“PERHAPS YOU ONLY KISSED HER?”
A Contrapuntal Reading of the Penalties for
Illicit Sex in the Sunni Hadith Literature
jore_486
399..415
Scott C. Lucas
ABSTRACT
The goal of this essay is to illustrate how Ebrahim Moosa’s method of
“contrapuntal reading” can be applied fruitfully to the Sunni hadith
literature. My case study is the set of penalties (hudud) for illicit sex,
which include flogging, stoning, and banishment. I propose a fresh
reading of these sacred texts that brings to the fore the ethical dimension
of Prophet Muhammad’s conduct, especially his strong reluctance to
apply these measures. I conclude by identifying four ethical problems
that the stoning penalty raises and suggest how the hadith literature can
be read to argue against the validity of this specific punishment.
KEY WORDS:
stoning, illicit sex, Islamic law, hudud, Bayhaqi
1. Introduction
Hadiths—short texts recording Muhammad’s statements, deeds,
and tacit approval of specific behaviors—form a vast sacred literature
with which Muslims of all generations writing on law and ethics have
engaged. These texts have enjoyed greater visibility as well as controversy over the past century due to the sharp rise of Muslim literacy,
weakening of the traditional legal schools, and popularity of modern
Islamist movements which generally privilege direct access to the
Qur’an and hadiths over traditional Muslim discourses. Contemporary
Muslim reformers have adopted four broad approaches to this rich
heritage. Some have chosen to ignore the hadiths altogether and derive
their ethics almost exclusively from the Qur’an (Wadud 1999; Esack
1997). Others have tried to read hadiths in their historical context in
order to mitigate some of their literal meanings which are occasionally
in tension with the values of numerous educated Muslims (Qaradawi
2006). A third option, adopted by several contemporary scholars, such
as Fatima Mernissi (1991) and Khadija Bitar (2003), is to use traditional critical techniques of Islamic scholarship to undermine the
validity of certain hadiths which are generally accepted by Sunnis
as sound. Finally, the fourth approach, pursued primarily by the
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controversial salafi scholar Nasir al-Din al-Albani (d. 1999), is to
compose new critical collections of hadith and to edit classical works
with a sharp eye toward the authenticity of their narrations (Brown
2007, 321–34).
While each of these approaches has yielded valuable writings, they
also have their drawbacks. The first one runs the risk of reducing the
Prophet Muhammad to a cipher who merely received and transmitted
the Qur’an and did not play a key role in elucidating its message. The
second approach is hampered by the absence of historical sources for
the life of Muhammad outside of the Qur’an and transmitted reports
(akhbar) which are, essentially, hadiths.1 In other words, it is only by
studying the Qur’an and hadiths that we can imagine the historical
Muhammad, as there are neither outside accounts nor documentary
sources for the early seventh-century Hijaz (Donner 1998). This results
in a vicious circle, since the “historical context” by which one theoretically evaluates hadiths consists largely of a set of hadiths that an
individual scholar prefers for his or her personal reasons. The third
approach serves as a purely critical method for delegitimizing undesirable hadiths, but appears to lack a constructive dimension indicating how hadiths can be part of Muslim ethics. The final approach of
composing new collections is both critical and constructive, but would
seem to require a profound intimacy with thousands of hadiths that
few contemporary Muslim reformers have acquired.
The goal of this essay is to illustrate how Ebrahim Moosa’s method
of “contrapuntal reading” can be applied fruitfully as a new approach
to Sunni hadith literature for contemporary Muslim reformers. Moosa
defines this reading as occurring when “we engage the work of some
extraordinary writers in order to produce new readings of their work
from our specific vantage point” (2006, 112).2 The results of this
approach can be gleaned from Moosa’s highly original study of
al-Ghazali (d. 1111), Ghazali and the Poetics of Imagination (Moosa
2005), in which he endeavors to “configure the archaeology of
al-Ghazali’s thought, especially the creativity of his mind and the way
he effortlessly sutured so many different tapestries of thought onto his
self” (Moosa 2006, 112). In other words, rather than merely informing
the reader of al-Ghazali’s specific theological, legal, or ethical positions
(which is a highly challenging task in its own right), Moosa explores
1
The famous biography (sira) of Muhammad by Ibn Ishaq (d. 767) is basically a
collection of orally transmitted reports, lists of names, and poetry put in a (largely)
chronological narrative framework. Fred Donner observes that he “offers the great
majority of [his] chronological accounts with no informant, suggesting they are his own
opinion” (Donner 1998, 242).
2
Moosa openly acknowledges his debt to Edward Said for the concept of “contrapuntal reading.”
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the implications of and tensions between the variegated disciplines of
knowledge with which al-Ghazali wrestled and flirted in his diverse
oevre. Moosa confesses that this entire project is “in some measure my
protest against the lack of creativity in contemporary Muslim religious
thought” (Moosa 2006, 112–13), and his methodology provides an open
invitation to reading classical texts in ways that address contemporary
sensibilities that their authors, for no fault of their own, most likely
could not have imagined.
The case study to which I am applying a contrapuntal reading of the
Sunni hadith literature is the topic of penalties (hudud) for illicit sex.
My intention is to propose a fresh reading of these sacred texts that
brings to the fore the ethical dimension of Prophet Muhammad’s
conduct. I build upon Kecia Ali’s important discussion of illicit sex and
same-sex intimacy in her recent work, Sexual Ethics in Islam, especially her observation that “the tradition literature and the jurists’
writings demonstrate a real aversion to both accusation [of fornication]
and confession” (Ali 2006, 63). This reluctance to apply the hadd
(corporal and capital) penalties has been observed by numerous scholars of Islamic law; for example, Rudolph Peters writes that “in the
Hanafite doctrine in particular, it is nearly impossible for a thief or
fornicator to be sentenced, unless he wishes to do so and confesses”
(2005, 54). My research shows that this astute observation applies far
beyond the Hanafi legal tradition and is embedded in the very texts
that serve as the canonical description of the Prophet Muhammad’s
practice.
Before delving any further into my investigation, I must say a word
about the book which I am reading contrapuntally. The Sunni hadith
literature is so vast that one must make choices as to which collections
to favor. In this essay, I have relied solely upon al-Sunan al-kubra by
Abu Bakr al-Bayhaqi (d. 1066 CE).3 This medieval scholar of eastern
Persia not only had the audacity to discredit all hadiths that were not
found in the famous books compiled prior to his own, but actually
succeeded in having his claim more or less honored by later Sunni
scholars. In effect, al-Bayhaqi closes the canon of original hadith
compilations; however, it is important to note that al-Sunan al-kubra
contains many, if not most, of the hadiths found in the two most
esteemed hadith books, the Sahihs of al-Bukhari (d. 870) and Muslim
(d. 875), as well as many others found in what later became recognized
as the four canonical collections of Abu Dawud, al-Tirmidhi, al-Nasa’i
3
Given the multiplicity of editions of Arabic books, I will be citing the chapter
number (bab) in which a hadith occurs rather than a volume number followed by a page
number. All references refer to Kitab al-hudud, found in volume 8 of the 1999 Dar
al-kutub al-‘ilmiyya edition of al-Bayhaqi’s al-Sunan al-kubra, unless otherwise noted.
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and Ibn Maja. Al-Bayhaqi is also a fierce partisan of the Shafi‘i law
school, but his book has been used by scholars of all four Sunni schools
over the centuries. In short, the book I am using for this essay contains
most of the prophetic proofs for the Shafi‘i school, many of which are
employed by the other three Sunni law schools as well.
2. Types of Illicit Sex in the Qur’an and the Legal Literature
It is necessary for us to review briefly the penalties for illicit sex in
the Qur’an, and the Muslim jurists’ terminology regarding them, prior
to our discussion of the hadiths. Imam Al-Shafi‘i (d. 820), according to
al-Bayhaqi, claims that the Qur’an contains only four rulings of relevance to illicit intercourse. First, he argues that the flogging penalty
in Q. 24:2 abrogates the penalties of confinement and the unspecified
“punishment” mentioned in Sura 4. Second, the Qur’an states clearly
that four witnesses are needed to obtain a conviction for illicit intercourse (Q. 4:15, 24:13). Third, anal intercourse between men is outlawed on the basis of the narratives of Lot in Suras 7:80–81 and
11:82–83.4 Finally, the sentence, “if then they have recourse to you
(Muhammad) judge between them or disclaim jurisdiction,” in Q. 5:42
gives Muhammad (and Muslim judges) the option to apply Muslim
criminal penalties to non-Muslims, although al-Bayhaqi notes that a
pair of reports indicates that this verse was abrogated by Q. 5:49,
which states: “So judge between them by that which God has
revealed.”5
The key terms the jurists employ in their discussions of illicit sex,
while Qur’anically inspired for the most part, lack exact English
equivalents. The word zina comes close to the Oxford English Dictionary’s definition of “fornication,” which reads “voluntary sexual intercourse between a man (in restricted use, an unmarried man) and an
unmarried woman; in Scripture extended to adultery,” since zina
means “sex between a man and a woman who is neither his wife nor
his slave” (Ali 2006, 57). Given the convenience of the active participle
“fornicator,” I will be using “fornicator” for zani (feminine: zaniya) and
“fornication” for zina in this essay, despite the fact that a man who has
intercourse with his slave would be considered a fornicator in the
American context but the same man would be an upright Muslim in
the Islamic context. Another topic discussed in the chapters on illicit
sex is liwat, translated by Ali as “anal intercourse between men” (Ali
2006, 76), a word that early Muslim jurists clearly derived from the
4
Variations of the Lot narrative are found in Suras 7, 11, 15, 21, 26, 27, 29, 37, 54.
Most English translations of Qur’anic verses in this article come from Abdel Haleem
2004.
5
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story of Lot in the Qur’an. The third, and in some ways most difficult
Arabic term to render into English, is muhsan (feminine muhsana). In
his discussion of the differences between the legal schools’ definitions
of muhsan, Peters identifies that the four core qualities for Sunni
jurists: (1) adult, (2) free, (3) Muslim, and (4) having “previously
enjoyed legitimate sexual relations in matrimony (regardless of
whether the marriage still continues)” (Peters 2005, 61).6 Thus, the two
possible categories of all non-slave Muslims, male and female, are
“never married (ghayr muhsan)” and “currently or previously married
(muhsan),” a distinction, we shall see, that is critically significant for
the determination of the penalty for fornication. Finally, I will be using
the expression “illicit sex” in order to refer the entire range of (prohibited) sexual practices discussed in these chapters, which include
fornication, anal intercourse between men, bestiality, tribadism, and
rape.
3. Fornication in the Hadiths
When we turn to Muhammad’s actions and statements preserved in
al-Bayhaqi’s Sunan, we encounter a very different array of rulings and
practices than those mentioned in the Qur’an. Leaving aside for now
the question of authenticity, the hadiths record five scenarios: (1) A
single fornicator is flogged; (2) a single fornicator is flogged and exiled
for a year; (3) a single fornicator is stoned;7 (4) a Companion states,
“the Prophet stoned” with few details; and (5) an ambiguous penalty
was (or would be) administered to a fornicator. We shall now examine
each category.
3.1 A single fornicator is flogged
Six reports fall into this category, only one of which is found in the
most authoritative hadith collections. There are two brief narratives in
which an anonymous man confesses to fornication, the woman denies
it, and he is flogged (Bayhaqi 1999, bab 18). Another two reports
indicate that the flogging penalty should not be life threatening
(Bayhaqi, babs 20, 21, 34, 36). An additional one states that if a man’s
wife gives him permission to have intercourse with her slave girl, then
the penalty is lashes instead of lapidation (Bayhaqi, bab 32). Finally,
Abu Hurayra reports that the Prophet recommended (or ordered)
6
Peters notes that the Shi‘i definition of muhsan is “an adult free Muslim who is in
a position to have legal sexual intercourse and whose partner is actually available and
not e.g. imprisoned or absent on a journey” (2005, 61).
7
In one case, both male and female fornicators are stoned together.
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selling one’s slave girl who is convicted and flogged on multiple
occasions for having illicit sex (Bayhaqi, babs 34, 36). These reports do
not openly conflict with the Qur’anic punishment for fornication,
although we should note that the only convictions found in al-Bayhaqi’s
Sunan are due to confessions as opposed to the Qur’anically mandated
witnesses.
3.2 A single fornicator is flogged and exiled for a year
Five reports belong to this category, two of which dominate. The
first, transmitted solely by the Companion ‘Ubada b. al-Samit, is the
prophetic statement that specifies one hundred lashes and a year of
exile for the never-married fornicator, and stoning for the previously
married fornicator or adulterer (Bayhaqi 1999, babs 2, 13). The second
is the “Story of Unays,” in which an unnamed hireling had intercourse
with his employer’s wife and whose father ransomed him from the
expected death penalty by means of 100 sheep and a slave girl.
Muhammad corrects this error by promising to adjudicate on the basis
of the “Book of God” and declares 100 lashes and exile for the hireling.
He then orders a man named Unays to ask the employer’s wife to
confess, and, should she reply in the affirmative, have her stoned
(Bayhaqi, babs 3, 4, 10, 13, 15, 30; Peters 2005, 60). Al-Bayhaqi also
quotes the two transmitters of the “Unays story” as affirming that the
Prophet Muhammad ordered 100 lashes and a year of exile for the
never-married fornicator (Bayhaqi, bab 13). He also provides a report
in which Ibn ‘Umar states laconically that the Prophet, Abu Bakr, and
‘Umar all flogged and exiled the never-married fornicator, without
providing any details (Bayhaqi, bab 13).
Of interest to us in this cluster of reports is that there is only one
recorded case in the entire hadith corpus of Muhammad actually
ordering a never-married fornicator to be flogged and exiled for a year,
and, oddly enough, Muhammad claims that this is the ruling of the
“Book of God,” which is generally understood to be the Qur’an, from
which the penalty of exile is absent.8 Also, there is no mention of
witnesses, and the applicability of the stoning penalty rests entirely
upon the married woman’s confession.
3.3 A single fornicator is stoned
While the episodes of flogging are few in the hadith literature, there
are at least eight cases of stoning recorded in al-Bayhaqi’s book. The
8
Note that in the Jewish tradition, Maimonides does not mention exile as a valid
sentence in his Mishneh Torah (Maimonides 1949).
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405
most prominent is that of Ma‘iz al-Aslami, ten variations of which are
included in his book and which I will discuss in depth below. In only
one version of this hadith do we come across the story of a pregnant
woman, known merely as the Ghamidiyya woman, who confessed to
adultery and insisted that the Prophet apply the stoning penalty,
which he delayed until after her child was born and assigned a
guardian (Bayhaqi 1999, babs 4, 9, 12, 16, 20). A nearly identical
narrative to the Ghamidiyya woman is also found in this section,
although the woman is identified as belonging to the tribe of Juhayna
(Bayhaqi, babs 9, 15). There are also two discrete stories involving the
stoning of Jewish fornicators; in the first, a Jewish man and woman
are both stoned after Muhammad is shown that the local rabbis were
“concealing” the “stoning verse” in the Torah (Bayhaqi, babs 4, 23, 37).
The second narrative has an interesting class twist. Muhammad saw
a Jew who had the marks of a whip and a blackened face. After a brief
inquiry, he learned that only poor Jewish fornicators received the
penalty of stoning, while well-connected Jewish fornicators would
receive a flogging and have their faces blackened. Muhammad then
claimed enthusiastically to be reviving a “moribund practice/ruling
(sunna)” and had the well-connected Jewish fornicator promptly stoned
(Bayhaqi, babs 4, 37).9 The remaining two cases involve a youth’s
confession (with the pregnant unmarried girl’s denial) followed by
lapidation just for him, and a vague report in which a man was flogged
and then stoned when it became apparent that he had been previously
married (Bayhaqi, babs 8, 9).
It is striking that five of these cases involve confessions and make no
mention of witnesses. In fact, the only time four witnesses appear is in
one of the variant narratives of the story of the stoned Jewish fornicators, and we can assume that the witnesses were in fact Medinan
Jews, whose rabbis brought this case to Muhammad (Bayhaqi, bab 23).
It is also remarkable that two of the eight cases involve Jewish rather
than Muslim fornicators, and, in both cases, Muhammad orders
stoning on the basis of the Torah (or some sacred Jewish book), and not
the Qur’an or his own independent judgment.
3.4 A Companion states, “The Prophet stoned” with few details
The three reports in this category summarize what we have so far
seen. ‘Umar’s insistence that a “verse of stoning” existed in the Qur’an
and that the Prophet stoned does not clarify whether Muhammad had
9
This story is also recounted in Ibn Ishaq’s sira in a clearly polemical context
(Guillaume 2001, 266–67).
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Muslims or Jews stoned,10 and Abu Bakra’s report that the Prophet
stoned a woman could refer to either the Ghamidiyya or Juhayniyya
woman (Bayhaqi 1999, babs 2, 3, 12). Jabir’s report is the most helpful
and perhaps intriguing: He merely states that the Prophet stoned a
man from Aslam (that is, Ma‘iz) and a Jewish man and woman
(Bayhaqi, bab 4). Were these the only three cases of lapidation that
Jabir remembered or that even took place during the Prophet’s
lifetime?
3.5 An ambiguous penalty was (or would be) administered
to a fornicator
There are four reports in this category. A hadith, with an unimpressive chain of transmitters, reports that a woman was raped during the
Prophet’s lifetime and only the man was punished (Bayhaqi 1999, babs
4, 29). Also, another poorly transmitted report states that the Prophet
sent someone to kill a man who had married his father’s or son’s
(ex-)wife (Bayhaqi, bab 30). The penalty or mode of killing is ambiguous in both cases. Likewise, we find in this section of al-Bayhaqi’s book
the famous statement of the Prophet, transmitted by Ibn Mas‘ud, that
the blood of a Muslim may be shed in only three possible cases: “the
married person who commits adultery; a life for life; and a person who
abandons his religion and separates from his community” (Bayhaqi,
bab 4; Nawawi 1976, Hadith #14). Finally, there is a cluster of reports
transmitted from Ibn ‘Abbas to ‘Ikrima in which the Prophet decrees
the death sentence for male-male intercourse and bestiality in language that sometimes bears a striking resemblance to the Book of
Leviticus (Bayhaqi 1999, babs 24–26, 30).11 The word “stoning” does
not appear in any of these reports, although the death penalty for
adultery (as well as same sex intercourse and bestiality), as we have
seen, is nowhere hinted at in the Qur’an.
Let us highlight our findings to this point. According to al-Bayhaqi,
three fornicators were flogged, one fornicator was flogged and exiled,
and nine people—three Muslim men, three Muslim women, and three
Jews—were stoned during Muhammad’s lifetime. Also, a rapist
received some form or corporal or capital punishment, and a man was
10
While many Muslims today are shocked by the thought that a verse of the Qur’an
was removed from the text, Muslim jurists “solved” this problem by creating a category
of abrogation in which the recitation of a verse was abrogated, but its ruling remained
in force. ‘Umar’s insistence that this “verse of stoning” once existed in the Qur’an is found
in the two most prestigious Sunni hadith collections, the Sahihs of al-Bukhari and
Muslim (Kitab al-hudud), as well as in other early sources.
11
Compare Lev. 20:15 with the hadith, “Whomever you find having intercourse with
a beast, kill the man and kill the beast along with him” (Bayhaqi 1999, bab 26).
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407
sentenced to death for marrying the ex-wife of either his father or son.
None of the reports involving Muslim fornicators makes any mention
of witnesses and only the stories of Unays and the two Jews identify
both parties of the illicit sex act being punished. Most of the cases
mention the fornicator’s confession, about which the Qur’an is silent.12
In none of them does Muhammad actually cast a stone or crack a whip,
although he does sanction these penalties on multiple occasions.
Finally, not a single case of same-sex intercourse or bestiality was
prosecuted during the lifetime of Muhammad.13
4. The Case of Ma‘iz al-Aslami
The most important story on the topic of fornication and lapidation
is that of Ma‘iz al-Aslami (Peters 2005, 55). He is the only adulterer
whose full name is recorded in the hadith, although many narrations
conceal his identity. Unlike nearly all of the other cases and statements
we have discussed, which are preserved by only a single Companion,
al-Bayhaqi recounts ten versions of Ma‘iz’s story from seven Companions and one Successor (Bayhaqi 1999, babs 3, 4, 9, 10, 12, 16, 17).
There are significant variations between these narrations, and I will
identify only six elements of interest to this essay. All of the narrations
depict Ma‘iz confessing his crime multiple times, due to Muhammad’s
act of turning away from him or refusing to engage him in conversation, although they differ over how many times he in fact confessed.
They also all report Ma‘iz being killed by stoning. Between the time of
confession and the lapidation, there are three important elements that
appear in at least three versions of the Ma‘iz story:
(1) The Prophet asks Ma‘iz directly (or his people) if he is sane
(Bayhaqi, babs 4, 9, 12, 16).
(2) The Prophet asks Ma‘iz if he really knows what “fornication”
means and, in one version, says “perhaps you only kissed her or
winked at her or checked her out?”14
12
Note that Maimonides says, “It is a scriptural decree that the court shall not put
a man to death or flog him on his own admission (of guilt). This is done only on the
evidence of two witnesses.” He explains how Joshua and David did execute confessors to
crimes on emergency grounds, but insists that the Sanhedrin “is not empowered to inflict
the penalty of death or flagellation on the admission of the accused” (Maimonides 1949,
52–3).
13
There is only a single mention of female same-sex activity in this entire section and
al-Bayhaqi acknowledges that the chain of transmitters of this report is “suspicious”
(munkar) (Bayhaqi 1999, bab 25, last hadith). This report merely says that both men and
women who engage in same-sex activity are fornicators.
14
La‘allaka qabbalta aw ghamazta aw nazarta? (Bayhaqi 1999, bab 16). This hadith
is found in al-Bukhari’s Sahih.
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(3) The Prophet asks Ma‘iz (or his people) if he has ever been
married (Bayhaqi, babs 4, 9, 12, 16).
These three elements, plus the Prophet’s efforts to shun Ma‘iz, can
only be interpreted as an extreme reluctance to apply the stoning
penalty. Even more remarkable is the final element—in half of the
versions, Ma‘iz flees the scene of the initial lapidation and is chased to
another place where he ultimately succumbs to the various projectiles
hurled at him by the mob. In two of these versions, Muhammad later
asks the stoners, “why didn’t you let him go?” and in one case even says
that it would have been better had Ma‘iz been left alone so he could
repent (Bayhaqi, babs 10, 17).
There is one additional story that is highly pertinent to our discussion prior to our effort to put all these pieces together. Despite the
Qur’anic verse, “do not go near fornication” (Q. 17:32), al-Bayhaqi
transmits the story, found in the two most authoritative collections of
hadith, that a man confessed to the Prophet to having done everything
short of intercourse with a woman who was neither his wife nor
slave-concubine. The Prophet, to the man’s surprise, either received or
recited the Qur’anic verse, “establish worship at the two ends of the
day and in some watches of the night. Lo—good deeds annul ill-deeds.
This is a reminder for the mindful” (Q. 11:114) and told him to go on
his own way (Bayhaqi, bab 33). How far we are from the modern
religious courts of some Muslim countries that sentence people to
flogging for significantly lesser offences!
5. The Authenticity Factor
One of Khaled Abou El Fadl’s important contributions to contemporary Muslim ethical discourse is his concept of the “conscientious
pause.” In short, Abou El Fadl argues that any hadith which has
tremendous ethical and legal implications demands that the reader,
“take a reflective pause and ask: to what extent did the Prophet really
play a role in the authorial enterprise that produced this tradition”
(Abou El Fadl 2001, 213). While this is not the place for us to engage
in rigorous hadith criticism, we should consider what happens to our
findings when we apply at least a modicum of criticism to these reports
concerning the penalties for illicit intercourse. There are two simple
rubrics which fall squarely within the Sunni tradition that we can
employ for evaluating the soundness of these hadiths: (1) Is the hadith
found in one or both of the two most authoritative Sunni collections,
namely the Sahihs of al-Bukhari and Muslim? And (2) is the prophetic
locution or narrative transmitted by multiple Companions of the
Prophet or just one or two of them?
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409
Fortunately, al-Bayhaqi facilitates this task by identifying which
narrations in al-Sunan al-kubra are found in the canonical books of
al-Bukhari and Muslim,15 and only eight hadiths of relevance to this
inquiry meet this criterion:16
(1) ‘Umar’s insistence that the “verse of stoning” existed and that
the Prophet stoned “on the basis of testimony, pregnancy,17 or
confession” (Bayhaqi 1999, bab 2).
(2) Ibn Mas‘ud’s previously mentioned report that Muhammad said:
“The blood of a Muslim may be shed in only three possible
cases—the married person who commits adultery; a life for life;
and a person who abandons his religion and separates from his
community” (Bayhaqi, bab 4).
(3) The version of the Unays story that Muhammad ordered 100
lashes and a year of exile for the never-married fornicator and
lapidation for the adulterer who confesses, transmitted by Abu
Hurayra and Zayd b. Khalid (Bayhaqi, bab 4).
(4) Abu Hurayra’s version of the Ma‘iz story which mentions the
quadruple confession, Muhammad’s inquiry into his sanity and
marital status, and his verdict to stone him (Bayhaqi, babs 4,
10).
(5) Jabir’s version of the Ma‘iz story, which adds the detail that
Muhammad did not perform the funeral prayer over Ma‘iz’s
stoned corpse (Bayhaqi, bab 9).
(6) Ibn ‘Umar’s version of the story of the two Jewish fornicators
whom Muhammad stoned on the basis of the “stoning verse”
found in the Torah (Bayhaqi, babs 4, 37).
(7) Ibn Mas‘ud’s report of Muhammad’s forgiveness, on the basis of
Q. 11:114, of the man who confessed to engaging in everything
short of sexual intercourse with an unrelated woman (Bayhaqi,
bab 33).
(8) Abu Hurayra and Zayd b. Khalid report the Prophet’s statement
regarding the master’s right to flog his fornicator slave girl and
his advice to sell her “even for [the value of] a rope” if she
continues fornicating (Bayhaqi, babs 34, 35).
15
Two other useful sources for this type of simple criticism, both of which have been
translated into English, are Mishkat al-masabih (Robson 2006) and al-Lu’lu’ wa
al-Marjan (‘Abd al-Baqi 1995).
16
Another relevant hadith, mentioned by Ali (2006, 67), in al-Sunan al-kubra that is
also found in both Sahih books is the legal maxim, “The child belongs to the bed, and the
adulterer is to be stoned.” This hadith is found in Kitab al-li‘an (Bayhaqi 1999, 7:676).
17
This narration actually supports the unique Maliki position that pregnancy is
sufficient proof of fornication in the case of an unwed woman (Ali 2006, 63). The Shafi‘is
do not consider pregnancy sufficient evidence of illicit sex.
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These eight hadiths reduce the number of cases in which Muhammad actually ordered the stoning penalty to three cases and flogging to
a single case. What is even more striking is how poorly disseminated
are all of these hadiths, with the noteworthy exception of the story of
Ma‘iz. How could only Ibn Mas‘ud have heard the Prophet declare that
the death penalty is applicable in only three cases? Why is ‘Umar the
only Companion who insisted that a “verse of stoning” existed and was
then excised from the Qur’an? How could only Abu Hurayra and Zayd
b. Khalid have known the story of Unays? It is difficult to see how any
of these reports, save the story of Ma‘iz, can be relied upon to serve as
decisive legal proofs regarding the multiple penalties for illicit
intercourse.
Another striking feature of this analysis is how multiple episodes
and statements involving fornication and its punishment are found in
either the Sahih of Muslim or the Sahih of al-Bukhari but not in both
books. For example, ‘Ubada’s narration of the Prophet’s crystal-clear
elucidation of separate punishments for the never married and previously (or currently) married fornicators is found only in Muslim’s
Sahih. Likewise, the eerie stories of the pregnant Ghamidiyya woman
and Juhayniyya woman, who aggressively seek their death sentences,
are transmitted only by a single companion each and excluded from
al-Bukhari’s Sahih. While inclusion in either canonical Sahih book has
long bestowed an aura of prestige upon individual hadiths, if we were
to adopt Abou El Fadl’s principle of the “conscientious pause,” then
reports of a life and death nature must be of the highest authenticity
and, arguably, should be found in both the books of al-Bukhari and
Muslim.
6. Implications and Complications
The primary purpose of this journey through a small section of a
large medieval hadith collection is to show the capacity this sacred
literature has for enriching contemporary Muslim ethics. Despite the
glaring discrepancies between the Qur’anic vision of the punishment of
fornication or adultery—one hundred lashes after the testimony of four
witnesses—and Muhammad’s practice as recorded in the hadiths—one
hundred lashes plus exile or stoning after (multiple?) confessions of one
of the parties—we need not assume that the prophetic practice is
irrevocably more rigid than the Qur’anic penalty and thus impossible
to interpret in a fresh manner. Instead, it is important that we
recognize in both the Qur’an and the Prophet’s practice the existence
of strategies that all but guarantee the non-application of these severe
penalties. The requirement of four witnesses in the Qur’an renders
flogging highly unlikely, while the insistence of multiple individual
“Perhaps You Only Kissed Her?”
411
confessions likewise reduces the occasions for lapidation. The only time
Muhammad appears at all enthusiastic about stoning is in the two
stories involving Jewish fornicators; in both cases, his enthusiasm
strikes me as having been derived from his revival of a defunct ruling
from Mosaic law, which the Medinan rabbis had neglected (or concealed), rather than the bloody act of killing adulterers. Its polemical
message against an earlier monotheistic community is all too clumsily
transparent.
Muhammad’s practice, as recorded in the hadiths, is consistent with
the famous statements which are frequently put in his mouth that say,
“desist from applying corporal and capital penalties as much as you are
capable of so doing” (Ali 2006, 63; Peters 2005, 22).18 Muhammad’s
reported reluctance to punish (or even chastise!) the man who made it
to the proverbial “third base” with an unrelated woman reinforces this
merciful and attractive principle. His strenuous efforts to dissuade
Ma‘iz from confessing his crime and to dodge the harsh penalty on the
grounds of insanity or being never-married reinforce this maxim. And,
while flogging is most certainly unpleasant, Muhammad staunchly
refrained from applying the far harsher capital punishment against
anyone who engaged in premarital sex.
But perhaps we can go further in our contrapuntal reading of the
Sunni hadith literature than demonstrating that Muhammad had a
strong aversion to the application of these penalties. Unlike flogging,
lapidation as a punishment for fornication introduces at least four
ethical problems which may have troubled Muhammad and contributed to his reluctance to stone his coreligionists. First, there is the
well-established principle of equity and fairness in the Qur’an, found in
verses such as, “let harm be requited by an equal harm” (Q. 42:40), and
“in [the Torah] We prescribed for them a life for a life, and eye for an
eye, a nose for a nose, an ear for an ear, a tooth for a tooth, an equal
wound for an equal wound” (Q. 5:45). How can a single act of illicit
intercourse possibly be equal to the value of a life, which, if wrongly
taken, is “as if [one] kills all mankind” (Q. 5:32)?
Second, the stories of Unays and the Jewish fornicators indicate that
the death penalty for illicit sex (or perhaps just adultery) existed in
Arabia prior to Islam. However, in both cases, alternatives were found
to this severe measure—for the pre-Islamic Arabs, the substitution was
one hundred sheep and a female slave; and for the Jews, it was lashes
and a blackening of the face. Interestingly, in the case of the Arabs,
18
Al-Bayhaqi says that the narrations with superior chains of transmitters put this
statement in the mouth of a Companion rather than the Prophet himself (Bayhaqi, bab
31). Note that this principle also contradicts the Qur’anic verse in reference to the
punishment of fornicators—“Let not compassion move you in their case” (Q. 24:2).
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Journal of Religious Ethics
there was no penalty for the woman who engaged in adultery since
only the father of the hireling paid a ransom in this case. Lapidation
eliminates the alternative penalty of blood money, which saves a life,
and this unprecedented absence of an alternative to stoning may have
contributed to Muhammad’s efforts to find a way out—insanity,
kissing, winking—for Ma‘iz.19
Third, there is an apparent contradiction between stoning and
Muhammad’s widely reported statement that, “it is inappropriate for
anyone to punish by means of God’s punishment” (Bayhaqi 1999, 8:338).
In the Qur’an, God is reported to have used stones to destroy both Lot’s
people and the Abyssinian army led by Abraha that was heading for
Mecca around the time Muhammad was born (Q. 105). Furthermore, the
act of stoning is associated with wicked people in the Qur’an, such as
Abraham’s father (Q. 19:46) and the inhabitants of an unnamed city,
often identified in commentaries as Antioch, who threatened to stone
(and may have actually stoned) the Messengers who were sent there to
preach monotheism (Q. 36:13–28). God also threatens the disbelievers in
a passage by saying, “are you sure that He who is in the Heaven will not
send a whirlwind to pelt you with stones” (Q. 67:17). Were we to favor the
hadith that Muhammad taught his followers not to punish their fellow
humans by means of God’s punishments, we would need to add stoning
to the list of divine penalties, along with incineration, earthquakes, and
drowning, that are forbidden to us mortals.
A final ethical complication related to the stoning penalty that arises
in conjunction with the confession model is that it is tantamount to
suicide. Muhammad’s teachings against suicide are very clear and
widespread throughout the Sunni hadith literature. Both al-Bukhari
and Muslim narrate hadiths in which he says, “not one of you should
desire death” (Bayhaqi 1999, 3:528–29) in the context of illness or
suffering and that anyone who kills himself by sword, poison, or
hurling himself from a mountain will suffer that same experience
eternally in the Hellfire (Bayhaqi 1999, 8: 43–44). While the hadiths of
the Ghamidiyya and Juhayniyya women frame the stoning penalty as
a form of “purification” (tahara), the overwhelming consensus of
Muslim jurists has always been that only water and sand can purify a
human being; the idea that suicide by stoning could do the same is
utterly incoherent.
7. A Final Thought
While it appears impossible to read the Qur’an and hadith in such
a way as to decriminalize fornication, a more pressing question at
19
I am grateful to Kecia Ali for bringing this point to my attention.
“Perhaps You Only Kissed Her?”
413
present is whether these sacred texts can be employed to support calls
for a moratorium on capital and corporal punishments, such as the one
issued by Tariq Ramadan on April 5, 2005.20 My analysis has shown
that there are virtually no cases of Muhammad flogging anyone and
only one case—Ma‘iz al-Aslami—in which it appears beyond any reasonable doubt that a fornicator was stoned to death. I have indicated
potential complications between the stoning penalty and other ethicallegal teachings of the Qur’an and Muhammad, but the stubborn fact
remains that the stoning of Ma‘iz is too widely transmitted an episode
to be ignored by reformers. Is there any other way to interpret this
event?
It is at this juncture that a hadith found in al-Bukhari’s Sahih (but
not in al-Bayhaqi’s al-Sunan al-kubra) assumes tremendous importance. One of the longest-lived Companions of the Prophet, ‘Abd Allah
b. Abi Awfa, was reportedly asked by a pupil whether Muhammad ever
stoned anyone. He replied in the affirmative, but, when asked whether
this episode occurred prior to or after the revelation of Sura 24, in
which the penalty of one hundred lashes is decreed, he replied, “I don’t
know.”21 Despite Muslim jurists’ tremendous efforts over the centuries
to harmonize the penalties of one hundred lashes with lapidation, ‘Abd
Allah b. Abi Awfa’s response offers us the possibility of believing that
Q. 24:2 actually abrogated the stoning penalty, which Muhammad had
adopted from the Torah (Deuteronomy 22:21–27) and inflicted on at
least one occasion in the early Medinan period. Given the nearly
identical and unusual syntax of the verse of flogging and the verse
about the penalty for theft (Q. 5:38), which occurs in one of the very
last suras to have been revealed,22 it is plausible that this abrogation
occurred during the final years of Muhammad’s life and this verse then
was inserted at the beginning of Sura 24.23 Even if one does not accept
this revisionist reading of Q. 24:2 abrogating the stoning penalty, the
contrapuntal reading of the Sunni hadith literature I have offered here
should, at the very least, trigger the same “conscientious pause” among
20
Available at http://www.tariqramadan.com/spip.php?article264&lang=en (last accessed August 16, 2009).
21
This hadith is found in al-Bukhari’s Sahihin Kitab al-hudud: bab rajm al-muhsan.
This hadith is also alluded to by Muhammad ibn al-Mukhtar al-Shinqiti in his response
to Tariq Ramadan’s moratorium, available online at: http://www.islamonline.net/servlet/
Satellite?c=Article_C&cid=1209357914256&pagename=Zone-English-Living_Shariah%
2FLSELayout (last accessed August 16, 2009).
22
Compare “al-zaniyatu wa’l-zani fa’jlidu kulla wahid minhuma mi’ata jalda” (Q.
24:2) with “wa’l-sariqu wa’l-sariqatu fa’qta‘u aydiyahuma” (Q. 5:38). This syntactic
structure is extremely rare in the Qur’an and I am not aware of any additional parallel
cases.
23
Traditional Muslim authorities date Sura 24 to sometime between 4–6 AH/625–28
CE; Muhammad died in 11/632.
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Journal of Religious Ethics
contemporary Muslim jurists regarding the application of the most
severe penalties assigned to illicit sexual activity that Muhammad
himself appears to have experienced while adjudicating these cases
fourteen hundred years ago.
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