributed to a companion.
The view that the ahadits about stoning abrogate the Qur’an is rarely encountered. It is associated with the name of Imam al-Jaswswasw (r.a.). This idea is problematic. It is entirely contrary to the foundation of our religion since we believe the Qur’an is Kalamullah. It is a principle of ‘aqidah, and not just fiqh. As such, we cannot simply accept these ahadits on rajm. We must understand that there are two verses in the Qur’an that specifically mention abrogation:
None of Our Revelations do We abrogate or cause to be forgotten, but We Substitute something better or similar; knowest thou not that Allah hath Power over all things? (Surah al-Baqarah:106)
When We Substitute one Revelation for another and Allah Knows best what He Reveals (in stages). They say, “Thou art but a forger”: but most of them understand not. (Surah an-Nahl:101)
Both verses only admit the possibility of an ayat abrogating another ayat. There is no possibility of a hadits abrogating an ayat. If that were so, that would actually call into question the entirety of Revelation. In fact, there is a hadits from Imam at-Tabrizi’s (r.a.) Mishkat al-Maswabih, where it is related from Jabir (r.a.) that the Prophet (s.a.w.) said, “My word does not abrogate the Word of Allah, but Allah’s Word Abrogates my word. Also, one part of His Word Abrogates another part.”
Also from Mishkat al-Maswabih, ibn ‘Umar (r.a.) said that the Prophet (s.a.w.) said, “Some of our traditions abrogate others like the Qur’an.” This means some ahadits abrogate other ahadits.
Imam ibn al-Qayyim (r.a.) mentioned in his Zad al-Ma‘ad, a hadits on the authority of ibn ‘Abbas (r.a.) that rajm is prescribed in the Qur’an, but to find it there one needs to be a ghawwasw, capable of diving into the depths of the meanings of the Qur’an. This view is justified on the basis of this ayat:
O People of the Book! There hath come to you, Our Messenger, revealing to you much that ye used to hide in the Book, and passing over much (that is now unnecessary): there hath come to you from Allah a (new) Light and a Perspicuous Book. ― (Surah al-Ma’idah:15)
This ayat states that the Prophet (s.w.t.) makes manifest what was hidden by the Ahl al-Kitab, and this passage in Zad al-Ma’ad implies that rajm is one of them. Firstly, it must be noted that the hadits cited by Imam ibn al-Qayyim (r.a.) about ibn ‘Abbas (r.a.) is weak. This makes it insufficient for use in any hukm by itself. More importantly, the Qur’an itself States that it makes things clear in many, many verses:
Thus doth Allah Make Clear His Signs to you: in order that ye may understand. (Surah al-Baqarah:242)
We understand and accept that there are levels of understanding; the Qur’an has depth. But it is not inconceivable that in a matter of hadd in shari’ah, Allah (s.w.t.) would be less than explicit in a matter that He has Said is of great importance – zina.
The final claim is that the verse regarding rajm was omitted, removed or abrogated. This is problematic. This would imply that Allah (s.w.t.) in all His Omniscience could change His Intent. This would further imply that there is new information that He did not know, causing Him to be moved. This is contrary to our tawhid. Even if, for argument’s sake, we accept this preposterous idea, how could a verse be forgotten by the entire ummah? Even if there was no one who could recite it, and there be no reference to it at all in any literature of the period? Considering the fact that every hadits that mentions this abrogated stoning verse can only be traced back to ‘Umar ibn al-Khaththab (r.a.) and no other swahabah, and the fact that it contradicts our ‘aqidah, I can only believe that it is fabricated.
In essence, our acceptance of rajm as part of the hadd is problematic on so many levels. It either implies that a hadits can abrogate an ayat of the Qur’an, or that the rulings are extra-Qur’anic, or that there is a deficiency on God’s Sovereignty. It has no place in our shari’ah and it should be repudiated.