97 the unchangeable aspects the law remained the same.

V. 2. The Nature of the Punishment for Adultery:- Among surviving penal systems, the Islamic penal system is unique in its punishment for adultery. It is true that this punishment was prescribed in Jewish law, but it is no longer applied nor is there any suggestion that it be re-enforced. The only explanation for the prescription of such a punishment may be found in the fact that Islamic law, or rather, Islam itself, is com­ pletely based on morality. Any moral transgression is thus seriously condemned by means of severe punishments.

97. See for the similarity between the two systems, Abu-Zahra, al-Jarima wal-'Uquba, op.cit. pp.9-10#

In a legal system where !lall acts and relationships 98

are measured by a scale of moral evaluation11 , it is natural to find such a deep concern with the enforcement of sexual morality. It was the same situation under Jewish law where, to quote the Jewish Encyclopaedia, "law and morality went hand in hand to prevent the

99

commission of the crime"• The intention to protect public morality against oorruption by the publicization of the offence, is the reason behind limiting the methods of proof to the offender1s confession, and the testimony of four adult male Muslims who have seen the very act

100

of sexual intercourse.

On the other hand the widest publicity should be given to the carrying out of the punishments in order to deter potential offenders. This appears in the rule that all punishments, especially for adultery, should be carried out in public, or as the Qurfan commands "and

101

let a party of believers witness their punishment." The connection between the Islamic penal system

and the moral values of the community is the factor behind

98. Coulson, N.J., A History of Islamic Law, Edinburgh,

u.p., 1 9 7 1 , P.8 3 .

99* The Jewish Encyclopaedia, vol.I, p.217.

100. See below, chapter V, The Law of Evidence in Criminal Cases.

101. Surah XXIV, Verse 2, See for juristic application, Kasani, Badai1, op.cit,, p.60-6l; and Ibn Farhun,

many punishments and prohibitions in Islam, but its clear­ est effect appears with regard to the punishment for

"zina". However, more will be said about that in the third chapter when we discuss "t a ^i r " punishments.

In view of modern ideas about personal freedom, and in particular, sexual freedom, the Islamic treatment of the offence of "zina" appears very unusual. Here it must be remembered that the Islamic concept of personal freedom is in no way similar to that of the post-war generation in the West. Personal freedom according to Islamic concept is granted only outside the area of life for which injunctions and prohibitions were laid down in the Qur*an and the Sunna - the Divine Will.

Such a limitation by a supreme authority is absolutely absent in the contemporary Western image of the relation between law, society and the individual. That may

explain many differences between Islamic and Western legal systems.

V. 3. The Distinction between Married "Muhsan11 and Unmarried "ghir-Muhsan11: -

_..

It has been said before that the stoning punishment which was determined by the Sunna is the punishment for a married male or female who has committed the crime of

"zina11, while the punishment for an unmarried male or female, prescribed by the Qur!an, is one hundred lashes. This number is agreed upon, but nevertheless there are

55.

two things which are not similarly agreed upon; the flogging before stoning for a married culprit; and the banishment for one year after flogging for an unmarried one.

For the first aspect, the Hanafi, Maliki and Shafi1i schools allow only the stoning to be inflicted upon the

102

culprit, as the flogging before stoning was abrogated. The Hanbali, Zahiri and Zaydi , schools hold a view

*

according to which a married culprit "muhsan" should be 103

flogged first and then stoned to death. These schools support their view by a Prophetic report related by Muslim and other collectors of the "hadith", in which the Prophet

.

prescribed both punishments for a "muhsan11. But it is

•.

clear enough from what was stated by Shafi1i in his book "al-Risalah", that this prescription of two punishments

10b

was afterwards abrogated by the Prophet himself.

As for the second aspect, all the schools except

the Hanafi school consider the punishment for an unmarried

.

culprit "ghirmuhsan" to have two parts, i.e. one hundred

1 0 2 . Badai1 al-Sanai1, vol.VII, p.39; Ibn Juzaiy, op.fcit. p • 38^+ 5 UmmJ^ op.cit., Vol.VI, p.119. And for details see al-Risalah, with the commentary of Shakir. A.M., Cairo, 19^0 , p.130 et seq. and 2^5 et seq.

103. Mughni. op.cit., p.l60 et seq. Muhalla, op.cit. vol.XI, p.23*+. al-Rawd al-Nadir, op.cit.vol.IV,

p. 1+8 1 .

56.

lashes, and one year's banishment "taghrib". There are long discussions in the books of "Fiqh" about this

105

banishment. But for us it is enough to say that the majority view is the preferable one as its evidence is more acceptable than the evidence used by the Hanafi

106

school. The only point which should be added to the m a j o r i t y view is that "taghrib” here,as "nafy" in "hiraba"

could be imprisonment and not necessarily banishment as

107

the word literally implies.

However, the distinction between "muhsan" and ghir-

. •

muhsan" is based on the fact that the married person has

.. —

no reason to commit "zina" as he could enjoy lawful sexual relations with his wife (or a woman with her husband). This is an opportunity which is not available to the unmarried; so their punishment should be lighter than

108

the punishment of the married.

105. al-Risalah, ibid., and al-Muhalla, op.cit. vol.XI, pp.l8lrl88 and pp.232-233. ^ v

106. Badai' al-Sanai', op.cit., vol.VII, p.39. Fath

al Qadir, op.cit. pp.13^-137. •

107. See Anderson, J.N.D., Islamic Law in Africa, H.M.S.O. London, 195*+> p. 196 for replacing banishment w i t h

imprisonment in Northern Nigeria.

108. See Ibn al-Qayyim, I'lam a l - M u w a q q i fn, op.cit. vol.II, p.107 et seq.

57.

In other words, the punishment of adultery, like all other punishments, is based on moral grounds, and as it cannot be claimed that the immorality of this act when committed by a married person is the same as when committed by unmarried one. , the punishment is

109