MufoammadTs involvement with the case
1) Was informed about a Jewish couple guilty of adultery Ma.Hudud: C.1.H.1
San. H.13330, p.316. Bu. Hudud: C.37.H.2,4. Bu. Manaqib: C.26.H.1.
Daw. Hudud: C.26.H.4446/4450/51. Bay. Hudud; vol. VIII, p.214.
2) A Jewish couple guilty of adultery were brought to him.
Tay. H.1856
San. H,13331/2, p.318. Han, vol.II, p.5. Bu. Hudud: C.24.H.1.
Bu. Tafsir: Surat.3.c.6.H.1. Bu. Tawhidi C.51.H.2.
Mu. Hudud; C.6.H.26. Daw. Hudud: C.26.H.4452. Hak. vol. IV, p.365.
Bay, vol. VIII: Hudud, pp. 215/246/7*
3) A procession humiliating a Jewish couple who were guilty of adultery, passed by Muhammad.
Mu.Hudud: C.6.H.4.
Daw. Hudud: C.26.H.4447/8.
Bay. Hudud: vol. VIII, pp 214, f.246.
Element h
4) Muhammad passed the Jews humiliating a couple of their own who were guilty of adultery.
Han, vol. IV, p.
Jah. HudCfdi C.10.H.3.
5) Muhammad was invited by the Jews outside Medina to give his judgement on a Jewish couple convicted for adultery.
Daw. Hudud: C.26.H.4449.
Muframmad's first response
1) "What is the Torah’s injunction for such cases?" (cf.a-(1) and (2) above)
Ma. Hudud: C.1.H.1. Tay. H.1856
Han, vol. U , p.5.
Bu. Hudud: C.24.H.1, and C.37.H.2. Bu. Manaqib: C.26.H.1.
My. Hudud: C.6.H.4.
Daw. Hudud: 26.H.4446/7, cf.H.4452 Par. Hudud: 15.
Bay. Hudud: vol. VIII, p.214.
2) "What does the Torah say concerning an adulterer who has attained the status of Ihsan?" (cf. A-(1) and (2) above)
gan. Hudud: H.13330 Daw. Hudud: C.26.H.4420.
Element c
3) "Do not you find the Stoning Penalty in your Scripture?"
San, gudud; H.13331. Han. Vol. II, p.5
Bu. Tafsir: Sura 3.C.6.H.1. Daw. Aqcjiya; C.26.H.3626 Daw. Hudud: 26.H.4450 Par. Hudud: 15.
4) "What do you do with those who have committed adultery among you?"
San. Hududi H.13332.
Bu. Tafsir; Sura 3.C.6.H.1. cf. Daw. Hudud: C.26.H.4452 Bay. Hudud: vol. VIII, p.246.
5) "Is this how you find the punishment of adulterers in your Scripture?"
(cf. a-(3) amd (4) above) Han, vol. IV, p.286. Mu. Hudud; C.6.H.4. Jah. Hudud; 26.H.4448.
Bay.Hududi vol. VIII, p.246.
Jews * reply to -b-
1) Flogging. San. H.13332.
Element &
2) Hot water and flogging. gan. H.13330/1.
Han, vol. IV, p.286
Bu. Tafsir: Sura 3.C.6.H.1. Mu.Hudud: C.6.H.4.
Daw. Hudud: C.26.H.4450
Bay. Hudud: C.4.H.8, and C.37.H.4,5.
3) Humiliation and flogging Ma.Hudud: C.1.H.1.
Bu.HudQd: C.37.H.2. Bu.Manaqib: C.24.H.1. Daw. Hudud: C.26.H.4446. Bay.Hudud: C.4.H.7.
4) Hot water on their faces and humiliation. Han, vol. 2, p.5
Bu. Tawfrid: C.51.H.2.
add ”0ur rabbis have invented Tl Bu. Hudud: C.9.H.1.
5) Blacking their faces and mounting them backwards on a donkey and parading them through the town.
Mu. Hudud: C.6.H.1. Daw. Hudud: C.26.H.4447 Daw. Hudud: C.26.H.3/5/7.
The Challenger:
1) Ibn Salam: ’’Liars! There is a Stoning Verse!” Ma. Hudud: C.1.H.1.
Tay. H.1856.
gan. H.13332 - add. Q.3:93.
Bu. Hudud: C.24.H.1 - add "ask them to bring the Torah " (cf. Mu.Hudud. C.4.H.1.)
Bu. Hududi C.37.H.2.
Bu. Tafsir: Sura 3.C.6.H.1 - add Q.3:93. Daw. Hudud: C.26.H.4446
Bay.Hudud: C.4.H.7.
Bay.Hudud: C.37.H.4 - add Q.3:93.
2) The Prophet:
Han, vol. II, p.5 - add Q.3:93 Han, vol. IV, p.286.
Bu. Tawfrid: C.51,H.2 - add Q.3.93 Mu. HudQd: C.6.H.1. - add Q.3:93 H.4, omit Q.3:93
Jah.Hudud: C.10.H.3
Element e- The Torah was brought for consultation.
1) (See d— (1) and (2) above).
2) The Torah was not brought for consultation but only there was a discussion between Muhammad and some learned Jews during which Muhammad appealed to them to tell the truth.
gan.H.1330
Han, vol IV, p.286. Mu. Hudud: C.6.H.4.
Daw. Hudud: C.26.H.4447-9 4451 -2
Element f< 4- 5- Element g- Element h- Element i Daw. Aqcjiyat C.27.H.4446-7. Jah. Hudud: C.10.H.3 Bay. Hudud: C.4.H.8.
Bay. Hudud; C.37.H.5,6 and 7.
"Remove your hand"
(corresponds with d-(1) and (2 ) above)
(add. 3- Ibn Salam removed his hand and said to him "What is this?")
Ibn Salam hit his hand and said to him: "What is this?" By.Hudud: C.37.H.4,
Ibn Saiam said to the Prophet: "Tell him to remove his hand."
Mu. Hudud: C.6.H.1.
Jews* admission.
(corresponds with e-(1) and (2 ) above)
The Prophet had the Jewish couple stoned. ALL
Location of the penalty.
1) Pavement Tay. H. 1856 Han, vol.II, p.62 Bu. Hudud: C.24.H.1.
2) Near the mosque where biers would be put. gan, H. 13332.
Bu. Tafsir: Sura 3.C.6.H.1.
3) At the gate of the mosque.
Han, vol. I, p.261 (cf. Bay.gudud C.37.H.6)
4) In front of (his) the mosque at Bani Ghunum. Hak. Hudud: H.63
Bay.Hudud: C.37.H.6 - add ... b. Malik al-Najjar.
The basic unit of the story: "The Prophet had stoned Jews" has been reported widely by almost all traditionists together with the early fuqaha of the Pr.F.P.
1. Abu Yusuf: Ikhtilaf, p.221.
But in the Kharaj, Abu Yusuf provides a different version:
I was told by Mughira (d* 136) who was told by Ibrahim Cd.96) that: The Jews asked the Prophet: "What is the SP for?" The Prophet replied:
"When four people bear witness that they have seen it penetrating inside like the kohl stick when it is put in the kohl bottle, then the SP is a must".
KharIj: p.98. L.2.
2. Shafi'i: Risala: no. 692
Umm: vol. 6, p.124, vol. 7, p. 150. The Traditionists
San. H.13333
Han, vol. I, p.261
vol. II, pp.7, 17, 62, 63, 76, 126, 151 and 280. vol. IV, p. 355
vol. V, pp. 91, 94, 96, 97 and 104. Mu. Hudud: C.&.H.2 and 6
Tir.Hudud; C.10.H.1 and 2 Jah. Hudud: C.10.H.1 and 2 Hak. Hudud: H.63
CHAPTER II
(B) THE STORY OF MACIZ
Our next fradith is about a man who came to be known as Ma c iz b. Malik al-Aslami. The man, whose identity was not clear from our early foadlth sources, is reported to have committed adultery but his
1
conscience did not allow him to keep it to himself. He goes to Muhammad and confesses. Muhammad disapproves of this or at the least, pays no attention to his confession. But the man persists until Muhammad gives way and has the man stoned to death. This fradith came to be known as the foadith of Ma ° iz and has been traditionally associated with the validity of confession on the one hand, and the necessity of four-fold confession for adultery On the other. Similarly, the fradith came to occupy a prominent position in the argument for the legality of the SP in
- 2
Islam and has naturally been reported in various forms by almost all
3
compendia of the fradith literature. I have chosen to cal it: The Story of Ma ^iz.
Ma.B .1.
On the authority of Ibn Musayyib:
a- A man of Aslam (tribe) went to Abu Bakr and said:
’’The despicable one (or your miserable servant) has committed adultery." (Inna al-akhir zanai) Abu Bakr said: "Have you mentioned this to anyone else?"
"No," the man replied.
Abu Bakr said: "Go and repent to God and seek refuge with Him; for God accepts the repentance of His creatures!"
c 6
The man did not like this; so he went to Umar and said to him what he had said to Abu Bakr. ^Umar advised him in the same manner as Abu Bakr had. The man did not like this; so he went to the Prophet.
b- He said to him: "The despicable one has committed adultery!"
Ibn Musayyib said: "The Prophet turned away from him three times, each time turning his face from him.
But when it was too much for him,
c- The Prophet sent for his family inquiring: "Is he sane or mad?"
His family replied: "0 Prophet of God, by God he is sane." The Prophet said: "Is he virgin or not virgin?"
"Certainly, he is not virgin!" they replied (bal huwa thayyib ya Rasul Allah!")
d- Thus, the Prophet gave orders to stone him to death, and he was stoned to death.
Ma.gudud. C.1.H.2.
COMMENT
This is the first version of what became the Ma ^ iz pericope to come down to us as far as the surviving hadith sources are concerned. It refers to a historical incident. In it, three juridical points have been demonstrated.
1 - The mode of confession; 2 - The marital status as well as the sanity of the confessor; and 3 - The appropriate penalty. As such, the pericope
may be categorized as historical in content but juridical in form. Element a- and b- deal with the validity and mode of confession for adultery. Element c- deals with preliminary procedures of the accountability of self confession and, d- is the result of a-c.
Strictly speaking, however, from a juridical point of view, element -a- has very little, if anything, to do with b-d. They deal with the validity of confession and the prescribed penalty respectively whereas -a- deals with the piety of the confessor, exhibited in his insistance upon the need of being purified from *the sin which he has committed. Nevertheless, it is a prelude for the understanding of the motive and intention of the confessor, whose piety never allowed him to keep his crime to himself. In other words -b-d do not depend on -a-, although they rely upon it for their contextual meaning. To my knowledge, no one has ever considered that the confessions made to Abu Bakr andcUmar should be seen as confessions and nothing more. They have no juridical significance. Legally, element -a- is otiose. Its function is exegetical and hence it will not be inappropriate to identify
g it as being tendentious.
Element -b- tells us how the man made his confession before Muhammad. There, the transmitter - Ibn Musayyib - explains how Muhammad reacted, first turning away from the man three times, until it was too much for him. In it, we see no direct communication between Muhammad and the confessor. Similarly, Muhammad’s refusal to take notice of the man exhibits his disapproval of such conduct. Implied there is his implicit advice to the man to go away and repent and not to expose himself to the
g prescribed penalty which must have been known to both parties. In other words, the justification for linking element -a- with -b-, and hence with the rest of the pericope, is exegesis of the content of the
element -b-. As much as Abu Bakr and *Umar urged the man to repentance, so did the Prophet. However, being the executor of God’s laws, Muhammad was in no position to offer explicit advice as his close associates, Abu
< 10
Bakr and ^Umar, did. Instead, he turned away from the man. But the man, who was very pious, would not have settled for anything but to be purified.
Element -c- then tells us what line of action Muhammad took to fulfill the wish of this pious confessor. Without speaking a word with
\
him, he sent for his family inquiring first about his sanity and secondly about his marital status. Having satisfied himself that the man was sane and that he was not a virgin, i.e. married, divorced or widowed in the eyes of law, Muhammad, still without speaking a word to the man himself, gave his orders to apply the appropriate penalty (element -d-). Thus, a man who had committed a certain crime, adultery, with a fixed penalty, stoning to death, was punished accordingly. The qualifying criterion was his marital status:
thayyib. Nevertheless, the congruity of the content and form of the pericope appear to be disturbed by a curious relationship and intrusive components, which lead me to believe that the pericope is composite.
As I have already pointed out, element -a- has no juridical significance. Its role is to determine the motive of the confessor on the one hand and to explain Muhammad's refusal to take notice of the presence of the confessor on the other. The man wanted to be purified and nothing else, while Muhammad reacted by hinting to the man to go away and repent. In other words, the understanding of Muhammad’s behaviour, as much as the appreciation for the' persistence of the confessor in element -b-, depends on the understanding of the element -a-. The need to point out the relevance of element -a- within the pericope is a clear
proof, at least to me, of it’s intrusive nature. What we are confronted with here is not ahistorioal account but an inter-schools-juridical discussion. The implication is that what does matter is not the number of confessions made before Muhammad, rather it is how he reacted to such conduct. Prior to him, Abu Bakr and‘Umar had reacted similarly, though admittedly more explicitly than Muhammad. It was circumstances which
11
led to several confessions before Muhammad. Such was the attitude of the early Medinians as opposed to that of the Iraqis, who insisted that confession for adultery must be pronounced four times at different
12
places to correspond with the demand of four witnesses for qadhf- unproven sexual accusation imposed by the
q,24:4
IjJt f
t%I»
^
Ctt I#
"And those who launch a charge against chaste women, and produce not four witnesses (to support their allegations), - flog them eighty lashes; and reject their evidence ever after; for such men are wicked transgressors .... "
The Medinians on the other hand insisted that, provided the culprit is sane, his single confession is valid, I will have more to say on this
13
point in section two. Here, I want only to point out that the pericope under discussion, which, incidentally, was also employed by the Iraqis
14
to support their view, has been reshaped by the Medinians to show that the number of confessions is irrelevant. This was achieved in two ways: First, by showing that the man did confess to Abu Bakr and *Umar prior to Muhammad and secondly, by showing that Muhammad reacted in the same way by implying to the man that he should go away and repent. That the man had to insist on confessing is not a proof that confession for adultery 49
must be pronounced four times. Nevertheless, just as the Medinians reshaped the pericope to support their view point, so did others to refuse or support the opposing view. Different versions of the same story, containing contrary accounts for this particular point came into existence. The contradictions, as can be seen from the synopses below, make it almost impossible to discern any logical conclusion of this particular point. Indeed, the mode and number of confessions in the pericope before us were the main points of variation which led not only to the reinterpretation of one particular version but also to proliferation of intricate and mutually exclusive details. Just how this was achieved will be seen later.
Element -b-, as we have noticed, tells us how the man confessed before Muhammad. His words are identical to those of element -a~. However, Muhammad’s response is interrupted by a not uncommon interpolation: ”qala Sac Id”, who transmitted the pericope. Traditionally, such interruption is for the explanation of a problem from within a pericope, or for glossing a difficult word or phrase, or to
15
point out other variations of a specific issue, etc., all of which, it may appear up to this stage, are absent. Furthermore, Ibn Musayyib (d.93 or 94) is not, and could have not been, an eye witness to the incident. Why then, one may ask, does the name of this transmitter reappear at this particular point? Could it be that Yahya b. Sa^id (d.143),^ Malik’s immediate transmitter, knew another version of this point different from that of Ibn Musayyib or, at least, that this is to show that the information contained therein belongs exclusively to Ibn Musayyib, Whichever implication one may decide to follow, the detailed account of this element appears to belong either to Ibn Musayyib’s own information or to that of Yahya. I incline to see the information which comes after: gala Sagid, as being intrusive to the main body of the pericope. It
reveals the concerns of the jurist who was responsible for the wording of the pericope. Its function is to exhibit why the man had to confess several times before Muhammad. Similarly, it underlines the dependance of this version upon an earlier version of the same incident. Yahya's death could possibly be taken as terminus ante quern. The marital status, exhibited here as: a bikrun huwa am thayyib is undoubtedly a juridical point and most probably belongs to the same person responsible for the reshaping of the incident. However, while the reshaping of the mode of confession exhibits inter-school juridical discussion, the interpretation of the thayyib v. bikr criterion demonstrates the traditional attitude towards that of the textualists who opposed the SP being un-Islamic.
Expressed in an antithetic form, the terms could not mean anything, from the legal point of view, but unmarried v. married, or virgin v. non-virgin. The pair in plural forms appears in Qura an 66:6 thayyibat wa abk5r§. - translated as non-virgins and virgins. All other versions of the same pericope on this point, employ mufrsan or derivatives of ifrgan. which, unlike thayyib and bikr, has several meanings. It could mean: chaste, betrothed, free, Muslim, unblemished reputation, married,
etc. ^ Its opposite is: ghayr mufrgan. ^
Now, the employment of the antithetic forms: bikr v. thayyib, in Malik's version, with their limited meanings, is very significant indeed. However, to understand its significance fully, I would ask why all other versions used "absanta?" or "mubgan" etc.? Like "thayyibat wa abkara", being Quranic terms, derivatives of ihgan have also been used by the Qur> an for different meanings including those which have already
19
been mentioned. However, when the word ifrgan, or its derivatives, appears in the pericopes dealing with adultery, its meaning is always 51
20
confined to marriage. The motive for such is to harmonize the contradiction between the flogging penalty, the only penalty for
21
adultery imposed by the Qur3 an, on the one hand, and the stoning penalty established by the Sunna on the other. My argument is that the employment of thayyib and bikr appears to be among the earliest attempts
22
to react to the same situation. I incline to see the antithesis as intrusive. In short, the pericope under discusssion is composite. Its components were formulated and put together for juridical purposes. The