This question relates to an article on Islamic punishment for sexual relations outside marriage written by Javed Ahmad Ghamidi in his book “Burhan“.
Mr. Ghamidi rightly states and our jurists agree that verses relating to punishment of 100 lashes for zina do not differentiate between married and un-married people.
It is also a historic fact that the punishment of ‘Rajam‘ was given by the Prophet to certain individuals. Our jurists tried to explain away this ambiguity/paradox by saying that Holy Prophet’s action amends the verses of the Qur’an.
Mr. Ghamidi stresses the principle that Hadith can only elaborate/explain a law stated in the Qur’an, but it can not amend or contradict it. Only another verse of the Qur’an can amend/modify it. Hence he says that ‘Rajam‘ given to some people was not because they were married or not but because this punishment comes under another verse of the Qur’an which stipulate death punishment to those who try to create ‘Fasaad‘-anarchy in the society.
He concludes that people who habitually indulge in illicit sexual relations with a view to spread this in the society, prostitutes and those dacoits who rape women can come under the category of creating ‘fasaad‘. Hence according to him people were given ‘Rajam‘ by the Holy Prophet not because they were married, but because they came under one of the categories mentioned above.
What Mr Ghamidi says is quite logical. What I thought was lacking in his argument is that he has not substantiated his argument from the facts of history. From the details of the cases of persons who were given the punishment of ‘Rajam‘ by the Holy Prophet can’t we know about their character? Do the traditions relating to the incident give any evidence that these people were in fact involved in of one of the above-mentioned crimes which come under spreading ‘fasaad‘ in the society?
On the other hand the older faqeehs [i.e. Muslim jurists] also do not substantiate their contention of punishment of ‘Rajam‘ to married people and lashes to unmarried people from the actual case studies to prove that all those who were lashed in Medina were in fact unmarried and those stoned to death were married.
Secondly one thought that came to my mind is that in the absence of a law in the Qur’an sometimes the Holy Prophet used to follow the Musavi fiqah [i.e. The law given to Moses (pbuh)] – which jews observed. For an analysis of this issue I think it would be useful if we look into the punishment for zina in the Musavi fiqah and for the possibility whether Holy Prophet took that as precedence.
Although it seems that you have understood the problem correctly, yet, to remove all doubts, I would still like to reiterate that the real problem in accepting the opinion, which is held by the majority of the Muslim jurists – in the case of the explanation of the incidents of stoning to death – is that their explanation results in accepting a change in the Qur’anic directive pertaining to the punishment of Zina (fornication/adultery).
The Qur’an has clearly stated the punishment of Zina to be one hundred lashes, to be implemented in public and the disqualification of the person involved in the crime from marrying a chaste man/woman. Nevertheless, there are a number of narratives, according to which during the times of the Prophet (pbuh), some people involved in the crime were stoned to death. Most of the Muslim jurists, on the basis of some pieces of information, reported in narratives of the proceedings of such cases, are of the opinion that the Prophet (pbuh) implemented the punishment of stoning to death to those, who were already married and yet committed the crime. Thus, the Muslim jurists are of the opinion that the Shari`ah has prescribed two separate punishments for the crime:
If an unmarried man or a woman commits Zina, the punishment shall be 100 lashes; and
If a married man or a woman commits Zina, the punishment shall be stoning to death.
This explanation, even though it is held by most of the Muslim jurists, results in an alteration in the implication of the related Qur’anic directive. The word ‘Zina‘, used by the Qur’an covers both fornication (i.e. Zina committed by an unmarried person) as well as adultery (i.e. Zina committed by a married person). Thus, holding the opinion that the punishment of Zina, if it is committed by a married person, is stoning to death is, in effect, an alteration in the Qur’anic directive, which had prescribed the punishment to be 100 lashes. As a result of their opinion, the Muslim jurists, generally, also had to submit that Hadith can alter a Qur’anic directive.
The explanation given by my Ustaz (teacher), which you have referred in your comments, is, in fact, an alternative explanation of the reasons for which the criminals were administered the punishment of stoning to death by the Prophet (pbuh). I hold this explanation to be correct, primarily due to the reasons that:
It does not result in the alteration of the implication of the Qur’anic directive, on the basis of Hadith. I firmly believe, on the basis of the Qur’an itself, that nothing can alter the implication of the Qur’anic verses in any way; and
The punishment administered by the Prophet (pbuh) becomes one, which is substantiated by the Qur’an. In other words, rather than altering the implication of the Qur’anic directive, this explanation makes the implementation of the punishment of stoning to death one, which is actually based on the Qur’an.
The Qur’an (Al-Maaidah 5: 32) has restricted administering the death sentence to only cases where the subject is guilty of murder or Fasaad fi al-Ardh1 If the criminals that were subjected to the punishment of stoning to death, were not considered to be in the category of Fasaad fi al-Ardh, then the punishment is in contradiction to the stated directive of the Qur’an, as they were, obviously, not guilty of murder.
Any other explanation of the reasons for the administration of the punishment of stoning to death (even the one which you have suggested in your last paragraph), which does not alter the implication of the Qur’anic directive and does not contradict the Qur’anic directive regarding the restriction of the death sentence to murder and cases of Fasaad fi al-Ardh (and preferably is also one, which makes the punishment implemented by the Prophet (pbuh) to be based on a Qur’anic directive) would, indeed, be worth considering. Nevertheless, I believe it is worth mentioning here that the explanation that you have suggested is based on an important presumption, i.e. “in the absence of a law in the Qur’an sometimes the Holy Prophet used to follow the Musavi fiqah2, which [the] Jews observed”. I really think that for this particular explanation to deserve any consideration, this presumption needs to be fully established. Unless this presumption is fully established and accepted as a fact, the explanation that is based on this presumption would remain quite questionable and one based on conjecture. Moreover, it should also be remembered that the Qur’anic directive of restricting the death sentence to cases of murder and Fasaad fi al-Ardh alone (Al-Maaidah 5: 32), as is clear from the words of the referred verse, was a part of the Musavi Shari`ah as well. Thus, even if it is presumed that the Prophet (pbuh) administered the punishment according to the Jewish laws, the crime still has to fall under the two stipulated categories of either murder or fasaad fi al-ardh.
What I thought was lacking in his argument is that he has not substantiated his argument from the facts of history. From the details of the cases of persons who were given the punishment of ‘Rajam‘ by the Holy Prophet can’t we know about their character? Does the traditions relating to the incident give any evidence that these people were in fact involved in of one of the above-mentioned crimes which come under spreading ‘fasaad‘ in the society?
If you would take a close look at pages 52 to 81 of the referred book3 of my Ustaz, you shall see that in these pages, the author has commented on the information of the cases of rajam, as it has been reported in the narratives. The basic theme of these comments is that the information given in these narratives regarding a number of aspects of the crime as well as the criminal is not detailed enough for us to derive any conclusions on the basis of these narratives. Thus, we are left with no option but to look at the incident in the light of the Qur’anic directives and try to fill in the information blanks, which exist in these narratives.
I hope this helps.
26th May 2000