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Zina in Islamic Legal Discourse

A long tradition of legal debate among Muslim jurists dating back to the seventh century produced thousands of legal treatises that are a testament to this lively discourse. Khaled Abou el Fadl, a contemporary Muslim scholar based at the University of California at Los Angeles, has lamented the loss of this lively, pluralistic tradition of the past that has been replaced by the current authoritarian trend that seeks to codify the law into uniformity. This trend can be traced back to the Tanzimat (1839–71) reform era of the nineteenth-century Ottoman Empire whereby centuries of legal opinions were distilled into one all-encompassing legal code. The purpose of this codification of the shari‘a was to centralize the Ottoman Empire using a Western modernization model, as well as Western legal codes, as a guideline.¹ The results of this reform have been widely criticized by historians, particularly gender historians who have found that the appropriation of Western codes of law, in some cases, had negative effects for women.² In the modern Middle East, trends toward codification have become increasingly authoritarian. Today, government agencies, such as the Saudi Permanent Council, legislate the shari‘a, issuing opinions in Saudi Arabia that often become law even as they often lack sound juridical underpinnings.³ Classical Islamic law, in Abou el Fadl’s opinion, has always resisted codification and encouraged interpretation through ijtihad. In fact, he argues that such uniformity through codification contradicts the very nature of Islamic law.⁴

The current authoritarian trend in Islamic thought attempts to halt discussion and juridical progress and is reminiscent of the calls for the “closing of the gates of ijtihad” by ninth-century Muslim clerics. This attempt to halt Islamic discourse was based on the belief that all legal matters had been settled in the formative period; it sought to silence debate and codify Islamic law. However, Muslim scholars continued to elaborate on the law and invoke ijtihad despite this ninth-century discussion, and we have volumes of legal documents produced in those “dark ages” of the closing.⁵ Much of the juridical literature (fiqh) in this chapter was composed long after the so-called closing of the gates of ijtihad, a point that lends further evidence to revisionist arguments that ijtihad continued beyond the ninth century.⁶

This chapter investigates some of the layers of Islamic juridical thought on the topic of zina in order to demonstrate its origins and development from the early Islamic period onward. An analysis of these writings underscores the liveliness of juridical debates on sexual indiscretion wherein jurists consistently advocated corporeal punishment for zina, namely, lashing for unmarried offenders and stoning for married offenders. Jurists advocated these punishments in accordance with legal precedents established in hadith literature upon which they relied. Working with a few brief references to stoning, jurists elaborated on the law using the techniques in legal reasoning in which they were trained. The result was a diversity of opinions in terms of procedure and criteria for punishment—a conclusion that reveals the way readings of the text produced some varied interpretations but also views the precedents that occurred under the Prophet Muhammad as setting clear guidelines through the Prophet’s example (sunna) upon which law would be based. This emphasis on precedent conforms to the criteria of substantive law; however, jurists also engaged in debates and disagreements in the literature, demonstrating an open discourse among scholars.

ZINA IN THE QUR’AN AND HADITH

In terms of historical practice of stoning among Muslims, the hadith, or the preserved practices of the Prophet Muhammad, are the best source for historians of law. The hadiths claim that the Prophet did not always practice stoning for cases of zina. He often advocated one hundred lashes for zina and one year’s banishment from the community. This punishment is related in a hadith in which the Prophet is reported as saying, “Take it from me! Take it from me! God has now appointed a process for females; the unmarried with the unmarried, one hundred lashes and twelve months’ banishment; the married with the married, one hundred lashes and death by stoning.”⁷ Contradictory reports indicate that the Prophet was disinclined to combine the punishment of flogging and stoning, which explains why later jurists would prohibit dual punishment.

Stoning was of great concern to the second caliph, ‘Umar, who insisted that it was a part of the Qur’an but had been excluded in the process of transmission. This claim, as controversial as it may seem in that it implies imperfection in the version of the Qur’an compiled by the third caliph, ‘Uthman (644–56), is related in the writings of Ibn Ishaq (704–68). To some Muslims, the claim of a missing “Verse of rajam [stoning]” adds veracity to the opinion that stoning is a practice that is mandated, or should have been, in the Qur’an. However, for most Muslims, the hadith sets a historical and legal precedent, laid down by the Prophet, for the tradition of stoning.

So in order to uncover those early precedents, we will look at the Qur’an and hadith, as they form the pillars upon which jurists formulated Islamic law. The first source constitutes the slow accumulation of Qur’anic revelations in the Muslim holy text, and the second, the documented actions of the Prophet and his successors in the hadith, forms the legal precedents used to justify the punishment. Muslim jurists used these sources to develop the corpus of Islamic law. This scholarly discourse resulted in a great body of juridical literature that attempts to cover every aspect of the crime of zina in order to provide guidance to the community of believers.

As we begin an archaeology of the legal discourse on zina, it is important to discuss the way in which jurists obtained their evidence. There are four main sources of Islamic law. The first source is the Qur’an. The second is the practices of the Prophet Muhammad, collectively called the sunna, which is expressed through the hadith. A third source of law is analogy (qiyas), by which jurists can develop new rulings for a given situation based on analogous situations found in the Qur’an and the sunna. The fourth source is evidence that a consensus (ijma‘) of scholars from the formative period has been found. In addition to these four main sources, other sources are available to the jurist, such as the ability to apply human reason (‘aql, ra’y) in order to solve a legal puzzle, even though much debate surrounds the practice of ijtihad, discussed in the introduction. Aside from the shari‘a, jurists always took local customary law (‘urf) into consideration, recognizing it as a legitimate source of law so long as it did not contradict the Qur’an and the sunna. “The theory of the sacred law did not fail to influence practice and custom considerably, albeit in varying degrees at different places and times, but it never succeeded in imposing itself on them completely.”⁸ The customary ‘urf laws of a region were in constant tension with and sometimes contradicted the shari‘a, as we will see with the case of zina in Aleppo. As ‘urf was considered by jurists when making legal rulings, it offered a flexibility that resulted in a diversity of legal interpretations in Islamic law.⁹ In fact, entire genres were constructed around the possibility of diverging opinions (ikhtilaf) in the law. Other sources sometimes available included consideration of the common good through istihsan and istislah and the laws promulgated by the state (siyasa).¹⁰

Islamic law divides sex acts into legal and illegal sexual intercourse. Legal intercourse occurs between a married man and woman, but also encompasses a number of permissible sex acts such as masturbation, sex with female concubines, and the practice of birth control.¹¹ Illegal sex acts include any heterosexual intercourse between free Muslims who are not married to each other. Each offender is given his or her own distinct punishment regardless of gender and marital status. In a hypothetical scenario where a married woman committed zina with an unmarried man, each would be given the punishment prescribed according to their status. Jurists would also include sex between a Muslim woman and a non-Muslim man as a punishable transgression.¹²

Jurists debated other forms of zina, which included same-sex intercourse; however, jurists were more interested in prohibiting same sex intercourse among men rather than women. Other forbidden practices include anal intercourse, which is forbidden even to married couples, and constitutes a zina crime in the Hanbali and Shiite tradition.¹³

To find the original references to zina in the shari‘a, one must consult the primary sources—the Qur’an and the hadith.¹⁴ The Qur’an cautions against zina in three instances. The first verse in Surat al-Isra’, or Surat Bani Isra’il 17:32, states that zina “is a shameful [deed] and an evil, opening the road [to other evils].” Further elaboration on the issue of zina is found in Surat al-Nur 24:2–5. It is the only passage that advocates punishment for zina in the Qur’an; more specifically, it promotes the punishment of flogging for the crime. “The woman [zaniah] and man [zani] guilty of adultery or fornication, flog [ajildu] each of them with a hundred stripes.” In this passage, the Qur’an does not make a distinction between married or unmarried adulterers, which becomes an important detail in later discussions of zina. The fact that this brief reference will become a foundation for future law demonstrates the complexities of legal reasoning used by jurists in later years.

The third reference to zina is found in Surat al-Nur where Muslim believers are instructed not to marry an adulterer. It continues to warn that if an accusation of adultery is made, it must be supported by four witnesses. “And those who launch a charge against chaste women, and produce not four witnesses [to support their allegations], flog them with eighty stripes” (17:32). First, the verse (aya) establishes the rule for four witnesses, discussed at greater length below. Second, the passage sets into practice a law known as qadhf, or false accusation of zina, which is an important preventative clause against slanderous accusations and an attempt to dissuade false testimony. The verses intended to warn those Muslims who may attempt to abuse the law and to protect those individuals who may be wrongly accused of the crime by severely punishing wrongful accusations. The historical context for these verses is the accusation of adultery made against the Prophet’s favorite wife, ‘A’isha bint Abi Bakr, in 627.

The incident that has been called “the account of the lie” (hadith al-ifk) has been well documented by both Muslim accounts and modern gender histories of the early Islamic period.¹⁵ The accusation finds its basis in an incident in which ‘A’isha accompanied the Prophet Muhammad on a journey but was mistakenly left behind when she dismounted her litter to search for a necklace that had been inadvertently dropped. The caravan, assuming she was still seated in her litter, left without her. She was rescued and reunited with the caravan that she was traveling with the following morning, led by a young man named Safwan ibn Mu‘attal al-Sulami.¹⁶ Soon after, rumors of impropriety circulated in the Muslim community. After a period of silence, the Prophet came forth with several verses, including the ones found in the Surat al-Nur discussing zina and, most important, the wrongful accusation of zina (qadhf).

These revelations set forth the criteria of evidence for zina outlined above but, importantly, punish anyone who wrongfully accuses without four witnesses. In the case of ‘A’isha’s accusation of adultery, three individuals were punished with eighty lashes: Hamna bint Jahsh, who was the sister of the Prophet’s wife Zaynab, Mistah ibn Uthatha, and Hasan ibn Thabit, a poet.¹⁷ Most notable is the fact that verses of the Qur’an were revealed to support a wife of the Prophet in this unique case. Surat al-Nur 11:20 is intended to serve as a warning to anyone who indulges in shameless gossip and slander.

The Qur’an also admonishes same sex intercourse among men in verse 7:81 when it states: “For ye practice your lusts on men in preference to women: ye are indeed a people transgressing beyond bounds.” Yet the Qur’an does not pronounce judgment on men who engage in such acts. Even Lot’s words to the people of Sodom and Gomorrah in the Qur’an do not threaten punishment. In 26:165–73, Lot says, “and leave those whom God has created for you to be your mates? Nay, ye are a people transgressing (all limits)! They said; ‘If thou desist not, O Lut [Lot]! Thou will assuredly be cast out!’ He said: ‘I do detest your doings.’” The verse conveys disapproval but no legal recourse for acts of sodomy.

The lack of legal recourse for sodomy in the Qur’an left room for debate among jurists. At the popular level, verses relating to the ever after in Muslim heaven were sometimes read with a homoerotic lens by future poets. The Qur’an describes heaven where men will have endless access to overflowing cups of an unnamed nonintoxicating drink and sexual gratification in the presence of both male cupbearers (saqi) and heavenly, big-eyed virgins (houri). “Round about them will (serve) youths of perpetual (freshness), with goblets, (shining) beakers, and cups (filled) out of clear-flowing fountains” (56:16). The same chapter describes the companions with big lustrous eyes “like unto pearls” awarded to men in heaven. This image of Muslim heaven was articulated in even more detail in the homoerotic poetry of Abu Nuwas (756–810) and others who played on the image of the young boys “doing nothing but making love and pleasure,” as one poem relates.¹⁸ Such popular images of heaven contradicted Qur’anic injunctions against homosexuality, demonstrating that the subject was open to debate.

The second source of Islamic law is the hadiths, which are the traditions and sayings of the Prophet Muhammad, the early caliphs, and the companions of the Prophet. Compiling the hadith was a long historical process in which oral histories were transmitted from one professional memorizer to another and eventually written down. They are the subject of much debate, as some historians view the hadith as the earliest form of Arab history writing.¹⁹ It must be kept in mind that not all hadiths are accepted as authentic by hadith scholars. Checking the authenticity of hadiths is an Islamic science in which the chain of transmission (isnad) is subjected to rigorous testing. The viability of transmission is checked through the veracity of its isnad. The isnad represents those persons who orally memorized the hadith from generation to generation until they were finally compiled into volumes. By checking the isnad, many hadiths have been dismissed by scholars who “have advocated its partial or complete abandonment as a pillar of shari‘a.”²⁰ There are several hadiths that contradict each other and are still considered authentic. One example of contradictory hadiths is the Prophet Muhammad’s wife ‘A’isha bint Abi Bakr, whose hadiths often contradict those of other companions of the Prophet.²¹ Nonetheless, hadiths are continually invoked by jurists to support their juridical opinions; they are also used in everyday conversation to promote particular social and political conventions as well as patriarchal attitudes.²²

With respect to zina, the hadiths are generally consistent with the prescriptions from the Qur’an that advocate flogging; however, some hadiths add another punishment which is rajam (stoning) for a free, married (muhsan) man or woman (muhsana) who commits zina.²³ A hadith in Sahih al-Bukhari, one of the most respected collections of Sunni hadiths compiled by Abu ‘Abdallah Muhammad ibn Isma‘il al-Bukhari (d. 869), affirms the practice of stoning when it states, “The stone is for the adulterer (lil-‘ahir al-hajar).”²⁴

Despite this frequently cited injunction, there is great discrepancy between the Qur’an and the hadiths on the issue of stoning. This incongruity stems from a major problem in the sources, namely, stoning was never advocated as punishment for zina in the Qur’an. The inconsistency was noted in a hadith of Caliph ‘Umar, who attempted to reenforce the punishment of stoning, despite its lack of textual references. A hadith states:

‘Umar said, “I am afraid that after a long time has passed, people may say, ‘We do not find the Verses of Rajam (stoning to death) in the Holy Book,’ and consequently they may go astray by leaving an obligation that Allah has revealed. Lo! I confirm that the penalty of Rajam be inflicted on him who commits illegal sexual intercourse if he is already married and the crime is proved by witnesses or pregnancy or confession. . . .” ‘Umar added, “Surely Allah’s apostle (peace be upon him) carried out the penalty of Rajam, and so did we after him.”²⁵

These hadith sources convey an urgency to emphasize the legal precedence of stoning despite its absence in the Qur’an. ‘Umar clearly demonstrated in this hadith that local customary practice of law should be carried out, even where the Qur’an is silent presenting, in the view of Muslim jurists, a clear point of abrogation (naskh) of the Qur’an in favor of the hadith.²⁶

The hadiths claim that stoning was practiced under the Prophet Muhammad and under the rule of the second and fourth caliphs, ‘Umar and ‘Ali, respectively. These stonings were recounted in several hadiths and formed the foundation for its practice in zina cases. However, some hadiths rightly place the foundations of stoning in earlier Jewish traditions. Some popular legends among Muslims have traced the practice of lapidation (casting stones in order to drive away evil) to the early prophet Abraham.²⁷ The Qur’an does not mention stoning as punishment for zina, yet the hadith and even more so Islamic jurisprudence (fiqh) create an entire juridical discourse on the topic. There are several references to stoning in the hadith; one particular account stands out from the rest and connects the Islamic practice to the Judeo-Christian tradition. The hadith relates the story of a Jewish man and woman who were caught in the act of adultery:

Jew and Jewess were brought to Allah’s Apostle [rasul] on a charge of committing illegal sexual intercourse. The Prophet asked them, “What is the legal punishment [for this sin] in your Book [the Torah]?” They replied, “Our priests have innovated the punishment of blackening the faces with charcoal and Tajbiya.”²⁸ ‘Abdullah ibn Salam said, “O Allah’s Apostle, tell them to bring the Torah.” The Torah was brought, and then one of the Jews put his hand over the Divine Verse of the Rajam [stoning to death] and started reading what preceded and what followed it. On that, Ibn Salam said to the Jew, “Lift up your hand.” Behold! The Divine Verse of the Rajam was under his hand. So Allah’s Apostle ordered that the two [sinners] be stoned to death, and so they were stoned. Ibn ‘Umar added: “So both of them were stoned at the Balat and I saw the Jew sheltering the Jewess.”²⁹

This hadith offers a dramatic portrayal of the male adulterer attempting to protect the adulteress as they are stoned together. Importantly, it points to the shared Judeo-Christian tradition of stoning as punishment for adultery or sexual indiscretion.

Possibly one of the most memorable scenes of stoning is related in John 8:7 with the image of Jesus protecting the unnamed prostitute about to be stoned. He challenges the Pharisees who condemn her by saying, “Let anyone among you who is without sin be the first to throw a stone at her.” This verse attempts to overhaul a practice prevalent in earlier Jewish traditions. The Torah contains several instances of stoning that contain similar patriarchal notions of proprietorship over female sexuality. One case involves a girl who marries, but then afterward her husband states that she was not a virgin at the time of her marriage. “Then the girl shall be brought out to the entrance of her father’s house, and the men of her town shall stone her to death; for she did a shameful thing in Israel, committing fornication while under her father’s authority. Thus you will sweep away evil from your midst” (Deut. 23:21). This passage points to the community’s duty to stone an adulteress in order to purify its town from any form of chaos. It also attaches a woman’s sexual propriety to her family since the stoning is to take place on her father’s property.

Another case of stoning in the Torah involves a betrothed virgin who has sexual intercourse with a man who is not her fiancé. “In the case of a virgin who is engaged to a man, if a man comes upon her, you shall take the two of them out to the gate of that town and stone them to death: the girl because she did not cry for help in the town, and the man because he violated another man’s wife” (Deut. 23:21). This case shows that both the male and the female fornicator were to be punished, just as in Islamic law. What is unique about this case is that if the very same case were to occur in the open country, the girl would not be stoned, only the man. It is assumed that if she were in the open and forced to have intercourse, no one would have heard her screams for help.

These earlier examples are telling of dominant patriarchal attitudes toward women’s sexuality that are informative as we begin to study early Islamic traditions on zina and stoning. It is in the broader context of the Abrahamic tradition that the hadith describe stoning as it was gradually incorporated into the practices of the early Islamic community; several hadiths report that the Prophet Muhammad and subsequent caliphs may have stoned zina convicts. One of the most frequently cited hadith regarding stoning ordered by the Prophet Muhammad was that of Ma‘iz. In this hadith, the Prophet tried to dissuade Ma‘iz from his confession of zina, but ultimately accepted his single confession instead of insisting on four separate witnesses, as the shari‘a prescribes. The hadith is as follows: “Narrated Ibn ’Abbas: When Ma‘iz ibn Malik came to the Prophet (peace be upon him) [in order to confess], the Prophet (peace be upon him) said to him, ‘Probably you have only kissed [the lady], or winked, or looked at her?’ He said, ‘No, O Allah’s Apostle!’ The Prophet (peace be upon him) said, using no euphemism, ‘Did you have sexual intercourse with her?’ The narrator added: At that, the Prophet (peace be upon him) ordered that he be stoned [to death]” (8:534).

Bukhari’s rendition of this hadith is not complete. In fact, without a longer version of the hadith we would not know that the Prophet reportedly interrogated Ma‘iz to the point of four confessions before stoning him. In the longer version of this hadith Ma‘iz is questioned by the Prophet Muhammad, who seeks more precise details of the sex act, inquiring:

“Did you fuck her [a-niktaha]?” He said, “yes.” Then he asked, “Did that thing of yours enter that thing of hers?” He answered, “Yes.” He asked, “Like the kohl stick disappears into the kohl container and the bucket into the well?” He answered, “Yes.” Then he asked, “Do you know what zina means?” He said, “Yes, I did with her unlawfully what a man does with his wife lawfully.” Then the Prophet said, “What do you intend with these words?” He answered “That you purify me.” Then he ordered him to be stoned.³⁰

Therefore, this hadith demonstrates that it was only after this series of questioning in which Ma‘iz testified against himself four times that the Prophet finally ordered him to be stoned.

Even as earlier punishments found in the Qur’an prescribed one hundred lashings, and one year of banishment as punishment in a hadith tradition, the Prophet prescribed only stoning in the case of Ma‘iz.³¹ The hadith of Ma‘iz has been an important hadith owing to its complexity. This fact is demonstrated in Shafi‘i law since it supports a single confession for a zina conviction and punishment. “According to Shafei [sic], a single confession, in a case of whoredom, is sufficient, because he considers the law to be the same here as in all other cases, the confession or acknowledgement of any circumstance being the means of disclosing or discovering that which is so confessed or acknowledged.”³² On the other hand, in Hanafi jurisprudence, four confessions must be given in order to prove a case of zina. These confessions, as stated in the Qur’an, must occur on four separate occasions and in front of a judge. The judge must refuse to accept the confession on three separate occasions, but ultimately accept the fourth confession.³³ Other criteria include that the confession must come from a person of a mature age and of sound mind. It is for this reason that several hadiths concern inquiries about the sanity of anyone who confesses to zina.³⁴ Sanity is a required criteria for punishment in these cases; if one is insane, the case is dismissed. The Hanafis later expanded the clauses for dismissing punishment to include underage offenders. Punishment was generally discouraged in hadith sources; for instance, the Prophet said, “Seek a pretext to prevent punishment according to your ability.”³⁵ Attempts to avert punishment can be seen in examples in which the Prophet tried to discourage confession. One hadith reads:

Narrated Jabir (peace be upon him): A man from the tribe of Aslam came to the Prophet (peace be upon him) and confessed that he had committed illegal sexual intercourse. The Prophet (peace be upon him) turned his face away from him four times; still the man bore witness against himself four times. The Prophet said to him, “Are you mad?” He said, “No.” He said, “Are you married?” He said, “Yes.” Then the Prophet (peace be upon him) ordered that he be stoned to death at the Musalla. When the stones troubled him, he fled, but he was caught and was stoned till he died. The Prophet (peace be upon him) spoke well of him and offered his funeral prayer.³⁶

This hadith highlights a number of legal issues related to zina. First, it clearly establishes the status of the offender as married, warranting the death penalty for the zina offense. Second, the hadith notes that the confessions occurred four times, which was equivalent to four witness accounts. Last, the scene emphasizes the important prerequisite of sanity for zina conviction. Islamic law, as other codes of law, holds that an offender needs to have the intellectual capacity to understand the unlawfulness of the act he has committed, what is called in legal theory “mens rea,” literally “guilty mind.”³⁷

Aside from adultery cases, hadith sources, more than the Qur’an, illuminate the Prophet’s stance on punishment for sodomy. Although the Qur’an makes only brief references to homosexuality, hadiths provide more details on the Prophet’s point of view regarding the practice. The Prophet Muhammad stated in one hadith, “Whenever a male mounts another male the throne of God trembles; the angels look on in loathing and say, Lord, why do you not command the earth to punish them and the heavens to rain stones upon them?”³⁸ Another account states, “The Prophet, peace be upon him, cursed the effeminate men and women who act like men, and said expel them from your homes.”³⁹ Later, a conservative twelfth-century Hanbali jurist, Ibn Jawzi, recalled a hadith of the Prophet, stating, “The thing I fear most for my community is the act of the people of Lot.” The Prophet also warned the Muslim community about what would happen if they allowed same-sex relationships in their midst: “Indeed, my community will suffer punishment if men go with men and women with women.”⁴⁰ Despite these repeated warnings, one hadith acknowledged the temptation to indulge in sex with young men: “Do not gaze at the beardless youths, for verily they have eyes more tempting than the houris [big-eyed maidens].”⁴¹ These beardless boys are also described in hadith sources as wearing sumptuous robes and having perfumed hair. One can note differences between the hadith and the Qur’an as the hadith increasingly condemn the practice of sodomy.

The prescriptive literature also reflects an increased interest in punishing anyone who engaged in sodomy. For instance, Malik ibn Anas, the founder of the Maliki school of Islamic law dominant in North Africa, advocated stoning for sodomy. He also argued that both active and passive sodomites will be among the first to burn in the fires of hell, along with men who drink wine, men who masturbate (where he held a dissenting view from other jurists, such as Ibn Hanbal), men who beat their parents, men who offend their neighbors until they are compelled to curse him, and men who have intercourse with their neighbors’ wives.⁴²

Despite Maliki injunctions, other schools including the Hanafi had mixed rulings on the issue of same sex intercourse. Abu Hanifa placed sex acts with men or boys (wati‘a) outside the boundaries of zina, yet other jurists such as ‘Ala’ al-Din al-Kasani (d. 1191) argued that sodomy was not zina, and therefore it should be punished differently from other zina crimes.⁴³ Another Hanafi jurist, Ibn Nujaym, argued that sodomy constituted zina crime. Damascene jurist ‘Abd al-Ghani al-Nabulusi (1640–1731), who himself was accused of sexual relations with men and boys, an accusation challenged by Barbara von Schlegell, had a very strong stance against sodomy, arguing that it constituted kufr (unbelief) and should be punished with stoning.⁴⁴ Such disagreements were clearly possible (even within the same school of legal thought) in Islamic legal discourse. Shafi‘i and Hanbali jurists disagreed with some of the more lax rulings of the Hanafis, even prescribing death by the sword for the offense.⁴⁵

As for another category of zina, prostitution, there are some early traditions on the subject. The Prophet intervened in a dispute between two concubines (that is, female slaves) and ‘Abdallah ibn Ubayy. The women complained that their master was procuring his six female slaves in order to earn money. Upon hearing the case, the Prophet Muhammad received a revelation that swiftly prohibited the practice. In Surat al-Nur the Qur’an states, “But force not your maids to prostitution when they desire chastity, in order that ye may make a gain in the goods of this life. But if anyone compels them, yet after such compulsion, is God Oft-Forgiving most Merciful [to them]” (24:33).⁴⁶ Prophetic traditions found in the corpus of hadiths describe another man who approached the Prophet Muhammad with a slave girl and asked if it was permissible for the slave to prostitute herself in order to earn money for orphans. The Prophet rejected the request, prompting another revelation on the subject.⁴⁷

Prostitution was addressed yet again in 627 by the Prophet during the Battle of the Trench. The Prophet received complaints that the men of Medina were making sexual advances (ta‘arrad) toward Muslim women in the community. It was at this moment that the verse on veiling was revealed. In fact, prostitution may have been one of the major underlying factors that encouraged the adoption of the veil that intended to distinguish morally upright Muslim women from prostitutes and slaves in the streets of Medina.⁴⁸ The compulsion to differentiate rather than punish prostitutes emphasizes that early Islamic society did not attempt to punish prostitutes so much as place Muslim women in a position of reverence.

THE HANAFI SCHOOL

A vast body of writing developed from the systematic study of the Qur’an and hadith resulted in two genres of Islamic writing, fiqh (Islamic juridical writings) and tafsir (interpretation of the Qur’an). In the early Islamic period, juridical movements were abundant, resulting in hundreds of schools of legal thought, later narrowed down to four major schools (madhahab) in the Sunni tradition: the Hanafi, Shafi‘i, Maliki, and Hanbali. These schools are by no means uniform, as there are differences in opinions within legal schools, as exemplified in the debate concerning sodomy above.

The origins of Islamic schools of law stem from Iraq under the Umayyad Dynasty (661–749) in the early second century of Islam. The Iraqi school later influenced the development of other schools in the Hijaz.⁴⁹ One of the major schools of thought was founded by Abu Hanifa al-Nu‘man ibn Thabit (d. A.H. 150/a.d. 767), who was known for his adherence to the traditions established by the Prophet Muhammad in the sunna. The Hanafi school grew out of the great Kufa school and eventually absorbed the Basra school.⁵⁰ Muslim jurists expanded the shari‘a, elaborating in more detail the Muslim obligations and areas of law that were only briefly mentioned in the Qur’an. By employing reason and logic, jurists developed a science by which law was interpreted and composed into volumes of fiqh.

Several legal schools existed along with the Hanafi school, all having a discursive relationship among each other. Legal manuals (furu‘) consistently address the differences between these schools and address the debates among the schools on key issues. The legal schools included the Maliki tradition, founded by Malik ibn Anas (d. A.H. 179/A.D. 795) that was based on the Medinan school, yet was considered underdeveloped when compared to the Iraqi tradition of law. The Maliki school is marked by its “material considerations” that influenced its doctrines.⁵¹ That is, the Malikis not only looked to the traditions of the early Islamic community to base its laws but also valued ‘amal, or tradition, in making its judgments on legal matters. The Maliki school was dominant in several North African communities.

A second school was founded by Imam Shafi‘i (d. A.H. 204/A.D. 820), who placed himself within the Iraqi school like the Hanafis. Imam Shafi‘i is noted for his successful separation of legal elements from moral elements in his judgments. In this respect, he differed from traditionalists (ahl al-hadith), such as the Hanbalis, who disagreed with the use of subjective reasoning (ra’y) in Islamic law. “In theory, Shafi‘i distinguished sharply between the argument taken from traditions and the result of systematic thought,” which, Joseph Schacht argues, created a new system of thought.⁵² This legal philosophy later became a discipline of its own when Imam Shafi‘i created the usul al-fiqh, a discipline that studies the legal theory underlying Islamic shari‘a. With these characteristics in mind, the various Islamic schools demonstrate a wide range of opinions on given issues; these differences are often pointed out in the legal texts themselves.

A number of legal commentaries produced by jurists of the Hanafi madhhab outline the doctrine embraced by its school of thought. The fiqh writings used in this study are works commonly cited by Ottoman and Syrian jurists. The Ottomans chose the Hanafi madhhab as the basis for imperial law. Authors have suspected that the Hanafi school was chosen because it was well established in Anatolia from the time it was brought there by the Seljuq Turks.⁵³ Others have argued that the Hanafi school was chosen over others because it was seen as more favorable to commerce because of its emphasis on binding contracts.⁵⁴ Colin Imber argues that the Hanafi school offered more latitude to Muslim rulers to enforce their own laws (Arabic: siyasa; Ottoman Turkish: siyaset), which may have been another motivation for its selection.⁵⁵ What we know for sure is that the major Ottoman courts were Hanafi, and even though other schools of law existed alongside the Hanafis, in the Ottoman period jurists who administered Hanafi justice found themselves more easily promoted to Ottoman administrative positions. The influence of the school extended to other parts of the Islamic world, such as the region that encompasses today’s Afghanistan and Pakistan.

There are several volumes of juridical writings in the Hanafi school that were widely read by jurists in the period under study, many of which were written after the so-called closing of the gates of ijtihad. One such source is the Mabsut of Muhammad ibn Ahmad al-Sarakhsi (d. A.H. 490/a.d. 1090), one of the earliest books to outline Hanafi law. The Hedaya (Guide) of Abi Bakr al-Farghani al-Marginani (d. A.H. 953/A.D. 1196) is another popular Hanafi legal manual in the Ottoman period that was referenced by jurists. Yet a third fiqh commentary is Zayn al-Din ibn Nujaym’s (d. 1563) Al-Bahr al-Ra’iq Sharh Kanz al-Duqa’iq (Commentary on the Treasury of Subtleties). And, finally, Ibrahim al-Halabi’s (d. 1549) Multaqa al-Abhur (The Confluence of Seas) was highly influential in sixteenth-century Ottoman juridical thought. The work was commissioned by Selim I, was completed in 1517, and soon replaced other juridical texts as the authoritative text in the empire.⁵⁶ These volumes form a core of Hanafi juridical thought in the period under study, but should be understood primarily as the doctrine and ideals of the authors who composed these texts. One author has written, “It is possible perhaps to characterize the shari‘a as an ideal law, in part practical, but whose fulfillment in total remains a pious aspiration rather than an achievable goal.” These laws are not a uniform legal code of justice. “Normative legal discourses were designed not to be rigidly applied but rather to be used as legal guidelines whose interpretation depended on local particulars.”⁵⁷

Aspects of Hanafi law were later incorporated into the early Ottoman legal codes, called the kanunnames. These laws are discussed in detail in the next chapter. The Ottoman legal system became, in effect, ossified in 1877 when the Ottoman Empire codified the Hanafi laws into the Mecelle, a secular code that synthesized both the Swiss code and Hanafi law, thereby attempting to emulate Western-style models of law. This legal reform greatly impacted the practice of law in the region, as the population had considerably less access to outside interpretations as in the previous four-school model whereby those individuals who used the court could use not only the Hanafi judge but also deputies (na’ib) representing the other three schools of law, who were present to offer their interpretations of law. Postreform, only a singular interpretation could be accessed, the reformed code.

What is the definition of zina in the Islamic juridical writings? According to al-Marginani, zina is defined as “the carnal conjunction of a man with a woman who is not his property either by right of marriage or of bondage.”⁵⁸ Ownership of a slave woman gives a man the right to sexual access to her according to the law. For a free woman, it is necessary for the union to be legal, which can only be through marriage. The interesting choice of the term property to describe legal unions conveys the idea that a woman’s sexuality can be owned through the marriage contract, whereby her sexuality belongs to her husband. It is unfortunate that this idea of women as property evokes stereotypical images of the Muslim world when in fact it is found in the earliest laws of the Mediterranean. In several legal cultures women were viewed only as a means of procreation, a body from which children could be reproduced. Within some of the earliest civilizations, such as the Phoenicians, Assyrians, and Babylonians, women were completely subservient to male authority, and married women were owned exclusively by their husbands. For that reason, when a woman was involved in a case of adultery or sexual indiscretion, the matter was comparable to an issue of stolen or usurped property.⁵⁹ Other ancient Mesopotamian legal practices in the pre-Islamic period included the proprietorship of the patriarch over his family. For example, Hammurabi Code relegated wives and children as property to the extent that they could be forced into servitude for debts unpaid by the patriarch. This practice also extended to the degree that a man could hand over his child or wife to be punished for crimes that he committed.

It is in this wider context that the notion of woman as property needs to be understood. Muslim jurists described various damages that included damaged property and even abduction under the category of usurpation (ghasb). Today, the word for rape in modern Arabic is ightisab, which is derived from the verb meaning “to usurp” or “to take illegal possession” of something. Joseph Schacht argues that among tribesmen in the pre-Islamic period, zina was not so much a sin as it was “an injury to the rights of property of a fellow tribesman.”⁶⁰ There is a noticeable continuity with the pre-Islamic past in which the crime of rape, as well as sexual impropriety, held the same status as theft of property. Some of the patriarchal residue of these earlier practices has even been imprinted on the language used to describe such crimes.

Marriage relations also demonstrate a continuation of the notion of proprietorship. For example, the Hanafi school emphasizes the binding nature of contracts, be they business or personal. This stress is particularly noticeable in marriage contracts, since it is difficult for a woman to obtain a divorce in Hanafi courts of law. A woman could obtain a divorce, with her husband’s consent, by giving up her final dowry (mu’akhkhar) in a khul‘ (a mutual repudiation resulting in the dissolution of a marriage). Outside of that measure she could not obtain a divorce except in cases of the husband’s proven death or impotency. The Hanafi school stressed the ownership (mulk) of the wife’s sexuality on the part of the husband; this ownership makes the sexual intercourse between man and wife legal. The legal contract is sealed by the husband’s gift to the wife in the form of mahr (dowry or bridal gift), which awards him this ownership. In a much referenced volume of Hanafi fiqh, the Mabsut, it states explicitly, “The dowry [mahr] is an exchange for the vulva [al-mahr ‘iwad ‘an al-budh‘].”⁶¹ In turn, if a couple is married and does not consummate the marriage, Abu Hanifa states in a fatwa that “the whole of the dower [mahr] is due because the husband did not make use of his possession.”⁶² In such a case, the husband would be forced to return the dowry to his wife, reinforcing the Hanafi connection between the mahr and access to a woman’s sexuality. However, this connection also underscores another important concept in Islamic law, namely, diya (blood money).

The Prophet declared that “there is no dower less than ten darahim.” Although each woman has the right to determine her own dowry, ten darahim is declared a minimum because it marks the “lowest amount of a theft including the punishment of amputation of a limb.”⁶³ The correlation between the payment of diya for the crime of theft and a woman’s dowry is worth discussing. They are connected through the way in which Islamic law treats issues of bodily harm (arsh). In the case of murder, whether intentional or unintentional, one pays a diya. If one has been harmed, the perpetrator will pay for bodily harm in proportion with a body part lost, that is, an arm, leg, or eye.⁶⁴ Muslim jurists assigned value to various body parts, as they were viewed as property (amwal) of the individual, and if they were in some way injured, the offender “must suffer a loss of precisely equivalent value.”⁶⁵ This restitution includes sexual offenses; for example, this type of compensation was paid to rape victims in the Ottoman period as will be discussed in chapter 5. On the other hand, in the case of murder, diya can also take the form of monetary punishment and instead of the death penalty.

As licit sexual relations hinge on the marital contract between a man and his wife sealed in the mahr exchange, the criminal definition of zina becomes more complex. In most legal manuals zina is either given its own heading or listed as a hadd (plural, hudud) crime. In the context of Islamic law, hadd designates crimes that have fixed punishments in the shari‘a. Ibrahim al-Halabi calls this category of crime “the claims of God [haq Allah],” which describes the offense as one against religion.⁶⁶ What this classification means in theory is that the judge cannot use his own discretion when administering punishment but instead must administer the fixed punishment established by the shari‘a. Hadd crimes are the most severe violations of moral and religious code. These crimes include zina, false accusation of zina (qadhf), theft, apostasy, highway robbery or banditry, and drinking alcohol.⁶⁷ The punishments for these crimes are prescribed in juridical writings; they are severe and can range from amputation to flogging and death, depending on the crime and circumstance. The reason for the severity of punishment relates to the way in which the law divides the world of punishment. Some crimes, such as the ones in the hadd category, have “the potential for social chaos,” and therefore needed to be checked. The punishments for those crimes need to be established by God, since “these offenses are regarded as acts that violate the bounds, rights and claims of God [and therefore] it is not up to human beings to interpose their own judgment as to appropriate remedies.”⁶⁸ A second form of punishment found in juridical writings is ta‘zir, which in the context of Islamic legal theory refers to the discretionary punishment of the judge.⁶⁹ From the perspective of Islamic law, these crimes are punishable at the discretion of the judge because they do not threaten social order or the authority of God. In theory, the punishments for hadd crimes are not at the discretion of the judge; however, it has been argued that judges used their discretion, rather than the prescribed punishments, when they were unable to apply the appropriate punishments when evidentiary requirements were unfulfilled, when judicial doubt was present (shubha), or when the offender was pardoned by the victim’s family.⁷⁰

Under the shari‘a’s clearly defined criminal categories, zina fits squarely within the bounds of a hadd crime. Because punishment for zina could produce lethal results, jurists drafted procedures by which conviction was acceptable. Hanafi jurists agreed that confession was to take place on four separate occasions in the presence of a qadi. However, the law also became more complicated concerning the admission of one party and the denial of another. If a man confesses to adultery with a given woman and she denies it, he is subject to punishment alone, according to Hanafi code. The man in question would not be punished for zina, but for qadhf (false accusation of zina), and his punishment would be eighty lashes.⁷¹

Along with qadhf, jurists often discussed a third concept, the li‘an divorce. This divorce allows one to leave the marriage without enduring any punishment for committing zina. In this case, the husband is not responsible for any children born after the marriage is dissolved. In order to enact this divorce, the wife must make a financial sacrifice in the form of her final dowry (mu’akhkhar).⁷²

In the Hanafi school, the qadi’s duty was to do everything in his power to prevent punishment from taking place, in the tradition of the Prophet Muhammad found in the hadith of Ma‘iz, noted above. Furthermore, jurists established rigid conditions upon which a person can be convicted of zina in order to prevent punishment in most cases.

There were some precedents for milder punishments in zina cases (or zina as rape in this particular example). A hadith from the reign of Caliph ‘Umar states “And Safiya bint ‘Ubayd said: A state-owned slave had sexual intercourse with a girl from among the khumus [a fifth of a share of war booty]. He had coerced her until he [ultimately] raped her. Therefore, ‘Umar flogged him according to the hadd and banished him, but he did not flog the girl because she was forced.”⁷³ This hadith from Sahih al-Bukhari is the earliest report of rape in these sources. Its importance lies in its vivid description of the way Islamic law differentiates between consensual and nonconsensual sexual intercourse and shows a distinction between a general type of sexual crime (zina) and the crime of rape. The hadith explicitly describes the rape victim as forced into the act and, as a consequence, not subject to punishment. Even as he called for stoning on several occasions, in another incident Caliph ‘Umar allowed punishment for rape to take the form of incarceration or flogging, unless a confession took place four times.⁷⁴

Later-sixteenth-century jurist Ibrahim al-Halabi, whose work Multaqa al-Abhur was influential among the Ottomans, questioned whether rape should be included as a zina offense. It shared both characteristics of crimes of injury and crimes that violated religion (hudud). This ambiguity over whether rape constituted zina was mostly owing to the absence of consent on the part of the victim, which caused jurists to set it apart from other offenses.⁷⁵

As for confession, the Hanafis held that a confession of innocence after one of guilt could release the person from the charge. The Shafi‘is and the Hanbalis disagreed with the Hanafi school on this issue; some jurists within those schools argued that punishment must be instituted, despite the denial.⁷⁶ Islamic doctrine does not offer a reduction in penalty for any confessions to the crime. Crime accumulates debt, a debt that must be paid either in this life or in the next. This debt can be either physical punishment or monetary compensation. For instance, in the case of murder, the victim’s family can decide whether to accept physical punishment or payment of blood money. In Islamic law, if the perpetrator has not been caught, the victim’s family is still entitled to compensation that will be paid to them through the civil treasury (bayt al-mal). This example reaffirms the importance of criminal debt being paid to society and victims through punishment. The same holds true for zina, whereby jurists deliberated on the form punishments would take.

PUNISHMENT, GENDER, AND THE BODY

The punishment of stoning until dead (rajam) is not found in the Qur’an. Rajam, as used in the Qur’an, does not advocate stoning; instead, the word conveys the concept of “murder,” “the devil,” and “the accursed.”⁷⁷ In terms of its other meaning as “lapidation,” its origins lie in the Muslim pilgrimage ritual at Mina, where pilgrims throw stones, symbolizing the casting off of evil. It is in this sense that jurists use the term to describe the punishment of stoning until dead. Hanafi and Hanbali jurists required that both parties to the act of zina have the status of muhsan in order for stoning to be applicable.⁷⁸ The term muhsan has many meanings, describing the person as free, adult, of sound mind, married, having had sexual relations in marriage in the past, and Muslim (except in the Shafi‘i tradition). It has an alternate meaning in some juridical discussions that describe someone who has not been convicted of any crime, including zina.⁷⁹

Juridical writings describe, in explicit detail, the instructions for the treatment of the body while it endures the sentence of stoning. There are two aspects of the body that are revealed in Hanafi legal thought: the actual positioning of the body during stoning for men and for women and the treatment of the body after death.

Islamic law describes two types of stoning cases. The first is for someone punished based on their confession (iqrar). In these cases, it is not mandatory to stone them, and if the person flees from the site while being stoned, they are free to leave.⁸⁰ The second type of case is mandatory punishment based on concrete evidence (bayyina) in the form of four male eyewitnesses. This situation is problematic, as the four-male-witness requirement greatly restricts the witnessing power of women, whose testimony is, according to the law, worth only half that of a man. There are to be four witnesses in order to support a zina conviction, though some jurists have disagreed on this point, including Hanbali jurists Ibn Taymiyya, Ibn al-Qayyim al-Jawziyya, and al-Tabari.⁸¹ In the case of zina proven through evidence rather than personal confession, the offender must be bound and is not free to leave. Juridical writings specify that stoning should take place far away from mosques, holy places, or any other places of worship.⁸² Furthermore, Islamic law has varying opinions about who should execute the punishment of stoning. Abu Hanifa and later Hanafi jurist Ibrahim al-Halabi argued that witnesses used in the conviction should be the first to cast stones at the convict, since it presents a good opportunity for any weary witnesses to recant their statements and stop the process before it is too late.⁸³ The imam, or religious leader, and the wider community were to join in the process and throw stones at the offender. If the conviction was based not on the testimony of witnesses but instead on personal confession, the head of state or a judge (qadi) should cast the first stone.⁸⁴ The Shafi‘i school of law disagreed with the Hanafi ruling, arguing that it was not the duty of the witnesses to begin the process; rather, the imam or his deputy should initiate the punishment. Ibrahim al-Halabi writes that after the witnesses and the imam cast their stones, the community can join them. However, both schools agree that the behavior of witnesses should be observed throughout the process in case there is any doubt about their testimony. Furthermore, the juridical writings even discuss the size of the stones that should be used during the stoning. Stones should not be too large, causing death too quickly, nor should they be too small, causing unnecessary suffering. For that reason, the Hanafis ruled that stones should be the size of one’s hand.⁸⁵

Juridical writings discuss in detail the way in which the body should be positioned during stoning. Immediately apparent is the difference in posture during stoning based on the gender of the accused. These positions were established in hadith, such as the precedent set in the stoning of Ma‘iz, who was left unbound during punishment. The hadith related earlier about the man from the tribe of Aslam describes him as unbound during the stoning and actually fleeing the scene; he was eventually caught and killed. Men are not to be bound except in cases where the offender is exceptionally strong.⁸⁶ The stoning of women differs greatly because it is based on two precedents: the stoning of Ghamidiyya during the life of the Prophet and the stoning of Shoraha under Caliph ‘Ali.⁸⁷ Both of these women were stoned while part of their body was buried in the ground.

The hadith of al-Ghamidiyya (meaning woman from Ghamid, a tribe and district in western Arabia) relates the story of an unnamed pregnant woman who confessed to zina before the Prophet Muhammad. Although al-‘Asqalani documents four versions of this hadith, all of them fail to describe the marital status of the woman.⁸⁸ Still, the stories all document the same interaction, whereby al-Ghamidiyya says, “Oh Prophet of God, I have sinned, purify me.” Some of the hadiths add that the woman repeated her confession on more than one occasion. The hadith describes that the Prophet was impressed by her honesty. He reportedly said, “I urge you to ask for God’s forgiveness and repent.” And she said, “I see that you wish to dissuade me as you dissuaded Ma‘iz ibn Malik,” indicating her familiarity with the earlier instance of stoning related above. The Prophet said to her, “What is that?” apparently referring to her abdomen. She said, “I am pregnant from zina.” He said, “You?” and she answered, “Yes.” This conversation resulted in two more confessions of zina.

The Prophet then said, “Wait until you give birth to that which is in your stomach.” In the meantime, a man from among the Ansar (Medinans) provided her with financial support until she gave birth. He later notified the Prophet Muhammad when she had given birth but noted, “If we stone her we will drive away her small son and he will not be able to suckle.” So they waited until her son was weaned and began to eat food on his own. It was then that they executed her by burying her up to her chest and stoning her to death, which the hadith describes in graphic detail. During the stoning, Khalid ibn al-Walid “aimed a stone right at her head and blood spurted on his face and he cursed her, and the Prophet Muhammad (peace be upon him) heard his curse at her, and said, ‘Oh Khalid, that soul has repented and turned to God in repentance.’” Khalid begged for forgiveness, and the Prophet also forgave him. After they stoned her they prayed and buried her.

A number of important legal precedents are established in this hadith. First, the hadith deals with the treatment of pregnant offenders. Both Hanafi and Shafi‘i schools contain variations in punishment in the case of pregnancy. Stoning cannot be postponed because of illness but can be postponed if the recipient is pregnant, “for if she were to be stoned whilst pregnant, the child would be destroyed in her womb, and its blood is not to be taken; and if her punishment be scourging, the execution must be deferred until she shall have recovered from her labour.”⁸⁹ Second, the hadith provides a detailed account of the treatment of the female body during stoning. Some jurists would establish it as the norm as the Hanafi text, the Hedaya, states that “where a woman is to be stoned, a hole or excavation should be dug to receive her, as deep as her waist.”⁹⁰ In contrast, the hadith of the Jew and Jewess describes neither party as bound during the stoning. Although the hadith specifically references Jewish law, and Muslim empires often allowed religious communities to adjudicate their own cases, debates ensued over jurisdiction. The Hanafis hold non-Muslims punishable in accordance with Islamic law, unlike the Shafi‘i school, which places the responsibility on each non-Muslim (dhimmi) community to administer its own punishments.⁹¹ As for the variation in practice, the Prophet may have been applying Jewish law, as evidenced by the explicit reference to the Torah, which may explain why the couple was punished unbound.

A third precedent established in the hadith of Ghamidiyya is the treatment of the body of the executed after punishment. In modern versions of stoning, women have not been given a proper burial after stoning; instead, as in one stoning case in modern Iran, the body was left outside the city to be eaten by wild dogs—a punishment reminiscent of the biblical execution of Jezebel.⁹² Yet traditions for a proper Islamic burial were clearly established with the stoning of Ghamidiyya. Furthermore, the Prophet demanded an Islamic burial after the stoning of Ma‘iz: “Do by the body as ye do those of other believers.” Islamic jurisprudence incorporates these earlier traditions when it states that “the offender thus put to death is slain in vindication of the laws of God, wherefore ablution is not refused, as in the case of one put to death by a sentence of retaliation. Moreover, the Prophet allowed the prayers for the death of Ghamdia [Ghamidiyya], after lapidation.”⁹³ In other words, committing the crime does not render the offender a nonbeliever or undeserving of a respectable interment. Once payment is made for the crime, in this case stoning, the offender is to be treated as any other believer and given a proper burial.

In stoning cases, the Hanafi school argues that the woman need not fully recover from labor before punishment, since the child is to be taken from her upon its birth. In Hanafi code, there is but one exemption: if the mother is the only possible guardian of the child. In that instance, her punishment will be delayed until the child is old enough to be independent of its mother, namely, when it has finished nursing. This tradition is based on a hadith of the Prophet in which he said to Ghamidiyya after her bearing a child, “Go and remain until such a time as your child is independent of you.”⁹⁴ Such imprisonment is not unusual, as one tradition notes that the Prophet once prescribed imprisonment for the crime of zina.⁹⁵ By advocating imprisonment, the Prophet also created a legal precedent by which corporal punishment could be overruled in favor of imprisonment.

The Hanafi literature addresses flogging, applicable in cases where the status of the zina offender is unmarried. There are distinctions made based on free or slave status; if the offender is a slave, he will receive fifty lashes, whereas free men and women receive one hundred lashes.⁹⁶ Furthermore, the body is treated differently according to gender, as the flogging differs for male and female offenders.⁹⁷ The shari‘a urges moderation; punishments like stoning and banishment cannot be combined with lashing (or any kind of ta‘zir).⁹⁸ The Shafi‘i code differs on this point, saying the two should be united, because the Prophet once prescribed one hundred lashes and one year of banishment for an unmarried person guilty of zina and one hundred lashes and stoning for a married offender.⁹⁹

Flogging, as with stoning, differs according to gender. Caliph ‘Ali gave a directive on punishment for unmarried men and women guilty of zina, stating, “When punishment is to be inflicted on any person, it is necessary that he be stripped naked; that is to say, that all clothes be taken off except the girdle.”¹⁰⁰ However, a woman’s body is problematic in the juridical literature. The legal sources prescribe lashing of the skin, something that contradicts the standards of modest dress for women. Because an important aspect of flogging is the necessity for it to be a public event, a spectacle, in order to deter future offenses, the Hanafi code explicitly states that lashes are to be given to women as they sit as opposed to men while they stand.¹⁰¹

The reason for such variations in posture could again be attributed to the fear of nakedness, as in the burying of a woman during stoning. The impact of the stones could cause her dress to tear, and her nakedness could evoke lust among the executioners, causing yet another form of zina. Another possible reason for burying women during stoning could be that the gendered worldview of the jurist held that men, as the “stronger sex,” could endure more punishment than women. The buried position of women would focus blows to the skull until death and possibly result in a more speedy execution. Hanafi shari‘a is just as specific in its formulations regarding flogging. It is not to be given lengthwise, because doing so would damage the body more than necessary. The attention given to inflicting no more than the minimum amount of punishment necessary is indicative of the concerted effort of jurists to institute moderation among executioners of punishment. Lashings are to take place on the back so as to cause the least amount of damage to the offender’s body.¹⁰² Furthermore, individual limbs are not to be flogged. “None of the stripes must be inflicted on the face, the head, or the privities, because the Prophet once said to an executioner, ‘In inflicting the punishment, take care not to strike the face, head, to the privities (al-Halabi notes the vulva [farj] in particular is not to be targeted).’”¹⁰³

These areas are to be left undamaged during the flogging for several reasons, which al-Marginani lists. One reason is that lashing one’s head could cause damage to the brain and could destroy one’s mental capacity. Punishment should not permanently damage the mental faculties of the criminal and is therefore forbidden. The literature also adds that it is forbidden to target genitalia during punishment. The Hedaya says the privates are to be avoided because they are “a part which cannot be wounded without danger to life.”¹⁰⁴ Lashings are supposed to be moderate and not cause any permanent scarring. Furthermore, the punishment is not to take place if the weather is too hot or too cold or if the offender is ill.¹⁰⁵ The hadd punishments for theft, drinking, and zina committed by an unmarried Muslim will be delayed if the party is ill. In these circumstances, the offender will be imprisoned until healthy enough to endure the punishment.

The sources overwhelmingly point toward physical punishment. The body becomes the space upon which the shari‘a draws the connection between the crime committed and the punishment prescribed. The care given to the treatment of the body in juridical writings emphasizes only that the procedures were meant to ritualize punishment so that it could be displayed to a viewing public. Khaled Fahmy discusses the ritual of public punishment with reference to the Ottoman criminal code, discussed in the next chapter: “The intention of all these punishments that exhibited itself so spectacularly on the body of the culprit was, in one sense, to make the body of the culprit a book to be read, as it were, by the illiterate spectators, urging them to draw connections, however vague, between the crime committed and what was believed to be its appropriate punishment.”¹⁰⁶ The vivid details offered by Muslim jurists on the subject of stoning and flogging emphasize that urge to make punishment a spectacle.

At the same time, moderation is urged through the example of the Prophet, which is reiterated by jurists. In these instances, the punished are not to be permanently maimed or even killed during flogging, and innocents, like unborn fetuses, are not to bear the burden of their mothers’ sins. It is in this discussion that one notes the care that jurists gave to the matter of directing punishment only where it was due and under the strictest criteria of evidence in order to ensure that only the guilty were punished.

Furthermore, through the constant discussion of zina in the legal literature, the punishment guidelines based on the Qur’an and earlier codes became more sophisticated and complex. The detail by which Muslim jurists described the punishment of stoning leaves one to question how these guidelines were interpreted in later centuries. The best illustration is to look at the Ottoman Empire, where Islamic law underwent a major transformation and was codified into Ottoman criminal law. The next chapter will look at the Ottoman kanunnames and fatwas and the way in which the shari‘a continued to develop into an imperial code of law under the Ottomans.