Adultery and Fornication in Early Islam

We’re talking here about how they’re punished.

Let’s look at what we’re facing in the West.

This is Part 14 in the sharia series.

This series of articles about Islamic sharia 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 policymakers.

These intellectual elites have heard the critics of sharia 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 sharia 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 sharia laws?

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 a slight doubt we may feel about flogging sexual sinners. 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 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 SHARIA LAW

Sharia law is based on the Quran and hadith. See the article in the series, titled What Is Sharia? 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.

CAN MODERN ISLAM BE REFORMED?

For our purposes, a reformist 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 sharia scholar assures his reader that convicting people of zina is extraordinarily difficult. But the penalty is still valid.

Reformist Interpretations

The organization Sisters in Islam (SIS) is based in Malaysia, and its members argue strongly against imposing sharia on them and Malaysian society. Recall that hudud means Islamic punishments as well as the section of sharia 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 sharia, 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-Sharia,” or the Purposes of the Sharia.

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 Sharia 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 sharia 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?

The 2015 Study Quran commentators translate 24:2 as all sexual misconduct, including fornication and adultery. Then their commentary on the verse cites or summarizes various ahadtih, many of which command stoning adulterers, that reveal how inconsistent they are. Since they’re inconsistent, the Quran takes priority. It does not command stoning, but lashing.

That’s an improvement for Muslim women today, who are the main target of stoning. However, in the commentators’ haste they neglected to point out that even lashing is too harsh for sexual sin in the world today.

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–certainly none who knew what they were talking about. 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 sharia courts of arbitration to exist as if they are benign. They are not. If a Muslim needs to find out about harmless aspects of sharia 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.

Sharia courts are therefore irrelevant and unnecessary for sexual sins, which are not crimes.

This article first appeared at Jihad Watch on August 27, 2012, but has been updated here.

Articles in the Series

More Punishments (off-site):

[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 Law and How Christians Should Interpret the Law and How to Forgive Adultery. 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 the New Covenant.

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