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Rape as a variant of fornication (Zinā) Inislamic Law: An Examination of the Early Legal Reports

Published online by Cambridge University Press:  24 April 2015

Hina Azam
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The contemporary treatment of rape in the penal codes of Muslim nations has come under increasing scrutiny over the last two decades, as several high-profile cases have arisen in which women have claimed sexual assault but been unable to bring sufficient proof of non-consent. In some cases, claimants have subsequently been punished for fornication (zinā) because their accusations were seen as constituting confession to consensual illicit sex, while in other cases, a resulting pregnancy has been taken as evidence of the same. These cases have illustrated the particular problems that stem from defining rape as a coercive variant of fornication, or zinā.

These cases have largely arisen in the context of national efforts to Islamize the legal code by bringing laws into line with perceived sharī'a guidelines. This slew of cases has prompted journalists, human rights groups and Muslim reformers to ask whether contemporary “Islamic” rape laws are really continuous with the classical Islamic juristic tradition, or whether they may in fact represent distortions of that tradition. A central point of debate has been over whether Islamic juristic discourse truly placed rape—that is, a man's unlawful sexual intercourse with a woman against her will—under the category of zinā, or not.

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Journal of Law and Religion , Volume 28 , Issue 2 , January 2013 , pp. 441 - 466
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Copyright © Center for the Study of Law and Religion at Emory University 2013

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References

1. In the 1980s, 16-year old Jehan Mina of Pakistan claimed to have been raped by two relatives and subsequently became pregnant. According to the laws then prevailing in Pakistan, pregnancy without evidence of coercion was seen as proof of fornication (zinā). Thus, the girl was sentenced to receive the ḥadd punishment for zinā, which was one hundred lashes. The sentence was later reduced to thirteen lashes because Mina was underage. For an analysis of this case, see Weaver, Katherine M., Women's Rights and Shari 'a Law: A Workable Reality?, 17 Duke J. Comp. & Int'l L. 483 (2007)Google Scholar.

When in 2002, Zafran Bibi accused a man of raping her, the court concluded that her accusation constituted an admission to sex outside of marriage (zinā), and, as she was married, sentenced her to the capital ḥadd punishment of stoning. Zafran Bibi was ultimately exonerated due to public pressure and the intervention of then-president Pervez Musharraf. Seth Mydans, , Sentenced to Death, Rape Victim is Freed by Pakistani Court, N.Y. Times, 06 8, 2002Google Scholar. Pregnancy outside of marriage without evidence of coercion proved problematic for 19-year old Fareeda, of Pakistan, as well; Fareeda was flogged and imprisoned for having committed zinā. McDougall, Dan, Fareeda's Fate: Rape. Prison and 25 Lashes, The Observer, 09 16, 2006Google Scholar. For a comprehensive review of rape (zinā bi'l-jabr) cases that were decided during the period of the Hudood Ordinances in Pakistan, see Cheema, Moeen H., Cases and Controversies: Pregnancy as Proof of Guilt Under Pakistan's Hudood Laws, 32 Brook. J. Int'l L. 121 (2006)Google Scholar.

A blurring of lines between zinā and rape has led to similar verdicts in Nigeria. When, in 2000, the unmarried Bariya Magazu was found to be pregnant, she claimed that her pregnancy was the result of a rape by a certain man. Having no witnesses to support her claim of coercion, however, Magazu was sentenced to flogging for zinā. Her lack of eyewitness evidence against the accused led to an additional penalty of eighty lashes for false accusation (qadhj). Another Nigerian case that came to the attention of the international media is that of Safiya Husaini, a married resident of Sokoto who early in 2001 gave birth to a child bom, according to her, of sexual assault. Lacking evidence of coercion, Husaini was sentenced to death by stoning for having consented to adultery. Abubakar, Aminu, Nigeria; Safiya's Death Sentence Tests Sharia's Soul, All Africa, 12 13, 2001Google Scholar. For a review of prominent Nigerian sex crimes cases, see Weimann, G.J., Divine Law and Local Custom in Northern Nigerian Zina Trials, 49 Welt Des Islams 429 (2009)CrossRefGoogle Scholar.

2. More recent efforts at legal reform have succeeded in modifying the penal code of Pakistan, where, due to passage of the Women's Protection Bill of 2006, rape is no longer treated under the rubric of zinā. For debates over the treatment of zinā and rape in Pakistan under the 1979 Hudood Ordinances, see the following: Quraishi, Asifa, Her Honor: An Islamic Critique of the Rape Laws of Pakistan from a Woman-Sensitive Perspective, in Windows of Faith 102 (Webb, Gisela ed., Syracuse Univ. Press 2000)Google Scholar; Khan, Shahnaz, Zina and the Moral Regulation of Pakistani Women, 75 Feminist Rev. 75 (2003)CrossRefGoogle Scholar; Kennedy, Charles H., Islamization in Pakistan: Implementation of the Hudood Ordinances, 28 Asian Surv. 307 (1988)CrossRefGoogle Scholar (arguing contra Weiss that the ḥudūd pertaining to zinā were not discriminatory against women in practice); Imran, Rahat, Legal Injustices: The Zinā Hudood Ordinance of Pakistan and its Implications for Women, 7 J. Int'l Women's Stud. 78 (2005)Google Scholar. For texts of the Pakistan Penal Code and the Women's Protection Bill, and to see modifications to Pakistani law pertaining to sex crimes, see Offence of Zinā (Enforcement of Hudood) Ordinance, 1979 [Pakistan], Ordinance No. VII of 1979, February 10, 1979, available at http://www.unhcr.org/refworld/docid/4db999952.html (accessed Mar. 10, 2013); see Immigration and Refugee Board of Canada, Pakistan: The Protection of Women (Criminal Laws Amendment) Act, 2006 and its Implementation, 12 3, 2007, PAK102659.E, available at http://www.unhcr.org/refworld/docid/4784def9c.html (accessed Mar. 10, 2013)Google Scholar. For traditional Islamic arguments against the Protection of Women Act, see Uthmani, Mufti Taqi, The Reality of the ‘Women's Protection Bill,’Islamic Awakening, http://www.islamicawakening.com/viewarticle.php?articleID=1292 (last visited Mar. 10, 2013)Google Scholar.

For an excellent general analysis of contemporary application of zinā and rape laws with a focus on Sudan, see Sidahmed, Abdel Salam, Problems in Contemporary Applications of Islamic Criminal Sanctions: The Penalty for Adultery in Relation to Women, 28 Brit. J. Middle E. Stud. 187 (2001)CrossRefGoogle Scholar. For a discussion of ḥudūd laws in Malaysia, see Kamali, Mohammad Hashim, Punishment in Islamic Law: A Critique of the Hudud Bill of Kelantan, Malaysia, 13 Arab L. Q. 203 (1998)CrossRefGoogle Scholar. For problems related to prosecuting rape under the sharīah laws of Nigeria, see Onyejekwe, Chinese J., Nigeria: The Dominance of Rape, 10 J. Int'l Women's Stud. 48 (2008)Google Scholar.

3. In this article, I consider only non-marital coercion, as this was the standard type of sexual violation contemplated and addressed in Islamic juristic literature. This definition of rape as unlawful or non-marital in nature is in line with the historically dominant definition of rape in American law and culture as a man's unlawful sexual intercourse with a woman against her will. While non-consensual relations between persons of the same sex was criminalized in classical Islamic juristic discourse, classical Islamic discourse always assumed the sexual right of a husband over a wife, and as a result, the notion of “marital rape” did not arise. While American law has moved in recent decades to defining rape without reference to either gender or partner relationship, Muslim criminal codes generally continue to recognize the sexual right of a husband over a wife without regard to her situational consent, and therefore generally define rape as forcible or non-consensual sex outside of marriage only.

4. Quraishi, supra note 2.

5. Position Paper, Zinā, Rape, and Islamic Law: An Islamic Legal Analysis of the Rape Laws in Pakistan, (2011), available at http://www.globalwebpost.com/farooqm/study_res/islam/gender/karamah_zina.pdf.

6. In a critique of Malaysian laws on zinā and rape, the group Sisters in Islam writes:

There was better understanding on the crime of rape in certain classical Islamic jurisprudence, when rape was not classified under a sub-category of zinā (as it is codified in modem legislations including in Terengganu). Instead, rape was classified under categories of violent crimes—either hirabah (robbery) or ightisab (violent trespass, usurpation)—and was regarded by a classical jurist, Ibn ‘Arabi, as the worst form of hirabah.

Nik Noriani Nik Badli Shah, Man Made Codifications of ḤUDÜD Law, (2002), available at http://www.violenceisnotourculture.org/sites/default/files/Hudud%20_general%20SIS.pdf.

7. Dates in the Islamic calendar are followed by the standard abbreviation “AH” (“after Hijra”). The Islamic calendar begins with the Emigration of Muḥammad to Madina in 622. Thus, the first century AH roughly corresponds to the seventh century CE.

8. The Muwaṭṭa' was transmitted by a number of Mālik's disciples, notably Yaḥya b. Yaḥya al-Laythī (d. 224/839), the influential jurist of Andalusia, and Muḥammad b. al-Ḥasan al-Shaybānī (d. 189/804), the prolific architect of the Ḥanafī school of jurisprudence. see Mālik B. Anas (d. 179/796), Muwaṭṭa' (Riwāya MuḤammad B. Al-Ḥasan Al-ShaybāNī) (Al-Maktabat al-̀Ilmīya n.d.) [hereinafter Muwaṭṭa' (r. Muḥammad)]; and see also Malik ibn Anas et al., al-Muwaṭṭa' (Dār al-Gharb al-Islāmī 1997) [hereinafter Muwaṭṭa' (r. Yaḥya)]. A translation of Yahyā's recension is available as Malik ibn Anas, al-Muwatta, (al-Tarjumana, ̀A'isha and Johnson, Yàqub trans., Diwan Press 1982)Google Scholar. Another translation is Anas, Malik Ibn, Muwaṭṭa Imam Mālik (Raḥīmuddīn, Muḥammad trans., Ashraf 1980)Google Scholar. Al-Shaybānī's recension has more recently been translated as well as Malik Ibn Anas & Imam Muhammad ibn al-Hasan Ash-Shaybani, The Muwaṭṭa' of Imām Muḥammad (Batha, Yahya ed., Turāth 2004)Google Scholar.

9. Hanifah, Abu, Musnad (Mahmud, 'Abd al-Rahman Hasan ed., Maktabat al-Adab wa-Matba'atuha 1981)Google Scholar; also known as Hanifah, Abu, Jami‘ Masanid al-Imam al-A‘zam 2 vols. (al-Khuwarizmi, Muhammad ibn Mahmud Abu al-Mu'ayyad trans., Matba'at Majlis Da'irat al-Ma'arif 1913)Google Scholar. To call this an early source is problematic; the main available version of the Musnad is the one compiled by al-Khwārizmī (d. 665/1266) under the title Jāmt̀ Masānīd al-Imām al-Àẓam, which is a synthesis of fifteen versions of the Musnad available to him. Yet the secondary nature of this work does not preclude its usefulness as a source for early Iraqi positions, particularly insofar as the views of the Iraqis are also documented in other second-century sources, such as the MuṢSannafoî Ibn Abī Shayba al-Kūfī (d. 235/849).

10. ̀Abd al-Razzāq ibn Hammām al-Himyari, al-Muṣannaf (ibn Rashid, Ma'mar & NaṢr|al-Azharī, Ayman eds., Dār al-Kutub al-̀Ilmīya 2000)Google Scholar [hereinafter ‘Abd al-Razzāq, DKI 2000]; also ‘Abd al-Razzaq ibn Hammam al-Hlmyari, al-Muṣannaf (Àzamī, Habīb al-Raḥmān ed., al-Majlis al-̀Ilmī 1983) [hereinafter ‘Abd al-Razz¯q, Mi]Google Scholar; see also the abridgement, ‘Abd al-Razzaq ibn Hammam al-Hlmyari, Mukhtaṣar al-Muṣannaf ibn ̀Awaḍ, Muṣṭafā ibn ̀Alī ed., Dār al-Jīl 1997Google Scholar [hereinafter ‘Abd al-Razz¯q MukhtaṢar 1997]. Shāfi‘ī’s transmissions are collected in Muhammad ibn Idris Shāfìī, Musnad al-Shāfìī (Dār al-Fikr 1996)Google Scholar and Muhammad ibn Idris Shāfìī, al-Sunan (khāṭir, Khalīl Ibrāhīm Mulla ed., Mu'assasat ̀Ulūm al-Qur'ān 1989.)Google Scholar

11. ‘Abd Allāh ibn Muḥammad ibn Abī Shaybah, al-Kitāb al-Muṣannaf fi al-Aḥādīth wa-al-Āthār (Shāhīn, Muḥammad ‘Abd al-Salām ed., Dār al-Kutub ai-̀Ilmīya 1995)Google Scholar [hereinafter ibn Abī Shaybah, DKI 1995]; and also ‘Abd Allāh ibn Muḥammad ibn Abī Shaybah, al-Kitāb al-Muṣannaf (wa-al-Nashr, al-Fārūq al-ḥadīth li'l-Tibā̀ah 2008)Google Scholar [hereinafter ibn Abī Shaybah FHT].

12. Muḥammad ibn Ismāṣīl Bukhārī, Matn al-BukhÄrī Mashkul bi-Ḥāshiyat al-Slndī (al-ṣarabīya, Matba'at Dār Iḥyā' al-kutub 1981)Google Scholar [hereinafter Bukhārī MSB]; and Ṣaḥīḥ al-Bukhārī, 3 vols. (Dār al-Ḥadīth, n.d.) [hereinafter Bukhārī Ṣaḥīḥ]. See also Ṣaḥīḥ al-Bukhārī, 9 vols. (Matraji, Muḥammad trans., Islamic Book Service 1995)Google Scholar [hereinafter Bukhārī SBE]. I have consulted the latter not for its English translation, which is highly flawed, but for the soundness of its Arabic text. Other sources consulted are Muslim ibn al-ḥajjāj al-Qushayri, Ṣaḥīḥ Muslim (Dār al-Màrifa, 1994)Google Scholar; Abū Dā'ud, Sulaymān ibn al-Ash̀ath al-Suistānī, Sunan abi Dawud (Khālidī, Muḥammad ̀Abd al-̀Azīz ed., Dār al-Kutub al-̀Ilmīya 1996)Google Scholar; Muḥammad Ibn ̀īsā Tirmidhī, al-Jami‘ al-Sahih, wa-Huwa, Sunan al-Tirmidhi (Shākir, Ahmad Muḥammadet al. eds., Muṣṭafā al-Bābī al-Ḥalabī 1937)Google Scholar.

13. Initial or supplementary searches for materials were sometimes done electronically, using online full-text resources such as the Shamila database (www.islamport.com) or www.ar.wikisource.com, and are cited accordingly.

14. On the nature and function of the ḥudūd in medieval Islamic law, see Peters, Rudolph & Hallaq, Wael B., Crime and Punishment in Islamic Law: Theory and Practice from the Sixteenth to the Twenty-First Century (Cambridge Univ. Press 2005)Google Scholar; Rahman, Fazlur, The Concept of Ḥadd in Islamic Law, 4 Islamic Stud. 237 (1965)Google Scholar; Lange, Christian Robert, Justice, Punishment and the Medieval Muslim Imagination (Cambridge Univ. Press 2008)CrossRefGoogle Scholar; Emon, Anver M., Ḥuqūq Allāh and Ḥuqū al-̀Ibād: A Legal Heuristic for a Natural Rights Regime, 13 Islamic L. & Soc'y 325 (2006)CrossRefGoogle Scholar.

15. Burton has provided an illuminating overview of the ḥadīths outlining the punishment, or ḥadd, for zinā. He contends that Prophetic reports on the subject serve to reconcile the contradictions between the Qur'anic penalty for zinā, which is limited to flogging, and the legal practice of the early community, which included stoning. His exploration of the ḥadd for zinā is part of his larger argument that the legal hadīth are essentially exegetical in purpose. Burton's essay does not seek to examine the definition of zinā as such. Burton, John, The Origin of the Islamic Penalty for Adultery, 26 Trans. Glasg. Univ. Orient. Soc. 16 (1978)Google Scholar.

16. That is, if zinā is a ḥadd, and if rape is called a ḥadd (and provokes a ḥadd punishment), then rape must be a type of zinā.

17. References to the Qur'an are translated by the author but are based upon the translations of Ali, Yusuf, The Holy Qur'an: Text Translation and Commentary (Amana Corp. 1989)Google Scholar.

18. This half-punishment for female slaves was expanded in classical Sunni jurisprudence to apply to male slaves as well.

19. A report describing the revelational context of this verse is found in Saḥīḥ Muslim, supra note 12, at 8:24 (K. al-Tafsīr #244):

Abū Bakr b. Abī Shayba and Abū Kurayb, in Abū Kurayb's wording—Abī Mùāwiya—al-Àmash—Abū Sufyān—Jābir (b. ‘Abd All̀h):

̀Abd Allāh b. Ubayy b. Salūl used to say to his slavewoman (jāriya): Go and earn something [through prostitution]. So Allāh, great and mighty, sent down [this verse].

Muslim provides a second ḥadīth on this topic at the same location:

Abū Kāmil al-Jaḥdarl—Abū ̀Awāna—al-Àmash—Abī Sufyān—Jābir:

‘Abd Allāh b. Ubayy b. Salūl had a slavewoman (järiya), Musaika, and another, Umaima. He used to force them to zinā. So they complained about that to the Prophet, and then God sent down [the verse].

20. The disparity between the Qur'anic usage of the term ḥudūd and its usage in the āthār and later juristic works has been discussed or alluded to by several scholars: Lange, supra note 14; Kamali, supra note 2; Rahman, supra note 14.

21. For a complete list of verses in which words derived from the root ḥ-d-d appear, see al-BĀqī, Muḥammad Fuād Abd, Al-Mujam Al-Mufahras li-Alfāẓ al-Qur'ān al-Karīm: bi-hashiyat al-mushaf al-sharif (Dār al-Fikr 1994)Google Scholar.

22. That the Qur'ān recognizes the humanity and limited moral agency of slaves is put forward by Brockopp, who writes that in the Qur'an “[the] position of slaves as spiritual equals of free Muslims is not explicitly stated, though several verses may be construed as supporting such an equality.” Brockopp, Jonathan, Early Mālikī Law: ibn ‘Abd Al-ḥakam and His Major Compendium of Jurisprudence 131–32 (Brill 2000)Google Scholar. Brockopp cites Qur'anic references to slaves' beliefs (Q 2:22, 4:25, 4:92), their desire for emancipation (Q 24:33), and their feelings about being forced into prostitution (also 24:33) to support his point.

23. That is, cases in which neither coercion nor resistance is implied or claimed.

24. Unless the text specifically indicates that a party is of slave status—through the use of terms such as ama, ̀abd, jāriya, or the like—or the context strongly points to slave status, I have assumed that the text is referring to free persons. This is consonant with the juristic usage, wherein freedom is the assumed personal-subject status of individuals and enslavement is exceptional.

25. Islamic jurisprudence has, from its inception, distinguished between two sexual status categories. The first is that of bikr, often translated as “virgin” or “unmarried person,” which denotes one who has presumably not ever engaged in sexual relations, or who at the very least has not consummated a lawful union. The second is thayyib, often translated as “matron” when in reference to a woman, but which more precisely denotes one who has consummated a lawful union. The term thayyib denotes not only those who are currently in a lawful union, but those who have ever been in one, thus the term “previously-married” in this case.

26. Al-Hajjaj, Muslim B., Al-Jami' Al-Sahih, 8 vols. 5:119–20 (K. al-ḥudūd) (Dar al-Ma'rifa)Google Scholar.

27. Id. at 5:121.

28. ibn Anas, Malik, al-Muwaṭṭa (Muassasat al-Risāla 1993)Google Scholar; Muslim, supra note 25, at 2:16.

29. Muslim, supra note 25, at 5:121.

30. Bukhārī, Ṣaḥīḥ, 7 vols. (K. al-Ḥudūd #6443) (Dār Ibn Kathīr 1993) [hereinafter DIK 1993].

31. Id. at #6444.

32. Muslim, supra note 25, at 5:123-4.

33. Bukhārī, MSB, supra note 12, at 4:187 (K. al-Diyāt); Bukhārī, SBE, supra note 12, at 9:14 (K. al-Qasāma #6878). Slightly different versions are also given in Muslim, supra note 25, at 5:106 (K. al-Qasāma).

34. Ibn Abī Shayba, Muṣannaf 9:280 (K. al-Hudūd #28906) (Usāma, Abū Muḥammad ed., al-Fārūq al-Ḥadītha li'l-Ṭabā ̀a wa'l-Nashr 2007)Google Scholar.

35. Ibn Abī Shayba, FHT, supra note 11, at 9:310 #29107.

36. Bukhārī, MSB, supra note 12, at 4:181 (K. al-Ḥudūd wa'l-Muḥāribīn); Bukhārī, SBE 8:564 #6831-2.

37. Ibn Abī Shayba, FHT, supra note 11, at 9:253 (K. al-Ḥudūd #28723). The use of ḥadd here, it should be noted, does not explicitly refer only to zinā, and may well include theft, which is also addressed in surrounding material.

38. Id. at 9:312 (K. al-Ḥudūd #29118). This was a highly contested issue, with some saying that he should be spared the ḥadd for zinā on the grounds that he might have mistakenly thought he had an ownership right in her. Both sides take for granted that the zinā falls under the category of ḥudūd crimes.

39. Id. at 9:254 (K. al-Ḥudūd #28730).

40. Id. at 9:254 (K. al-Ḥudūd #28731).

41. Id. at 9:315 (K. al-Ḥudūd #29130).

42. ̀Abd al-Razzāq, Muṣannaf 7:349 (K. Tābì al-Ṭalāq #13442).

43. Found in multiple variants; this version taken from Abu Dāwud, 3:138 (K. al-Ḥudūd, #4379).

44. Ibn Abī Shayba, DKI 1995, supra note 10, at 5:501 (K. al-Ḥudūd #28413).

45. Bayhaqi, , al-Sunan al-Kubrā, 8:223 (K. al-Ḥudūd #16752) (̀Aṭā', Muḥammad ̀Abd al-Qādir ed., Maktabat Dār al-Bāz)Google Scholar.

46. The injury here is referred to as ifḍā', or perineal tearing.

47. Ibn Abī Shayba, DKI 1995, supra note 10, at 5:450 (K. al-Diyāt #27887).

48. Found in multiple isnād and matn variants. See ̀Abd al-Razzāq, MI, supra note 10, at 7:409 (B. al-bikr wa'l-thayyib tustakrahān #13666); Ibn Abī Shayba, DKI, supra note 10, 1995, at 5:507-8 (K al-Ḥudūd #28491-2); Bayhaqi, , al-Sunan al-Kubrā, 10 vols. 8:235–6Google Scholar (Dā'iratul Ma'ārif 1925) [hereinafter DM 1925].

49. ̀Abd al-Razz¯q, MI, supra note 10, at 7:409 #13664; DKI, supra note 10, 1995, at 5:507 (K. al-Ḥudūd #28486).

50. The fullest version of this report is found in AbŪ Ḥanīfa, Jāmī̀ Masānīd (K. al-Ḥudūd 2:212–13)Google Scholar (Matba'at Majlis Da'irat al-Ma'arif 1915). Shorter versions are provided by ̀Abd al-Razzāq, MI, supra note 10, at 7:407 (B. al-ḥadd fī'l-ḍarūra) and by Bayhaqī, DM, supra note 47, at 8:236 (ch. on coercive zinā/man zanā bi imra'a mustakrahatan).

51. Mālik, Muwaṭṭa 594 (K. al-Ḥudūd #1507) (on ḥadd zinā); this is also found in other recensions of Malik, as well as in ̀Abd al-Razzāq's Muṣannaf and Ibn Abī Shayba's Muṣannaf, in Bukhārī's Ṣaḥiḥ, and in Bayhaqî's al-Sunan al-Kubrā.

52. Ibn Abī Shayba, DKI 1995, supra note 10, at 5:501 (K. al-Ḥudūd #28414).

53. Id. at 5:501 (K. al-Ḥudūd #28417).

54. Bayhaqī, DM 1925, supra note 47, at 8:236.

55. Muḥammad, Abū'l-Mùayyad, Jāmī̀ al-Masānīd: Majmū̀a al-Aḥādīth wa'l-āthār 2 vols (al-Maktaba al-Islamīya 1976)Google Scholar.

56. Ibn Abī Shayba, DKI 1995, supra note 10, at 5:501 (K. al-Ḥudūd #28415-6).

57. ̀Abd al-Razz¯q, DKI 2000, supra note 10, at 7:327-9 (K. al-Talaq #13728); ̀Abd al-Razzāq, MI, supra note 10, at 7:408 (#13656).

58. ̀Abd al-Razzāq, DKI 2000, supra note 10, at 7:409 (# 13660); ̀Abd al-Razz¯q, MI, supra note 10, at 7:327-9 (#13732).

59. That is, assuming that there are no mitigating factors, such as the minority or slave status of one of the parties, or the possibility of doubt (shubha).

60. The legal doctrine by which the zinā punishment was to be averted from rape victims was in turn intertwined with two legal maxims that emerged in the formative period: The first was that what is done due to coercion, error, or forgetfiilness is forgiven by God. This maxim is expressed in a variety of wordings, the most common being “God has overlooked from my community [three things:] that which they do in error, in forgetfulness, and that which they are coerced to do” (Tajāwaza ̀an/li ummatī al-khaṭa' wa'l-nisyān wa mā'stukrihū ̀alay-hi). Alternate wordings for “overlooked” include “put away from” (waḍàa ̀an) and “forgiven” (̀ufiya). It is accepted as a Prophetic (marfū̀) saying via Abū Dharr al-Ghifārī in the collections of Ibn Mājah and al-Nasā'ī; via Ibn ̀Abbās in the collections of al-Bayhaqī, al-Ṭabarānī, and al-Tabrīzī (who deems it sound due to its many transmissions); via Ibn ̀Umar and ̀Uqbah b. ̀Āmir in the work of Ibn Abī Hatim; and generally by Ibn ̀Abd al-Barr. Ibn Rajab in his Jāmì al-̀Ulūm wa'l-Ḥikam, where it appears as ḥadīth # 39.

The overall point to be gained from these sources is that while the precise wording and transmission chains for this maxim were highly contested, the substance and principle was considered sound by early juristic and narrating authorities. See Rajab, Ibn, Jāmì al-̀Ulūm wa'l-Ḥikam 796–809 (Dār Ibn Kathīr 2008)Google Scholar; Kathīr, Ibn, Tafsīr 1:737 (Dār Ṭayyiba li'l-Nashr wa'l-Tawzī̀ 1999)Google Scholar; Nūr al-Dīn ̀Ali ibn Abī Bakr Haythamī, Bughyat al-rā'id Fī TaḤqiq Majma' al-Zawā'id wa-Manba' al-Fawā'id 6:378–9 (Dār al-Fikr 1992)Google Scholar; Muḥammad Nāṣir-ad-Dīn al-Albānī, Mukhtasar as-Shamā'il al-Muḥammadīya #2311 (al-Maktaba al-Islāmīya 1985)Google Scholar; Ibn, Yūsuf̀Abd Allāh Ibn ̀Abd al-Barr, al-Istidhkār Al-Jāmi 'li-Madhāhib fuqahā ̀al-Amṣār wa-'u-lamā' al-aqṭār fī mā taḍammana-Ḥu al-Muwaṭṭa' min ma'ān-ī al-ra'y wa-al-āthâr #1537 (Dār al-Kutub al-̀Ilmīya 2000)Google Scholar; al-Bayhaqī, , al-Sunan al-Ṣughrā, 3:231 (#4414-5)Google Scholar; al-Tabrīzī, , Mishkāt al-Maṣābīḥ 3:372 #6284 (al-Maktaba al-Islāmī 1985)Google Scholar; Ibn Abī Ḥātim, ̀Ilal al-Ḥadīth, #1296; Mājah, Ibn, Sunan 6:300–1 (Mawqì Wizārat al-Awāf al-Misriya)Google Scholar. All of these sources can be found in al-Mawsū̀a al-Shāmila, at www.islamport.com, and were accessed there; hard editions were consulted as necessary.

The second maxim that was central to the doctrine that the zinā punishment should be averted from victims of sexual violence was that sleep, insanity and youth divert moral responsibility. This maxim is most commonly found in the following wording: “The pen is lifted from three: from the sleeper until he wakes, from the minor until he matures and from the insane until he comes to his senses” (Rufìa al-qalam ̀an thalātha—̀an al-nā̀im ḥattā yastayqiẓ wà an al-ṣaghīr ḥatta yakbur wa ̀an al-majnūn ḥattā ya ̀qil aw yufiq). This and similar wordings have been narrated as a Prophetic saying (marfū') via ̀ā'isha in Ibn Mājah; via ̀Alī to al-Ḥasan in Tirmidhī and al-Nasā'i; via Yazīd b. Hārūn in Abū Dāwud and Bayhaqī; and via ̀Alī to Ibn ̀Abbās in Dāraquṭnī. Other isnād variants can also be found, such as in a discontinuous (mursal) version via al-Ḥasan al-Baṣrī.

The key point of debate in the technical literature is over whether this maxim is Prophetic (i.e. marf¯̀ or even mursal) or Companionate (i.e. mawqūf). Dāraquṭnī lends greater credibility to the Companionate (mawqūf) version going back to ̀Alī and ̀Umar and transmitted by al-Àmash. See Dāraoqṭnī, , al-̀Ilal 3:72-3, 3:192 (Riyādh: Dār Ṭayyiba 1985)Google Scholar; al-Mizzī, Tuhfat al-Ashrāf, # 10067 and # 15935, at islamport.com; Mājah, Ibn, Sunan 6:297–9 (Mawqì Wizārat al-Awqāf al-Miṣrīya)Google Scholar.

61. See ̀Abd al-Razzāq, DKI 2000, supra note 10, at 7:330-1 (K. al-Ṭalāq #13743), where it is clarified that the ḥadd here is for slander, not zinā:

̀Abd al-Razzāq—al-Thawrī—Manṣūr—Ibrāhīm, and also Abū ̀Abd al-Karīm and Mughīra—Ibrāhīm: A man had a slavewoman (jāriya). His wife feared that he would marry her, so she deflowered her (iftaḍḍat-ha) with her finger, with [the help of] some other women holding her. Then the case was taken to ̀Alī, who commanded al-Ḥasan to judge between them. [The latter] said: 'I opine that she should be flogged the ḥadd for her slander of the other (li-qadhfì-hā īyā-hā), and that she be fined the dower amount for the deflowering …

62. ̀Abd al-Razz¯q, DKI 2000, supra note 10, at 7:330-1 (K. al-Ṭalāq #13744). The identity of “al-Ḥasan” in this report is unclear. Although we often find al-Ḥasan al-Baṣrī narrating ̀Alī's judgments and opinions in the legal āthār, direct contact between them has not been substantiated by ḥadīth critics and biographers. Biographical works indicated that the two overlapped by approximately eighteen years: Al-Ḥasan was born in 21/643 and died in 110/728, and ̀Alī died in 40/661. The two shared residence in the environs of Madina until 35/656, when al-Ḥasan was approximately fourteen years old, but ̀Alī did not yet hold any political or judicial position at that early age. ̀Alī left Madīna for Kūfa in 35/656, so the two were not in close proximity during ̀Alī's ascendancy (35/656-40/661). In any case, al-Ḥasan would still have been fairly young during ̀Alī's rule, and may not have had much freedom of movement, as he was bom into slavery. Furthermore, we don't know al-Ḥasan to have served ̀Alī in Kūfa during his reign. Rather, Ḥasan left Madīna in 38/658 or so to go to Sīstān, where he taught and served as secretary to Ibn Ziyād al-Ḥārithī (d. 53/673). By the time al-Ḥasan left Sīstān in 51/671, ̀Alī was already deceased. See Mourad, Suleiman Ali, Early Islam Between Myth and History: al-Ḥasan al-Basrī (Brill 2006)Google Scholar. All of this makes it unlikely that al-Ḥasan al-Baṣrī and ̀Alī actually ever shared injudicial work. An alternative 'al-Ḥasan' in this narrative could be ̀Alī's son, whom the fourth caliph at times put in charge of military and administrative tasks. For a brief overview of the latter al-Ḥasan's biography, see Madelung, Wilferd, Ḥasan B. ̀Alī B. Abī Ṭaleb, Encyclopaedia Iranica (03 20, 2012), available at http://www.iranicaonline.org/articles/hasan-b-aliGoogle Scholar.

63. Charles H. Kennedy has argued that the implementation of the Hudood Ordinances did not have “a significantly adverse impact on the [legal] status of women in Pakistan,” although he acknowledges that it has been detrimental to women at a social level, as it becomes a means of exerting social control. See Kennedy, supra note 2. See also Kennedy, Charles H., Islamization and Legal Reform in Pakistan, 1979-1989, 63 Pac. Aff. 62 (1990)CrossRefGoogle Scholar; and, more recently, Kennedy, Charles H., Islamization of Laws and Economy: Case Studies on Pakistan (Inst. Pol'y Studies 1996)Google Scholar. Muhammad Taqi Uthmani has argued not only that the subsumption of rape (“zinā bi'l-jabr”) in Pakistani law did not create a legal environment prejudicial to women, but also that to remove rape from the category of zinā harms victims by lessening the penalty for perpetrators. Gender injustice in the course of applying the zinā laws is due, he argues, to corruption within law enforcement and the court system, not to flaws in the laws themselves. See Uthmani, supra note 2. See also Usmani, Muhammad Taqi, The Islamization of Laws in Pakistan: The Case of Hudud Ordinances, 96 Muslim World 287 (04 2006)CrossRefGoogle Scholar.

64. On the lateness of ḥadīth, both in terms of content and lineage, Goldziher wrote, “The ḥadīth will not serve as a document for the history of the infancy of Islam, but rather as a reflection of the tendencies which appeared in the community during the maturer stages of its development.” Goldziher, Ignác, Muslim Studies (Barber, C.R. & Stern, S.M. trans., Geo. Allen & Unwin 1971)Google Scholar.

65. Burton, John, An Introduction to the Ḥadith xii (Edinburgh Univ. Press 1994)Google Scholar.

66. Specifically, Juynboll has argued for standardization of the isnāds during the lifetime of the Successor al-Zuhrī (d. 124/742). Juynboll, G.H.A., Studies on the Origins and Uses of Islamic Ḥadīth (Variorum 1996)Google Scholar.

67. Lucas writes,

The logical starting place for the isnad is during the lifetime of the scholars … al-Zuhrī, Ayyūb al-Sakhtiyānī, al-Àmash, and ̀Amr b. Dīnār, some of whose pupils requested that they identify their sources for certain reports. These pupils were of the generation of Shùba and Sufyān al-Thawrī. … If my hypotheses are correct, the birthdate of the isnād would fall, at the latest, around the year 100/718, during the heyday of the generation who passed away between 120-150/738-767.

Lucas, Scott C., Constructive Critics, Ḥadīth Literature and the Articulation of Sunni Islam: The Legacy of the Generation of Ibn Sa'd, Ibn MàIn and Ibn Ḥanbal 347–48 (Brill 2004)Google Scholar.

68. At the same time, Motzki reminds us that the earliest written and extant reference to a particular isnād is not the same as its date of emergence. See Motzki, Harald, Dating Muslim traditions: A Survey, 52 Arabica 204, 240–41 (2005)CrossRefGoogle Scholar. See also Ḥadīth: Origins and Developments xliii (Motzki, Harald ed., Ashgate/Variorum 2004)Google Scholar.

69. Burton writes that “unease remains about acquiescing wholeheartedly in the suggestion that devout and pious men, conscious of the sacred nature of the source materials with which they worked, would engage in a policy of widespread deception and fraud …” Burton, supra note 64, at xvii. He also rejects two of Goldziher's grounds for the wholesale-fabrication thesis, which are substantive variations and the ascription of conflicting statements to the same authorities. While disagreements certainly show up in the hadīth literature, Burton contends that they simply point to legal disagreements among the early Muslims. See id. at x-xi.

70. For reviews of the traditional Muslim perspective on the history of ḥadīth transmission and the discipline of isnād criticism, see the following: Ṣiddīqī, Muhammad Zubayr, Ḥadith Literature: Its Origin, Development and Special Features (Murad, Abdal Hakim ed., Islamic Texts Soc'y 1993)Google Scholar; Kamali, Mohammad Hashim, A Textbook of ḥadith Studies: Authenticity, Compilation, Classification and Criticism of Ḥadīth (Islamic Found. 2005)Google Scholar; Brown, Jonathan, Hadith: Muhammad's Legacy in the Medieval and Modern World (Oneworld 2009)CrossRefGoogle Scholar; and the many works by Muḥammad Muṣṭafa Azamī.

71. “The early common links (the generation of the Companions excluded) were the first major collectors and professional disseminators of knowledge in general, and of traditions about individuals of the first Islamic century in particular.” Motzki, Dating Muslim Traditions, supra note 68, at 227-28; see also his “Introduction,” at xl. His position on the untenability of widespread fabrication of isnāds is based on analyzing various lines of transmission ending in ̀Abd al-Razzaq's Muṣannaf along a number of variables. He concludes,

It seems very improbable that a forger arranging materials in a specific order and labeling them falsely would have produced such highly divergent collections … The investigation of the transmission structures of ̀Abd al-Razzāq's Muṣannaf leads, therefore, to the conclusion that the materials he places under the names of his four main authorities are genuine sources, not the result of fictitious attributions which he has invented himself.

Ḥadīth, supra note 68.

72. Writes Juynboll,

I hold that, in essence, the historicity of the masses of aqwāl [i.e. legal opinions] preserved in the sources … is maintainable. … In all, everything points to the feasibility of the assumption that what we have in the way of aqwāl … may in fact be historically ascribable to the first/seventh century personalities under whose names this category of transmitted material is preserved … [T]hese personalities were known for their fiqh and [their] lives neatly tally with the birth date of the isnād…

Juynboll, supra note 66, at 300-01. Juynboll gives Sàīd b. al-Musayyab (d. 94/713) as an example of a personality whose aqwāl stand a good chance of being authentic. See id. at 288-90.

73. See Burton, supra note 65, at 131. On the idea that the content of ḥadīth might go back even to the time of the Companions, he writes:

Many of the hadiths can be shown to spring from an ancient source in the primitive exegeses. Were that argument accepted, then part of the Ḥadith at least could be said to reach back to the first attempts to understand the Book of God. Such hadiths would preserve some materials on the thinking of Muslims, if not precisely in the age of the Prophet, then very soon after, in what might be called the age of the Qur'an. Id. at 181.

74. Motzki, Harald, The Origns of Islamic Jurisprudence: Meccan Fiqh Before the Classical Schools (Brill 2002)Google Scholar.

75. An excellent overview of the central debates in ḥadīth studies is in Reinhart, A. Kevin, Juynbolliana, Gradualism, the Big Bang, and Ḥadīth Study in the Twenty-First Century, 130 J. Am. Oriental Soc'y 413 (2010)Google Scholar.

76. Burton emphasizes the way in which each generation of legal scholarship built upon the achievements of previous generations, such that the work of foundational jurists such as Mālik and Shāfi'ī represent legacies far more than innovations. Thus, the ḥadīth sources concerning stoning for zinā represent for Burton “a structure of laws that had developed in the period since the Prophet and had been inherited by the generations before Mālik and Shāfìī ḥ Burton, supra note 65, at 88.

Jonathan Brown's conceptualization of the goals of ḥadīth transmission is instructive here: Rather than regarding the goal of transmission as solely historiographical, he suggests that transmitters also regarded their activity as devotional, a means by which one could interpolate oneself into the lines of a received tradition. Brown, Jonathan, The Canonization of al-Bukhārī and Muslim: The Formation and Function of the Sunni Ḥadīth Canon 51, 58 (Brill 2007)CrossRefGoogle Scholar. See generally id. at eh. 3.

77. A parallel approach has been taken by Jonathan Brockopp in his studies on slave law as presented in the Mukhtaṣar of Ibn ̀Abd al-Ḥakam. Brockopp posits arcs of doctrinal development during the formative period of Islamic law—that is, between 10/632 and 150/767—based on a comparison between Qur'ānic legislation and the doctrines found in late 2nd/8th—early 3rd/9th century legal sources. Brockopp, Jonathan E., Early Mālikī Law: Ibn ̀Abd al-Ḥakam and His Major Compendium of Jurisprudence (Brill 2000)Google Scholar.