Tafsir of An-Nur 24:2

Surah An-Nur (The Light), Verse 2: The Adulteress and the Adulterer...

[2:2] The adulteress and the adulterer, flog each of them one hundred lashes...

It is to be noted that the verse begins with the nominative case for {الزانية والزاني} (The adulteress and the adulterer).

1. According to Al-Khalil and Sibawayh: The predicate is omitted, implying: "What Allah has ordained for you concerning the adulteress and the adulterer is that you flog them." That is, "Flog them." The conjunction fa- (ف) is included because the definite article al- (ال) carries the meaning of alladhī (who/which) and implies a conditional sense. The structure is akin to: "Whoever commits adultery, flog them."
2. It is also read in the accusative case (mansūb) by assuming an implied verb that is then clarified by the explicit verb: Fajludū (flog them).
3. It is read as {والزاني} without the final yā’ (ي).

The discussion in this verse falls into two categories:

1. Matters related to Legal Rulings (Shar'iyyāt).
2. Matters related to Rational/Intellectual Issues (Aqlīyāt).

We will address both categories to the extent of our ability, God willing.

Know that adultery (zinā) is forbidden and is considered one of the major sins (kabā'ir). This is indicated by several points:

1. Association with Major Sins: Allah associates it with Shirk (polytheism) and the unlawful killing of a soul in the verse: “And those who do not invoke with Allah another deity, or kill the soul which Allah has forbidden except by right, or commit unlawful sexual intercourse...” (Al-Furqan: 68). He also states: “And do not approach unlawful sexual intercourse. Indeed, it is ever an immorality and is evil as a way.” (Al-Isra: 32).
2. Severity of Punishment: Allah ordained the full penalty of one hundred lashes for it, unlike the penalty for slander (qadhf) or drinking alcohol. Furthermore, the Shari'ah prescribed stoning (rajm) for the married adulterer/adulteress. Believers were forbidden from showing leniency, and the presence of a group of believers was mandated for public exposure, as this shames the transgressor more deeply within his community.
3. Prophetic Tradition: It is narrated from Hudhayfah (RA) that the Prophet (PBUH) said: "O people, fear adultery, for it contains six characteristics: three in this world and three in the Hereafter. Those in this world are: it removes radiance/beauty, brings poverty, and shortens life. As for those in the Hereafter, they are the wrath of Allah the Exalted, a severe reckoning, and the punishment of the Fire." It is also narrated that 'Abdullah (Ibn Mas'ud) asked the Prophet (PBUH): "Which sin is the greatest before Allah?" He replied: "That you set up a partner for Allah while He created you." I asked: "Then which?" He replied: "That you kill your child for fear they will eat with you." I asked: "Then which?" He replied: "That you commit adultery with your neighbor's wife." Then Allah revealed the confirmation: “And those who do not invoke with Allah another deity...” (Al-Furqan: 68).

We must investigate six matters concerning this verse:

1. The definition (māhiyyah) of zinā.
2. The legal rulings (aḥkām) of zinā.
3. The conditions (sharā'iṭ) required for these rulings to apply.
4. The means by which the occurrence of zinā is established.
5. Who the addressees of the command {فاجلدوهم} (flog them) are (referring to verse 4).
6. The nature of the prescribed stoning (rajm) and flogging (jald).

Some of our colleagues define it as the insertion of the penis into a naturally desired private part that is definitively forbidden. This involves several issues:

Issue 1: Does Liwāṭ (Sodomy) fall under the name Zinā?

Argument for Inclusion (Yes):

• Textual Evidence (Naṣṣ): Abu Musa Al-Ash'ari (RA) narrated that the Prophet (PBUH) said: "If a man approaches a man, they are both adulterers (zāniyān)."
• Meaning/Concept (Ma'nā): Liwāṭ resembles zinā in form and meaning.
  • Form: Zinā is defined as inserting the penis into a naturally desired private part that is definitively forbidden. The anus (ad-dubar) is also considered a private part (farj) because the vagina (al-qubul) is called a farj due to its opening/separation. This characteristic is even more present in the anus. The only difference is that in common usage, liwāṭ is not called zinā, but this does not invalidate the linguistic root meaning, just as we say "This is a physician" without implying he is a scholar, even though medicine is a science.
  • Meaning: Zinā is the gratification of lust from a naturally desired location in a purely forbidden manner. This exists in liwāṭ because both the anus and the vagina are desired due to sharing characteristics that relate to lust, such as warmth, softness, and narrowness of entry. Therefore, those who follow natural disposition do not differentiate between the two locations; only the Shari'ah differentiates through prohibition and permissibility.

Argument for Exclusion (No - The Majority View): The majority of our colleagues hold that liwāṭ is not included under the name zinā.

1. Common Usage ('Urf): It is famously known that this act is liwāṭ and not zinā, and the default is to maintain established usage.
2. Oath: If someone swears, "I will not commit zinā," and then commits liwāṭ, he does not break his oath (yaḥnith).
3. Difference of Opinion among Companions: The Companions differed on the ruling for liwāṭ. If liwāṭ were synonymous with zinā, the explicit text of the Qur'an regarding the penalty for zinā would have sufficed, negating the need for differing opinions and Ijtihād.
4. Interpretation of Hadith: The hadith mentioning "two adulterers" must be interpreted in terms of sin (ithm), supported by the Prophet's (PBUH) statement: "If a woman approaches a woman, they are both adulteresses," and "The two hands commit adultery, and the two eyes commit adultery."
5. Analogy is Weak: The analogy based on the term farj (private part) is weak. While the anus is called a farj due to its opening, this does not mean everything with an opening is a farj. (Just as a star is named najm because it is visible, not everything visible is called a star; and a fetus is called janīn because it is hidden, not everything hidden is called a janīn.)

Rulings on Liwāṭ according to Al-Shafi'i (RH): Al-Shafi'i has two opinions:

1. The sounder opinion: The penalty for zinā applies. If the perpetrator is muḥṣan (married and chaste), he is stoned. If not, he receives one hundred lashes and one year of exile.
2. The second opinion: The perpetrator and the passive partner are both killed, whether muḥṣan or not, based on the narration from Ibn 'Abbas (RA) that the Prophet (PBUH) said: "Whoever you find committing the act of the people of Lot, kill the doer and the receiver."

• Methods of Killing (Debated):
  1. Beheading, like an apostate.
  2. Stoning (the view of Malik, Ahmad, and Ishaq).
  3. Having a wall collapsed upon them (narrated from Abu Bakr As-Siddiq).
  4. Throwing them from a high place until they die (narrated from 'Ali).
  • Rationale for these methods: Because Allah punished the people of Lot with all these forms of destruction: “And We made the high city of theirs the low one and rained upon them stones of baked clay.” (Hud: 82).

Rulings on Liwāṭ according to Abu Hanifah (RH): The sodomite is not subject to a prescribed ḥadd penalty but is disciplined (ta'zīr).

• The Passive Partner: If he is sane, adult, and consenting, then:
  • If we hold the active partner is killed, the passive partner is also killed in the same manner.
  • If the active partner receives the ḥadd of zinā, the passive partner receives one hundred lashes and one year of exile, regardless of whether he was muḥṣan or not.
  • Note: Some say if the passive partner was a married woman, she is stoned, but this is incorrect because being penetrated anally does not confer the status of iḥṣān (chastity for stoning).

Al-Shafi'i's Arguments for Prescribed Penalty (Ḥadd):

1. Liwāṭ is either identical to zinā in essence or in its necessary consequences. The Prophet's (PBUH) statement, "They are both adulterers," indicates the doer is a zānī. A term indicating the essence also implies all its consequences. If the essence of zinā is established in liwāṭ, the verse applies. If not, its consequences must apply, and one consequence of zinā is the ḥadd. (The counter-argument that this is dropped for female-female acts is noted, but it doesn't necessitate dropping it here.)
2. The active partner must be killed. The Prophet (PBUH) said: "Whoever commits the act of the people of Lot, kill the doer and the receiver." Since killing is established, he must be considered a zānī, otherwise his blood would not be lawful, based on the Prophet's (PBUH) statement: "The blood of a Muslim is not lawful except for three reasons..." Since neither disbelief after faith nor unlawful killing occurred, the only remaining cause for death is zinā after iḥṣān, thus requiring stoning.
3. Analogy (Qiyās): Liwāṭ is analogous to zinā because natural disposition (ṭab') inclines toward it for pleasure, yet it is ugly, necessitating deterrence, for which ḥadd is suitable.
   • Counter-argument: The difference is that zinā involves the corruption of lineage, which liwāṭ does not. (Al-Shafi'i's rebuttal: This difference is nullified by the act of an old, ugly woman being penetrated.)

Abu Hanifah's Arguments Against Ḥadd:

1. Liwāṭ is not zinā (as previously argued), so killing is not mandated by the hadith concerning the people of Lot, as the Prophet (PBUH) said: "The blood of a Muslim is not lawful except for three reasons..."
2. Liwāṭ is not equal to zinā in the need for deterrence or in the resulting crime. Deterrence is less necessary because while the active partner desires it, the passive partner does not, unlike zinā where desire is mutual. The crime is less severe because zinā involves the loss of lineage, which liwāṭ does not. Therefore, the punishment should not be equal.
3. The ḥadd is like a substitute for the mahr (dower); since mahr is not associated with liwāṭ, neither is the ḥadd.
   • Rebuttal: While liwāṭ may not be identical in essence, it is similar in consequences. The lack of desire in the passive partner is due to the intense desire of the active partner (as humans are keen on what is forbidden). The common ground (jāmi') for punishment must be established.

Issue 2: Bestiality (Intercourse with Animals)

The Ummah agrees on the prohibition of intercourse with animals. Al-Shafi'i has several opinions on the penalty:

1. The penalty for zinā applies: stoning if muḥṣan, flogging and exile if not.
2. The perpetrator and the animal are killed, based on Ibn 'Abbas (RA) who said the Prophet (PBUH) said: "Whoever approaches a beast, kill him and kill the beast with him." (Ibn 'Abbas suggested the animal was killed because it was disliked that its flesh be eaten after such an act.)
3. The Sounder Opinion (Abu Hanifah, Malik, Ath-Thawri, Ahmad): Ta'zīr (discretionary punishment) is required.
   • Reasoning: Ḥadd is a deterrent for inclinations the soul desires. This act is not desired by the soul. They weakened the hadith of Ibn 'Abbas due to its weak chain, and even if authentic, it is contradicted by the prohibition against slaughtering animals except for consumption.

Issue 3: Other Acts

Sodomy between women (suḥq), intercourse with a corpse, and masturbation are subject only to ta'zīr.

In the early days of Islam, the penalty for a married adulterer (muḥṣan) was imprisonment until death, and verbal abuse for an unmarried person (bikr), based on: “And those [women] who commit immorality from among your women, bring against them four witnesses from among you. And if they testify, confine them in houses until Allah takes them in death or Allah ordains for them [another] way.” (An-Nisa: 15-16).

This was later abrogated, and the penalty became: Stoning for the muḥṣan, and one hundred lashes plus exile for the bikr.

Issue 1: Denial of Stoning by the Khawarij

The Khawarij rejected stoning based on several arguments:

1. The Verse on Half Punishment: “Then for those [women] who commit immorality, there is half of the punishment prescribed for the free chaste women.” (An-Nisa: 25). If stoning were due for the muḥṣan, then a slave (ra'qīq) should receive half the stoning, but stoning cannot be halved.
2. Lack of Mention in Qur'an: Allah detailed the rulings for zinā extensively (prohibition, threat of Fire, flogging, requiring four witnesses, forbidding leniency, penalty for slanderers, prohibition of accepting their testimony, the curse of li'ān for the wife, and the prohibition of marriage to an adulteress). Since stoning is the greatest consequence, its omission from the Qur'an implies it is not obligatory.
3. General Text vs. Singular Report: The verse {فاجلدوا} (flog them) implies flogging for all adulterers. Establishing stoning for some based on a singular report (khabar wāḥid) requires specifying the general text of the Qur'an with a non-conclusive report, which is impermissible, as the Qur'an is definitive in its text.

The Majority Argument for Stoning: The majority of jurists affirm stoning for the muḥṣan based on the Prophet's (PBUH) established practice, which was transmitted by Tawātur (mass transmission).

• Abu Bakr Ar-Razi stated that stoning was narrated by Abu Bakr, 'Umar, 'Ali, Jabir ibn 'Abdullah, Abu Sa'id Al-Khudri, Abu Hurayrah, Buraydah Al-Aslami, Zayd ibn Khalid, and others. 'Umar (RA) famously said: "If people did not say that 'Umar added to the Book of Allah, I would have written it in the Mus'haf."

Rebuttals to the Khawarij:

1. Re: Half Punishment: The verse is specific to flogging. If we argue that the Qur'an is specified by a singular report, we counter that stoning is transmitted by Tawātur, which is conclusive. Furthermore, specifying the Qur'an with a khabar wāḥid is permissible in Usul al-Fiqh.
2. Re: Omission: It is not unlikely that legal rulings change according to evolving public interest (maṣlaḥah). Perhaps the interest necessitating stoning arose after the revelation of these verses.
3. Re: General Text: It is narrated that 'Ali (RA) combined flogging and stoning. This is the view of Ahmad, Ishaq, and Dawud.
   • Argument for Combination: The general verse mandates flogging, and the Tawātur report mandates stoning. Since there is no contradiction, both must be implemented.
   • Evidence: The Prophet (PBUH) said: "The unmarried fornicator (bikr) receives one hundred lashes and one year of exile; the married fornicator (thayyib) receives one hundred lashes and stoning with stones."
   • Evidence: A man committed zinā with a married woman; the Prophet (PBUH) ordered him flogged, then, upon learning he was muḥṣan, ordered him stoned.
   • Evidence: 'Ali (RA) flogged Sharaḥah Al-Hamdaniyyah, then stoned her, saying: "I flogged her by the Book of Allah and stoned her by the Sunnah of the Messenger of Allah (PBUH)."

Most jurists agree that the muḥṣan is stoned but not flogged.

• Evidence: The story of Al-'Usayf (the hired laborer): The Prophet (PBUH) told Anis: "Go to this man's wife; if she confesses, stone her." He did not mention flogging. If flogging were required alongside stoning, it would have been mentioned. This is also supported by the stories of Ma'iz and the woman from Ghamid.
• 'Umar's Statement: 'Umar (RA) said he feared people would later claim stoning was not in the Book of Allah, stating: "We used to recite: 'The old man and the old woman, if they commit adultery, stone them both absolutely.' The Messenger of Allah (PBUH) stoned, and we stoned after him."
• Rebuttal to Combination: The verse is specific to the bikr. The hadith mentioning flogging and stoning might have occurred before the Prophet (PBUH) learned of the iḥṣān (chastity) of the perpetrator, or before the definitive ruling was established.

Issue 2: Penalty for the Unmarried (Bikr)

Al-Shafi'i and Abu Hanifah differed on exile (taghrib):

• Al-Shafi'i: Combines flogging (100 lashes) and one year of exile.
• Abu Hanifah: Flogging only; exile is left to the Imam's discretion.
• Malik: Flogging for the man, and flogging but no exile for the woman.

Al-Shafi'i's Evidence: The hadith of 'Ubadah: "The unmarried fornicator receives one hundred lashes and one year of exile; the married fornicator receives one hundred lashes and stoning." Also, the story of the hired laborer where the Prophet (PBUH) ordered 100 lashes and one year of exile for the son, and stoning for the wife.

Abu Hanifah's Arguments Against Exile:

1. Abrogation of the Qur'an: Enacting exile necessitates abrogating the Qur'an (which only mentions flogging), and abrogating the Qur'an by a singular report is impermissible. (They argue the fa' in fajludū implies the flogging is the complete penalty, so adding exile abrogates this completeness.)
2. Lack of Prominence: If exile were legislated, the Prophet (PBUH) would have clarified it when reciting the verse, and it would have achieved the same prominence as the verse itself, which it did not.
3. Slave Women: The Prophet (PBUH) ordered a slave woman flogged three times, then sold, without mentioning exile. If exile were due, it would have been mentioned.
4. Slave Men: Exile cannot be legislated for slave men because it harms the master (who loses the slave's labor) without the master committing a crime. Furthermore, the hadith ordering the sale ("even for a ṭafīr [a small piece]") contradicts exile, as the slave cannot be delivered to the buyer while in exile. If exile is not legislated for slave men, it should not be for free men either (by analogy).
5. Women's Exile: If exile is for men, it must be for women too (due to equal crime). If for women, either alone or with a guardian (maḥram). Exile alone is forbidden by text (a woman cannot travel without a maḥram) and reason (exile removes protection, increasing temptation, especially for the poor). Exile with a guardian is impermissible as it punishes the guardian who committed no crime (cf. Qur'an 6:164).
6. Companions' Practice: 'Umar exiled Rabi'ah ibn Umayyah for wine but never again, not even for zinā. 'Ali (RA) stated that the two unmarried fornicators are flogged but not exiled, as exile is a source of fitnah (trial).
7. The Elderly Man: An elderly man who committed zinā was ordered flogged 100 times (using 100 twigs), and then released. If exile were mandatory, it would have been applied. (Rebuttal: He might have been too weak to travel, but then he should have been provided transport from the public treasury.)
8. Analogy to Killing: Exile is analogous to expulsion from the homeland mentioned alongside killing in the verse: “...kill yourselves or expel [each other] from your homes...” (An-Nisa: 39). Since killing is not prescribed for the unmarried zinā, neither should its analogy, exile, be prescribed.

Rebuttal to Abu Hanifah:

1. The argument regarding the fa' in fajludū being a term for consequence (jazā') is based on the opinion of some linguists, not definitive textual proof.
2. The argument that flogging alone being the complete penalty implies the removal of the original state of innocence (barā'ah aṣliyyah). This removal of original innocence can be established by a singular report, unlike the removal of a legislated ruling.

Issue 3: Scope of the Command {الزانية والزاني}

The Ummah agrees that the verse applies to all adulterers, but they differ on how the term implies generality:

• Some say: The singular noun az-zānī implies generality. (This is rejected by the author based on linguistic principles, e.g., "I wore the garment" does not mean all garments.)
• The Author's View: The generality is established by the contextual evidence (qarīnah):
  1. Attributing a ruling to a derived attribute (waṣf mushtaqq) implies that attribute is the effective cause ('illah). Since zinā is the cause for the flogging, wherever zinā occurs, flogging must occur, as the cause cannot be separated from its effect.
  2. If the verse meant only some adulterers, the verse would be ambiguous (mujmal), preventing action. Since action is commanded, it must be interpreted generally to be actionable.

All agree that zinā must be committed with sanity ('aql) and puberty (bulūgh) for the ḥadd to apply. These are general conditions for all penalties.

For stoning (rajm), four additional conditions must be met:

Condition 1: Freedom (Ḥurriyya) All agree that a slave (ra'qīq) is never stoned.

Condition 2: Valid Marriage (Nikāḥ Ṣaḥīḥ) Iḥṣān (chastity leading to stoning) is not established by intercourse via slave ownership (milk al-yamīn), suspicious intercourse (wuṭ' ash-shubhah), or a void marriage (nikāḥ fāsid).

Condition 3: Consummation (Dukhūl) It is necessary based on the hadith: "The married fornicator (thayyib) for the married fornicator (thayyib)." Iḥṣān is only achieved through sexual intercourse.

• Issue 1: Must the intercourse occur after reaching maturity (free, sane, adult)?
  • View 1 (No): If a slave married a slave girl validly, or if intercourse occurred during childhood or insanity, and then they matured, and subsequently committed zinā, they are stoned. This is because the initial intercourse established taḥlīl (making lawful for the husband), thus conferring iḥṣān.
  • View 2 (Yes - Sounder View, Abu Hanifah): The intercourse must occur after reaching maturity (free, sane, adult), as the most complete form of intercourse (valid marriage) requires the individuals to be in their complete state.
• Issue 2: Must both parties be mature, or is maturity in each party sufficient?
  • View 1 (Both): If a boy has intercourse with a free, sane, adult woman, she is not made muḥṣan (Abu Hanifah and Muhammad). Reason: If the act does not confer iḥṣān on one party, it confers it on neither, similar to intercourse with a slave woman.
  • View 2 (Each independently): Maturity in each party is sufficient (Abu Yusuf). Reason: Maturity was not required at the time of marriage, nor at the time of intercourse.

Condition 4: Islam

• Al-Shafi'i and Abu Yusuf: Islam is not a condition for stoning.
• Abu Hanifah: Islam is a condition.

Al-Shafi'i's Arguments (for applying stoning to Dhimmi):

1. The Prophet (PBUH) said upon accepting the Jizyah: "They have what Muslims have and owe what Muslims owe." Stoning is owed by a Muslim upon committing zinā after iḥṣān, so the Dhimmi must be treated the same to ensure equality.
2. The Prophet (PBUH) stoned a Jewish man and woman who committed adultery. If this was by his own law, it applies; if by their previous law, it became his law by application.
3. The zinā of a non-Muslim is like that of a Muslim; both are ugly acts necessitating deterrence, and stoning is a suitable deterrent. While disbelief does not increase the severity of a crime, it should not decrease the penalty either.

Abu Hanifah's Arguments (against applying stoning to Dhimmi):

1. The general verse {الزانية والزاني} applies to Muslims. The Dhimmi is excluded because of a missing factor: Stoning is a severe punishment, which should only apply to a severe crime. The severity of the crime is increased by ingratitude towards greater blessings. Allah mentions doubling the punishment for the Prophet's wives because their blessings were greater. Similarly, the blessings upon a married Muslim are greater than those upon a Dhimmi, so the Muslim's sin is greater, necessitating a harsher penalty.
2. The Dhimmi has not committed zinā after iḥṣān (in the Islamic sense). The Prophet (PBUH) said: "Whoever associates a partner with Allah even for an instant, he is not muḥṣan." A Muslim who is not muḥṣan is not killed. Since the Dhimmi is not Muslim, he is not muḥṣan in the Islamic sense, and thus not stoned.
3. Consummation for slander (qadhf) requires Islam, so stoning for iḥṣān should also require it (the common factor being the magnitude of the blessing).

Rebuttals to Abu Hanifah:

1. The Muslim thayyib is excluded from the general ruling (flogging), so the Dhimmi thayyib can be excluded from stoning. However, the greater blessing of Islam should not lead to a lesser punishment (flogging instead of stoning).
2. If the Dhimmi is considered a polytheist, we accept that, but iḥṣān can also mean marriage. If the Dhimmi is married, he is muḥṣan by this definition, and the ruling must apply based on the established cause-and-effect relationship in the verse.
3. The ḥadd for slander is to protect honor, which is a matter of respect due to Muslims, not Kuffār.

Matters Related to Flogging (Jald)

Issue 1: Penalty for Slaves All agree slaves are not stoned, and all agree they are flogged. Based on the verse: “...then for those [women] who commit immorality, there is half of the punishment prescribed for the free chaste women,” slave women receive 50 lashes.

• Slave Men: The majority agree they receive 50 lashes. The Ẓāhiriyyah argue that the general verse {الزانية والزاني فاجلدوا كل واحد منهما مائة} mandates 100 lashes for both, and halving it for the slave woman is specification by analogy, which is impermissible.
• Alternative View: A married slave woman receives 50 lashes; an unmarried one receives 100 lashes, based on the verse structure.

Issue 2: Penalty for Dhimmi

• Al-Shafi'i and Abu Hanifah: The Dhimmi is flogged.
• Malik: He is not flogged.
• Evidence for Flogging: The general verse, the hadith ordering flogging for a slave woman, and the hadith ordering the establishment of ḥudūd upon one's property without distinguishing between Muslim and Dhimmi.

Zinā is established in one of three ways:

1. The Imam witnesses it himself.
2. Confession (Iqrār).
3. Witness testimony (Shahādah).

Way 1: The Imam Witnessing It Himself

Jurists debate whether a judge (Qāḍī) may rule based on his personal knowledge:

• View 1 (Permissible - Abu Yusuf, Muhammad, Muzani): It is permissible, as ruling based on personal knowledge (which is certainty) is stronger than ruling based on the testimony of witnesses (which is conjecture).
• View 2 (Impermissible - Ibn Abi Layla): Certainty of knowledge is required for judgment, which is absent when the judge is the claimant or the one applying the penalty.
• Abu Hanifah's View: Permissible only if the knowledge was acquired within the jurisdiction and tenure of his judgeship.

Way 2: Confession (Iqrār)

• Al-Shafi'i: One confession is sufficient to mandate the ḥadd. (Evidence: Story of Al-'Usayf, where one confession was enough; and the strong deterrent effect of confessing such a shameful act implies truthfulness.)
• Abu Hanifah: Four confessions in four separate sessions are required. (Evidence: Story of Ma'iz, who was asked four times; Abu Bakr and the Companions implied four confessions were necessary.) Analogy to the four required witnesses for zinā.
• Ahmad: Four confessions are required, but they can be in one session.

Way 3: Witness Testimony (Shahādah)

All agree that four witnesses are required, based on: “...bring against them four witnesses from among you.” (An-Nisa: 15). (This will be discussed further in the relevant verse.)

The Ummah agrees the addressee is the Imam (Ruler/Authority). This is used as evidence for the obligation of appointing an Imam, as an absolute obligation cannot be fulfilled without the means, and the means (appointing an Imam) thus becomes obligatory.

Issue 1: Can the Master (Sayyid) Execute the Ḥadd on His Slave?

• Al-Shafi'i, Ibn Mas'ud, Ibn 'Umar, Fatima, 'A'ishah: Yes, the master can execute the ḥadd.
• Abu Hanifah, Abu Yusuf, Muhammad, Zufar: No, only the Imam.
• Malik: The master executes ḥadd for zinā, drinking, and slander, but not for theft (which is reserved for the Imam).

Al-Shafi'i's Arguments:

1. The hadith: "Establish the ḥudūd upon those whom your right hands possess," and "If your slave woman commits adultery, flog her."
2. The master's authority over the slave is stronger than the Sultan's authority over the populace (e.g., the master has precedence over the father in marriage guardianship). Since the master can administer ta'zīr, he can administer ḥadd.

Abu Hanifah's Arguments:

1. The verse {فاجلدوا} is addressed to the Imams and rulers, not the general populace. Since the verse does not distinguish between free and slave, the Imams must apply the penalty to both.
2. If the master could execute the penalty based on testimony, he would be judging for himself regarding the guarantee (ḍamān) of the witnesses if they retracted, which is impermissible.
3. The master might be lenient due to affection for his property, making him suspect.

Issue 2: If the Imam is Absent

If the Imam is absent, individuals cannot execute these ḥudūd; rather, they must appoint one righteous person among them to do so.

Issue 3: The Usurping Rebel (Khārijī)

There is a difference of opinion whether a successful rebel (mutaghallib) can execute ḥudūd.

Flogging (Jald)

The verse mentions jald (flogging), which is general. The goal is deterrence (zajr).

Issue 1: Clothing The muḥṣan is flogged while clothed, but any padding or fur must be removed, ensuring the pain reaches him. A woman is never stripped; her clothes are tied so she is not exposed, and a woman administers the flogging.

Issue 2: Posture The man is flogged standing; the woman is flogged sitting down.

Issue 3: The Whip and Force The whip must be of medium quality—neither new enough to tear the flesh nor old enough to cause no pain. The force must be moderate. 'Umar (RA) famously tested three whips until he found one of medium severity.

Issue 4: Distribution of Blows Blows must be distributed over the body and not concentrated in one spot. Areas of mortal danger—the face, abdomen, and private parts—are avoided.

• Al-Shafi'i: The head may be struck.
• Abu Hanifah: The head may not be struck, arguing that since the face is protected (due to the severe injury it causes), the head, which shares similar consequences (like affecting sight or causing brain injury), must also be protected.
• Rebuttal: Striking the face is dangerous because the forehead bone is thin, the eye is delicate, the nose is cartilage, and the cheeks are close to the brain. These dangers do not apply to the head in the same way.

Issue 5: Spacing the Blows Blows should not be spaced out so thinly that they fail to deter (e.g., one or two lashes per day). If 20 or more are given daily, it counts. It is best not to space them out.

Issue 6: Pregnant Woman If a pregnant woman is due the ḥadd, it is postponed until she gives birth, as the objective is discipline, not destruction of the fetus.

Issue 7: Sick Person If the illness is temporary (headache, weakness), the penalty is postponed. If the illness is chronic (tuberculosis, paralysis), it is not postponed. Instead of flogging, 100 twigs (ḍighth) are used as a substitute for 100 lashes (based on the story of Job, peace be upon him). Abu Hanifah insists on using the whip, citing a hadith where a paralyzed man was struck once with 100 twigs.

Issue 8: Time of Execution The penalty should be administered during moderate weather.

• Stoning (Rajm): If the proof is confession, it may be postponed until the weather moderates, as the person might retract during the stoning. If proven by witnesses, it is carried out immediately, as the proof is conclusive.
• Flogging (Jald): Cannot be administered in extreme heat or cold, similar to postponement due to illness.

Matters Related to Stoning (Rajm)

Issue 1: Attendance Al-Shafi'i and Malik permit the Imam and witnesses to be absent. Abu Hanifah requires the witnesses to start the stoning, followed by the Imam, then the general public, if proven by testimony. If by confession, the Imam starts, followed by the public.

Issue 2: Retraction If the person retracts their confession after some stoning has occurred, the penalty stops. This is the view of Abu Hanifah, Ath-Thawri, Ahmad, and Ishaq. (Evidence: Ma'iz fled when struck, and the Prophet (PBUH) said, "Why did you not leave him?")

Issue 3: Method of Stoning The woman is buried up to her chest to prevent exposure, and stones are thrown at her. The man is not buried. (Evidence: Abu Sa'id Al-Khudri narrated that when Ma'iz was taken to the cemetery, they did not tie him up or dig a hole for him, and he fled until they cornered him and stoned him with large rocks.)

Issue 4: Post-Execution If the person dies under the penalty, he is washed, shrouded, prayed over, and buried in the Muslims' cemetery.

Some philosophers argue that the body is composed of many parts. If each part has independent life, knowledge, and power, then the adulterer is the penis, not the back. Why command the striking of the back? Furthermore, if a person was thin when committing the sin and gained weight later, why punish the new, innocent parts?

Rebuttals:

1. The Soul as the Agent: Life, knowledge, and power reside in a single entity (the soul/self) which governs the parts, making the whole a single living, knowing entity. This resolves the issue.
2. The Soul is Non-Corporeal: The agent committing the act is the soul, which is separate from the body. Why strike the body then?

Conclusion on Penalties: The purpose of legal rulings is to safeguard public interests (maṣāliḥ). We know that establishing ḥudūd provides deterrence, so the objective is achieved.

Issue 1: Meaning of Ra'fah (Compassion)

Ra'fah means tenderness and mercy. It is read with a sukūn on the hamzah (Ra'fatan) or with a fatḥah (Ra'fatan) or Ra'āfatan.

Issue 2: Interpretation

1. Not Suspending or Reducing the Penalty: Do not neglect or reduce the ḥudūd out of pity (View of Mujahid, 'Ikrimah, Sa'id ibn Jubayr). This is preferred because the preceding command was about the act of flogging itself, not its quality. The Prophet's (PBUH) statement, "If Fatimah, daughter of Muhammad, stole, I would cut off her hand," supports this.
2. Not Lightening the Flogging: Do not lighten the lashes (View of Sa'id ibn Al-Musayyib, Al-Hasan, Qatadah).
3. It may mean both.

The phrase {في دين الله} (in the religion of Allah) emphasizes that when the religion mandates something, compassion cannot be used to contradict it.

This is meant to incite anger for the sake of Allah and His religion.

• Interpretation: If you are truly believers, you must not neglect establishing the ḥudūd. This implies that fulfilling obligations is part of faith, contrary to the Murji'ah view.
• Rebuttal to Murji'ah: Compassion only arises if one judges that the penalty should not be established. In that case, one is rejecting the religion and falls outside of faith. (A hadith mentions that one who reduces the penalty out of "mercy for His servants" is sent to the Fire, as is one who adds to it out of "wisdom.")

Issue 1: Obligation of Attendance

The command {وليشهد} (and let them witness) implies obligation. However, the jurists state it is recommended (mustaḥabb) for the congregation to attend to maximize deterrence and to clear the one administering the punishment from suspicion. Some say the "group" refers to the witnesses, who must attend to confirm their testimony remains valid.

Issue 2: Minimum Size of the Group (Ṭā'ifah)

1. One Person (An-Nakh'i, Mujahid): Based on “And if two factions of the believers fight...” (Al-Hujurat: 9).
2. Two People ('Ikrimah, 'Ata'): Based on the verse about seeking knowledge (Al-Tawbah: 122), where ṭā'ifah implies a small group.
3. Three People (Az-Zuhri, Qatadah): A group that can form a circle (ḥalaqah).
4. Four People (Ibn 'Abbas, Al-Shafi'i): The number of witnesses for zinā.
5. Ten People (Al-Hasan Al-Basri): The number considered complete.

Issue 3: Terminology

Calling the punishment 'adhāb (chastisement/torment) indicates it is a penalty, similar to how nakāl (deterrent) is used. The specification {من المؤمنين} (of the believers) is important because their presence increases the shame and fear of exposure for the one being punished, thus strengthening deterrence.

[2:3] The adulterer shall not marry except an adulteress or a polytheist, and the adulteress shall not marry except an adulterer or a polytheist. And that has been forbidden to the believers.