In one of the criticisms1
posted at ‘Answering Islam’, the author has pointed out a contradiction
in 4:15-16 and 24:2. The former verses read thus:
And for the harlots among your women, call four
witnesses, from among your people, against them. Thus, if they testify,
then confine them to their houses until death claims them or God ordains
for them another way. And for the two, who are guilty of lewdness from
among you, punish them both [with a beating]. Then if they repent and [promise
to] correct their behavior, then let them be. Indeed God accepts repentance
most; Infinitely Merciful. (4:15-16)
The latter reference reads as:
For the male and the female guilty of fornication,
flog them both a hundred stripes. Let not mercy for them overtake you in
the implementation of God’s law, if you truly believe in God and the Final
Day. And let the implementation of the punishment be witnessed by a group
of believers. (24:2)
The propounder of the referred criticism,
Jochen Katz writes:
... There is the contradiction whether for a
female adulteress the punishment is one hundred stripes (24:2) or confinement
in the house until death (4:15). If 4:16 does not speak only about homosexual
acts but also about adultery of man and woman, then another contradictory
element is added: If they repent they can get off the hook without punishment?
Who will not repent with the prospect of a hundred stripes waiting for
them? Apart from the question whether the punishment should be as in 24:2
or 4:15, how come the man and woman be treated equal in 24:2, but seemingly
different in 4:15?
A thorough understanding of the two verses
should sufficiently answer the questions raised by Katz. A brief explanation
of the verses follows:
4:15 relates to the crime of prostitution.
This is precisely the reason why only women have been mentioned. The punishment
for the crime stated is house arrest till death. Quite obviously, this
form of punishment prevents the woman in question from spreading mischief
and lewdness in the society. The last words of the verse – ‘until God ordains
for them another way’ -- clearly implies that the stipulated punishment
(of house arrest) is for a period of time after which when the society
is prepared and organized for it, the permanent law shall be given. 4:16
relates to a male and a female involved in fornication. Immediately succeeding
the words ‘until God ordains for them another way’, it was clear that the
stipulated punishment was also effective for a temporary phase till the
time that the society was prepared and organized for the permanent punishment
to be given. The punishment stipulated in the verse is of an undefined
beating, which is in keeping with the fact that during the initial phase,
the punishment for the crime was not strictly prescribed.
The above explanation should also
spell out why the punishment in the first case is more severe than that
in the second case. The two crimes, as should be clear, belong to two different
categories. The consequence of the latter form of crime is restricted to
the two individuals involved in it, while the former, if allowed to flourish,
results in the moral degeneration of the society.
24:2 (and the verses that follow) prescribe the final
and the permanent punishment for the crime of fornication. As far as the
final and permanent punishment for prostitution is concerned, it is not
given in 24:2. However, besides these verses, 5:33-4 prescribed punishments
for crimes that were of the nature of spreading disorder and anarchy in
the land or of religious persecution or in any other way affecting the
well being of the society at a macro level. Explaining the penal law of
Islam, I had written in my response to a question:
It must be understood at the outset that Islam, in its
injunctions regarding the penal law, has classified crimes into two major
categories:
-
Normal crimes; and
-
Extra-ordinary crimes.
Examples of the first category may include crimes against
someone’s property, i.e. theft, crimes against someone’s life, ie, murder
or physically harming a person and crimes against chastity and respect,
ie, fornication and defamation. Besides this classification, Islam has
given another class of crimes that may appear to be of the same nature
as given above but are committed with an absolutely different psyche. For
example, a person may quietly enter someone’s premise and steal something
from there, and in another case, a few people may form a gang of robbers
and rob market places, houses and automobiles on the highway. Now, if you
would consider closely, although a crime has been committed against property
in both the cases, but the psyche of the criminals is quite different in
the two cases. The first case entails a psyche of a simple criminal while
the second case entails a psyche of a person who wants to create unrest
and disorder in the society as a whole. Like wise, in case of murder, a
person may kill another person on provocation, in hot blood or only to
‘get even’ for an insult, or to settle the score of an old enmity. While
on the other hand, a person may install a bomb in a public place and thereby
kill anyone -- man, woman or child -- that comes within the range of the
blast. Now, again, even though the two acts have resulted in the same thing
-- that is loss of life -- but still the psyche in the two acts is absolutely
different. The same is the case with crimes against chastity and respect.
A man and a woman may indulge in the act of fornication or adultery, while
in another case, a man may rape a woman or a woman may open a brothel.
Crimes of the first category are basically against
the person, property, respect and morality of individuals, while crimes
of the second category are basically against the society, as a whole. The
crimes relating to the second category are called fasad fi’l-ard in
the Qur’an.2
Regarding the punishment of fasad fi’l-ard,
the Qur’an says:
The punishment of those who declare war against
God and His messenger and try to spread unrest in the land is nothing but
that they be sentenced to a painful death or to crucifixion or that their
one hand and one foot of the opposite side be amputated or that they be
sent in exile. This punishment is a disgrace for them in the life of this
world, and in the Hereafter, a great punishment awaits them. Except for
those who repent [and correct their behavior] before you catch them. Be
mindful that God is Forgiving, Merciful [for the repentant]. (5:33-4)
Explaining the penal law of Islam, I had
written in my referred to response:
Islam, in its penal law, has proposed two different
kinds of punishments for the crimes of the two categories... the punishment
for fasad fi’l-ard is mentioned in 5:34. In this verse, the Qur’an
says that such individuals should be slain in a painful manner (taqtil)
or should be crucified (taslib) or one of their hands and one of
their feet should be amputated or they should be sent in exile (they should
be removed from their society and thereby from the influence of bad company).
It is obvious from this verse that the court has been given the authority
to decide and implement from amongst these four punishments according to
the gravity of the crime and according to the psyche of the criminal.2
In view of the above explanation, it is
clear that the final and permanent punishment of prostitution (for which
a temporary punishment was stipulated in 4:15), rape etc. was derived from
the given verse. Stoning to death was, in fact, one of the methods adopted
by the Prophet (sws) for implementing ‘taqtil’ (slaying in a painful
manner). Thus, the punishments mentioned in 4:15-16 were, in fact, given
for a temporary period, during which the newly formed society was organized
and groomed. During this time, lighter forms of punishments were administered
to the criminals3. However,
later on, as the moral standard of the society elevated and as it became
more organized, stricter punishments were prescribed for these crimes.
The latter punishments replaced and abrogated the previous order.
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