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A Juridical Study Against Lapidation

29/05/2012 - Author: Abdelmumin Aya, Translation: Medina Whiteman - Source: Webislam
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Abdelmumin Aya

In this fascinating study, the author shows that the practice of stoning in certain societies lacks any juridical basis in Islam, and that it is therefore a custom passed on from pre-Islamic society, more specifically Mosaic Law (i.e. from Moses), which did include this type of penalty. This study presents evidence that the Prophet always tried to avoid applying this penalty, which was clearly abrogated in later years by the revelation of a particular verse of Qur’ân.

Historical precedents of stoning in the case of adultery

The practice of stoning was habitual in the traditions that preceded the Qur’ân, and it was commonly applied until the arrival of the Prophet in Medina. In the Jewish Torah and the Christian Bible we find:

· If a man should sleep with a woman who has a husband, both shall die, the man who slept with the woman and the woman herself; thus you will exterminate the evil (that exists) in the midst of Israel. (Deut. 22:22)

· And a man who commits adultery with the wife of another man, he who commits adultery with the wife of his friend, certainly both shall die, the adulterer as well as the adulteress. (Lev. 20:10)

The way in which they would die is mentioned specifically in other passages of the Torah:

· (If a man rejects the wife he has been given, saying that she was not a virgin and that he can prove it), they shall take the youth to the door of her father’s house and they shall stone her in the presence of the people of the city and she shall die, for she has committed a vile thing in Israel, fornicating while she was in the house of her father; thus you shall extirpate the evil (that exists) among you. (Deut. 13-21)

· If a virgin should be legally engaged to a man, and another man finds her in the city and sleeps with her, you shall take both of them to the gates of the city and you shall stone them until they die. (Deut. 23-24)

Lapidation (rajm) was established among Muslims during the term of the second caliph, ‘Omar ibn al-Khattab, who governed the Umma before the definitive compilation of the Qur’ân, and who stated that he was guided by the Sunna of the Prophet when he made lapidation lawful. The second caliph explained that “were it not for the fact that they would accuse them of altering the Book of Allâh, I would include that ayâ, because he did recite it”. From this we can deduce that by that time, the ayâ in question had been excluded from the loose texts of the Qur’ân that were in circulation. Evidently, if this ayâ had been found among the Qur’ânic texts that were already extant, ‘Omar would not have had to add “but the Messenger of Allâh (ordered people to be) lapidated and for that reason we lapidate” (Muwatta’, book 41:10). In this lost ayâ of Qur’ân, Allâh would have said something like: “as for the adulterer and the adulteress, stone them”. Despite the fact that Abdallâh ibn ‘Abbas (Muwatta’, book 41:8), as well as ‘Ubadâ ibn as-Samît (Sahîh Muslim 4191) also bear witness to this penalty in the Qur’ân before its final compilation, and to the Prophet receiving a revelation to this effect, anyone can prove that this ayâ does not exist in Qur’ân now. If it did exist (and who are we to doubt the word of a man like ‘Omar?), the will of Allâh was that it should be lost; the Qur’ân is now as Allâh wanted it to become.

The matter becomes more complex when we prove that ‘Alî – the fourth orthodox caliph – also ordered people to be stoned, drawing his justification from the Sunna of the Prophet: “He said: I have stoned her in accordance with the Tradition of the Messenger of God” (al-Bukhârî, vol. 8, hadith 803). It is because of this recurring justification of a practice such as lapidation as being based on the Sunna of the Prophet, compared with the fact that in the Qur’ân a different penalty is mentioned for the same crime, that we shall explain the cases culminating in lapidation which occurred during the lifetime of the Prophet, and we shall attempt to deduce if there is sufficient justification for this practice in the societies of Dâr al-Islâm.

The issue of lapidation in the Sîra of the Prophet

Although it is undeniable that, as ‘Omar stated, the Prophet was governing the Muslims when a few cases of lapidation – five, to be exact – occurred, the hadiths that mention these occurrences are all but silent on the feelings of the Prophet towards punishing adultery in this way. As we shall see in the cases that we narrate below, the Prophet, as was his wont, tried to mitigate, soften and, as much as possible, eliminate this cruel custom which was being implemented at the time. The Sunna of the Prophet is to follow the logic which Muhammad followed in his time, and not literally to imitate Muhammad’s every gesture; it is paradoxical that ‘Omar should defend straightforward imitation in this case, when in so many others (for example, in severing a thief’s hand) he demanded that we should follow the spirit and not the letter of the Sunna.

There is evidence that lapidation only happened on five occasions. This important fact demonstrates that if something so public and scandalous as a stoning should have been recorded on only five occasions, it is because they were absolutely exceptional.

In any case, let us take note of the circumstances that gave rise to these lapidations and the attitude of the Prophet in each one of them:

a) Cases of lapidation by confession

As we shall see, almost all of the cases of lapidation that can be associated with the Prophet were by confession:

Case 1. Free confession without proof

A man who confessed to being guilty of adultery went to Abû Bakr and told him so. Abû Bakr told him that, if nobody had found out, he should keep quiet and make his repentance to God. The man went to ‘Omar, who said the same. Finally he went to Muhammad who rejected his confession three times (according to the hadith we are basing our study on). He insisted, and Muhammad went to ask his family if he is insane. Then he asked his companions if he was drunk. Lastly, he asked him if he had only kissed or embraced the woman concerned. Then he asked him if he was married. Only then did Muhammad prescribe his lapidation.

Cases 2 and 3. Free confession of pregnant women

A woman told Muhammad that she had committed adultery and that she was pregnant. The Messenger told her to go away until she had given birth (nine months). She returned then and the Messenger told her to go away until she had weaned the child (two and a half years, according to common practice, as reflected in Qur’ân 26:15). She returned then and the Messenger told her to go away and not return until she had found someone to look after the child. Finally, despite all this, the woman returned to the Messenger, and was stoned. (Muwatta’, Book 41:5)

A woman went to the Prophet to declare herself guilty of adultery, which had resulted in her becoming pregnant. Muhammad told her master (for she was a slave) to look after her well and, when she had given birth, to bring her back to him. When she returned she was stoned. The Prophet prayed over her dead body and one of his Companions asked him why he did so. He replied, “Do you know of a greater repentance that that of offering up one’s own life to Allâh?” (Sahîh Muslim, 4207)

Case 4. Free confession after questioning the accused

A man had surprised his wife with another man’s son. The youth’s father, fearing that his son might be stoned, gave the man a hundred sheep and a slave woman. Later he heard from ‘men of knowledge’ that the penalty for adultery was not lapidation, but a year of exile, so he asked for his gift to be returned. Muhammad told the man to give back the sheep and the slave, and ordered the youth to be given a hundred lashes and that the wife should be stoned only if she confessed freely. She confessed. (Hadith from Muwatta’, Book 41:6)

b) Other cases of lapidations in the lifetime of the Prophet

There is only one other case apart from those mentioned:

Case 5: A person following a law other than the (Islamic) Sharî‘a, in which said penalty is prescribed

The Jews brought to Muhammad one of their people who had been caught in the act of adultery. Muhammad asked what the punishment for this crime was according to their law. They replied that it was whipping. Someone present refuted this, saying that it was lapidation. Muhammad fulfilled their law. (Muwatta’, Book 41:1)

This hadith demonstrates the respect that the Muslim legislator had for private laws by which the dhimmis – the minorities who lived under his governance – governed themselves.

c) The revelation of a verse in the Sura of Light

Five years before the death of the Prophet, a verse was revealed that abrogated all previous laws regarding adultery, and settled the punishment for this crime for Muslims as a hundred lashes:

“As for the adulterer and the adulteress, give them a hundred lashes each, and may your compassion for them not prevent you from fulfilling this law of Allâh, if you believe in Allâh and the Last Day; and may a group of believers be witness to this punishment.” (Qur’ân, 24:2)

Case four reveals to us that in the time of the Prophet this modification to the penalty for adultery was already underway, although people were not always sure what this change to the legislation should be. (“He told me that my son should be lapidated...Afterwards I asked the people of knowledge and they told me that my son should be whipped a hundred times...”) The same consciousness of the evolution of this custom, which came from the Prophet’s intervention, is patent when some people asked the narrators of hadiths that referred to lapidation: “And did this occur before or after the revelation of the Sura of Light?” (Al-Bukhârî, Book 86, chapter 21, epigraph 2). The answer to this particular query is not useful to us since the narrator of the hadith could not remember the date in question. But the query itself is significant of what would be, at some point, binding for Muhammad’s community.

d) Application of the punishment outlined in the Sura of Light

In fact, we need to refer to a hadith in which the Prophet put into practice the new penalty revealed in Qur’ân (Muwatta’, Book 41:12):

“Malik related to me from Zayd ibn Aslam that a man confessed his zinâ (adultery) in the time of the Messenger of Allâh. The Messenger of Allâh requested a whip and they brought him a broken one. He said “Something better than this”, and they brought him a new whip whose knots had still not been cut. He said “Something between these two”, and they brought him a whip which had already been used and was flexible. The Messenger of Allâh (s.) said that they should use this one and the man was whipped (...)”

The only proof given by those who say that lapidation continued after the revelation of the verse of Light (five years after Hijra), is that Abû Hurayra (who became Muslim seven years after the Hijra) swore to having witnessed a lapidation. The argument could not be more inconsistent, since it was not necessary to have become Muslim to be present at a public stoning.

e) Muhammad’s recommendation to avoid reporting these crimes

There is proof that, in connection with the first narrated case of a lapidation permitted by Muhammad, the Prophet told a certain Hazzal: “If you had covered over (the event) with your robe, it would have been better for you” (Muwatta’, Book 41:3). This is the logic of Islam: covering one another’s errors if we learn of it; hiding our own error (dhanb) from others; and asking Allâh to protect us from our error by hiding it (maghfira). Not the public denouncement of another’s dhanb, nor the self-condemning exhibition of one’s own dhanb, nor the arrogance of not asking for maghfira are appropriate attitudes for a Muslim.

In his final years, the Prophet came to openly denounce the practice of self-incrimination:

“Oh, people! The time has come to observe Allâh’s boundaries. If one of these ugly things has happened to one of you, he should cover it over with the veil of Allâh. Whoever wishes to reveal his erroneous action, we will (have to) comply with what is in the Book of Allâh against him.” (Muwatta’, Book 41:12)

By any means possible, the Prophet tried to turn a deaf ear to those who wanted to incriminate themselves. Muhammad’s attitude towards those who sought in some masochistic way the liberating punishment of their guilt is reflected in this beautiful hadith:

“When I, Anas ibn Malik, was with the Prophet, a man came to us and said: ‘Oh, Messenger of Allâh! I have committed an error punishable by law. Please, inflict on me the lawful punishment that befits me.’ The Prophet did not ask him what he had done. Then it was time for salâh, and the man performed salâh next to the Prophet. When the Prophet finished his salâh, the man inquired again, saying: ‘Oh, Messenger of Allâh, I have committed an error punishable by law; please, inflict upon me the punishment that I deserve, according to the law of Allâh.’ The Prophet asked him: ‘Haven’t you prayed with us?’ The man replied: ‘Yes.’ The Prophet continued: ‘(Then) Allâh has hidden your fault’”, or “‘your crime’”. (Al-Bukhârî, Book 86, chapter 13, epigraph 812).

We have seen that four out of the five cases of lapidation that happened in the lifetime of the Prophet were by confession, with every possible opportunity for the person to free themselves of their punishment, and the only other case happened in applying to a Jew the law that he followed, as an act of respect for the rulings of minorities living under his government. We have also mentioned a case in which the Messenger of Allâh was already following the verse of Qur’ân that was revealed to put an end, once and for all, to any casuistry that led to the death of adulterers.

Strange as it seems to us, until Allâh prohibited it with the revelation of the verse of Light, erasing one’s crime by dying was the right that the Prophet conceded to people living under his governance. This is why the voluntary catharsis of being lapidated was taken as a right; the Prophet would simply make sure that the one requesting this punishment was not out of his wits. On four occasions he requested that the person in question confess freely (every one of whom bore witness to the Prophet personally), and recommended that if, under the battering of the stones, the accused should flee, that he should be allowed to do so (Sahîh Muslim, note at hadith 4196). This last issue is worth highlighting, in order to understand the voluntary nature that the Prophet conceded to lapidation, whenever demonstration by proofs was almost impossible. Imâm ash-Shâfi‘î contends that this was Prophet’s reasoning in the hadith narrated by Abû Dâ‘ûd, in which he asks a group of people who are busy stoning someone who tried to escape why they did not let him do so.

This possibility of an adulterer’s voluntary self-sacrifice is clear from the following hadith:

“...The order was given and she was stoned to death. Then the Prophet prayed for her. At that moment ‘Omar exclaimed: ‘You are praying for her even though she had committed adultery!’ To which the Prophet replied: ‘She has made such a (great) repentance that if it had been divided between seventy men of Medina, there would have been enough for all of them...Could there be any greater repentance than to sacrifice one’s own life for Allâh, (He who is) worthy of Majesty?’”

In conclusion, the attitude of the Prophet (until the revelation of the Sura of Light) was – no matter how incomprehensible it might seem to us today – to permit people to be lapidated if they asked to be, in order not to encroach on the fundamental right of the individual to attempt to erase their bad action as they best knew how, and he permitted people to be lapidated in order not to infringe the rights of people living under his jurisdiction to legislate for themselves by the law they desired. But he never stoned anyone himself. This practice was repugnant to him, and he took great satisfaction in receiving a revelation that countered this custom in his own lifetime.

Adultery in the Qur’ân

The explanation of what is understood as zinâ is given in the Qur’ân itself in the following verses, in which their legal penalty is defined:

“Those who accuse their own spouse (of zinâ)...” (24:6)

“Those who accuse muhasanât (good women) (of zinâ)...” (24:4)

We can deduce from both verses that in Arabic, as in Hebrew, the root of the word zinâ implies ‘infidelity, rupture of a pact of loyalty’, in this case of a person’s matrimonial contract with another. Hence, rather than just than ‘infidelity’, we would have to translate it as ‘treason’ against the sexual pact.

Therefore, we have to assume that, for zinâ to have taken place:

1) There has been a conjugal pact between two people. This excludes all other types of sexual indecency, since single people, divorcees and widows or widowers do not have to be faithful to anyone – there is no pact, or it has been broken by death (once the period of mourning has ended) – unless in these situations they commit some error (dhanb) against themselves. In terms of matrimony, we understand that the word zinâ should be translated as ‘adultery’, and not simply ‘fornication’.

2) The pact that is being violated must have been established – as any other valid contract – freely and not under obligation, and this has legal consequences at the highest level where forced marriages are concerned, and

3) For zinâ to have taken place, there must not have been any impediment to divorce, that is to say, the legal rupture of the pact by either of the two contractors who wishes this to happen.

It is clear that in Qur’ân the penalty for zinâ is that of a hundred lashes. Even for there to be a hundred lashes for the punishment for adultery (for the man and the woman), there have to be certain circumstances:

1) There must be four witnesses who were present at the act:

“Somebody asked the Messenger of Allâh: ‘What do you think I should do if I found a man with my wife? Should I leave her there until I had brought four witnesses?’ The Messenger of Allâh replied, ‘Yes’.” (Bukhârî, Book 41:7)

2. If there is only the testimony of a man against his wife, the testimony of the wife in her defence compensates for it:

“And those who accuse their wives, without having any witnesses other than themselves, let each one of them invoke the name of Allâh four times to bear witness that they definitely speak the truth, and a fifth time that the curse of Allâh should fall upon him if he is lying. But the woman shall be free from punishment if she invokes Allâh four times to bear witness that he is certainly lying, and a fifth time, that the sentence of Allâh should fall on her if he is telling the truth” (24:6-8).

As Muslims we should be guided by the Qur’ân, in the way that it has reached us, with the certainty that there is nothing in it that would contradict the behaviour of the Prophet, who was continually adapting himself to the Revelation as and when it came down. In the case that we are concerned with, we look to this verse for explanation:

“Give a hundred lashes to the adulteress (zanîya) and the adulterer (zanî).” (24:2)

There are even jurists who have said that, since the Arabic literally says ‘expose their skin a hundred times’, rather than ‘give them a hundred lashes’, there is possibly the more benevolent interpretation ‘expose their crime publicly so that they are mortified with shame’, in a society in which reputation is everything, and living with a bad reputation was a painful penalty. In fact, another argument against ‘Omar’s ‘invisible Sura’ is that the Qur’ân says that a man or woman who has been known to have committed adultery can only marry again if it is to a person who has likewise been proven to have had a affair, or a man or woman who practices idolatry (mushrik or mushrika). If the penalty for adultery was death by lapidation, it would be absurd that the Qur’ân would mention who they could remarry.

Interpretations aside, as this âya was revealed shortly before Muhammad’s death, it could never be abrogated by an earlier custom found in the hadiths mentioned here, which only illustrate particular situations that preceded the revelation of the âya of Light. The Sunnah never contradicts the Qur’ân, especially when – as in this case – a later Sunnah exists that counters earlier Sunnahs, and that concords with what is written in the Qur’an.

Context and exegesis of the Qur’ânic citation regarding adultery

We have said that the sentence for adultery has traditionally been almost impossible to verify, which has meant that there have always been few opportunities to put the prescribed penalty into effect. But the same is not true for the penalty for calumny: Allâh considers it as serious a crime as adultery, and in His mercy has made it easier to apply, as revealed in the thousand and one stories that tradition relates. As we have said, this ease is meant to dissuade people from accusing anyone of adultery:

And those who accuse chaste women of adultery, without being able to bring four witnesses supporting their accusation, give them eighty lashes; and never accept his testimony thereafter – for those (people) are really the depraved ones!(Qur’ân, 24:4)

The severity of the punishment in the case of calumny (“eighty lashes”), as well as the fact that they require four witnesses – instead of the two considered to be sufficient for other criminal and civil accusations – is designed to prevent accusations being made lightly.

The section of the Sura of Light that refers to calumniators ends at the twentieth âya, clearly indicating that what is really detestable to Allâh is a model of society in which suspicious whispering and all kinds of interference in other people’s private lives are habitual. We are presented with a long exhortation in which Allâh tells us that in an act of Mercy He has made calumny reprehensible, and exhorts the believers to abandon such aberrant practices. It is notable that the mention of adultery fades into the background:

Truly, many of you accuse others of sexual dishonesty: but, oh you who are victims of this, do not consider it bad for you: on the contrary, it is good for you! As for the calumniators, each one of them will bear their part of this crime; and a terrible punishment awaits whoever may take it upon himself to aggravate it! (Qur’ân, 24:11)

The aim of this is to protect people’s right to their honour and intimacy, as well as the rights of women, who were terribly vulnerable at this time.

Islam, emerging in a repressive tradition like that of the Jews at this time, not only revoked the Biblical punishment of stoning, but positioned itself against gossipers, whose fabrications were a product of the disease of extreme moralism. It combated gossip, calumny and slander more vehemently than adultery itself, since adultery did not destroy the fabric of society as much as the suspicion generated by mutual criticism and distrust.

Other Qur’ânic citations on illicit sexual relations

We find in Sûrat an-Nisâ’ (The Women):

“And for those of your wives who commit indecency (fâsisha), seek four witnesses who were present (at the scene of the crime); and if they give testimony for it, seclude them in their houses until death takes them or Allâh offers them a means of escape. And (lightly) punish both of the guilty parties; but if they repair the damages they have done, then leave them alone: for certainly, Allâh accepts repentance and is the Dispenser of Grace.” (Qur’ân, 4:15-16)

We are not talking, therefore, about zinâ (adultery), but about fâhisha (indecency). Literally, fâhisha in the classical Arabic dictionary is translated as: “intensely repellent action or word which passes the limits of what is right; crudeness or obscenity”.

Some Muslims who only have access to distorted translations of Arabic texts confuse the Qur’ânic passages and the hadiths that mention zinâ with those that mention fâhisha. This is a serious error, since although zinâ is a form of fâhisha, as the Qûr’ân says in 17:32, fâhisha is not the same as zinâ. The blame for this error rests with those who have translated zinâ as ‘fornication’ when dealing with texts that recommends whipping (Qur’ân 24:2 and Muwatta’ 41:12), and as ‘adultery’ when referring to texts in which there was lapidation (Muwatta’ 41:1, 2, 5, 6).

The issue of ‘stoning adulterers’ in fiqh

When, many years after the time of ‘Omar, jurists realised the nonsense of this legal practice, which was clearly in contradiction to the Qur’ân, out of respect they did not wish to undermine the authority of said caliph, but they tried to make its application unfeasible through even greater restrictions than those found in the Qur’ân and the Sunnah – so much so that, if it weren’t for the gravity of the matter at hand, they would verge on the comical. In fact, in order to condemn a man and a woman as adulterers, they effectively need to have caused a public scandal, exposing themselves to others physically and thus permitting their coitus to be verified. Discovering a man and woman lying together in the same bed, with rumpled sheets and ecstatic expressions, is not definitively considered as valid proof.

In order to verify adultery, as various sayings of the Prophet reflect, the four witnesses “must not be family members or friends of the accuser”, nor must they have any motive, whether sympathetic or antipathetic, or anything to gain from the condemnation of either of the two; they must be physical witnesses, not giving merely circumstantial testimonies, and if they flee, die or doubt their (own) testimony in the meantime, the penalty cannot be fulfilled. There cannot be any discrepancies between different witnesses’ versions of events. The accused must be discovered in flagrante delicto and, as if this were not enough: “there must not (be space to) pass a thread between the two bodies”, so that there can be no doubt that coitus is being consummated.

If we go into sophistry, and dismiss particular cases to which the Qur’ânic penalty of a hundred lashes is applied for adultery, we find that:

· It is unheard of in a religion such as Islam, which abhors self-mortification, for a man or woman who can prove that they are sane to incriminate themselves. If such self-incrimination does occur, for it to be taken into account it must be repeated three more times, leaving sufficient time between declarations for the mood of the person to change. If a person decides against self-incrimination before the fourth time, the previous declarations will not be taken into account. The conclusion is that in Islam, even a person who voluntarily wishes to undergo a ‘healing mortification’, the Sharî‘a makes it difficult for him to do so.

· It is difficult to prove that a man and a woman have committed adultery unless they do it in front of people in an open public place, due to the restrictive conditions placed on testimonies, as we have already shown. In a more modern context, it might be that they appear in a pornographic film in which there is no doubt who it is (that is, without being disguised too heavily to be identified).

· It is impossible to accuse a man of adultery due to pregnancy, for obvious reasons, but – and nobody should be scandalised to hear us say it – it is even impossible to be sure that a married woman who has normal relations with her husband has had an affair, even if she has become pregnant (at least, in a place in which there are no paternity tests). With respect to a married woman who has not seen her husband in a long time and who becomes pregnant, the absence of her husband from the conjugal bed and home cannot be long enough to cast the paternity of the child into doubt. If it is this long (three months), the woman can seek a divorce. With regard to other cases of pregnancy, when a woman is single, widowed or divorced, we must state clearly, before we conclude this study, that the Qur’ân does not talk about pregnancy as proof of zinâ, only the testimony of those four persons who fulfill the requisite criteria. I repeat: the Qur’ân does not mention pregnancy as proof of sexual relations. Not only for the reason occasionally deduced by jurists that the woman could have been raped and not recorded it because of the psychological trauma, but for the same reason that Islam accepts the virgin conception of Maryam. Was Jesus proof of Mary’s adultery? No; every pregnancy is a mercy from Allâh. The Qur’ân says:

“...No-one shall bear any prejudice against a woman because of her child” (2:233).

We are believers and we accept mu‘jiza (miracles), knowing that what Allâh wants is what happens, and that Allâh does not make all of His prodigious acts obvious, thus preventing us from cornering Allâh with our laws of probability and cause and effect. If the Qur’ân, which is complete, had deemed it necessary, it would have added to the four witnesses or substituted them for something else when it came to a woman’s pregnancy.

Caliph ‘Omar, who the Malikis follow on this matter, is the only authority to accept pregnancy as proof of adultery. However, we find the following statement in the commentary of Sahîh Muslim refuting this stance:

“The majority of jurists do not hold the position of ‘Omar and affirm that the simple fact of pregnancy (without proofs or confession by the pregnant woman herself) is not enough for the woman to receive this severe penalty. The spirit of the Sharî‘a is that the accused is given the benefit of the doubt, even if that doubt be small. There is a hadith of the Prophet that sheds light on the spirit of the law: ‘He said: “Reject punishments as much as you can”’. Another hadith reads: ‘Reject punishing the Muslims, as much as your power might depend on it; if there is another means of liberating them, then liberate them. Because if the Imâm commits an error in forgiving, that is better than if he commits an error in punishing’. (Tirmidhî) (...) In accordance with this law in the Sharî‘a, the pregnancy of a single woman (without proof) on its own, even if there is reason to suspect her of adultery, does not establish without a shadow of a doubt that adultery has been committed. Some margin of doubt always remains to prove her innocent. There is a chance (no matter how remote) that a man’s sperm may reach a woman’s uterus without relations taking place. Even this small and remote possibility is sufficient to save a woman from the severe penalty given for committing adultery.”

Let us briefly study three cases which do not concern adultery (zinâ) but which are usually involved in such judgements due to the ignorance of some judges. In these three cases the proof that sustains the culpability of the woman is her pregnancy, which according to what we have already established is not a sufficient argument, but apart from this another circumstance protects the woman from a potential judgement of zinâ:

· A single woman who becomes pregnant:

This is not adultery (zinâ), but in the worst case – and only where there are proofs – it is fâhisha (fornication), since she is not being unfaithful to anyone. And, in fact, if she were to marry it would eliminate, if not the slander involved, then the legal consequences of her actions, because matrimony is one of the ‘escape routes’ mentioned in the Qur’ân that Allâh gives a woman who behaves in this way (4:15).

· A widow who becomes pregnant:

While she is in mourning, she is understood to be subject still to the contract that she signed with her husband. Traditional doctrine is sensitive to the difficult situation of the widow by allowing her the possibility of the ‘sleeping foetus’ (ar-râqid). In this case, traditional fiqh would speak of the ‘sleeping foetus’ of the deceased husband. Even the strictest Muslim jurists have referred to a period of five years between the conception of the child by the deceased husband and the child’s birth.

In conclusion

We have tried to show that the practice of lapidation in some societies lacks any juridical basis in Islam, and we have put forward the following arguments in relation to this issue:

1. In the Qur’ân, the penalty of lapidation is not mentioned either for zinâ or for any other kind of crime.

2. Specifically, the Qur’ân prescribes a hundred lashes for adultery.

3. Zinâ is infidelity to a previous matrimonial pact, whether it be the man or the woman who commits zinâ. Illicit sexual acts outside of this sphere – fâhisha – are not governed by Qur’an 24:2, but rather 4:15-16.

4. Demonstrating an act of adultery (owing to the proofs established by the Qur’ân), is quite difficult, and, in fact, the act of making an unsuccessful accusation of adultery carries a penalty only slightly less than that for adultery itself (eighty lashes).

5. The proof that the Qur’ân establishes for zinâ is the physical presence of four witnesses at an act of adultery; they cannot be family members or have any relationship, whether friendly or unfriendly, with either of the accusers or either of the accused.

6. A woman’s pregnancy is not, according to the Qur’ân, proof of a woman’s adultery.

7. It appears that Muhammad’s intention was to hinder the practice of lapidation, which was in common usage in his era.

8. Muhammad never assented to the lapidation of anyone who hadn’t freely confessed, and only if they wished to be governed by Islamic Sharî‘a; he even managed to dissuade people from publicly confessing this kind of crime.

9. Finally, Allâh abolished lapidation and made it so that this was recorded in the Qur’ân.

10. There is evidence that Muhammad had already begun putting into the practice what was revealed in Qur’ân at 24:2 regarding the whipping of proven adulterers, thus completely rejecting the practice of stoning.

10a. The application of ijtihâd (free interpretation) to the issue of adultery can and must be made in order to determine what significance the Qur’ânic penalty of a hundred lashes can have – as we are obviously opposed to its coexistence with a prison system – lest a different and more severe penalty be invented in its stead. Ijtihâd, the fruit of human reason, is a mercy from ar-Rahman and should not serve to make mankind’s material and existential circumstances harder, but rather to achieve the optimum effect with the least harm possible. This is the true Sunna of the Prophet.

10b. Caliphs ‘Omar and ‘Alî behaved in the way they believed to be the most appropriate. We would never dare to judge the intentions of any of the intimate friends of Allâh, even though we refuse to support this practice in today’s world, basing our argument on the Qur’ân and Sunna of the Prophet.

10c. We cannot lay an accusation of cowardice at the feet of those faqihs who did not dare to outlaw the practice of stoning as it was in clear contradiction of the Qur’ân, since we do not know all of the circumstances that they would have had at that time that made them undergo a change in legal customs such as the one we are discussing. On the contrary, thanks to their efforts to obstruct the evidential role of the judiciary as much as they could, they demonstrated great lucidity in largely eliminating, over the course of many centuries, the practice of lapidation without having to enter into conflict with those followers of the Companions of the Prophet who did practice stoning.

Translated by Medina Whiteman



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