Give yourself time to look over ONE of the articles uploaded (you're welcome to read both but together, they can be rather dense and consuming). The articles can be found in the "files" section of this course, in the "Legal Traditions" folder.
There's not really such a thing as "Islamic law" in the sense that it gets normally discussed. The tradition does have a concept of shari'a (literally "path"/"way"/"road") as divinely revealed (and inclusive of lots of stuff that you wouldn't think of "law," such as washing your feet before prayer), but shari'a's not exactly a set of laws. The Qur'an and hadith do not provide much in the way of absolute legal code. Fiqh represents the human effort to understand, interpret, and apply divine command, which has led to multiple schools of thought that disagree with each other on various methodological points. So most of the time that people in popular media talk about "shari'a," it would be more accurate to say "fiqh."
Two points might help before you jump into the readings: In Sunni legal tradition, there have been many, many schools of law, but only 4 survived into the modern period: Shafi'i, Maliki, Hanafi, and Hanbali. For a majority of Shi'i Muslims, the main legal school is the Jafari school.
Anyway, here's what we're going to do this week: Choose one of the two articles provided (again, If you want to read both, of course you're welcome to). Let us know which one you read and try to summarize its content and argument for your colleagues who read the other article. And let's think about some of these conversation starters:
From your reading, what impression do you have of Muslim legal traditions?
How might the article complicate or challenge popular assumptions about "Islamic law?"
Did you encounter unfamiliar terms/concepts that obstructed your reading? Did you have to look anything up? Let's talk about those too and I'll be happy to fill in the gaps. Please ask a question!
“PERHAPS YOU ONLY KISSED HER?”
A Contrapuntal Reading of the Penalties for Illicit Sex in the Sunni Hadith Literaturejore_486 399..415
Scott C. Lucas
The goal of this essay is to illustrate how Ebrahim Moosa’s method of “contrapuntal reading” can be applied fruitfully to the Sunni hadith literature. My case study is the set of penalties (hudud) for illicit sex, which include flogging, stoning, and banishment. I propose a fresh reading of these sacred texts that brings to the fore the ethical dimension of Prophet Muhammad’s conduct, especially his strong reluctance to apply these measures. I conclude by identifying four ethical problems that the stoning penalty raises and suggest how the hadith literature can be read to argue against the validity of this specific punishment.
KEY WORDS: stoning, illicit sex, Islamic law, hudud, Bayhaqi
Hadiths—short texts recording Muhammad’s statements, deeds, and tacit approval of specific behaviors—form a vast sacred literature with which Muslims of all generations writing on law and ethics have engaged. These texts have enjoyed greater visibility as well as contro- versy over the past century due to the sharp rise of Muslim literacy, weakening of the traditional legal schools, and popularity of modern Islamist movements which generally privilege direct access to the Qur’an and hadiths over traditional Muslim discourses. Contemporary Muslim reformers have adopted four broad approaches to this rich heritage. Some have chosen to ignore the hadiths altogether and derive their ethics almost exclusively from the Qur’an (Wadud 1999; Esack 1997). Others have tried to read hadiths in their historical context in order to mitigate some of their literal meanings which are occasionally in tension with the values of numerous educated Muslims (Qaradawi 2006). A third option, adopted by several contemporary scholars, such as Fatima Mernissi (1991) and Khadija Bitar (2003), is to use tradi- tional critical techniques of Islamic scholarship to undermine the validity of certain hadiths which are generally accepted by Sunnis as sound. Finally, the fourth approach, pursued primarily by the
JRE 39.3:399–415. © 2011 Journal of Religious Ethics, Inc.
controversial salafi scholar Nasir al-Din al-Albani (d. 1999), is to compose new critical collections of hadith and to edit classical works with a sharp eye toward the authenticity of their narrations (Brown 2007, 321–34).
While each of these approaches has yielded valuable writings, they also have their drawbacks. The first one runs the risk of reducing the Prophet Muhammad to a cipher who merely received and transmitted the Qur’an and did not play a key role in elucidating its message. The second approach is hampered by the absence of historical sources for the life of Muhammad outside of the Qur’an and transmitted reports (akhbar) which are, essentially, hadiths.1 In other words, it is only by studying the Qur’an and hadiths that we can imagine the historical Muhammad, as there are neither outside accounts nor documentary sources for the early seventh-century Hijaz (Donner 1998). This results in a vicious circle, since the “historical context” by which one theoreti- cally evaluates hadiths consists largely of a set of hadiths that an individual scholar prefers for his or her personal reasons. The third approach serves as a purely critical method for delegitimizing unde- sirable hadiths, but appears to lack a constructive dimension indicat- ing how hadiths can be part of Muslim ethics. The final approach of composing new collections is both critical and constructive, but would seem to require a profound intimacy with thousands of hadiths that few contemporary Muslim reformers have acquired.
The goal of this essay is to illustrate how Ebrahim Moosa’s method of “contrapuntal reading” can be applied fruitfully as a new approach to Sunni hadith literature for contemporary Muslim reformers. Moosa defines this reading as occurring when “we engage the work of some extraordinary writers in order to produce new readings of their work from our specific vantage point” (2006, 112).2 The results of this approach can be gleaned from Moosa’s highly original study of al-Ghazali (d. 1111), Ghazali and the Poetics of Imagination (Moosa 2005), in which he endeavors to “configure the archaeology of al-Ghazali’s thought, especially the creativity of his mind and the way he effortlessly sutured so many different tapestries of thought onto his self” (Moosa 2006, 112). In other words, rather than merely informing the reader of al-Ghazali’s specific theological, legal, or ethical positions (which is a highly challenging task in its own right), Moosa explores
1 The famous biography (sira) of Muhammad by Ibn Ishaq (d. 767) is basically a collection of orally transmitted reports, lists of names, and poetry put in a (largely) chronological narrative framework. Fred Donner observes that he “offers the great majority of [his] chronological accounts with no informant, suggesting they are his own opinion” (Donner 1998, 242).
2 Moosa openly acknowledges his debt to Edward Said for the concept of “contrapun- tal reading.”
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the implications of and tensions between the variegated disciplines of knowledge with which al-Ghazali wrestled and flirted in his diverse oevre. Moosa confesses that this entire project is “in some measure my protest against the lack of creativity in contemporary Muslim religious thought” (Moosa 2006, 112–13), and his methodology provides an open invitation to reading classical texts in ways that address contemporary sensibilities that their authors, for no fault of their own, most likely could not have imagined.
The case study to which I am applying a contrapuntal reading of the Sunni hadith literature is the topic of penalties (hudud) for illicit sex. My intention is to propose a fresh reading of these sacred texts that brings to the fore the ethical dimension of Prophet Muhammad’s conduct. I build upon Kecia Ali’s important discussion of illicit sex and same-sex intimacy in her recent work, Sexual Ethics in Islam, espe- cially her observation that “the tradition literature and the jurists’ writings demonstrate a real aversion to both accusation [of fornication] and confession” (Ali 2006, 63). This reluctance to apply the hadd (corporal and capital) penalties has been observed by numerous schol- ars of Islamic law; for example, Rudolph Peters writes that “in the Hanafite doctrine in particular, it is nearly impossible for a thief or fornicator to be sentenced, unless he wishes to do so and confesses” (2005, 54). My research shows that this astute observation applies far beyond the Hanafi legal tradition and is embedded in the very texts that serve as the canonical description of the Prophet Muhammad’s practice.
Before delving any further into my investigation, I must say a word about the book which I am reading contrapuntally. The Sunni hadith literature is so vast that one must make choices as to which collections to favor. In this essay, I have relied solely upon al-Sunan al-kubra by Abu Bakr al-Bayhaqi (d. 1066 CE).3 This medieval scholar of eastern Persia not only had the audacity to discredit all hadiths that were not found in the famous books compiled prior to his own, but actually succeeded in having his claim more or less honored by later Sunni scholars. In effect, al-Bayhaqi closes the canon of original hadith compilations; however, it is important to note that al-Sunan al-kubra contains many, if not most, of the hadiths found in the two most esteemed hadith books, the Sahihs of al-Bukhari (d. 870) and Muslim (d. 875), as well as many others found in what later became recognized as the four canonical collections of Abu Dawud, al-Tirmidhi, al-Nasa’i
3 Given the multiplicity of editions of Arabic books, I will be citing the chapter number (bab) in which a hadith occurs rather than a volume number followed by a page number. All references refer to Kitab al-hudud, found in volume 8 of the 1999 Dar al-kutub al-‘ilmiyya edition of al-Bayhaqi’s al-Sunan al-kubra, unless otherwise noted.
“Perhaps You Only Kissed Her?” 401
and Ibn Maja. Al-Bayhaqi is also a fierce partisan of the Shafi‘i law school, but his book has been used by scholars of all four Sunni schools over the centuries. In short, the book I am using for this essay contains most of the prophetic proofs for the Shafi‘i school, many of which are employed by the other three Sunni law schools as well.
2. Types of Illicit Sex in the Qur’an and the Legal Literature
It is necessary for us to review briefly the penalties for illicit sex in the Qur’an, and the Muslim jurists’ terminology regarding them, prior to our discussion of the hadiths. Imam Al-Shafi‘i (d. 820), according to al-Bayhaqi, claims that the Qur’an contains only four rulings of rel- evance to illicit intercourse. First, he argues that the flogging penalty in Q. 24:2 abrogates the penalties of confinement and the unspecified “punishment” mentioned in Sura 4. Second, the Qur’an states clearly that four witnesses are needed to obtain a conviction for illicit inter- course (Q. 4:15, 24:13). Third, anal intercourse between men is out- lawed on the basis of the narratives of Lot in Suras 7:80–81 and 11:82–83.4 Finally, the sentence, “if then they have recourse to you (Muhammad) judge between them or disclaim jurisdiction,” in Q. 5:42 gives Muhammad (and Muslim judges) the option to apply Muslim criminal penalties to non-Muslims, although al-Bayhaqi notes that a pair of reports indicates that this verse was abrogated by Q. 5:49, which states: “So judge between them by that which God has revealed.”5
The key terms the jurists employ in their discussions of illicit sex, while Qur’anically inspired for the most part, lack exact English equivalents. The word zina comes close to the Oxford English Dictio- nary’s definition of “fornication,” which reads “voluntary sexual inter- course between a man (in restricted use, an unmarried man) and an unmarried woman; in Scripture extended to adultery,” since zina means “sex between a man and a woman who is neither his wife nor his slave” (Ali 2006, 57). Given the convenience of the active participle “fornicator,” I will be using “fornicator” for zani (feminine: zaniya) and “fornication” for zina in this essay, despite the fact that a man who has intercourse with his slave would be considered a fornicator in the American context but the same man would be an upright Muslim in the Islamic context. Another topic discussed in the chapters on illicit sex is liwat, translated by Ali as “anal intercourse between men” (Ali 2006, 76), a word that early Muslim jurists clearly derived from the
4 Variations of the Lot narrative are found in Suras 7, 11, 15, 21, 26, 27, 29, 37, 54. 5 Most English translations of Qur’anic verses in this article come from Abdel Haleem
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story of Lot in the Qur’an. The third, and in some ways most difficult Arabic term to render into English, is muhsan (feminine muhsana). In his discussion of the differences between the legal schools’ definitions of muhsan, Peters identifies that the four core qualities for Sunni jurists: (1) adult, (2) free, (3) Muslim, and (4) having “previously enjoyed legitimate sexual relations in matrimony (regardless of whether the marriage still continues)” (Peters 2005, 61).6 Thus, the two possible categories of all non-slave Muslims, male and female, are “never married (ghayr muhsan)” and “currently or previously married (muhsan),” a distinction, we shall see, that is critically significant for the determination of the penalty for fornication. Finally, I will be using the expression “illicit sex” in order to refer the entire range of (pro- hibited) sexual practices discussed in these chapters, which include fornication, anal intercourse between men, bestiality, tribadism, and rape.
3. Fornication in the Hadiths
When we turn to Muhammad’s actions and statements preserved in al-Bayhaqi’s Sunan, we encounter a very different array of rulings and practices than those mentioned in the Qur’an. Leaving aside for now the question of authenticity, the hadiths record five scenarios: (1) A single fornicator is flogged; (2) a single fornicator is flogged and exiled for a year; (3) a single fornicator is stoned;7 (4) a Companion states, “the Prophet stoned” with few details; and (5) an ambiguous penalty was (or would be) administered to a fornicator. We shall now examine each category.
3.1 A single fornicator is flogged
Six reports fall into this category, only one of which is found in the most authoritative hadith collections. There are two brief narratives in which an anonymous man confesses to fornication, the woman denies it, and he is flogged (Bayhaqi 1999, bab 18). Another two reports indicate that the flogging penalty should not be life threatening (Bayhaqi, babs 20, 21, 34, 36). An additional one states that if a man’s wife gives him permission to have intercourse with her slave girl, then the penalty is lashes instead of lapidation (Bayhaqi, bab 32). Finally, Abu Hurayra reports that the Prophet recommended (or ordered)
6 Peters notes that the Shi‘i definition of muhsan is “an adult free Muslim who is in a position to have legal sexual intercourse and whose partner is actually available and not e.g. imprisoned or absent on a journey” (2005, 61).
7 In one case, both male and female fornicators are stoned together.
“Perhaps You Only Kissed Her?” 403
selling one’s slave girl who is convicted and flogged on multiple occasions for having illicit sex (Bayhaqi, babs 34, 36). These reports do not openly conflict with the Qur’anic punishment for fornication, although we should note that the only convictions found in al-Bayhaqi’s Sunan are due to confessions as opposed to the Qur’anically mandated witnesses.
3.2 A single fornicator is flogged and exiled for a year
Five reports belong to this category, two of which dominate. The first, transmitted solely by the Companion ‘Ubada b. al-Samit, is the prophetic statement that specifies one hundred lashes and a year of exile for the never-married fornicator, and stoning for the previously married fornicator or adulterer (Bayhaqi 1999, babs 2, 13). The second is the “Story of Unays,” in which an unnamed hireling had intercourse with his employer’s wife and whose father ransomed him from the expected death penalty by means of 100 sheep and a slave girl. Muhammad corrects this error by promising to adjudicate on the basis of the “Book of God” and declares 100 lashes and exile for the hireling. He then orders a man named Unays to ask the employer’s wife to confess, and, should she reply in the affirmative, have her stoned (Bayhaqi, babs 3, 4, 10, 13, 15, 30; Peters 2005, 60). Al-Bayhaqi also quotes the two transmitters of the “Unays story” as affirming that the Prophet Muhammad ordered 100 lashes and a year of exile for the never-married fornicator (Bayhaqi, bab 13). He also provides a report in which Ibn ‘Umar states laconically that the Prophet, Abu Bakr, and ‘Umar all flogged and exiled the never-married fornicator, without providing any details (Bayhaqi, bab 13).
Of interest to us in this cluster of reports is that there is only one recorded case in the entire hadith corpus of Muhammad actually ordering a never-married fornicator to be flogged and exiled for a year, and, oddly enough, Muhammad claims that this is the ruling of the “Book of God,” which is generally understood to be the Qur’an, from which the penalty of exile is absent.8 Also, there is no mention of witnesses, and the applicability of the stoning penalty rests entirely upon the married woman’s confession.
3.3 A single fornicator is stoned
While the episodes of flogging are few in the hadith literature, there are at least eight cases of stoning recorded in al-Bayhaqi’s book. The
8 Note that in the Jewish tradition, Maimonides does not mention exile as a valid sentence in his Mishneh Torah (Maimonides 1949).
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most prominent is that of Ma‘iz al-Aslami, ten variations of which are included in his book and which I will discuss in depth below. In only one version of this hadith do we come across the story of a pregnant woman, known merely as the Ghamidiyya woman, who confessed to adultery and insisted that the Prophet apply the stoning penalty, which he delayed until after her child was born and assigned a guardian (Bayhaqi 1999, babs 4, 9, 12, 16, 20). A nearly identical narrative to the Ghamidiyya woman is also found in this section, although the woman is identified as belonging to the tribe of Juhayna (Bayhaqi, babs 9, 15). There are also two discrete stories involving the stoning of Jewish fornicators; in the first, a Jewish man and woman are both stoned after Muhammad is shown that the local rabbis were “concealing” the “stoning verse” in the Torah (Bayhaqi, babs 4, 23, 37). The second narrative has an interesting class twist. Muhammad saw a Jew who had the marks of a whip and a blackened face. After a brief inquiry, he learned that only poor Jewish fornicators received the penalty of stoning, while well-connected Jewish fornicators would receive a flogging and have their faces blackened. Muhammad then claimed enthusiastically to be reviving a “moribund practice/ruling (sunna)” and had the well-connected Jewish fornicator promptly stoned (Bayhaqi, babs 4, 37).9 The remaining two cases involve a youth’s confession (with the pregnant unmarried girl’s denial) followed by lapidation just for him, and a vague report in which a man was flogged and then stoned when it became apparent that he had been previously married (Bayhaqi, babs 8, 9).
It is striking that five of these cases involve confessions and make no mention of witnesses. In fact, the only time four witnesses appear is in one of the variant narratives of the story of the stoned Jewish forni- cators, and we can assume that the witnesses were in fact Medinan Jews, whose rabbis brought this case to Muhammad (Bayhaqi, bab 23). It is also remarkable that two of the eight cases involve Jewish rather than Muslim fornicators, and, in both cases, Muhammad orders stoning on the basis of the Torah (or some sacred Jewish book), and not the Qur’an or his own independent judgment.
3.4 A Companion states, “The Prophet stoned” with few details
The three reports in this category summarize what we have so far seen. ‘Umar’s insistence that a “verse of stoning” existed in the Qur’an and that the Prophet stoned does not clarify whether Muhammad had
9 This story is also recounted in Ibn Ishaq’s sira in a clearly polemical context (Guillaume 2001, 266–67).
“Perhaps You Only Kissed Her?” 405
Muslims or Jews stoned,10 and Abu Bakra’s report that the Prophet stoned a woman could refer to either the Ghamidiyya or Juhayniyya woman (Bayhaqi 1999, babs 2, 3, 12). Jabir’s report is the most helpful and perhaps intriguing: He merely states that the Prophet stoned a man from Aslam (that is, Ma‘iz) and a Jewish man and woman (Bayhaqi, bab 4). Were these the only three cases of lapidation that Jabir remembered or that even took place during the Prophet’s lifetime?
3.5 An ambiguous penalty was (or would be) administered to a fornicator
There are four reports in this category. A hadith, with an unimpres- sive chain of transmitters, reports that a woman was raped during the Prophet’s lifetime and only the man was punished (Bayhaqi 1999, babs 4, 29). Also, another poorly transmitted report states that the Prophet sent someone to kill a man who had married his father’s or son’s (ex-)wife (Bayhaqi, bab 30). The penalty or mode of killing is ambigu- ous in both cases. Likewise, we find in this section of al-Bayhaqi’s book the famous statement of the Prophet, transmitted by Ibn Mas‘ud, that the blood of a Muslim may be shed in only three possible cases: “the married person who commits adultery; a life for life; and a person who abandons his religion and separates from his community” (Bayhaqi, bab 4; Nawawi 1976, Hadith #14). Finally, there is a cluster of reports transmitted from Ibn ‘Abbas to ‘Ikrima in which the Prophet decrees the death sentence for male-male intercourse and bestiality in lan- guage that sometimes bears a striking resemblance to the Book of Leviticus (Bayhaqi 1999, babs 24–26, 30).11 The word “stoning” does not appear in any of these reports, although the death penalty for adultery (as well as same sex intercourse and bestiality), as we have seen, is nowhere hinted at in the Qur’an.
Let us highlight our findings to this point. According to al-Bayhaqi, three fornicators were flogged, one fornicator was flogged and exiled, and nine people—three Muslim men, three Muslim women, and three Jews—were stoned during Muhammad’s lifetime. Also, a rapist received some form or corporal or capital punishment, and a man was
10 While many Muslims today are shocked by the thought that a verse of the Qur’an was removed from the text, Muslim jurists “solved” this problem by creating a category of abrogation in which the recitation of a verse was abrogated, but its ruling remained in force. ‘Umar’s insistence that this “verse of stoning” once existed in the Qur’an is found in the two most prestigious Sunni hadith collections, the Sahihs of al-Bukhari and Muslim (Kitab al-hudud), as well as in other early sources.
11 Compare Lev. 20:15 with the hadith, “Whomever you find having intercourse with a beast, kill the man and kill the beast along with him” (Bayhaqi 1999, bab 26).
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sentenced to death for marrying the ex-wife of either his father or son. None of the reports involving Muslim fornicators makes any mention of witnesses and only the stories of Unays and the two Jews identify both parties of the illicit sex act being punished. Most of the cases mention the fornicator’s confession, about which the Qur’an is silent.12
In none of them does Muhammad actually cast a stone or crack a whip, although he does sanction these penalties on multiple occasions. Finally, not a single case of same-sex intercourse or bestiality was prosecuted during the lifetime of Muhammad.13
4. The Case of Ma‘iz al-Aslami
The most important story on the topic of fornication and lapidation is that of Ma‘iz al-Aslami (Peters 2005, 55). He is the only adulterer whose full name is recorded in the hadith, although many narrations conceal his identity. Unlike nearly all of the other cases and statements we have discussed, which are preserved by only a single Companion, al-Bayhaqi recounts ten versions of Ma‘iz’s story from seven Compan- ions and one Successor (Bayhaqi 1999, babs 3, 4, 9, 10, 12, 16, 17). There are significant variations between these narrations, and I will identify only six elements of interest to this essay. All of the narrations depict Ma‘iz confessing his crime multiple times, due to Muhammad’s act of turning away from him or refusing to engage him in conversa- tion, although they differ over how many times he in fact confessed. They also all report Ma‘iz being killed by stoning. Between the time of confession and the lapidation, there are three important elements that appear in at least three versions of the Ma‘iz story:
(1) The Prophet asks Ma‘iz directly (or his people) if he is sane (Bayhaqi, babs 4, 9, 12, 16).
(2) The Prophet asks Ma‘iz if he really knows what “fornication” means and, in one version, says “perhaps you only kissed her or winked at her or checked her out?”14
12 Note that Maimonides says, “It is a scriptural decree that the court shall not put a man to death or flog him on his own admission (of guilt). This is done only on the evidence of two witnesses.” He explains how Joshua and David did execute confessors to crimes on emergency grounds, but insists that the Sanhedrin “is not empowered to inflict the penalty of death or flagellation on the admission of the accused” (Maimonides 1949, 52–3).
13 There is only a single mention of female same-sex activity in this entire section and al-Bayhaqi acknowledges that the chain of transmitters of this report is “suspicious” (munkar) (Bayhaqi 1999, bab 25, last hadith). This report merely says that both men and women who engage in same-sex activity are fornicators.
14 La‘allaka qabbalta aw ghamazta aw nazarta? (Bayhaqi 1999, bab 16). This hadith is found in al-Bukhari’s Sahih.
“Perhaps You Only Kissed Her?” 407
(3) The Prophet asks Ma‘iz (or his people) if he has ever been married (Bayhaqi, babs 4, 9, 12, 16).
These three elements, plus the Prophet’s efforts to shun Ma‘iz, can only be interpreted as an extreme reluctance to apply the stoning penalty. Even more remarkable is the final element—in half of the versions, Ma‘iz flees the scene of the initial lapidation and is chased to another place where he ultimately succumbs to the various projectiles hurled at him by the mob. In two of these versions, Muhammad later asks the stoners, “why didn’t you let him go?” and in one case even says that it would have been better had Ma‘iz been left alone so he could repent (Bayhaqi, babs 10, 17).
There is one additional story that is highly pertinent to our discus- sion prior to our effort to put all these pieces together. Despite the Qur’anic verse, “do not go near fornication” (Q. 17:32), al-Bayhaqi transmits the story, found in the two most authoritative collections of hadith, that a man confessed to the Prophet to having done everything short of intercourse with a woman who was neither his wife nor slave-concubine. The Prophet, to the man’s surprise, either received or recited the Qur’anic verse, “establish worship at the two ends of the day and in some watches of the night. Lo—good deeds annul ill-deeds. This is a reminder for the mindful” (Q. 11:114) and told him to go on his own way (Bayhaqi, bab 33). How far we are from the modern religious courts of some Muslim countries that sentence people to flogging for significantly lesser offences!
5. The Authenticity Factor
One of Khaled Abou El Fadl’s important contributions to contempo- rary Muslim ethical discourse is his concept of the “conscientious pause.” In short, Abou El Fadl argues that any hadith which has tremendous ethical and legal implications demands that the reader, “take a reflective pause and ask: to what extent did the Prophet really play a role in the authorial enterprise that produced this tradition” (Abou El Fadl 2001, 213). While this is not the place for us to engage in rigorous hadith criticism, we should consider what happens to our findings when we apply at least a modicum of criticism to these reports concerning the penalties for illicit intercourse. There are two simple rubrics which fall squarely within the Sunni tradition that we can employ for evaluating the soundness of these hadiths: (1) Is the hadith found in one or both of the two most authoritative Sunni collections, namely the Sahihs of al-Bukhari and Muslim? And (2) is the prophetic locution or narrative transmitted by multiple Companions of the Prophet or just one or two of them?
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Fortunately, al-Bayhaqi facilitates this task by identifying which narrations in al-Sunan al-kubra are found in the canonical books of al-Bukhari and Muslim,15 and only eight hadiths of relevance to this inquiry meet this criterion:16
(1) ‘Umar’s insistence that the “verse of stoning” existed and that the Prophet stoned “on the basis of testimony, pregnancy,17 or confession” (Bayhaqi 1999, bab 2).
(2) Ibn Mas‘ud’s previously mentioned report that Muhammad said: “The blood of a Muslim may be shed in only three possible cases—the married person who commits adultery; a life for life; and a person who abandons his religion and separates from his community” (Bayhaqi, bab 4).
(3) The version of the Unays story that Muhammad ordered 100 lashes and a year of exile for the never-married fornicator and lapidation for the adulterer who confesses, transmitted by Abu Hurayra and Zayd b. Khalid (Bayhaqi, bab 4).
(4) Abu Hurayra’s version of the Ma‘iz story which mentions the quadruple confession, Muhammad’s inquiry into his sanity and marital status, and his verdict to stone him (Bayhaqi, babs 4, 10).
(5) Jabir’s …
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