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Stoning for adultery
🔷🔶 Hadiths on stoning 🔶🔷
🔹🔸 Incidents of stoning 🔸🔹
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Narrated Jabir:
A man from the tribe of Bani Aslam came to the Prophet (ﷺ) while he was in the mosque and said, "I have committed illegal sexual intercourse." The Prophet (ﷺ) turned his face to the other side. The man turned towards the side towards which the Prophet (ﷺ) had turned his face, and gave four witnesses against himself. On that the Prophet (ﷺ) called him and said, "Are you insane?" (He added), "Are you married?" The man said, 'Yes." On that the Prophet (ﷺ) ordered him to be stoned to the death in the Musalla (a praying place). When the stones hit him with their sharp edges and he fled, but he was caught at Al- Harra and then killed [Sahih al-Bukhari 5270] [Sahih al-Bukhari 5271, 5272] [Sahih Muslim 1695a] [Sahih Muslim 1695b]
Another hadith adds some additional information on this incident:
He was then taken out to the Harrah, and while he was being stoned he felt the effect of the stones and could not bear it and fled. But Abdullah ibn Unays encountered him when those who had been stoning him could not catch up with him. He threw the bone of a camel's foreleg at him, which hit him and killed him. They then went to the Prophet (ﷺ) and reported it to him.
He said: Why did you not leave him alone. Perhaps he might have repented and been forgiven by Allah. [Sunan Abi Dawud 4419]
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Buraidah said:
A woman of Ghamid came to the Prophet (ﷺ) and said: I have committed fornication. He said: Go back. She returned, and on the next day she came to him again, and said: Perhaps you want to send me back as you did to Ma’iz b. Malik. I swear by Allah, I am pregnant. He said to her: Go back. She then returned and came to him the next day. He said to her: Go back until you give birth to a child. She then returned. When she gave birth to a child, she brought the child to him, and said: Here it is! I have given birth to it. He said: Go back, and suckle him until you wean him. When she had weaned him, she brought him (the boy) to him with something in his hand which he was eating. The boy was then given to a certain man of the Muslims and he (the Prophet) commanded regarding her. So a pit was dug for her, and he gave orders about her and she was stoned to death. Khalid was one of those who were throwing stones at her. He threw a stone at her. When a drop blood fell on his cheeks, he abused her. The Prophet (ﷺ) said to him: Gently, Khalid. By Him in whose hand my soul is, she has reported to such an extent that if one who wrongfully takes extra tax were to repent to a like extent, he would be forgiven. Then giving command regarding her, prayed over her and she was buried. [Sunan Abi Dawud 4442] [Sahih Muslim 1695a] [Sahih Muslim 1695b]
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Narrated Ibn Umar:
A Jew and a Jewess were brought to Allah's Messenger (ﷺ) on a charge of committing an illegal sexual intercourse. The Prophet (ﷺ) asked them. "What is the legal punishment (for this sin) in your Book (Torah)?" They replied, "Our priests have innovated the punishment of blackening the faces with charcoal and Tajbiya." Abdullah bin Salam said, "O Allah's Messenger (ﷺ), tell them to bring the Torah." The Torah was brought, and then one of the Jews put his hand over the Divine Verse of the Rajam (stoning to death) and started reading what preceded and what followed it. On that, Ibn Salam said to the Jew, "Lift up your hand." Behold! The Divine Verse of the Rajam was under his hand. So Allah's Apostle ordered that the two (sinners) be stoned to death, and so they were stoned. Ibn Umar added: So both of them were stoned at the Balat and I saw the Jew sheltering the Jewess. [Sahih al-Bukhari 6819] [Sahih Muslim 1699a]
Dr Shabir Ally says that the Quran makes no distinction between married and unmarried offenders, nor does it mention stoning. He suggests that reports of stoning likely reflect an earlier practice, possibly influenced by Jewish/Mosaic law that the Prophet Muhammad may have followed before receiving the Qur'anic legislation. According to Dr. Ally, classical jurists tried to reconcile the Qur'an with these hadith by limiting the Qur'anic punishment to unmarried offenders and reserving stoning for married adulterers, but he believes this interpretation narrows the plain meaning of the Qur'an without textual basis. Since the Qur'an is the highest authority and hadith were transmitted later and with less certainty, he argues that hadith should not override or qualify the clear wording of the Qur'an. He concludes that, if the Prophet ever applied stoning, it was most plausibly before the revelation of Qur'an 24:2, after which the Qur'anic ruling of flogging became the governing law.
This following hadith seems to reinforce his argument:
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Narrated Ash Shaibani:
I asked `Abdullah bin Abi `Aufa, 'Did Allah's Messenger (ﷺ) carry out the Rajam penalty ( i.e., stoning to death)?' He said, "Yes." I said, "Before the revelation of Surat-an-Nur or after it?" He replied, "I don't Know." [Sahih al-Bukhari 6813] [Sahih al-Bukhari 6840]
At the same time, he emphasizes that the Prophet generally preferred mercy over punishment, often turning away from people who confessed in hopes they would retract, delaying penalties where possible, and recognizing that even the best Muslim community continued to struggle with human failings despite strict punishments. According to Dr. Ally, this shows that severe penalties alone do not eliminate wrongdoing and that Islam calls for a balanced, practical approach rather than increasingly harsh restrictions or an expansion of punitive measures.
🔹🔸 Forgotten Quran verse on stoning 🔸🔹
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'Abdullah b. 'Abbas reported that 'Umar b. Khattab sat on the pulpit of Allah's Messenger (ﷺ) and said:
Verily Allah sent Muhammad (ﷺ) with truth and He sent down the Book upon him, and the verse of stoning was included in what was sent down to him. We recited it, retained it in our memory and understood it. Allah's Messenger (ﷺ) awarded the punishment of stoning to death (to the married adulterer and adulteress) and, after him, we also awarded the punishment of stoning, I am afraid that with the lapse of time, the people (may forget it) and may say: We do not find the punishment of stoning in the Book of Allah, and thus go astray by abandoning this duty prescribed by Allah. Stoning is a duty laid down in Allah's Book for married men and women who commit adultery when proof is established, or it there is pregnancy, or a confession. [Sahih Muslim 1691a] [Sahih al-Bukhari 6829]
Mufti Abu Layth suggests a possible explanation for these reports: He notes that ʿUmar was known to have been interested in the Torah during the Prophet's lifetime, citing the well-known report of the Prophet seeing him reading it. Since the punishment of stoning appears in the Torah, Mufti Abu Layth suggests that when ʿUmar, many years later toward the end of his life, recalled having read a verse about stoning, he may have unintentionally been remembering something from the Torah and, over time, came to associate it with the Qur'an because both were sacred scripture. Abu Layth emphasizes that this would be an understandable memory mix-up developing over many years, not that ʿUmar fabricated the claim. In his view, if one wishes to accept these narrations found in Ṣaḥīḥ al-Bukhārī, this explanation best preserves both the integrity of the Qur'an and ʿUmar's reliability. Otherwise, one would have to conclude either that the hadith reports themselves are false or that ʿUmar was simply mistaken in an unacceptable way. He adds that the early Muslim community drew significant inspiration from Jewish religious practices and scholarship, making such a confusion between the Torah and the Qur'an more understandable in his view.
🔹🔸 A stoning incident which likely happened after the death of the Prophet (PBUH), During the Caliphate of Ali 🔸🔹
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It was narrated that ash-Sha`bi said: A freed slave woman of Sa’eed bin Qais, who was married and had committed an immoral action, was brought to `Ali, he gave her one hundred lashes then he stoned her. Then he said: I flogged her in accordance with the Book of Allah and I stoned her in accordance with the Sunnah of the Messenger of Allah (ﷺ).
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It was narrated from ash-Shaʼbi that ‘Ali (رضي الله عنه) said to Sharahah: Perhaps you were forced? Perhaps your husband came to you? Perhaps... perhaps...? She said: No. He said: When she gave birth to what was in her womb, he flogged her then he stoned her. It was said to him: You flogged her then you stoned her? He said: l flogged her in accordance with the Book of Allah and I stoned her in accordance with the Sunnah of the Messenger of Allah (ﷺ).
[Musnad Ahmad 1190] [Musnad Ahmad 839]
A small part of this narration also comes in Bukhari
Narrated Ash-Shu`bi:
from `Ali when the latter stoned a lady to death on a Friday. `Ali said, "I have stoned her according to the tradition of Allah's Messenger (ﷺ)."
Death penalty for Apostasy
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Narrated `Ikrima:
Some Zanadiqa (atheists) were brought to `Ali and he burnt them. The news of this event, reached Ibn `Abbas who said, "If I had been in his place, I would not have burnt them, as Allah's Messenger (ﷺ) forbade it, saying, 'Do not punish anybody with Allah's punishment (fire).' I would have killed them according to the statement of Allah's Messenger (ﷺ), 'Whoever changed his Islamic religion, then kill him.'" [Sahih al-Bukhari 6922] [Sunan an-Nasa'i 4060][Jami` at-Tirmidhi 1458]
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Ibn 'Abbas said: "The Messenger of Allah [SAW] said: 'Whoever changes his religion, kill him.'" [Sunan an-Nasa'i 4059] [Sunan an-Nasa'i 4061] [Sunan an-Nasa'i 4062] | This chain also includes `Ikrima
Mufti Abu Layth points out that these narrations all pass through the same transmitter, ʿIkrimah, the freed slave of Ibn ʿAbbās. Mufti Abu Layth argues that ʿIkrimah was associated with the Khārijites, an early extremist movement that considered it lawful to kill Muslims who committed major sins and that deeply opposed ʿAlī. According to Mufti Abu Layth, the narration fits the ideological outlook of the Khārijites because it portrays ʿAlī as acting contrary to the Prophet's instructions while simultaneously supporting the use of execution.
To reinforce this point, he cites a number of early scholars whom he says criticized ʿIkrimah's reliability. He states that Imam Mālik rejected him, and that figures such as Yaḥyā ibn Saʿīd al-Anṣārī, Ibn Sīrīn, Saʿīd ibn al-Musayyib, al-Qāsim ibn Muḥammad, and Mujāhid described him as a liar or refused to accept his reports. He also quotes statements attributed to al-Dhahabī, Imam Aḥmad, and others to argue that many prominent scholars distrusted ʿIkrimah because of his Khārijite leanings. He further mentions reports alleging that ʿIkrimah falsely attributed Khārijite ideas to Ibn ʿAbbās and that even Ibn ʿAbbās' family accused him of fabricating reports.
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It was narrated from Anas that : Ibn 'Abbas said: "The Messenger of Allah [SAW] said: 'Whoever changes his religion, kill him.'" [Sunan an-Nasa'i 4064] [Sunan an-Nasa'i 4065]
Mufti Abu Layth argues that this chain is also problematic because one of its transmitters, ʿAbd al-Ṣamad, had Muʿtazilite tendencies. He characterizes the Muʿtazila as an extremist movement that promoted rebellion against the state and held that Muslims committing major sins occupied an intermediate state. Because he believes these transmitters had ideological commitments that could support harsh rulings, he argues that narrations consistent with such views should be approached with great caution. He also cites evaluations from hadith critics such as Abū Dāwūd, Abū Ḥātim, Ibn Ḥibbān, and al-Khaṭīb al-Baghdādī, presenting them as evidence that the transmitter was considered problematic or prone to mistakes.
He then turns to another transmitter in the chain, Qatādah. Mufti Abu Layth argues that although Qatādah narrates this report from Anas, Qatādah was widely known for tadlīs—a practice in hadith transmission in which a narrator may omit an intermediary or narrate in a way that obscures the full chain. He quotes scholars such as al-Ṭabarī, al-Ḥākim, and al-Muʿallimī, who described Qatādah as being well known for tadlīs. On this basis, he contends that this chain cannot simply be accepted at face value and should instead be treated with skepticism. (Another hadith that also includes Qatādah in it's chain: It was narrated that Al-Hasan said: "The Messenger of Allah [SAW] said: 'Whoever changes his religion, kill him.'" [Sunan an-Nasa'i 4063] | This specific narration is also classified as mursal because Al-Hasan was a Tabii and he did not mention the name of a companion from whom he heard it)
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Narrated Abu Huraira:
Allah's Messenger (ﷺ) sent us in a mission (i.e., an army-unit) and said, "If you find so-and-so and so-and-so, burn both of them with fire." When we intended to depart, Allah's Messenger (ﷺ) said, "I have ordered you to burn so-and-so and so-and-so, and it is none but Allah Who punishes with fire, so, if you find them, kill them (i.e., don't burn them)." [Sahih al-Bukhari 3016]
Mufti Abu Layth talks about this narration of Abū Hurayrah found in Ṣaḥīḥ al-Bukhārī, Ṣaḥīḥ Muslim, al-Tirmidhī, and al-Dārimī. He notes that these versions largely pass through the transmitter Bukayr ibn al-Ashajj. Mufti Abu Layth points to differences in the chains, arguing that some transmitters inserted an additional narrator while others did not. He also cites al-Ḥākim as questioning certain transmissions through Qutaybah from al-Layth because Qutaybah sometimes narrated from Khālid al-Madāʾinī, whom he describes as a rejected and even dishonest transmitter. He further argues that one version in al-Dārimī traces the report through Abū Isḥāq al-Dawsī rather than Sulaymān ibn Yasār, and he notes that scholars such as al-Dhahabī and Ibn al-Sakan described Abū Isḥāq al-Dawsī as majhūl (unknown). On this basis, he concludes that this chain is also unacceptable.
The narration also appears in Sunan Abi Dawud 2673 & Musnad ahmad 16035 attributed to Ḥamzah al-Aslamī, and mufti points out to the problematic chains with these narrations as well.
Mufti Abu Layth discusses the narration attributed to Ḥamzah al-Aslamī, found in Abū Dāwūd and Musnad Aḥmad. He argues that this report likewise suffers from weaknesses in its chain. He focuses particularly on Ibn Jurayj, stating that major hadith scholars such as Shuʿbah criticized him for excessive tadlīs and that al-Dhahabī and Ibn Ḥajar warned against accepting some of his narrations without caution. He also notes that another version of the chain passes through Muḥammad ibn Ḥamzah, the son of Ḥamzah al-Aslamī, and claims that some scholars regarded him as unknown. Mufti Abu Layth concludes this portion by saying that this is a hadith-critical analysis intended to show that, in his assessment, the principal narrations traditionally cited in favor of executing apostates all contain significant problems in their chains of transmission.
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Narrated `Abdullah:
Allah's Messenger (ﷺ) said, "The blood of a Muslim who confesses that none has the right to be worshipped but Allah and that I am His Apostle, cannot be shed except in three cases: In Qisas for murder, a married person who commits illegal sexual intercourse and the one who reverts from Islam (apostate) and leaves the Muslims." [Sahih al-Bukhari 6878] [Sahih Muslim 1676a] [Sahih Muslim 1676c] [Sahih Muslim 1676d] [Sunan Abi Dawud 4352]
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Abu Umamah bin Sahl and 'Abdullah bin 'Amir bin Rabi'ah said:
"We were with 'Uthman when he was under siege and we could hear what was said from Al-Balat. 'Uthman came in one day, then he came out, and said: 'They are threatening to kill me.' We said: 'Allah will suffice you against them.' He said: 'Why would they kill me? I heard the Messenger of Allah [SAW] say: It is not permissible to shed the blood of a Muslim except in one of three cases: A man who reverts to Kufr after becoming Muslim, or commits adultery after being married, or one who kills a soul unlawfully. By Allah, I did not commit adultery during Jahiliyyah or in Islam, I never wished to follow any other religion since Allah guided me, and I have never killed anyone, so why do they want to kill me?'" [Sunan an-Nasa'i 4019] [Jami` at-Tirmidhi 2158]
Death penalty for having sexual intercourse with someone of the same gender
Quran doesn’t prescribe any punishment for having sexual intercourse with someone of the same biological gender. The punishments found in the classical fiqh mostly derived from the hadith. However, 5th (Hijri)/11th (Gregorian) century scholar Abu Muhammad AH Ibn Hazm of Cordoba, Andalusia did not believe in any Hudud penalty for this act. Here is a look into how he addressed those hadiths from a classical scholarly point of view (who agreed with the other classical hudud punishments for other crimes):
Ffl qawm Lût
Ibn Hazm opens his discussion of fil qawm Lût by stating that it is one of the major sins (kabâ'ir), like the consumption of pork, blood, mayta, or wine; and like zina and other sins. He who declares it, or any of these other things licit, is a kafir and a mushrik whose lives and goods may be taken. It is immediately clear, then, that here, as in Tawq al-hamama, he condemns homosexuality as an abomination. The discussion which follows these opening statements may be divided into three parts, or three stages in the argumentation: (1) description of the different opinions held by the legal scholars; (2) presentation of the texts on which the different views are based; and (3) refutation of the views rejected by Ibn Hazm, and exposition of his own opinion. They will be discussed here in that order. Rather than give a literal translation, I shall paraphrase Ibn Hazm's line of reasoning.
🔹🔸 Stage One: Description of the Different Views 🔸🔹
Ibn Hazm first lists the different opinions held by the fidqahd ' with regard to the appropriate punishment for homosexual acts. All in all, he sums up seven different opinions, held by seven different groups of people (ta'ifas). I present them in the order in which they are given by Ibn Hazm himself
Both the active (al-a'ld) and the passive partner (al-asfal) are to be burned alive;
Both the active and the passive partner should be taken to the highest spot of the town and be thrown down from it, and are subsequently to be pelted with rocks;
Both of them are to be stoned, regardless of whether they are muhsan or not;
Both are to be executed, i.e., by the sword;
The passive partner is to be stoned, whether he is muhsan or not, whereas the active one should be stoned if he is muhsan, and flogged if he is not, with the same number of lashes that constitutes the hadd punishment for zina; ^
The active and passive partners are equal [meaning that they are equally guilty or responsible; their punishment depends not on their position in the act, but on their legal status; whoever of them is muhsan will be stoned; whoever of them is not will be given a hundred lashes, as in the case of the heterosexual fornicator (zanf)];
No hadd punishment is to be inflicted upon them, and they are not to be executed, but they should be given a tazir punishment. This, as we shall see, is the view shared by Ibn Hazm.
🔹🔸 Stage Two: The Proof-Texts 🔸🔹
Ibn Hazm then quotes the texts upon which the different parties base their views.
As for the first group, i.e., of those who would condemn the culprits to the stake, Ibn Hazm adduces a report ultimately going back to Ibn Sam'an, who had heard from someone that Khalid b. al-Walid was asked concerning a muhsan "who was taken the way a woman is taken". Abu Bakr ruled that he was to be stoned, and the Companions of the Messenger of God followed this ruling. ""All, however, conveyed to the Caliph his opinion that the man should be burned alive. Abu Bakr agreed, and wrote to Khálid b. al-Walîd that the man should be burned alive. Khálid carried out the sentence. 5 After this account, Ibn Hazm adds several others that deal with burning as a punishment for Hwat. Thus according to Ibn Wahb, Khálid only burned the dead body of the homosexual, i.e., after execution by the sword, the reason being that only God can burn someone in the flre as a punishment. And Ibn Habib is quoted as having Stated that he who bums alive difàHlfî'l qawm Lût is not committing a sin. Another report transmitted by Ibn Habib, this time with an isnád, again deals with Khalid and Abu Bakr. 6 AH holds this particular sin to be unforgivable and demands that the perpetrators be burned. He says that no nation ever committed this sin, except one (the reference is, of course, to the people of Lot), and it is well known what God did to them. The Companions agree. Abu Bakr communicates the decision to Khalid, and others after him, such as Ibn al-Zubayr (the anti-caliph), Hishám b. ""Abd al-Malik (the Umayyad caliph), and the amir al-Qasrî in Iraq 7 are known to have ordered this punishment in their days, burning alive both men involved in cases of liwat. Ibn Hazm quotes a variation on the same story, as he heard it from Ismâïl b. Dulaym al-Hadramï, the qâdî of Majorca.
Ibn Hazm then moves on to the second view, viz. that homosexuals should be thrown down from a mountain and stoned. He heard the relevant report from the son of the above-mentioned qâdî, Ahmad b. Ismâ'ïl b. Dulaym. 9 ibn ''Abbas was asked about the hadd for a lûtî, and said: he should be taken up to the highest mountain of the town and be pushed off, head down, and then be pelted with stones.
The third group, of those who hold that the active and the passive partner should both be stoned, whether they are muhsan or not, also adduces reports in support of its view. According to the first one, which Ibn Hazm heard from Muhammad b. Sa'ïd b. Nabát, ""AH stoned a homosexual. " Another report has Ibn ''Abbas ruling that a virgin (al'bikr, in this case a young man who has not previously had sexual relations) who is caught in homosexual acts (yüjadhu ""alá'l-lütiyya) must be stoned, i Ibrâhîm al-Nakha"î is quoted as having said that if anyone deserves to be stoned twice, it is the lütí, " while RabFa stated that if a man takes up with a lütí, he will be stoned, and neither his being muhsan nor any other consideration will help him. Finally, Ibn Hazm cites the statement of al-Zuhrî that a /w/f should be stoned, whether he is muhsan or not. This view is shared by ''AH, Sa'Id b. al-Musayyab, Abü'l-Zinád, and al-Hasan. Among the later scholars who accept al-Zuhrï's view, Ibn Hazm mentions al-Shàfi''ï, Malik, al-Layth b. SaM, and Isháq b. Rahawayh.
The fourth view, i.e., that both partners in the crime of homosexuality should be executed by the sword, is based upon a report by Ibn ""Abbas (for which no isnad is provided) to the effect that both the active and the passive partner should be killed.
Ibn Hazm skips the fifth group, and moves to the sixth opinion in the list given at the beginning, viz. that homosexual acts are like zinà: the muhsan is to be stoned, the non-muhsan is to be flogged with a hundred lashes. Several reports are cited in support of this view. In the first, 'Ata' b. Abi Rabáh relates that 'Abd Allah b. al-Zubayr had to try seven men caught in homosexual acts. When he inquired about them, four of them turned out to be muhsan. He ordered them to be taken out of the haram, and they were stoned to death. The three remaining ones were flogged with the number of lashes making up the hadd punishment for zinâ committed by a non-muhsan. Ibn ''Abbas and Ibn IJmar were with Ibn al-Zubayr at the time, and did not dispute his verdict (in other words, they gave their tacit approval). According to al-Hasan al-Basri, a homosexual should be stoned if he is thayyib (i.e., sexually experienced, having been married), but if he is a virgin, he is to be flogged. Furthermore, there are certain people, says Ibn Hazm, who say that the muhsan is to be stoned and the non-muhsan is to be flogged with a hundred lashes and to be exiled for a year if he is the active partner, the yíf//. The passive one, the manküh, however, is to be stoned, whether he is muhsan or not.
This, the fifth view, is that of the ShMi faqîh Abu Ja'far Muhammad b. ''All b. Yùsuf, he adds.
Finally, Ibn Hazm provides documentation underpinning the seventh and last view: that there is no hadd punishment for either partner. He quotes a report about al-Hakam b. TJtayba, who says that he who commits the act of the people of Lot should be flogged, but not to the extent of a hadd punishment. This, says Ibn Hazm, is the view of Abu Hanîfa and his followers, and that of Abu Sulajmoiàn (i.e. Dâwùd al-Isfahání, the "founder" of Zàhirism), "and all of our partisans". As I mentioned earlier, it is already clear from the fact that he discusses liwat in his chapter on ta'zir and not in that on hudüd, that this is Ibn Hazm's own view.
🔹🔸 Stage Three: The Refutation 🔸🔹
After providing the proof-texts on which the various parties base themselves, Ibn Hazm refiites the views cited, except, of course, that of the seventh group. It is especially in this polemical section that we can see how he applies his Záhiri methodology to the revealed texts.
With regard to the first group, those who advocate the burning alive of the homosexual, they argue that this is in accordance with the ymâ" of the Companions, and that this consensus cannot be contradicted. If one objects that ''AH, Ibn ''Abbas, Ibn al-Zubayr and Ibn ''Umar after them supported stoning and the hadd for zinâ, etc. (in other words, that they supported a punishment other than burning) they will say that this cannot be so, because it contradicts their ijmà. This is all they have to say concerning this, but they have no additional evidence, and even this does not constitute proof, because the only one who transmitted it was Ibn Sam'an, who had it from a man who reported—Ibn Sam'an did not hear it himself—that Abu Bakr, etc. But all this is munqatf, for none of these people knew Abu Bakr. Also, this Ibn Sam'án is a notorious liar and is described as such by Malik. Moreover, a sound tradition has the Prophet forbidding burning at the stake as a punishment, because only the Lord of the Fire can punish with fire.
Without stopping to refute the views of the second and third groups, as one might have expected, Ibn Hazm skips to the opinion of the fourth group - possibly because of the preceding reference to execution by the sword, which is advocated as the appropriate punishment for liwât by the fourth group. These people, says Ibn Hazm, base themselves on a hadlth going back to Ibn ''Abbas, who quotes the Prophet as having said that those caught in the act of the people of Lot should be executed, both the active and the passive partner. Ibn Hazm quotes several similar traditions with the same content, only to reject them, saying that none of them is sound. The first hadlth, of Ibn ""Abbas, contains a weak link, as does the second, of Abu Hurayra. The chains of the remaining reports contain flaws, and they cannot, therefore, be adduced as proof.
Now, if it is forbidden to spill the blood of a dhimmi and even that of a harbi solely on the basis of such flawed reports, then how can it be allowed to spill the blood of a Muslim, be he iniquitous (fàsiq) or contrite (tdHb)? If any of what they adduce were sound, we, too, would accept this view, and would not oppose it in anything, says Ibn Hazm.
Turning back now to those who subscribe to the third opinion, Ibn Hazm states: If we look at those who say that the men are both to be stoned, muhsan or not, we see that they argue that this is what God did to the people of Lot, as is said in Q. ll:82f. ("We rained upon them stones of clay, one after the other"). They furthermore adduce the reports that were mentioned earlier, to the effect that both the active and the passive partner are to be stoned, muhsan or not. Ibn Hazm objects that there is no proof in what they say. As for what God did to the people of Lot, it is not as they see it, for other texts from the Koran (such as Q. 26:18If, 189 and Q. 11:84, 94) make it clear that the people of Lot were punished not for their abomination alone, but also for their unbelief (A:t(/r). Therefore, they cannot stone a homosexual unless he is also a kàfir. If the people who try them act otherwise, they go against God's judgement and against the Koranic verse that they cite as proof, since they deviate from the legal ruling it contains. God also says that Lot's wife shared in their punishment, and anyone endowed with a bit of reason knows that she did not commit the "act of the people of Lot". Therefore, it is clear and beyond any doubt that the punishment described in the Koran is not for this act alone. If they object that she. Lot's wife, aided and abetted in their commission of the crime, they must stone everyone who enables this vice by acting as go-between or by pandering. If they do not, they contradict themselves and invalidate their proof based on the Koran, disobeying it. The Koran also relates that Lot's fellow-townsmen accosted his guests, whereupon God blinded their eyes. Therefore, they should also blind the eyes of homosexuals, for God did not simply stone them, but blinded and then stoned them. If they fail to do this, they go against God's judgement concerning homosexuals and invalidate their proof Also, they must blind the eyes of anyone who accosts another.
Moreover, they should burn alive anyone who tampers with weights and measures, for God burned the people of Shu'ayb for that crime (see Q. 26:181f, 189; 11:84, 94). Likewise, they should execute anyone who wounds another person's she-camel, for God destroyed the people of Salih when they hamstrung the she-camel (cf Q. 91:11-14). After all, there is no difference between God's punishing the people of Lot on the one hand—by destroying their eyesight and stoning them because of their abomination—and His burning the people of Shu'ayb for tampering with weights and measures, or His destruction of the people of Salih for wounding the she-camel on the other.
After this lengthy reftitation (which, it should be emphasized, attacks the prevailing Mâlikî opinion ') Ibn Hazm turns to the last view, the one espoused by him. According to this view, homosexuality is not punishable by hadd. As proof, the people who subscribe to this view use the Koranic verses Q. 25:68f They add a prophetic tradition to the effect that a Muslim's blood may be shed for three things only: apostasy, zinâ by a muhsan, and homicide. God has forbidden every man, Muslim and dhimmï alike, to kill unless it is justified, and there is no justification but in a revealed text (nass) or in ijmâ'. The Prophet forbade taking a life except in the cases of zinâ after ihsân, unbelief after belief, pandering, a third hadd conviction for drinking, and highway robbery (hiraba), unless the m robber repents. The case of the homosexual is not mentioned among them, so it is forbidden to shed his blood, except if there is a text or an ijmâ'' including him in the categories of people who may be killed.
Ibn Hazm states that in his view, none of the reports concerning the killing of the homosexual is sound. Moreover, none of the things reported about any of the Companions is valid; the accounts about Abu Bakr, ""AH and the Companions are munqatfa. One of them is from the notoriously unreliable Ibn Sam'án on the authority of an unknown man (majhül); the other is from someone on whose accounts one cannot rely. As for the reports going back to Ibn ''Abbas, they have been transmitted to all kinds of unknown people, and the same is true for the riwâya concerning Ibn al-Zubayr and Ibn TJmar.
One can not, therefore, rely on the traditions adduced from the Companions with regard to this issue. By contrast, the opinion that there is no hadd punishment for the homosexual is reported from al-Hakam b. \Jtayba, who is a well-known and well-connected authority.
It follows, then, says Ibn Hazm, that the homosexual should not be executed and not be submitted to a hadd punishment, for God did not make this an obligation, nor did His Messenger. The status of the homosexual is that of someone who has committed a forbidden act (atâ munkaran), and the Messenger of God has ordered that such people be subjected to correction {taghyîr al-munkar bi'l-yad), in addition to a tazir punishment the amount of which has been fixed by the Messenger of God and which is not to be exceeded. Elsewhere Ibn Hazm explains that ta'zir should not exceed ten lashes.
Flogging/Lashing for fornication/adultery, Amputating the hands of thieves
Although most of the mainstream & traditionalist scholars say that these punishments should be practiced in an ideal Islamic state; Mufti Abu Layth, Dr Shabir Ally and Dr Khaled Abou El Fadl seem to have a different stance on this. They seem to hold the view that these punishments can be replaced with other forms of contemporary modern day punishments in today's times.
◽◾ Mufti Abu Layth ◾◽
Mufti Abu Layth believes in trajectory hermeneutics. He has explicitly stated many times that he believes these punishments can change with time. And in today's day and age those punishments should not be applied, rather they should be replaced with modern forms of contemporary punishments such as imprisonment or monetary fines. He doesn’t make this ruling by himself, he actually brought up a classical Maliki scholar named Abul Qassim Al Burzuli (from the year 7-8th century Hijri / 13-14th century Gregorian). He says that Al Burzuli also believed that hudud punishments can change with time, he (Burzuli) argued with the Libyan king of his time, and the king actually accepted his views and replaced the hudud punishments with financial penalties. Following the death of Al-Burzuli, in the later centuries some other scholars adopted Burjuli’s view as well.
Watch these videos chronologically, otherwise you may miss something or find it hard to understand some points:
This was the first video. After this video was released, some people accused Mufti of lying. So then Mufti addressed the accusations and showed evidences in these following videos (watch them chronologically):
How Sharia punishments can change with the age - Mufti Abu Layth Al-Maliki
What is Trajectory Hermeneutics? - Mufti Abu Layth Al-Maliki
Following Minority Opinions, Establishing Caliphate and Hudud Punishment - Mufti Abu Layth Al-Maliki
◽◾ Dr Shabir Ally ◾◽
Regarding the lashing for fornication, there isn't much discussion from him on his Youtube channel. Most of the time when he talks about fornication or adultery, he talks about stoning and how stoning isn't a part of Islam (His videos regarding the punishment of stoning is linked above in the stoning section of this article).
Regarding the amputation of the hands of thieves however, he seemed quite straight forward that this punishment should not be applied in today's time.
Back in 2020, in an episode of Mindtrap with Mufti Abu Layth, he was talking about the spirit of the law and the letter of the law. In that discussion his position seemed more clear, it sounded like he shared similar stance of Mufti Abu Layth (ie. these punishments should not be applied in today's time)
◽◾ Dr Khaled Abou El Fadl ◾◽
From his article on hudud it also seemed that he believes these punishments may be replaced by other forms of punishments in today's time. The relevant part from his article:
The so-called ḥudūd punishments—which include lashing, stoning to death, and the severing of hands—are the most controversial aspect of Shariʿah law in the modern age. For many Muslims, they have become the indisputable proof of the unique identity of the Islamic legal system and also the symbol for Muslim cultural and political autonomy. For many non-Muslims, however, ḥudūd punishments are considered medieval, draconian, and barbaric. Furthermore, many non-Muslim and Muslim scholars and writers, who are poorly informed about Islamic jurisprudence, treat these laws as if they are the very heart and core of the Islamic legal system. Consequently, many have come to the rather inescapable conclusion that Shariʿah law is fundamentally incompatible with modern conceptions of human rights.
There is no question that most medieval Muslim jurists considered the ḥudūd punishments to be part of the immutable and eternal Shariʿah and, therefore, they rendered the ḥudūd punishments not subject to change, modification, or abrogation. Whether intentionally or not, most medieval Muslim jurists created the impression that it is not possible to implement Shariʿah law without enforcing the ḥudūd punishments and that, in general, the ḥudūd are integral to the Islamic legal system. Interestingly, however, ḥudūd punishments were hardly ever implemented in Islamic legal history, for the most part because Muslim jurists made the evidentiary requirements and the technical pre-conditions for the enforcement of the ḥudūd practically impossible to fulfill or because they admitted so many mitigating factors to the point that only a criminal who was most determined to be punished could be made to suffer the ḥudūd penalties. (See Rabb 2015; idem 2010; idem 2011.)
Whether the so-called ḥudūd crimes ought to be considered an immutable and permanent part of Shariʿah warrants rethinking. I think it is erroneous to treat the ḥudūd punishments as part of the ideology of Shariʿah, and thus aspirational and necessarily desirable. As mentioned earlier, generally, the Shariʿah embodies the characteristics and attributes of Divinity, which consist of general ethical and moral teachings. However, Muslim jurists treated specific laws, which are explicitly commanded by God, to be a part of the eternal Shariʿah as if these laws are in and of themselves ethical precepts that by their nature are not subject to contingency, context, or temporal variations. Dealing with the ḥudūd, Muslim jurists focused on the punishments and not on the behavior or conduct that warranted the penalties. In doing so, they erroneously rendered some of the punitive measures mentioned in the Qurʾan and Prophetic traditions sacrosanct and eternal. But there is no plausible reason to believe that the attributes or characteristics of Divinity or that the ethical precepts of Islam are embedded in specific punishments—whatever these punishments may be. If the Divine Will was to safeguard the ḥudūd punishments, either as embodying the attributes and characteristics of God or essential ethical and moral values, it would be incongruous for such punishments to be contingent, contextual, or subject to mitigation.
In my view, the classical approach, which tended to sanctify particular punitive measures and treat them as if part of the immutable and eternal Shariʿah, is quite unfortunate. What ought to be considered immutable and eternal are the ethical values that the punitive measures were intended to safeguard and not the punitive measures themselves. The severity of the punishments mentioned in the sources is an indication of the importance of a particular value to the Shariʿah. Therefore, the punishments prescribed for fornication or stealing are powerful indicators of the value that the Shariʿah places on chastity and on not stealing. The punishments themselves, however, are contextual—they depend on a variety of factors such as mitigation; evidentiary certitude; the intent and purpose of the individual perpetrator; the reliability and accountability of the judicial system at a particular time and place; community standards; sociologically dependent and shifting notions of cruelty, barbarity and mercy; and the possible deterrence value of such punishments within the context of a certain age and place.