14 Adultery and Fornication In Early Islam
Can Modern Islam Move Past Old Shariah Laws?
by James M. Arlandson, Ph.D.
This series of article about Islamic shariah law is intended
for educators, legislators, city council members, judges, lawyers, journalists,
government bureaucrats, think tank fellows, TV and radio talk show hosts, and
anyone else who occupies positions of authority. They initiate the national
dialogue and shape the flow of the conversation. They are the decision and
policy makers.
These intellectual elites have heard the critics of shariah
and conclude the critics are wrong; the critics overstate their case (and maybe
they do sometimes). They may even be “Islamophobic,” the elites conclude. Islam
is a world religion, so it deserves respect, after all.
But then the elites have a gnawing, private feeling that the
critics may be partially right. They read reports coming out of the Islamic
world and sometimes in their own world. But they tell themselves that Islam is
being hijacked by extremists.
One report that the elites may have heard involves executing two adulterers.
Horrific video footage has emerged of Taliban insurgents
stoning a couple to death for alleged adultery in northern Afghanistan.
Hundreds of villagers can be seen on the video standing
around as the woman, Siddqa, is buried up to her waist in a four foot hole in
the ground.
Two mullahs pass sentence before the crowd begins to throw
rocks at her head and body as she desperately tries to crawl free.
But the 19-year-old collapses to the ground, covered in
blood – but miraculously still alive.
At this point a Taliban fighter shoots her three times in
the head with an AK-47. The crowd can be heard shouting allahu akbar [God is
greatest] as she is killed.
Her lover, Khayyam, is then marched in front of the crowd
with his hands tied behind his back.
He is blindfolded with his own tunic and crouches down
close to the ground as he tried to protect his body from the stones.
But he is battered to the floor by a barrage of rocks. He
can be heard sobbing before eventually falling silent.
The stoning – the first to be documented on film since the
Taliban were ousted from power – took place in the district of Dashte Archi, in
Kunduz, last August.
Officials said that Siddqa had run away after being sold
into an arranged marriage for $9,000 against her will.
She ran away to be with Khayyam, who was already married
and had two children, and the pair eloped to Pakistan.
[1]
So shariah treats sexual
sins as capital crimes, just as the Old Testament did. Is that really the best
policy in the modern world? Can modern Islam move past these old shariah
laws?
Abbreviated Table of Contents:
THE QURAN
THE HADITH
CLASSICAL LAW
MODERN ISLAM
CONCLUSION
THE QURAN
Long
before Islam arrived on the scene in the seventh century A.D., death for an
adulterer was practiced in Arab culture. Strabo (c. 64 B.C. to after 21 A.D.)
was a Greek geographer who traveled widely and wrote about his observations. As
to adultery in what he calls Felix Arabia — or Greater Arabia in the Arab
Peninsula — he writes,
And the penalty for the adulterer is death.”[2]
The
implication in Greek is that the male — the adulterer, as opposed to the adulteress
— was executed, but sometimes the masculine gender stands in for the feminine,
so we should not make too much of this.
Perhaps one reason that this penalty was
imposed is that the Torah and its severe command had worked its way into Arab
custom over many centuries, as ideas traveled along the trade routes. Whatever
the case, this penalty provides the larger cultural context of the Quran and
early Islam.
Yet the
Quran itself does not say that adulterers and adulteresses should be stoned to
death. In fact, Umar, the second caliph (r. 634-644), says that the verse
inexplicably went missing from the Quran, so he needed to clarify that Muhammad
instituted it and carried it out (see the hadith, below). All the Quran says is
that sexual “crime” — zina — should
be punished with flogging or beating (24:2).
So what
is zina? One dictionary of the Quran
says it means adultery or fornication.[3]
But that’s too ambiguous. Webster’s Dictionary says that adultery means sex
between a married man and someone other than his wife, or between a married
woman and someone other than her husband — an affair. The vow of marital
fidelity and sexual exclusivity in marriage is broken. So to commit adultery,
the cheater must be married.
Fornication,
says Webster’s dictionary, can mean sex between a spouse (a married person) and
an unmarried person, so there is some overlap between adultery and fornication
in that case. But fornication can also take place between two unmarried people.
In the latter circumstance, the marriage vow is not broken because neither one
was married to someone else. Fornication is typically associated with
premarital sex.
This
broad and ambiguous definition of the word zina
is reflected in two translations of the Quran, one by a moderate, the other by
two ultraconservatives.
A
“Moderate” Translation
The quotation marks are for the doubt we rightly feel about Muslims flogging sexual sinners. Is that really “moderate”? But compared to the translation by traditionalists, below, this translation does seem moderate. Is that really “moderate”? But compared to the translation by
traditionalists, below, this translation does seem moderate.
This
translation comes from M.A.S. Abdel Haleem, the Qur’an, 2nd
ed. (Oxford UP, 2010):
2 Strike the adulteress
and the adulterer one hundred times. Do not let compassion for them keep you
from carrying out God’s law — if you believe in God and the Last Day — and
ensure that a group of believers witnesses the punishment.[4]
(Quran 24:2)
The reason that this
translation can be considered moderate is that the hadith and
classical Islamic law says that adultery should be punished with execution, but
his translation says that it should be punished with flogging — though by
today”s standards flogging is not moderate. In any case, the Quran always take
priority over the hadith and classical law. But is this translation accurate
and complete?
Abdel Haleem says in a
footnote to this verse that “the
crime of zina in Arabic covers
all extramarital sexual intercourse between a man and a woman.” What is interesting about his note is that zina is considered a crime, not merely a
sin. Islam treats illicit sex — whether adultery, fornication, or homosexuality
— as crimes to be punished harshly and corporeally, up to execution. So even a
moderate like Abdel Haleem, using the word “crime,” cannot completely avoid the
Quran’s and original Islam’s harsh influence, after all.
Finally, the verse says compassion should not deter the judge from carrying out the legal command. The punishment should even be
witnessed, presumably to deter others from committing zina.
An
Ultraconservative Translation
Hilali’s
and Khan’s translation, which has the funding of the Saudi royal family,
inserts parenthetical and bracketed notes, which are not in the original
Arabic:
2 The fornicatress and
the fornicator, flog each of them with a hundred stripes. Let not pity withhold
you in their case, in a punishment prescribed by Allah, if you believe in Allah
and the Last Day. And let a party of the believers witness their punishment.
[This punishment is for unmarried persons guilty of the above crime (illegal
sex), but if married persons commit it (illegal sex), the punishment is to
stone them to death, according to Allah’s law].[5]
(Quran 24:2)
Whichever
translation one chooses, nowhere does the Quran say that adulterers or
fornicators should be stoned to death. But Hilali and Khan base their inserted
notes on the hadith, where the ambiguity is removed (see below).
The
Immediate Context of Quran 24:2
The
historical context of Quran 24:2 supposedly occurs on a raid of a tribe in
December 627 or January 628, during which Muhammad brought his favorite and
youngest wife, Aisha, also the daughter of Abu Bakr, his right-hand companion
and first caliph (ruled 632-634). After the Muslims” victory, they journeyed
back to Medina, one hundred and fifty miles to the north.
On their
last halt, Aisha answered the call of nature, but lost her necklace in the
dark, just as the army was setting out from their encampment early in the
morning. She left her litter, returned to look for the necklace, found it, and
went back to the camel bearing her litter. Meanwhile, the man leading her camel
assumed she was in her curtained litter and led the animal away by the halter.
Returning, Aisha saw that she was left behind. However, a handsome young Muslim
named Safwan saw her and accompanied her back to Medina, though the Muslims and
Muhammad’s opposition, both, wagged their tongues at seeing the two youngsters
entering the city together. Eventually, revelation came that Aisha was not
guilty of any immorality.[6]
The
historical context of Quran 24:2 thus establishes some ground rules against
sexual sin, of which flogging one hundred times is one of the rules. However,
the immediate context does not say that anyone was actually stoned to death.
The
literary context — the verses that surround our target verse — establishes new
domestic and marriage rules for the Muslim community. In v. 3 one who commits zina or a “sexual crime” may marry
another “sexual criminal.” This verse implies that a man or woman committed
their “sexual crimes” outside of marriage — premarital sex. They were not
married to anyone. This supports Hilali and Khan’s translation, which says that
the fornicator was to be flogged, while the adulterer was to be executed.
However, v. 3 could imply that the adulterer and adulteress were to divorce and
marry each other. So once again ambiguity prevails in the Quran as written,
though the hadith will clarify it.
The Quran
says in v. 4 that an accuser of chaste women of fornication must provide four
witnesses. If not, then he should be whipped eighty times, and his testimony is
to be rejected thereafter, unless he repents (v. 5) (see the next section). In
vv. 6-9 the Quran establishes the rule for a husband who accuses his wife, but
who does not have four witnesses. This is known as the law of Li”an, which
comes from La”na. This word refers to a curse and is derived from a rule in
these three verses that says that the husband and wife must swear four times
and on the fifth invoke Allah’s curse on himself or herself if he or she is
lying.
The
literary context, then, reveals that Allah through his prophet is setting forth
more domestic and marriage rules in his Muslim community in Medina, and
sometimes the penalty phase of the violated rules are harsh. But zina is not clarified with precision,
and nowhere does the Quran say that it should be punished with death, but only
beating.
Quran
24:4 and 13
Before we
leave the section on the Quran, we should briefly tackle another problem. The
next verse says to flog an accuser eighty times because he does not produce
four witnesses to corroborate his testimony. This historical context of the
verses was laid out in the previous section.
4 As for those who accuse chaste women of fornication, and
then fail to provide four witnesses, strike them eighty times, and reject their
testimony ever afterwards: they are the lawbreakers”¦ 13 And why did the
accusers not bring four witnesses to it? If they cannot produce such witnesses,
they are the liars in God’s eyes. (Quran 24:4 and 13)
Jurists
say that when they require four witnesses, the punishment was nearly impossible
to impose because it was nearly impossible to find four witnesses. The usual
way was the confession (four times) of the sexual “criminal.” Nonetheless, the
punishment was still carried out in Muhammad’s day.
THE HADITH
Recall
that the hadith are the traditional reports of Muhammad’s and his companions” words
and actions outside of the Quran. See the article in the series, titled What Is
Sharah? for more information.
One of
Muhammad’s cousins was Ibn Abbas, and he is considered a very reliable
transmitter of hadith. He says that Umar, Muhammad’s close companion and second
caliph (r. 634-644), proclaimed that a verse in the Quran about stoning
adulterers to death really existed, but somehow it had gone missing.
Umar, the
second caliph (ruled 634-644 A.D.), is reported to have said from the pulpit in
the mosque of Medina:
…Allah
sent Muhammad with the Truth and revealed the Holy Book to him, and among what
Allah revealed, was the verse of (the stoning of married person, male &
female) who commits illegal sexual intercourse, and we did recite this verse
and understood and memorized it. Allah’s Apostle did carry out the punishment
of stoning and so did we after him. I am afraid that after a long time has
passed, somebody will say, ‘By Allah, we do not find the verse of [stoning]…
in Allah’s Book,’ and thus they will go astray by leaving an obligation which
Allah has revealed. And the punishment of [stoning]… is to be inflicted to
any married person (male and female), who commits illegal sexual intercourse,
if the required evidence is available or there is conception or confession.
[7]
In the
next hadith, a Jew is shown covering the verse in the Torah (the first five
books of the Hebrew Bible or Old Testament) about stoning adulterers to death.
Muhammad probed further and demanded that he uncover the verse. Then he ordered
the execution of the Jewish adulterer and adulteress. The man who was being
stoned felt protective of his female lover, who was also being stoned, and
covered her. It did no good. They were killed.
Narrated
Ibn Umar: A Jew and Jewess were brought to the Prophet on a charge of
committing an illegal sexual intercourse. The Prophet asked the Jews,
“What do you (usually) do with them?” They said, “We blacken
their faces and disgrace them.” He said, “Bring here the Torah and
recite it, if you are truthful.” They (fetched it and) came and asked a
one-eyed man to recite. He went on reciting till he reached a portion on which
he put his hand. The Prophet said, “Lift up your hand!” He lifted his
hand up and behold, there appeared the verse of (stoning of the adulterers to
death). Then he said, “O Muhammad! They should be stoned to death but we
conceal this divine law among ourselves.” Then the Prophet ordered that
the two sinners be stoned to death and, and they were stoned to death, and I
saw the man protecting the woman from the stones.
[8]
The next
short hadith says that a Jew brought a Jewish adulterer and adulteress to
Muhammad. He ordered them to be stoned to death near the mosque, where Muslims
offered funeral prayers.
Narrated
Abdullah bin Umar: The Jew brought to the Prophet a man and a woman from
amongst them who have committed (adultery) illegal sexual intercourse. He
ordered both of them to be stoned (to death), near the place of offering the
funeral prayers beside the mosque.”[9]
In another
hadith an adulterer was stoned to death, but only after he confessed his crime
four times. After the “criminal” was stoned to death, Muhammad spoke well of
him and offered his funeral prayer.
Narrated
Jabir: A man from the tribe of Aslam came to the Prophet and confessed that he
had committed an illegal sexual intercourse. The Prophet turned his face away
from him till the man bore witness against himself four times. The Prophet said
to him, “Are you mad?” He said “No.” He said, “Are you
married?” He said, “Yes.” Then the Prophet ordered that he be
stoned to death, and he was stoned to death at the Musalla [prayer room]. When
the stones troubled him, he fled, but he was caught and was stoned till he
died. The Prophet spoke well of him and offered his funeral prayer.[10]
That
hadith shows that not just anyone should be stoned to death. He has to confess.
A woman has to confess or turn up pregnant.
We can
now discuss the fornicator or the unmarried person who has sex. He is to be
flogged and then exiled for a year.
Narrated
Zaid bin Khalid Al-Jihani: I heard the Prophet ordering that an unmarried
person guilty of illegal sexual intercourse be flogged one-hundred stripes and
be exiled for one year. Umar bin Al-Khattab [the second caliph] also exiled
such a person, and this tradition is still valid.[11]
Another
hadith expands on the previous one:
Ubada
b. as-Samit reported: Allah’s Messenger (may peace be upon him) as saying:
Receive (teaching) from me, receive (teaching) from me. Allah has ordained a
way for those (women). When an unmarried male commits adultery with an
unmarried female, (they should receive) one hundred lashes and banishment for
one year. And in case of married male committing adultery with a married
female, they shall receive one hundred lashes and be stoned to death.[12]
But
sometimes an unmarried man has sex with a married woman. How are they to be
punished?
Narrated
Abu Huraira and Zaid bin Khalid: A bedouin came to the Prophet while he (the
Prophet) was sitting, and said, “O Allah’s Apostle! Give your verdict
according to Allah’s Laws (in our case).” Then his opponent got up and
said, “He has told the truth, O Allah’s Apostle! Decide his case according
to Allah’s Laws. My son was a laborer working for this person, and he committed
illegal sexual intercourse with his wife, and the people told me that my son
should be stoned to death, but I offered one-hundred sheep and a slave girl as
a ransom for him. Then I asked the religious learned people, and they told me
that my son should be flogged with one-hundred stripes and be exiled for one
year.” The Prophet said, “By Him in Whose Hand my soul is, I will
judge you according to Allah’s Laws. The sheep and the slave girl will be
returned to you and your son will be flogged one-hundred stripes and be exiled
for one year. And you, O Unais! Go to the wife of this man (and if she
confesses), stone her to death.” So Unais went in the morning and stoned
her to death (after she had confessed).[13]
Note that the translator of Bukhari’s hadith inserts the
parenthetical comment about confessing her sin. Stoning to death for adultery
was not imposed lightly, but the accused must confess to his or her crime. In
that case the unmarried man is to be flogged one hundred times and sent into
exile for a year, while the married woman is to be stoned to death.
All of
these hadith confirm Hilali and Khan’s expanded translation, which says the
fornicator should be flogged, while the adulterer should be executed.
Recall
that Quran 24:4 and 13 discuss the requirement that someone accusing a woman of
illicit sex must bring four witnesses to corroborate his accusation. The
context is when some people accused Aisha of this. A few hadith explain, in the
compendium that brings together the six authentic hadith collections:
Ibn ‘Abbas told that a man of B. Bakr b. Laith came to the
Prophet and made a statement four times that he had committed fornication with
a woman, so he had a hundred lashes administered to him. The man had not been
married. He then asked him to produce proof against the woman, and she said,
“I swear by God, messenger of God, that he has lied.” Then he was
given the prescribed number of lashes for falsehood. Abu Dawud transmitted it.
Aisha said: When my vindication came down the Prophet
mounted the pulpit and mentioned that. Then when he came down from the pulpit
he ordered that the two men and the woman should be given the prescribed
beating. Abu Dawud transmitted it.[14]
Aisha was
vindicated, and the accusers were flogged eighty times.
CLASSICAL LAW
Shariah law is based on the Quran and hadith. See the
article in the series, titled What Is Shariah? for more information.
Recall that zina
means illicit sex.
Ibn Rushd (d. 1198) studied all the schools of law up to his
time, so we let him summarize their opinions. He writes:
Fornicators, for whom
punishments vary according to their categories, are of four kinds: muhsan (married)
or thuyyab (non-virgins); abkar (virgins); free or slave; and
male or female. The Islamic hudud [punishments]
are of three kinds: rajm (stoning to death); jald (whipping); and taghrib (exile). The
Muslim jurists agreed about free thayyib muhsans that the hadd [prescribed punishment] for them is rajm,
except that a group of those who follow their own whims held that the
punishment for every fornicator is a hundred lashes. The majority inclined
toward rajm because of the authentic traditions supporting it. They restricted
the (general meaning in the) Book [the Quran] with the sunna [traditions or hadith] that is, the
words of the Exalted, “The adulteress and adulterer, scourge ye each one
of them (with) a hundred stripes. And let not pity for the twain withhold you
from obedience to Allah, if ye believe in Allah and the Last Day. And let a
party of believers witness their punishment.” They differed on two points.
First, whether stripes are to be awarded along with stoning. Second, about the
conditions of ihsan [marriage].
[15]
Ibn Rushd goes on to say that the married fornicators are to
be stoned to death, but at least one school of interpretation says that stoning
comes after the stripes. The non-virgin having illicit sex with another
non-virgin can be punished with stoning or one hundred stripes, or the sex act
could lead to marriage because sexual intercourse is the seal of marriage. The
virgin having sex with another virgin leads to flogging or exile for a year or
both. A female married slave gets fifty stripes (Quran 4:25), but a female
unmarried slave may get fifty stripes; or after repeating the offense she is to
be sold, even if the amount of her sale is small. A male slave can get the same
punishment or one hundred stripes. Presumably the reason that slaves were not
executed was that their death would diminish their owners” assets.
Next, Ibn Rushd says that to prove zina, confession of the accused is needed, but how many times
varies in the schools of law. One confession may be sufficient, or four may be
necessary. If the adulterer or fornicator is caught in the act, it must be
witnessed by four Muslim men (Quran 24:4). Most schools of law say that if a
man or woman confesses to his or her crime, he or she may retract it. If a
woman is coerced (raped), no punishment is imposed, but she has to prove the
coercion.
Then Ibn Rushd describes the requirements of the four
witnesses to the fornication or adultery.
The jurists agreed about the
proof of zina through testimony that it is proved through testimony and
the stipulated number of witnesses is four as distinct from the testimony for
the rest of the rights”¦ [Quran 24:4 is quoted] The condition for the witnesses
is that they should be adl
[just]. A condition for the quality of the testimony is that it
should describe the contact of the sex organs and that it should be rendered in
explicit, not figurative (insinuating), language. The majority maintain that
such testimony should not be contradictory with respect to time or place,
except for the well-known issue raised by Abu Hanifa about the angles, which
requires that each of the witnesses should have seen them from a separate
corner of the room (for example) and it should not be the same corner from where
another witness has viewed the offence. The reason for the disagreement is
whether testimony relating to different locations can be combined into one as
is the testimony relating different times. They agreed that it cannot for a
dissimilar location is the same as dissimilar timing and the apparent purpose
of the law is to achieve greater certainty in the proof of this hadd [prescribed punishment] more than any
other.[16]
Witnessing it to the point of describing the sex act is
extremely rare. This is why some jurists do not impose the punishment on the
fornicator or adulterer unless he or she confesses.
MODERN ISLAM: CAN IT MOVE
PAST OLD SHARIAH LAWS?
For our purposes, a moderate calls for the
reform of Islam, while a traditionalist believes Islam, revealed in the Quran
and presented in the authentic hadith, is fine the way it and defends it.
Usually, religious leaders are selected in this section, but sometimes a Muslim
who is in the public eye is included too.
Traditional Interpretations
The Assembly of Muslim Jurists of America (AMJA) is made up
of religious scholars, most of whom have their doctorates in Islamic law or
other Islamic subjects. They are qualified to issue fatwas (religious rulings
or opinions). The site uses the write-in Question and Answer format.
In the first example, a question was written to them about
missing verses in the Quran, which may have contained the verse about stoning
adulterers to death. The scholar explains the absence, but affirms that this
punishment was practiced by original Islam.
Here is his reply about the possible stoning verse:
As [to] lacking… the punishment of
stoning adulterers till death, that is correct as the recitation of this
[verse] was abrogated from the Quran, while its rule is not abrogated. The
authentic sunnah of the Prophet… emphasized that he… commanded his eminent
companions to stone until death those who confessed committing adultery
(married and not single people).
[17]
Thus, the AMJA religious scholar distinguishes between
married people having illicit sex with someone other than his or her partner,
and singles having sex. These scholars make this distinction because that is
the weight of the evidence in the hadith.
This Q & A summarizes Islamic law succinctly:
Question: if a woman who is not married
commits zina, does she get stoned? Or
does she get a beating?
The scholar replies:
According to Islamic Penal Law, whoever
commits fornication (zina) while
being sane, adult, in possession of free will and single (someone who has never
been married and had sexual intercourse before), he or she must be lashed 100
times and deported from the local area for one year, provided that the
application of this system of punishment is the sole right and duty of the
Muslim state (should one exist); individuals are not authorized to implement
it.
Widows, divorcés, and ex-married people
are not considered single in Islamic law. Adultery (not fornication in this
case) is penalized by stoning the criminal (male or female) until death.[18]
A questioner asks AMJA what the requirements are for
convicting a sexual criminal. The scholar explains:
Convicting someone [of] adultery or
fornication necessitates either confession by the person himself, or otherwise,
by an eyewitness testimony of four sane adult male Muslims who have seen the
actual crime with their naked eyes. Other than that [it] is not a valid
witness. If four witnesses testified that they have witnessed the crime, while
only one of them knew about it by hearsay; all of them must be lashed eighty
times as what they did is counted as slandering
[19]….
This passage is based squarely on Quran 24:2-4 and 13. The
shariah scholar assures his reader that convicting people of zina is extraordinarily difficult. But
the penalty is still valid.
Moderate Interpretations
The organization Sisters in Islam (SIS) is based in
Malaysia, and its members argue strongly against imposing shariah on them and
Malaysian society. Recall that hudud
means Islamic punishments as well as the section of shariah that covers them. Note
that the excerpt refers to Quran 24:4, which says that four witnesses are
needed to prove illicit sex (zina).
Can a raped woman provide four eyewitnesses?
Zainah Anwar writes with a clear tone of frustration and
defiance:
I would be planning over the next few
months on how to build public opinion to hold the Government accountable and ensure
that whatever alternative national security or public order laws that might
emerge will uphold my fundamental freedoms.
I would want to make it politically very costly for the Government if it falls
short or back-pedal on the promises of democratic reform it has made.
Instead, what do we get? An offer of the hudud
law and its grim serving of chopped-off Muslim hands and feet, and stoning
to death! What kind of future is that? . . .
Who wants to live in such a society
when your neighbour, your friend, or your fellow citizens are subject to a
cruel legal system?
How could I live with my conscience if I were a Chinese who has witnessed a
rape, but my infidel evidence would not be accepted under the hudud law? No, I cannot keep quiet and
accept such a law.
“Muslims who are not experts on Islam should shut up.” Then please take
religion out of the public sphere and make it private between us and God. But
not when I can be flogged 80 lashes for qazaf
(slanderous accusation) if I report I have been raped and am unable to produce
four pious and just Muslim males who witnessed the rape.
On top of that, my rape report could also be taken as confession of illicit sex
and I could be charged for zina. And
even if I could produce the four men, I would be torn apart wondering why four
supposedly pious and just men watched me being raped.
And God forbid if I was single and became pregnant because of the rape. I would
be charged for zina and lashed 100
times because my pregnancy is regarded as evidence of illicit sex.
The burden is on me, not the state, to prove I was indeed raped. The evidential
requirements make this impossible. And the accused rapist will be free from any
hudud punishment by simply denying
the rape.
[20]
Anwar uses reason and advocates the separation of religion
from the public sphere. But it is not religion in public that is the problem;
it is shariah, or at least the mixture of civil laws and punishments and
religion. This toxic mixture needs to be removed from society completely. In
any case, she does not appeal to the Quran and the hadith; otherwise she would
lose the debate on textual grounds. But would she lose it in the court of
public opinion?
Mustafa Aykol is a Turkish journalist who argues for a
moderate Islam. He replies to a column by a certain Mr. Bekdill, which Aykol
considers simplistic.
…Yet
there are other corporal punishments in the Quran — such as lashes for adultery
or the false accusation of it and the amputations of hands for theft. One way
to understand these is the literalist way, which not only the fundamentalist
Muslims, but also many critics of Islam see as the only way. (Mr. Bekdil, for
example, thinks “Quranic commandments come in one flavor only”¦ about do’s and
don’t’s.”)
But,
in fact, there has always been a more figurative method of interpretation as
well, which focuses not just on the wording, but also on the intent of the
scripture. This tradition realized that the Quranic commandments on social and
legal matters were bound by their context, and a change in the latter could
change the whole picture. Caliph Umar created the first precedent by declining
to implement some Quranic commandments about the governance of land for the
simple fact that the conditions that made them necessary in the first place had
changed. In the 14th century Imam Shatibi of Spain built a whole theory about
this in his book on the “Maqasid al-Shariah,” or the Purposes of the Shariah.
Based
on such ideas, some corporal punishments were rendered obsolete in the more
flexible schools of Islamic law, such as the Hanafi one, which the Ottoman
Empire subscribed to. Under Sultan Mehmed II, the conqueror of Istanbul, the
amputations of hands for theft was replaced by beatings or monetary fines
graded according to the economic status of the culprit. Stoning was also made
very hard to implement and is known to have happened only twice during the six
centuries of Ottoman rule.
In
the modern era, Islamic scholars such as the late Fazlurrahman have been
arguing that Islamic law should be totally reinterpreted within this
perspective. At the time the Quran was revealed, these scholars remind,
corporal punishments were the standard norm in the whole world. Moreover, it
was impossible to give any other form of penalty in 7th century Arabia, where
you simply had neither any prison nor any bureaucracy to establish and run one.
Yet the new world we live in, these scholars say, needs new rulings, which will
uphold the “purposes” of the Shariah by changing its wording.[21]…
Aykol goes on to talk about archaic laws in certain states
in the USA, and how they are no longer followed today. Islam can do the same.
The problem, however, is that many jurists in the Islamic world do not leave
shariah laws in the past, but try hard to implement them today or actually
implement them. Most importantly, can a Turkish journalist persuade scholars
like the ones at AMJA?
CONCLUSION
This article about stoning adulterers and flogging
fornicators would not be necessary, were it not for religious scholars and
entire Islamic governments trying hard or actually implementing these old laws.
They refuse to leave them back in the past because two
purposes seem to justify the punishments: deterring people from committing a
“sexual crime,” and preserving the family by purging it of unrighteousness.
However, while the severe punishments may deter some people,
the punishments may drive the “crime” further underground. As to preserving the
family, the stoning
punishment does just the opposite. Depriving children of one of their parents
by stoning him or her to death breaks down the family and can only cause
irreparable damage to the children, once they learn why their father or mother
will never return. Children need both parents, even if one of them has not
reached sinless perfection. And once someone is dead, there is no hope of the
couple’s restoration.
Original Islam was influenced by its culture. The geographer
Strabo notes that the ancient Arabs executed adulterers. Surely Muhammad
borrowed from this ancient custom.
The influence of Muhammad’s culture on him is more direct. When he reached Medina in A.D.
622, he found a large community of Jews thriving there. They took the Torah
seriously. The hadith reveals that Jews brought some adultery cases to him. He
asked what their law says. At first they tried to cover up the stoning verse,
but he found out what it says. Though the Quran metes out only flogging for zina, the hadith on the matter of
adultery and fornication (unmarried sex, for our purposes) is clear. Adulterers
are to be stoned to death, and fornicators are to be flogged. The Torah at
least partly influenced him.
He rarely
met Christians. So we can only speculate about how Islam would have evolved
differently if a large community of Bible-educated Christians had been thriving
in Medina. Biblical Christianity teaches that adultery and fornication are sins
forgivable by love and restoration, not crimes punishable by death or stripes.
Surely these Christians, if they understood the complicated relationship
between the Old and New Testaments, would have guided Muhammad down a better
path.[22]
But there is no need to speculate, but to face reality. He did not meet
Bible-educated Christians.
The Quran is not universal and timeless in every word, but
absorbs its culture just as every book does. By comparison, certain verses in
the Old Testament decree commands like waging wars on pagans, and punishments
like stoning. They reflect the historical context 3,500 years ago, so we do not
(or should not) bring these specific commands and punishments into the modern
era. They are cultural, not timeless and universal.
Likewise, Islam must leave behind the cultural custom of
flogging and stoning “sexual criminals,” back in the seventh century. Some
aspects of Muhammad’s example and words no longer apply. These Islamic
religious scholars” view of the eternality and absolute inspiration of every
single law in the Quran needs to be updated to keep up with the best of
scholarship.
And one thing is certain. Modern societies that have Muslim
populations in them should never allow shariah courts of arbitration to exist
as if they are benign. They are not. If a Muslim needs to find out about
harmless aspects of shariah like how to hold the Ramadan fast or which foods to
eat or avoid, he can ask his Imam in private. In all civil punishments, he must
follow the modern laws of the land, where applicable.
Shariah courts are therefore irrelevant and unnecessary.
[1] “Stoned to Death with Her Lover: Horrific Video of
Execution of Girl, 19, Killed by Afghan Taliban for Running Away from Arranged
Marriage,” Jan. 27, 2001,
the Daily Mail. The bracketed
insertion is mine.
[2] Strabo, the
Geography of Strabo, vol. 8, trans. Horace Leonard Jones, Loeb Classical
Library, (New York: Putnam, 1930), 464.
[3] Abdul Mannan Omar, Dictionary of the Holy Quran, (Hockessin: Noor Foundation, 2004),
236. Zina appears nine times in the
Quran, in these verses: 17:32; 24:2-3; 25:68; 60:12, but the contexts outside
of Chapter 24 do not clarify the word’s specific meaning, for it could be
translated as “illicit sex” of any kind, whether unmarried or married.
[4] M.A.S Abdel Haleem, the Quran, 2nd ed.,
(New York: Oxford UP, 2010). If
readers would like to see various translations of the Quran, they may go to the website quranbrowser.com and type in the references.
[5] Muhammad Taqi-ud-Din al-Hilali and Muhammad Muhsin
Khan, the Noble Qur’an (Riyadh: Darussalam, 2002).
[6] Bukhari. Commentary (Chapter 24), 6.4750. The hadith
are searchable online at the Center
for Muslim-Jewish Engagement, under
the aegis of the University of Southern California.
[7] Idem, Punishments of Disbelievers, 8.82.817. Cf.
8.82.816.
[8] Idem, Oneness of Allah, 9.93.693, with minor edits.
The parenthetical comments were inserted
by the translator. Cf. Commentary, 6.4556; Virtues and Merits of the
Prophet 4.56.829; Punishments of Disbelievers 8.82809.
[9] Bukhari, Funerals, 2.23.413, with small mechanical
edits. The translator inserted the parenthetical comments.
[10] Idem, Punishment of Disbelievers, 8.82.810, with
small mechanical edits. Bracketed comment is mine.
[11] Idem, Punishments of Disbelievers, 8.82.818. The
bracketed comments were inserted by me. Cf. ibid. 8.82.819.
[12] Muslim, Punishments, 4191. The translator inserted
the parenthetical comments.
[13] Bukhari, Punishments of Disbelievers, 8.82.821. The
translator inserted the parenthetical comments.
[14]
Mishkat al-Masabih, Prescribed Punishments, trans. James Robson,
vol. 2, (Lahore: Sh. Muhammad Ashraf, reprinted 1999), 763, my insertion in
brackets.
[15] Ibn Rushd, the
Distinguished Jurist’s Primer, vol. 2, trans. Imran Nahsan Khan Nyazee, (Reading: Garnet, 1996), pp.
523-524. The insertions in parentheses are the translator’s; the ones in
brackets are mine. The translator uses “fornication” or “adultery” as the
translation of zina.
[16] Ibid. vol. 2, pp. 529-30, my bracketed insertions.
[17] Main Khalid al-Qudah, “200 Verses Missing from Sura Azhab?” Question ID or fatwa no. 83594, Jan. 22, 2011, amjaonline.com. Small mechanical edits
were done. The bracketed comments are mine; the parenthetical ones were Khalid
al-Qudah’s.
[18] Idem, “Women Committing Zina,” Question ID or fatwa no. 78320, March 23, 2009 amjaonline.com, Small mechanical
edits were done.
[19] Idem, “The Four Witnesses in Adultery Cases Must Be Eyewitnesses?” Question ID or fatwa no. 84065, March 23, 2011, amjaonline.com, my bracketed
insertions. Small mechanical edits were done.
[20] Zainah Anwar, “No Hudud Please, We”re Malaysians,” October 2, 2011, Sisters in Islam, with small edits. Her emphasis on the word
“stoning.”
[21] Mustafa Aykol, “Adultery, Stoning, and Myths about Islam,” September 7, 2010, hurriyetdailynews.com.
[22] This series of articles does not contrast Christianity
and Islam. But readers may be curious about it. If so, they may click on my
earlier article about adultery and fornication (scroll down for the Biblical view). For more discussion
on the complicated relationship between the Old Testament and New Testament,
see my studies: How Christ Fulfills the Old Testament and How Christians Benefit from the Old Testament. Biblical Christianity says that Christ has fulfilled
the Old Testament and its harsh rulings (Matt. 5:17-20). We do not need to impose
the old laws on people today. These laws may have been valid back then, but we
live under New Covenant.
James M. Arlandson has written a book: Women, Class, and Society in Early Christianity. He has recently completed a series on The Sword in Early Christianity and Islam.