An-Nur: (2) The adulteress and the adulterer, flog each of them . . .

(The adulteress and the adulterer)

This is the commencement of detailing the rulings previously alluded to. The adulteress (al-zaniyah) is in the nominative case (raf’) as a predicate for a deleted subject; the speech involves the deletion of an annexed noun (mudaf), with the annexing noun (mudaf ilayh) standing in its place. The original intention is: "Among what is recited to you," or "Among the obligations," meaning: "The ruling concerning the adulteress and the adulterer is what is indicated in His saying, 'And We have ordained it'." The fa in His saying, 'fajlidu' (flog), denotes causality. It is also said that it is a sayf khatib (an "orator’s sword" — a linguistic construct used to emphasize the importance of the ruling).

Al-Farra’, al-Mubarrad, and al-Zajjaj held that the predicate is the sentence "flog each of them," and the fa is included — as is commonly known — because the subject contains the meaning of a conditional statement, given that the alif-lam (the definite article) in it and what is coordinated with it is relative (mawsulah). That is: "She who has committed adultery and he who has committed adultery, therefore flog each of them." Some allow the inclusion of the fa in the predicate if the subject contains a meaning that merits the predicate being contingent upon it, even if there is no relative noun present, as in the saying: "And a woman saying, 'Khuwlan, so marry their young woman'." This tribe is as famous for honor and beauty as Hatim is for generosity and Antarah for bravery, and that is a meaning that justifies the commandment to marry being contingent upon it. Based on this, the case for the inclusion of the fa here is strengthened, as is not hidden.

The scholar al-Qutb said: The fa was brought because the subject follows an implied amma (as for), i.e., "As for the adulteress and the adulterer, then flog..." It is narrated from al-Akhfash that it is a sayf khatib. The impetus for Sibawayh’s view — as understood from al-Kitab — is the recognized method in the speech of the Arabs: when one intends to clarify a meaning and detail it, out of concern for the matter, one mentions before it that which acts as a title and heading for it. This can only be done by building it upon two sentences. Thus, what he held regarding the verse is preferable to what others have held, for it is free from the problem of a creative statement (insha') serving as a predicate, and the fa is clearly justified without need for forced interpretation.

Abu Hayyan said: The cause of the disagreement is that Sibawayh and al-Khalil stipulate for the inclusion of the fa in the predicate that the subject must be a relative noun that accepts the immediate application of a conditional particle, while others do not stipulate this.

Abdullah recited it as wa-l-zan (without the ya), for lightness. Isa al-Thaqafi, Yahya ibn Ya’mur, Amr ibn Qa’id, Abu Ja’far, Shaybah, Abu al-Sammal, and Ruways recited al-zaniyata wa-l-zaniya in the accusative case (nasb), implying a verb explained by the apparent noun. Regarding the fa, Ibn Jinni says it is because the end meaning is a condition, and the imperative in the response is paired with it; thus, "Zayd, so strike him" (Zaydan fadribu) is permissible for that reason, while "Zayd, so I struck him" (Zaydan fadartuhu) with the fa is not, because the fa does not enter into the response of a conditional if it is in the past tense.

The intent here, according to some commentaries on al-Kashshaf, is: "If you wish to know the ruling on the adulteress and the adulterer, then flog..." It is also said: "If you flog the adulteress and the adulterer, then flog..." (though this does not imply the intended obligation). It is also said that the fa was introduced because the ruling is that the explanation (mufassar) should be mentioned after the interpreted matter (mufassar), like the detail after the summary in His saying, 'So repent to your Creator and slay yourselves' [2:54]. It is permissible that it be a connective, and the intent is a flogging after a flogging, which does not contradict it being an explanation of what it is coordinated with, because it is based on generic unity.

You know, however, that it is not established practice to use fa as a conjunction where the wording of the explanation is identical. They have asserted the impermissibility of Zaydan fadartuhu by consensus; if such a conjunction were permissible, that would also be permissible with the meaning of "a strike after a strike." Moreover, the notion that the intent here is "flogging after flogging" is clearly problematic. Thus, the view transmitted from Ibn Jinni is the most apparent. It is well-known that Sibawayh and al-Khalil prefer the accusative reading due to the command, while other Basrans and Kufans prefer the nominative because it is like consensus in recitation and is stronger in Arabic, for the meaning according to it is: "Whoever commits adultery, flog them." Thus said al-Zajjaj.

Al-Khafaji said after transmitting Sibawayh’s statement on this station: There is nothing in Sibawayh’s speech that indicates a preference as you have heard; rather, it is understood from it that the nominative in such instances is more eloquent and expressive than the accusative in terms of meaning, and the nominative is more eloquent in that the speech is a single sentence in terms of both meaning and wording. So let this be reviewed and reflected upon.

Al-Jald (flogging) is hitting the jild (skin). It has become a standard derivation for the triliteral verb with an open-eye vowel from the names of bodily parts; thus one says ra'asahu (he hit his head), zahrahu (his back), and batnahu (his belly) when he strikes their head, back, and belly. Al-Raghib allowed that the meaning of jaladahu is hitting him with a hide (jild), just as ’asahu means striking him with a staff (’asa). The intent here is the first meaning, for traditions indicate that the adulteress and adulterer are struck with a whip that has no knots and no branches. It is said that flogging with such a whip was the practice in the time of Umar (may Allah be pleased with him) by consensus of the Companions. Before that, it was sometimes by hand, sometimes by sandal, sometimes by a fresh palm branch, and sometimes by a staff. The apparent meaning of striking the skin is more general than whether it is direct or indirect. Some have claimed — though it is baseless — that the apparent meaning is that it be direct, and it is perhaps used to support the view of our scholars (and Malik) that one should remove the adulterer’s clothing during the flogging, except for the loincloth (izar), which is not removed to cover the private parts.

From al-Shafi’i and Ahmad, it is held that a shirt or two are kept on him. Abd al-Razzaq narrated with his chain from Ali (may Allah honor his countenance) that a man was brought for a penalty (hadd), and he struck him while he was wearing a Qastallani cloak. From Ibn Mas’ud (may Allah be pleased with him): "It is not lawful in this community to strip or to pull (the clothing)." As for the woman, her clothes are not removed among us, except for furs and padded garments, and the reason for this is clear.

In some reports, there is evidence that the man and the woman are the same regarding the non-removal of clothes, except for furs and padding. It seems that those who do not say to remove the clothes believe that "flogging" (jald) in common parlance is striking absolutely, not specifically striking the skin directly. Yes, it might be said that choosing this word over "striking" (darb) suggests that the intent is a strike that pains the skin. It is for this reason that it is said to remove furs and padding, because the strike usually does not pain the skin of one wearing either of them.

The strike should not be excruciating, as destruction is not intended. Hence, they said: If the one who incurs the penalty is of weak constitution, and there is fear of death, he is given a weak flogging that he can bear. Likewise, they said: The strikes are distributed over the limbs of the person penalized, because gathering them in one limb might damage it and perhaps lead to death. It is necessary to avoid the face and private parts, as narrated in a mawquf report from Ali (may Allah honor his countenance), that when a man was brought to him who was drunk or for a penalty, he said: "Strike, and give every limb its share, and avoid the face and the private parts." Likewise the head, because it is the meeting place of the internal senses, so it might be damaged, which is effectively a form of destruction. Abu Yusuf used to say to avoid it, then retracted and said: "Strike it one blow." It is narrated from him that he exempted the belly and the chest, but this is debatable unless one says that the striking in his time was like the striking done by the tyrants of our time; in that case, he should certainly demand the exemption of the head.

From Malik, it is narrated that he restricted the flogging to the back and its vicinity, based on the authentic statement of the Prophet (peace be upon him) to Hilal ibn Umayyah: "Provide proof, or else a penalty on your back." The response to this is that "on your back" refers to the person himself, i.e., "a penalty is established upon you," as evidenced by what is established from the senior Companions—Umar, Ali, and Ibn Mas’ud. As for the Prophet’s saying, "If one of you strikes, let him avoid the face," it is regarding penalties and the like; what is other than that is included in the striking, then the private parts were exempted by consensus. From Muhammad regarding ta’zir (discretionary punishment), it is a strike to the back, while in hudud (fixed penalties), it is to the limbs.

Furthermore, this striking for a man is done while standing, not lying down, and for a woman while sitting. This is narrated from Ali (may Allah honor his countenance). It seems the rationale is that the hadd is intended for public shaming as a deterrent to the commoners, and standing is more expressive of that. For the woman, the affair is based on covering (satr), so it suffices to perform the penalty shaming without any addition. If the man resists and does not stand, or does not endure, there is no harm in tying him to a pillar or having someone hold him.

The number prescribed in the flogging of each of them, i.e., one hundred lashes, implies what is called "one hundred lashes" in any way, even if the first, second, third, and so on up to the hundredth are not distinct. If one hundred men strike him with one hundred whips at once, it suffices for the penalty. They even said: It is permissible to gather the whips and strike once such that each whip touches him. It is narrated from Ali (may Allah honor his countenance) that he struck a penalty with a whip that had two ends forty times, counting each strike as two.

The adulteress was mentioned before the adulterer, even though the custom is to mention the male first, because she is the origin, as the motive in her is stronger; were it not for her enabling, he would not have committed adultery. Their derivation is from zina, which is shortened (maqsur) in the standard language (the language of the people of the Hijaz), though it is lengthened (mamdud) in the language of the people of Najd, upon which al-Farazdaq said: "O Abu Tahir, whoever commits adultery, his zina'u is known / And whoever drinks the wine, becomes intoxicated."

Zina, in the usage of language and Sharia, is said to be the penetration of a woman by a man in the front passage without ownership or a semblance of ownership. This is challenged by the woman’s adultery, for it is zina but the definition does not apply to it. The response given is: "The act of intercourse is a shared matter between the man and the woman; when it occurs between them, each is described by it, and she is called a participant in intercourse (wati'ah)." Hence, He, the Sublime, called her an adulteress (zaniyah). The weakness in this is apparent, as the definition contains what this response does not correct, even if it were sound.

The truth is that her adultery, linguistically, is her enabling the man to commit adultery with her. If one intends to define the zina meant in the verse such that it includes her act, one must add "enabling" in her case—or rather, add it for both of them—and say: "It is the entry of a mature, willing person of the size of the glans into a desired private part, whether presently or in the past, without ownership or semblance, or the enabling of that." This is to ensure it applies to the case where a man is lying down and she sits on his member and he leaves her until she inserts it; they are both to be punished in this image, and there is nothing present of it other than enabling. From this definition, it is known that there is no penalty on a child, an insane person, one coerced by an authority, nor on one who penetrates the anus, or the private part of a minor not desired, or a corpse, or an animal (unlike one who penetrates an elderly woman), nor on one who commits adultery in the land of war (dar al-harb), nor on one who commits it with a semblance of right. Some of what is mentioned is subject to discussion found in the books of jurisprudence.

The ruling is general for one who commits adultery while married (muhsan) and one who is not, but it is definitely abrogated in the case of the married person, for the ruling in his case is stoning (rajm). It suffices for us in determining the abrogator that the command of the Prophet (peace be upon him) for stoning and his acting upon it in his time (peace be upon him) occurred multiple times. Thus, it is among what is abrogated from the Book by the definitive Sunnah.

The Companions (may Allah be pleased with them), the predecessors, the scholars of the nation, and the imams of the Muslims have reached consensus that the married person is stoned with stones until he dies. The rejection of this by the Khawarij is void, because if they reject the authority of the consensus of the Companions, it is a compound ignorance; if they reject its occurrence from the Messenger of Allah (peace be upon him) based on their rejection of the authority of solitary reports (khabar al-wahid), it is—after its refutation by evidence—outside the matter at hand, for the establishment of stoning from him (peace be upon him) is equivalent to tawatur in meaning, like the courage of Ali (may Allah honor his countenance) or the existence of Hatim. Solitary reports regarding the details and specifics of its instances—they, like all Muslims, require acting upon what is mutawatir in meaning just as what is mutawatir in wording. However, their deviation from the Companions and the Muslims, and their abandonment of frequency with the scholars of the Muslims and the narrators, led them into many ignorances due to the obscurity of hearing and fame to them.

That is why, when they faulted Umar ibn Abd al-Aziz for speaking of stoning as not being in the Book of Allah, he bound them with the number of units in prayer and the amounts of zakat. They said: "That is from his (peace be upon him) action and the Muslims'." He said to them: "This is also the same."

Umar ibn al-Khattab (may Allah be pleased with him) was granted insight into them, and he granted insight into them, as recorded by al-Bukhari: "I fear that a long time will pass for the people until a speaker says: 'We do not find in the Book of Allah, the Mighty and Majestic,' and they go astray by abandoning a duty that Allah, the Mighty and Majestic, has sent down. Verily, stoning is a truth upon he who commits adultery while having attained marriage, if evidence is established, or there is pregnancy, or confession."

Abu Dawud narrated that he (may Allah be pleased with him) delivered a sermon and said: "Allah, the Mighty and Majestic, sent Muhammad with the truth and sent down upon him the Book, and among what He sent down was the verse of stoning." He meant by this His saying: "The elderly man and the elderly woman if they commit adultery, stone them both absolutely, as a deterrent from Allah; and Allah is Exalted in Might, Wise." He said: "We recited it and understood it..." until he said, "And I feared that a long time will pass for the people and a speaker will say: 'We do not find...'" He mentioned the tradition with its chains and said: "Were it not that it would be said: 'Umar added to the Book,' I would have written it on the margin of the Noble Mushaf."

Some people held that the abrogator is the abrogated verse that Umar (may Allah be pleased with him) mentioned. The scholar Ibn al-Humam said: "That the abrogator is the definitive Sunnah is preferable to it being the abrogated verse mentioned, due to the lack of certainty in its establishment as Quran and then the abrogation of its recitation, even if Umar (may Allah be pleased with him) mentioned it and the people were silent, for the fact that silent consensus is an argument is disputed. Assuming its validity, we cannot be certain that the totality of the mujtahid Companions (may Allah be pleased with them) were present at that time. Then there is no doubt that the path to this through Umar (may Allah be pleased with him) is speculative."

Therefore—and Allah knows best—Ali (may Allah honor his countenance) said when he flogged Shurahah and then stoned her: "I have flogged her according to the Book of Allah, and stoned her according to the Sunnah of the Messenger of Allah." He did not explain the stoning by the Quran with abrogated recitation. It is known from this saying of his (may Allah honor his countenance) that he was of the opinion that the generality of the verse was not abrogated; thus, his opinion was that stoning is an additional ruling for the married person established by the Sunnah. The Zahiris held this, and it is a narration from Ahmad. They used as evidence what Abu Dawud narrated from his (peace be upon him) saying: "The married for the married: one hundred lashes and throwing with stones." In another narration: "And stoned with stones."

According to the Hanafis, one does not combine stoning and flogging for the married person. This is the view of Malik, al-Shafi’i, and another narration from Ahmad, because flogging strips away the intended purpose of the hadd, which is deterrence, or it is intended if death follows it. The pillar of their evidence is that he (peace be upon him) never combined them, as it has been established through multiple paths that he (peace be upon him), after his questioning of Ma'iz regarding marriage and his prompting him to retract, did not go beyond the command to stone. He said: "Go with him and stone him." He also said (peace be upon him): "Go, O Unays, to the woman of this man, and if she confesses, then stone her," and did not say "flog her then stone her." It appeared in the rest of the noble tradition: "So she confessed, and he (peace be upon him) ordered her to be stoned." Stoning was repeated in his time (peace be upon him), and no one narrated that he combined it with flogging. We are certain that it was only stoning, so the previous report must be considered abrogated, even if the specific abrogator is not known.

The response regarding what Ali (may Allah honor his countenance) did by combining them is that it is an opinion that does not resist what was mentioned of certainty from the Messenger of Allah (peace be upon him), nor does it resist the consensus of the Companions (may Allah be pleased with them). It is possible to say that he (may Allah honor his countenance) did not have the marriage established to him except after the flogging, though this is very distant as shown by returning to the story. And Allah knows best.

The "marriage" (ihsan) for stoning is realized through matters some of which someone put into verse, saying: "The conditions of marriage are six, so take them from the text, enquiring: puberty, sanity, freedom, and the fourth is being Muslim, and a valid contract, and lawful intercourse. Whenever a condition is missing, they shall not be stoned." Many have added that one of the two spouses must be equal to the other in the conditions of marriage at the time of the occurrence of the intercourse by virtue of the marriage. If a free, Muslim, adult, sane man marries a slave, a minor, an insane person, or a woman of the People of the Book and has intercourse with her, he does not become "married" (muhsan) by this intercourse, even if he commits adultery later, he is not stoned. Likewise, if a free, adult, sane, Muslim woman marries a slave, an insane person, or a child and has intercourse with him, she does not become muhsan, so she is not stoned if she commits adultery later.

Ibn al-Kamal mentioned another condition, which is that their ihsan is not voided by apostasy. If they apostatize—may Allah protect us—and then become Muslim, it does not return except by intercourse after it. If it is voided by insanity or mental deficiency, it returns by the recovery. It is said [it returns only] by intercourse after it. Al-Shafi’i does not stipulate equality in the conditions of ihsan at the time of the occurrence of the intercourse, so there is no stoning for him in the two aforementioned issues. Likewise, he does not stipulate Islam; if a dhimmi (non-Muslim subject) who is married and free commits adultery, he is flogged according to us and stoned according to him, and it is a narration from Abu Yusuf, and Ahmad held this, while Malik’s view is like ours.

The opponent used as evidence what is in the two Sahihs from the hadith of Abdullah ibn Umar (may Allah be pleased with them) that the Jews came to the Messenger of Allah (peace be upon him) and mentioned to him that a woman and a man from among them had committed adultery. The Messenger of Allah (peace be upon him) said: "What do you find in the Torah regarding the matter of stoning?" They said: "We expose them and they are flogged." Abdullah ibn Salam said: "You lie in what you claim, for in it is stoning." They brought the Torah and recited it, and one of them—meaning Abdullah ibn Suriya—put his hand over the verse of stoning and read what was before it and what was after it. Abdullah ibn Salam said to him: "Lift your hand," and he lifted his hand, and there was the verse of stoning. They said: "You have told the truth, O Muhammad." So the Prophet (peace be upon him) ordered them, and they were stoned.

Our evidence is what Ishaq ibn Rahwayh narrated in his Musnad, saying: "Abd al-Aziz ibn Muhammad informed us, Ubaydullah narrated to us from Nafi’ from Ibn Umar from the Prophet (peace be upon him) who said: 'Whoever associates partners with Allah is not *muhsan'." This report was raised (marfu') as Ishaq said once, and made stationary (mawquf) another time. Al-Daraqutni narrated it in his Sunan and said: "No one raised it other than Rahwayh." It is said that he retracted that, and the correct view is that it is stationary. In al-’Inayah: The wording of Ishaq, as you see, has no retraction in it; rather, he mentioned regarding the narrator that he once raised it and another time presented it as a legal opinion and did not raise it. There is no doubt that such a report, after the authenticity of the path to him, is ruled as raised, according to what is favored in the science of hadith: that if raising and stopping conflict, it is ruled as raised. After that, if it comes out through paths containing weakness, it does not harm.

Some of our eminent scholars answered that stoning was legislated without stipulating Islam when the Prophet (peace be upon him) stoned the Jewish man and woman, and that was by virtue of what Allah had sent down to him (peace be upon him). His (peace be upon him) questioning the Jews about what they find in the Torah on the matter is not because he was to learn its ruling from that.

The saying that he (peace be upon him) was, upon first arriving in Medina, commanded to rule by what is in the Torah, is forbidden; rather, it was only to rebuke them for abandoning the ruling by what Allah had sent down to them. When the purpose was achieved, he (peace be upon him) ruled with their stoning by his legislation which conforms to their legislation. When it is known that stoning was established in our legislation at the time of their stoning without stipulating Islam, and it has been established in the hadith of Ibn Umar (may Allah be pleased with them) which indicates the stipulation of Islam—and there is no history known by which the stipulation of Islam precedes the non-stipulation or follows it—the conflict occurs between his (peace be upon him) action of stoning the two Jews and his aforementioned saying. Thus, precedence is sought. They have said: If speech and action conflict and the antecedent from the subsequent is not known, the speech is given precedence over the action.

There is another aspect, which is that giving precedence to this saying necessitates warding off the penalty, and giving precedence to that action necessitates caution in requiring the penalty. The preferred approach in hudud is to give precedence to the one that removes the penalty in case of conflict. It is not hidden that every preferred matter is ruled as subsequent by ijtihad; thus, the reliance in the ruling is the hadith of Ibn Umar (may Allah be pleased with them). The opponent’s saying that the "married person" meant in it is the one from whom retribution is taken for the Muslim is contrary to the apparent meaning, because the most usage of ihsan is in the ihsan of stoning.

Some rejected against those who say that the penalty for the unmarried person (bikr) with an unmarried person is one hundred lashes and banishment for a year—they are Imam al-Shafi’i, Imam Ahmad, al-Thawri, and al-Hasan ibn Salih. The direction of the rejection is that His saying 'The adulteress and the adulterer...' is the commencement of the explanation of what the ruling for adultery is. Thus, what is mentioned must be the completion of its ruling; otherwise, it would be obfuscation, not clarification and detailing, as it is understood from it that it is the completion, and it is not the completion in reality. It was, with the commencement of the explanation, further from explanation because it induced compound ignorance, while before it, the ignorance was simple. Thus, it is understood by the requirement of that, that the penalty for the adulteress and the adulterer is nothing but flogging.

More concise than this is that the station is a station of explanation, and silence in it signifies restriction (hasr). The opponent said: If we concede the indication of restriction and that the mentioned is the completion of the ruling so that the meaning is "the penalty for each is nothing but flogging," that is abrogated by what is authentic from the narration of Ubadah ibn al-Samit from him (peace be upon him): "The unmarried for the unmarried: one hundred lashes and banishment for a year."

The answer is that, even after conceding, the claim of abrogation by what is mentioned is not valid, because it is a solitary report; according to us, it is not permissible to abrogate the Book by it. The saying that the aforementioned report has been received by the nation with acceptance is of no avail, for if "received with acceptance" means their consensus on acting upon it, it is forbidden, for it is authentically reported from Ali (may Allah honor his countenance) that he does not uphold their banishment and said: "It suffices them as a trial that they be exiled." In another narration: "It suffices as a trial that they be exiled." If it means their consensus on its authenticity in the sense of the health of its chain, many solitary reports are likewise, and they do not thereby emerge from being solitary. Furthermore, it contains nothing more than that banishment is obligatory, and it does not indicate that it is an obligatory hadd; rather, what is in Sahih al-Bukhari from the saying of Abu Hurayrah: "The Messenger of Allah (peace be upon him) judged for those who committed adultery and were not married with a year of banishment and the establishment of the hadd," is apparent that the banishment is not part of the hadd due to its magnitude, and him using the term hadd for part of its named whole and coordinating it to the other part is distant. It is possible it is a discretionary punishment (ta’zir) for a benefit. An Imam might banish for a benefit he sees in other than what is mentioned, as it is authentic that Umar ibn al-Khattab (may Allah be pleased with him) banished Nasr ibn Hajjaj to Basra because due to his beauty, some women were tempted by him... The saying that ta’zir does not combine with hadd is not hidden.

The jurist al-Marghinani claimed that the aforementioned report is abrogated, for its second part—indicating the combination of flogging and stoning—is abrogated as you have learned. The answer is that there is no necessity; it is possible that sentences are narrated where some are abrogated and some are not. Yes, the abrogation of one of the two parts might facilitate the entry of the possibility of the abrogation of the other part; this possibility is present in what we are in, so it weakens from the degree of solitary reports that did not have this possibility, so it is more worthy that what the Book provided—that the hadd is flogging and nothing else—is not abrogated, according to what you have heard of its argument. Reflect upon it.

Then, banishment is not specific to the man according to those imams; they said the woman is banished with a mahram (chaperone), and his wages are upon her in one view, and in the public treasury in another. If she refuses, there is a view that the Imam forces her, and in another, he does not. If the road is safe, there are two views regarding her banishment without a mahram. According to Malik and al-Awza’i, only the man is banished, and the woman is not, due to his (peace be upon him) saying: "The unmarried for the unmarried," etc. Others from among those who preceded said the hadith must include her, for its beginning is: "Take from me, Allah has made a way for them: the unmarried for the unmarried..." It is a text that banishment and flogging are a way for women. "Unmarried" (bikr) is said for the female; do you not see his (peace be upon him) saying: "The unmarried woman seeks permission"? Putting aside all of that, it might be said that this is from the places where rulings are established for women by texts providing them for men through the refinement of the basis (tanqih al-manat).

This said, it is not hidden that the apparent meaning of "The adulteress and the adulterer" includes the slave and others, so the amount of the penalty is one for all. However, His saying: "Then upon them is half of what is upon the free women of the punishment" [4:25] excludes the slave-women, for the verse was sent down regarding them. Likewise, it excludes the male slaves, as there is no difference between the male and the female by the refinement of the basis, so one returns in that to the indication of the text, based on the fact that it is not stipulated in the indication that the unmentioned be worthier of the ruling than the mentioned; rather, equality in it is sufficient. It is said that male slaves enter by way of domination (taghlib), the opposite of the rule, which is the domination of the males.

Marriage (ihsan) is not stipulated for the slave, as Muslim, Abu Dawud, and al-Nasa’i narrated from Ali (may Allah honor his countenance) who said: The Messenger of Allah (peace be upon him) said: "Establish the hudud upon those whom your right hands possess, those who are married and those who are not married." In it is evidence that the condition—meaning the ihsan in the verse indicating the halving of the penalty—has no reverse concept (mafhum). It is narrated from Ibn Abbas and Tawus that there is no hadd on a slave-woman until she is married with a husband, and in it is the consideration of the concept. Then this ihsan is a condition for flogging because stoning cannot be halved. For al-Shafi’i, there are views on the banishment of the slave: he is banished for a year, he is banished for half a year, he is not banished at all. The address in His saying "flog" is to the imams of the Muslims and their deputies.

There is disagreement on the master establishing the penalty on his slave. With us, he does not establish it except with the permission of the Imam. Al-Shafi’i, Malik, and Ahmad said he establishes it without permission. From Malik, except for the married slave-woman. Al-Shafi’i exempted the master who is a dhimmi, the mukatab (slave under contract of emancipation), and the woman. Likewise, there is disagreement on the rebellious usurping ruler establishing the hadd; it is said he does, and said he does not. The evidence for the aforementioned views and the verification of what is the truth among them is their place. The apparent is that the establishment of the aforementioned hadd is after the occurrence of adultery by one of the known paths.

Ishaq said: If a man and a woman are found in one garment, each of them is flogged one hundred lashes. This is narrated from Umar and Ali (may Allah be pleased with them). Ata’, al-Thawri, Malik, and Ahmad said: They are disciplined according to their schools on discipline.

(And let not pity for them withhold you): gentleness and dealing with kindness and compassion.

(In the religion of Allah): in His obedience and establishing His hadd which He, the Exalted and Majestic, has legislated. The intent is the prohibition against lightening the flogging by flogging them in a non-painful way or by it being less than one hundred lashes.

Abu Mijlaz, Mujahid, Ikrimah, and Ata’ said: The intent is the prohibition against dropping the hadd through intercession; it is as if it were said: Establish the hadd upon them, and there is no alternative. A similar meaning is narrated from Ibn Umar and Ibn Jubayr. In this is evidence that it is not permissible to intercede in dropping the hadd. The apparent is that the intent is the impermissibility of that after the establishment of the cause of the hadd before the judge. As for before reaching him and the establishment, then intercession with the one who raises the matter for one who has been described by the cause of the hadd to the judge so that he releases him before reaching and before establishment is permissible. They did not restrict that to adultery, because it is authentic that he (peace be upon him) rebuked his beloved Usamah ibn Zayd when he interceded for Fatimah bint al-Aswad ibn Abd al-Asad al-Makhzumiyyah, the thief of a wrap—it is said a piece of jewelry—and he said to him: "Do you intercede in a hadd from the hudud of Allah?" Then he stood and preached and said: "O people, those before you only went astray because if a noble among them stole, they left him, and if a weak one stole, they established the hadd upon him. By Allah, if Fatimah bint Muhammad stole—and she is above that—I would cut off her hand." Just as intercession is prohibited, accepting it is prohibited. From al-Zubayr ibn al-Awwam (may Allah be pleased with him), he said: "If the hadd reaches the Imam, he should not pardon, even if he pardons."

(For them)—it is said it relates to a deleted word for explanation, i.e., "I mean by them." It is said it relates to ta’ra’fu (show pity), which is deleted: "And do not show pity for them." The work of Abu al-Baqa’ implies the choice of it relating to ta’khudh (withhold), and the ba is for causality, i.e., "And let not pity withhold you due to them." He did not allow it to relate to ra’fah (pity), reasoning that the derivative’s operand cannot precede it. To me, it relates to the verbal noun, and one expands in the prepositional phrase in what one does not expand in others. The scholar Sa’d al-Millah wa-d-Din verified this in the beginning of the commentary of al-Talkhis in a way that has no addition.

(In religion)—it is said it relates to ta’khudh, and Abu al-Baqa’ agrees. It is said it relates to a deleted word that acts as an adjective for ra’fah. Ali (may Allah honor his countenance), al-Sulami, Ibn Miqsam, and Dawud ibn Abi Hind narrated from Mujahid: (Wa-la ya’khudhkum) (with the ya prefix), because the feminine of ra’fah is metaphorical, and the separation [by the object] made that good. Ibn Kathir recited ra’fah with a fatha on the hamzah; Ibn Jurayj ra’fah with an alif after the hamzah on the pattern of fa’alah. This is narrated from Asim and Ibn Kathir. Abu al-Baqa’ transmitted that he recited ra’fah by turning the hamzah into an alif. It is a verbal noun heard in all of that, except that the most common in usage is what conforms to the reading of the majority.

(If you believe in Allah and the Last Day): This is from the category of provocation and incitement, as one says: "If you are a man, do such-and-such," and there is no doubt in his manhood. Likewise, those addressed here are definitively believed to have faith, but the intent is to incite them and move their protective jealousy so they strive in the obedience of Allah and apply His rulings in their proper manner. He mentioned the "Last Day" to remind of what it contains of punishment in contrast to the pity for them.

(And let a group of the believers witness their punishment): Meaning, let them be present as an increase in the deterrence, for shaming might deter more than the torture, or for that and for reflection and admonition. From Nasr ibn Alqamah: that it is so they may pray for them for repentance and mercy, not for shaming. This is in the utmost distance from the context. The command here, as the speech of the jurists indicates, is for recommendation (nadb).

There is disagreement regarding this "group" (ta’ifah). Abd ibn Humayd and others narrated from Ibn Abbas that he said: The group is one man or more. Ahmad held this. Ata’ and Ishaq ibn Rahwayh said: Two or more, and this is the famous view of Malik. Qatadah and al-Zuhri said: Three or more. Al-Hasan said: Ten. From al-Shafi’i and Zayd: four, and this is a view of Malik. Al-Khafaji said: The verification of the station is that ta’ifah in its origin is a feminine active participle from tawaf (circling) or enclosing. It is either an adjective of "self" (the self of a group regarding the one), or an adjective of "collection" (a collection of a group). Thus, it is applied to what is above it, so it is like a homonym (mushtarak) between those meanings. It is thus carried in every station upon what suits it.

Al-Raghib mentioned that if one intends the one by it, it is valid that it be a plural used for the one, and it is valid that it be a singular, and the ta in it is as in riwayah (a narration). In the margins of al-’Adud by al-Harawi, it is valid to say of the one that it is a ta’ifah, meaning the self of a group, so it is from tawaf in the meaning of circling.

In the commentary of al-Bukhari, al-Shafi’i carried ta’ifah in places in the Quran upon different aspects according to the places. In His saying 'Why should not a group from every division of them go forth' [9:122], it is one or more, and he used it as evidence for accepting the solitary report. In His saying 'And let a group of the believers witness their punishment', it is four. In His saying 'And let a group from them stand with you' [4:102], it is three. They differentiated in these places according to the contextual clues. In the first, because warning is achieved by it; in the second, because the shaming in it is more severe; in the third, because the plural pronoun followed in His saying 'and let them take their weapons', and the least of it is three. That it is derived from tawaf does not contradict it, because it is in the meaning of circling or it is the root and it is not looked at after the prevalence of usage, so it is said that its ta is for transfer. This is not devoid of debate.

The truth is that the intent of ta’ifah here is a group by whom the shaming and deterrence are achieved. It differs in smallness and greatness according to the difference in places and persons; a person might have his shaming and deterrence achieved by three, and another might not have his achieved by ten. For the one who says "four" here, there is a valid side, as is not hidden.