Tag: Islamic

“Laws are like spider’s webs. If anything small falls into them, they ensnare it. But large things break through and escape”.
Solon, Athenian statesman and poet, (638-559 B.C.)

Preamble

Europeans who likened law to an ass may have generalized but they were

not far from the truth after all. Laws generally are what human beings make them in the guise of interpretation. No law in any given society is naturally controversial. What brings about controversy is interpretation. All human laws, written or conventional, emanate from societal norms. Those norms only become laws when they are executed by governing authorities.

Sources of Islamic Law

In Islam, the body of the laws that govern the lives of Muslims is called Shari’ah. This constitutes what is known as Islamic law or culture. It is derived from four main sources which are:

• Qur’an, the direct words of Allah revealed to Prophet Muhammad (SAW) through the Arch-Angel Jubril
• Hadith: the divinely guided but personal expressions of Prophet Muhammad (SAW), through which the meaning and interpretation to the contents of the Qur’an are explained.
• Ijma’: the consensus of opinions of the learned Muslim scholars which must not contradict any of the first two sources above.
• Qiyas: a scholarly analogy deduced from the first three sources above.

These sources are in sequence of authority. Qur’an is the first and foremost among them. No other source can supersede or equal the contents of the Qur’an. If any other source contradicts the Qur’an, that source automatically becomes null and void.

Because the Qur’an was revealed in coded language, the need to decode it for the purpose of understanding necessitated the adoption of Hadith as the second source of Islamic law. No one other than Prophet Muhammad (SAW) was competent to give accurate interpretation of the Qur’an because he was the divinely appointed messenger of Allah who received its revelations from Allah through Arch-Angel Jibril. The Prophet himself acquired the knowledge of interpreting the Qur’an through informal interactions with Arch-Angel Jibril as well as the informal revelations he received while sleeping which are called ‘Hadith-ul-Qudsi’.

The third source (Ijma’u) is the consensus of opinion of highly informed Muslim scholars based on the provisions of the Qur’an and Sunnah. It came into being as a result of scholarly understanding of the first two sources by credible Muslim clerics. This source became necessary to harmonize Islamic jurisprudence even if environments and circumstances would still leave room for variations in language and presentations.

The fourth and last source is Qiyas, meaning analogical deduction which arose from peculiar situations in which clerics might find themselves at certain times and in certain places. This source allows for logical deductions that could be made from the first three sources without contradicting any.

Order of Authority

In sequence of authority, therefore, it becomes clear that it is only in the absence of Qur’anic provision that Hadith can become the supreme legal authority in Islam. And, neither ‘Ijma’ nor ‘Qiyas’ can become point of reference where the Qur’an and Hadith are available. (Hadith is the collection of the divinely guided utterances of Prophet Muhammad (SAW) while Sunnah is his exemplary actions and conducts.)

Classification of Shari‘ah

Like any other law, Shari‘ah is classifiable into civil and criminal aspects. As relevant here, adultery is within the criminal aspect of Shari’ah. In Islam, adultery is a crime which incurs a severe sanction. And the sanction is clearly prescribed in Qur’an 24:2 as follows:

“The woman and the man who are found guilty of adultery, give each of them one hundred strokes of the cane. Let no compassion in their case prevent you from obedience to Allah, if you truly believe in Allah and the last day; and let their punishment be witnessed by a group of believers”.

The above quoted verse is Allah’s prescribed punishment for adulterers and adulteresses as well as for fornicators (male and female). In Arabic language, there is no distinction between adultery and fornication. Being an illegitimate sexual intercourse, the word generally used for both is ‘zina’ which is a crime in Islam. An adulteress is called ‘zaniyah’ while an adulterer is called ‘zani’.

And those are the precise words used for the two respectively in the Qur’an.

As it is general with all laws, the interpretation of this verse of the Qur’an varies from scholar to scholar and from school of thought to school of thought. While some scholars believe that the quoted verse refers to unmarried people, others contend that since the word zina applies to both fornication and adultery, the verse must be in reference to the two categories of people (married and unmarried).

There is no distinction in the punishment prescribed for both.

Proof of Law

As for stoning to death, no specific chapter or verse of the Qur’an can be cited as evidence for its prescription or application. In other words, the Qur’an does not mention stoning as punishment for adulterers and adulteresses. The actual word mentioned as punishment for either fornication or adultery is ‘flogging’. Islamic law, as mentioned earlier, is a combination of sources. And we had been warned by Allah that:  “It is not for true believers, male or female, to have a choice (but to abide) when Allah and His Apostle decree on an issue.

Whoever disobeys Allah and His Apostle has strayed far indeed”. (Q.33:36.)

However, one fact is clear: In Islam, no decree on penal law is divinely left to Prophet Muhammad (SAW) for promulgation. This is because the Prophet was neither given the power to forgive crime on behalf of Allah nor authorized to prescribe sanction for a crime. If he ever had a role to play in relation to crime at all, it was the execution of the divine law enacted by Allah.

Meanwhile, there are many narrated versions of how and when stoning as punishment for adulterers and adulteresses became a law. But all the available evidences advanced in favour of this law are based on unauthenticated Hadith and Sunnah quoted by some Muslims. The vital question is this: when did the Prophet’s expression or action to authorize stoning vis-à-vis the Qur’anic revelation on flogging quoted above? Was it before or after the revelation on flogging? If it was after, could the Prophet have given a verdict that would contradict the contents of the Qur’an? If it was before, shouldn’t such Hadith or Sunnah be superseded by the Qur’anic revelation that came after it?

Homosexuality and Lesbianism

Besides fornication and adultery, there is also the issue of homosexuality and lesbianism both of which deserve even more severe punishment. What punishment was prescribed for them? Or can the proponents of stoning to death say that the Prophet discountenanced sodomy and lesbianism while prescribing stoning for adultery?

Knowledge of Islam

With deep knowledge of Islam and thorough understanding of Islamic jurisprudence, the issue of stoning as punishment for adulterers should not, ordinarily, generate any controversy. The position of the Qur’an on this issue, as revealed by Allah, is very clear. What brought controversy into it is the attempt by some scholars to equate Hadith with the Qur’an.

Given the antecedence of the record of Hadith, any informed Muslim must be careful in using Hadith against the contents of the Qur’an especially as a legal code in Islam. Statutorily, Hadith is meant to explain and interpret the Qur’anic contents as a compliment rather than a counter force to them. Where the former seems to conflict with the latter, the Qur’an prevails.

If any of these two major sources of Islamic law was ever controversial it could only have been the Hadith and not the Qur’an.

And, it was for this reason that Hadith was subjected to such serious scrutiny that led to scholastic separation of the wheat from the chaff in what came to be known as science of Hadith.

Documentation of Hadith

It must be remembered that the official scrutiny and compilation of Hadith did not take place until several decades after the demise of Prophet Muhammad (SAW). And what led to that exercise by some Muslim scholars like Al-Bukhari, Muslim, Ibn At-Tirmidhi, Abu Daud, An-Nisai, Ibn Maja and a host of others was the rampant fabrication of statements attributed to the Prophet by some mischievous elements.

Unlike the Qur’anic revelations which were promptly documented officially as instructed by the Prophet himself, Hadith and Sunnah were not authorized for documentation by the Prophet. His (Prophet’s) position was that such documentation could lead to a conflict of Hadith with the contents of the Qur’an and therefore cause confusion among the Muslims. That fear was never fully allayed after all, despite the efforts of the mentioned scholars. And, today, we still have thousands of Hadith classified as ‘weak’, ‘unauthorized’ and ‘rejected’. Yet, they bear no names other than Hadith.

In such a melee, it will be fool-hardy to depend exclusively on Hadith in giving a verdict as fundamental as stoning to death especially when the Qur’an is silent on it. Though yours sincerely is not a Mufti, nevertheless, I personally believe that if Allah had intended stoning as penalty for adultery, He wouldn’t have left its pronouncement to the Prophet since He (Allah) was categorical in respect of flogging as punishment for adultery.

Categories of Adultery

In Islam, adultery is not limited to married men and women alone. The acts of homosexuality (i.e. man to man sex) as well as lesbianism (i.e. woman to woman sex) are equally treated as adultery. And this is where the logic of stoning becomes questionable. It is through the Qur’an that we came to know of a whole city of the people of Prophet Lut (Lot) which Allah wiped out for committing homosexuality otherwise called ‘sodomy’. The Qur’an does not tell us of a similar punishment meted out to any other group of adulterers in history. Yet, homosexuals and lesbians are still given the opportunity to repent with a promise of Allah’s forgiveness.

This is how the Qur’an puts it:

“Against those of your women who commit adultery (lesbianism), call witnesses, four in number, from among yourselves; and if they bear witness, then keep the women in confinement until death releases them or Allah paves their way out of it. And if two (men) of you commit it (homosexuality), then punish them both; but if they repent and show remorse, leave them alone. Verily, Allah is forgiving, compassionate.

16. 4:15-16. Now, how logical will it sound that an adulterer or adulteress is stoned to death while a homosexual or a lesbian is left unpunished because he or she has repented. Shouldn’t an adulterer or adulteress be entitled to repentance?

Fabricated Hadiths

Many versions of Hadith were relayed in respect of stoning. One of them was that a married woman once reported herself to the Prophet confessing adultery. The Prophet pretended not to hear until the woman repeated herself three times saying she had become pregnant as a result of adultery. The Prophet thereafter asked her to come and repeat the confession after delivery. It was thought that the woman would never come back having known the implication. But surprisingly, she came back after delivery and repeated the same confession three times.

There and then, the Prophet was said to have ordered some of his companions present on that occassion to pelt her with stone. This act was carried out as the woman took to her heels. When those companions returned to inform the Prophet that they had stoned the woman to death, he felt scandalized and scolded them for carrying out such a dastardly act saying he did not send them to kill her.

One would wonder why the Prophet who was so compassionate and cautious about anything life would rush to give such a verdict without investigating the matter conclusively. For instance, nothing in the referred Hadith tells us anything concerning the woman’s sexual partner (i.e. the man who impregnated her) before the judgment was allegedly given. That could not have been the exemplary Prophet described by Allah in the Qur’an thus: “you have a good example in Allah’s Apostle for anyone who looks to Allah and the last day and remembers Allah always” (Q. 33: 21).

Relevant Questions

Some questions can be raised in respect of the process of applying the penalty for adultery. Some of the questions are as follows: when can a man or a woman be pronounced an adulterer or adulteress? How can such a person be tried? Who should pass judgement on him or her?

To ascertain that a man or a woman has committed adultery, there must be convincing evidence. An example of such evidence is for the married woman to be pregnant outside the wedlock. Another is for the woman or the man to voluntarily confess to adultery. However, the sexual partner must also voluntarily admit that adultery was actually committed between both of them. The third is for other people to prove catching them in action. Anybody who came up with such allegation without proof must bring four male witnesses or eight female witnesses. Each of the witnesses must have seen the accused duo in action. This means they must have all seen the physical insertion of the male organ into the female organ. And they must be made to swear to an oath that they actually saw the act. This is to avoid any possibility of conspiracy. Anything less than that should be considered mere suspicion which cannot warrant any penalty because adultery is not committed in the open.

If, through open evidence (like pregnancy outside wedlock) or voluntary self-confession by both sexual partners, a man or a woman is found guilty of adultery, the next step is prosecution in a Shari‘ah court. In the absence of an official Shari‘ah court the accused person should be tried by a judicial committee of a Mosque headed by a Mufti.

Such an accused person must have attained puberty, he or she must be sane and the act must have been committed with his or her consent and not through rape.

In the case of the woman becoming pregnant, the court or the Mosque must allow her to deliver the child before any judgement is executed.

And if she alleges rape, she is automatically free if her claim is found to be true. But the best is to defer the judgement till after delivery to avoid any psychological complication that may affect the innocent child in her womb. Such deferment will also allow for thorough investigation before judgement is given.

As for the male partner, the penalty may be carried out as soon as the judgement is delivered if enough evidence is established against him.

That penalty as prescribed in the Qur’an is flogging which should be done publicly and witnessed by members of the community in order to serve as a deterrent to others.

However, banishment from the community for one year after flogging may be waved, according to Imam Hanafi, if the culprit repents sincerely and promises never to repeat the crime, depending on the discretion of the judge or the Mufti.

Essence of Punishment

The essence of any punishment in Islam is to enable people repent and desist from evil deeds. But what is amazing about the application of stoning as punishment for adultery is that it gives no room for repentance. And besides, only the lowly people in the society are caught and punished for it even when it is obvious that adultery is more rampant among the makers and shakers of the society especially the law givers. Why is it that no single highly placed person has ever been caught and punished by stoning for adultery either in Nigeria or elsewhere?

Besides ‘shirk’ (associating something with Allah), no act is more annoying to Allah than miscarriage of justice especially against the helpless people. Adultery is a very grievous crime in Islam and no true Muslim will solicit for adulterers or adulteresses. But, in applying the law against this monstrous crime, due process must be followed without any discrimination. Justice is the hallmark of Islam.

Let those who administer justice in this sphere fear Allah. And let those who claim to be Muslim scholars endeavour to understand the depth of Islamic law semantically and interpretatively. Using Hadith of the basis for stoning Muslim adulteresses and adulterers to death does not only portray Allah and his messenger in wrong posture, it is also a glaring jurisprudential fallacy.