The Validity of Rajm
C. The Validity of Rajm
Rajm, stoning to death for those who commit adultery or the persons who are married ( muhshan), has been a topic of heated debate among ulama since the classical era. The validity of rajm is based on the verse whose text has been abrogated but its law still exists:
If a married man and married woman are committed adultery, stone to death as prevention from Allah, and Allah is the Exalted in Might and Wise
The above verse is based on several narrations which state about the loss of the verse about rajm which had been written on the leaf and then was eaten by a ghoat or insects in other narrations. This argument was criticized by many scholars such as Asghar Ali Engineer because it is contradictory with Qur’anic verse al-Hijr, 15:9.
Indeed, it is We who sent down the Qur’an and indeed, We will be its guardian.
In addition, this hadith is contradictory with the historical fact that the Qur’an had been memorized by its writers since the Messenger’s life era so that recitation became the primary source, while records were the secondary source. The loss of record of a Qur’anic verse did not remove the recitation of the verse. Furthermore, the reason that there is another category of Qur’anic verse which has been nullified but its law stil exists is exaggerating reason. If the text has been nullified, why its law still exist and if the law is still applicable why its text is nullified? In other words, the hadith is unreliable.
Another argument is that there are hadith which explain that the Messenger pbuh also had applied rajm for married couple who committed zina. Hashim Kamali examined the six hadith on rajm in Nail al-Authar written by asy-Syaukani. He found that these six hadith are contradictory with each other on whether or not the Messenger pbuh combined between flogging and rajm so that the value of the hadith does not reach reliable position. 223
The practice of rajm punishment informed by these hadith was being questioned on its relation with the flogging punishment for those who commit adultery (an-Nur, 24:2). According to the supporters of rajm, the verse on flogging punishment for those who commit zina is general, while the hadith on rajm for married people who commit adultery is specific (the specification of the verse which is general in nature). This reason was rejected because rajm or stoning to death is a harsh punishment which is not written in the Qur’an. If the hadith legalizes rajm, it goes beyond what is stated in the Qur’an, that is flogging, then it is not specification but nullification: the nullification of flogging punishment for those who committed zina, being replaced with rajm. The reason for the nullification is also rejected because the hadith is the secondary source after the Qur’an which only has the authority to explain, not to nullify.
Rajm had existed before the Messenger pbuh was sent. The practice of rajm might be undertaken before the revelation of the verse about flogging so that the verse an-Nur, 24: 2 is nullifying the punishment of rajm for
223 Kamali, Hukuman, p. 119-121 .
adulterer ( muhshan) which had been practised by the Messenger pbuh. The Qur’an does not mention at all about the rajm punishment. Initially, the Qur’an mentiones about the punishment for female adulterer is to be confined at the house until her death or until Allah makes another decision, while the punishment for male adulterer was not being specified, as written in Qur’anic verse an-Nisa, 4: 15-16.
Those who commit unlawful sexual intercourse of your women - bring against them four [witnesses] from among you. And if they testify, confine the guilty women to houses until death takes them or Allah ordains for them [another] way. And the two who commit it among you, dishonor them both. But if they repent and correct themselves, leave them alone. Indeed, Allah is ever Accepting of repentance and Merciful.
Quraish Shihab explains the word fahisyah in the above verse to include zina and same sex sexual relationship, between women and women and between men and men. 224 Thahir Ibnu Asyur explaines that this verse is about the punishment for adulterer: confinement in the house for a woman until her death or Allah gives her another way out from the house. This verse – according to some ulama- was abrogated by the Qur’anic verse an-Nur,
24: 2 which instructs to flog the female and male adulterer with 100 flogging and this punishment is called the clarifier of the sentence “Allah ordains for them [another] way” stated in verse an-Nisa 4: 15. 225 This verse does not mention at all about rajm as the punishment for those who commit fahisyah.
Rajm punishment is also viewed as contradictory with an-Nisa 4: 25 about the punishment for adulterer who is slave.
224 Shihab, al-Misbah, j. 2, h.451. 225 Ibnu Asyur, at-Tahrir wa at-Tanwir, j. 4, p. 269
And whoever among you cannot [find] the means to marry free, believing women, then [he may marry] from those whom your right hands possess of believing slave girls. And Allah is most knowing about your faith. You [believers] are of one another. So marry them with the permission of their people and give them their due compensation according to what is acceptable. [They should be] chaste, neither [of] those who commit unlawful intercourse randomly nor those who take [secret] lovers. But once they are sheltered in marriage, if they should commit adultery, then for them is half the punishment for free [unmarried] women. This [allowance] is for him among you who fears sin, but to be patient is better for you. And Allah is Forgiving and Merciful.
The above verse emphasizes that the punishment for slave adulterer is half of the punishment of free people (not slaves). If the punishment for adulterer is rajm, then the punishment for slave adulterer is half of rajm. Rajm as a punishment of stoning to death is impossible to be divided into two.
Rajm is also regarded to be contradictory with the verse al-Ahzab 33: 30:
O wives of the Prophet, whoever of you should commit a clear immorality - for her the punishment would be doubled two fold, and ever is that, for Allah, easy.
The above verse explains that the punishment for the wives of the Prophet if they commit fahisyah is doubled of the wives of other men who are not prophet. If the punishment for adulterers who are not the wives of the Prophet is rajm, then how to give double punishment to the wives of the Prophet because rajm cannot be doubled?
Rajm is also rejected for the reason of language. The Arabic word of having sexual relationship out of wedlock committed by unmarried and married people is the same, zina. The different term for sexual relationship out of wedlock can only be differentiated if it is undertaken by force, zina bil-jabr. According to Engineer, the heavier punishment given to married people may
be caused by three reasons: (1) the institution of marriage has given married people enough opportunity to enjoy sexual relationship, (2) zina committed by married people destroy the institution of marriage, (3) zina undermines the contract which binds husband and wife to be faithful with each other in their sexual relationship. 226 Thus, the punishment of rajm is the genuine thinking of the judge which can be categorised as ta’zir (warning). However, ta’zir should not be heavier than the punshiment stipulated directly by the Qur’an, while rajm is certainly heavier than 100 times of flogging.
This alternative interpretation may be considered by policy makers in modern countries. The institution of marriage must be strongly protected because it is the foundation of the state. Betrayal to the institution of marriage and family should be prevented as early as possible by having a marriage which is planned and expected by parties involved in it (not forced marriage), in a matured age physically and mentally (aqil baligh), not child marriage. Similarly, marriage system which provides consultation services, education, information and mediation of marital problems should
be provided to prevent from betrayal of the marriage. One of the challenges in protecting the marriage and family is to build equal relation between