Series of Answers by the Eminent Scholar Ata bin Khalil Abu al-Rashtah, Ameer of Hizb ut-Tahrir, to Questions from Visitors to his Facebook Page "Fiqhi"
Answer to a Question
To: Ahmed Al-Qayrawan
Question:
Assalamu Alaikum wa Rahmatullah wa Barakatuhu, Sheikh Ata. I have a very important question: Is the ruling of stoning mentioned in the Qur'an or in Sahih Mutawatir Hadiths? I have researched this and do not understand why this ruling is included in the Shari'ah while it is not mentioned in the Qur'an like the rulings for the male and female thief ("cut off their hands") or the female and male fornicator ("lash them..."), etc. Do we follow the Shari'ah and its laws from the Qur'an or from the Hadiths? You might ask me why, for example, the movements of prayer or Wudu are not mentioned in the Qur'an and that not everything is mentioned there... etc. However, this is a final ruling—meaning it is basic like a mathematical rule where 1+1=2. Meaning, every matter found in the Qur'an we judge by, and what is not found there we do not take as a fundamental law. Yes, we can research and perform Ijtihad on the details, and we can take Hadith for the details, but we cannot take the foundation from the Hadith and leave the original source. Thank you.
Answer:
Wa Alaikum Assalam wa Rahmatullah wa Barakatuhu,
First: Regarding what was mentioned in your question: ("every matter found in the Qur'an we judge by, and what is not found there we do not take as a fundamental law"), this is a matter foreign to Islam and the Muslims. A Muslim believes that the Prophet's Sunnah is a Shari'ah evidence exactly like the Noble Qur'an. He believes that what came in the Sunnah is revelation from Allah (swt) and that it is mandatory to follow without differentiating between it and what came in the Noble Qur'an. This has been the position of the Muslims from the time of the noble Sahabah (ra) until this day. We have clarified this issue in the book The Islamic Personality (Ash-Shakhsiyya al-Islamiyya) in the chapters: "The Sunnah is a Shari'ah Evidence like the Qur'an," and "Deducing Evidence from the Sunnah," as well as in The Islamic Personality Volume III in the chapter "The Second Evidence: The Sunnah." Please refer to them, as they are sufficient, Allah willing. I will quote for you what was mentioned in the chapter "The Sunnah is a Shari'ah Evidence like the Qur'an" from The Islamic Personality Volume I:
[The Sunnah is a Shari'ah evidence like the Qur'an, and it is revelation from Allah Almighty. Restricting oneself to the Qur'an and abandoning the Sunnah is clear Kufr, and it is the view of those who have deviated from Islam. As for the Sunnah being revelation from Allah Almighty, this is explicit in the Noble Qur'an. Allah (swt) said:
قُلْ إِنَّمَا أُنذِرُكُم بِالْوَحْيِ
"Say, 'I only warn you by revelation.'" (QS Al-Anbiya [21]: 45)
And He said:
إِن يُوحَى إِلَيَّ إِلَّا أَنَّمَا أَنَا نَذِيرٌ مُّبِينٌ
"It has only been revealed to me that I am a clear warner." (QS Sad [38]: 70)
And He said:
إِنْ أَتَّبِعُ إِلَّا مَا يُوحَى إِلَيَّ
"I only follow that which is revealed to me." (QS Al-Ahqaf [46]: 9)
And He said:
قُلْ إِنَّمَا أَتَّبِعُ مَا يِوحَى إِلَيَّ مِن رَّبِّي
"Say, 'I only follow what is revealed to me from my Lord.'" (QS Al-A'raf [7]: 203)
And He said:
وَمَا يَنطِقُ عَنِ الْهَوَى * إِنْ هُوَ إِلَّا وَحْيٌ يُوحَى
"Nor does he speak from [his own] inclination. It is not but a revelation revealed." (QS An-Najm [53]: 3-4)
These verses are definitive in their transmission (qat'i al-thubut) and definitive in their meaning (qat'i al-dalalah) in restricting what the Messenger brings, warns with, and speaks with, as being issued from revelation; they do not admit any other interpretation. Thus, the Sunnah is revelation like the Qur'an.
As for the Sunnah being mandatory to follow like the Noble Qur'an, this is also explicit in the Qur'an. Allah (swt) said:
وَمَا آتَاكُمُ الرَّسُولُ فَخُذُوهُ وَمَا نَهَاكُمْ عَنْهُ فَانتَهُوا
"And whatever the Messenger has given you - take; and what he has forbidden you - refrain from." (QS Al-Hashr [59]: 7)
And He said:
مَّنْ يُطِعِ الرَّسُولَ فَقَدْ أَطَاعَ اللّهَ
"He who obeys the Messenger has obeyed Allah." (QS An-Nisa [4]: 80)
And He said:
فَلْيَحْذَرِ الَّذِينَ يُخَالِفُونَ عَنْ أَمْرِهِ أَن تُصِيبَهُمْ فِتْنَةٌ أَوْ يُصِيبَهُمْ عَذَابٌ أَلِيمٌ
"So let those beware who dissent from his [the Prophet's] order, lest fitnah strike them or a painful punishment." (QS An-Nur [24]: 63)
And He said:
وَمَا كَانَ لِمُؤْمِنٍ وَلَا مُؤْمِنَةٍ إِذَا قَضَى اللَّهُ وَرَسُولُهُ أَمْراً أَن يَكُونَ لَهُمُ الْخِيَرَةُ مِنْ أَمْرِهِمْ
"It is not for a believing man or a believing woman, when Allah and His Messenger have decided a matter, that they should [thereafter] have any choice about their affair." (QS Al-Ahzab [33]: 36)
And He said:
فَلاَ وَرَبِّكَ لاَ يُؤْمِنُونَ حَتَّىَ يُحَكِّمُوكَ فِيمَا شَجَرَ بَيْنَهُمْ ثُمَّ لاَ يَجِدُواْ فِي أَنفُسِهِمْ حَرَجاً مِّمَّا قَضَيْتَ وَيُسَلِّمُواْ تَسْلِيماً
"But no, by your Lord, they will not [truly] believe until they make you, [O Muhammad], judge concerning that over which they dispute among themselves and then find within themselves no discomfort from what you have judged and submit in [full, willing] submission." (QS An-Nisa [4]: 65)
And He said:
أَطِيعُوا اللَّهَ وَأَطِيعُوا الرَّسُولَ
"Obey Allah and obey the Messenger." (QS An-Nisa [4]: 59)
And He said:
قُلْ إِن كُنتُمْ تُحِبُّونَ اللّهَ فَاتَّبِعُونِي يُحْبِبْكُمُ اللّهُ
"Say, [O Muhammad], 'If you should love Allah, then follow me, [so] Allah will love you.'" (QS Ali 'Imran [3]: 31)
All of this is explicit and clear regarding the obligation of following the Messenger in what he brings, and in considering obedience to him as obedience to Allah (swt).
Therefore, the Qur'an and the Hadith, in terms of the obligation of following what is in them, are both Shari'ah evidences; the Hadith is like the Qur'an in this regard. Because of this, it is not permissible to say "we have the Book of Allah and we take from it," because that implies abandoning the Sunnah. Rather, the Sunnah must be coupled with the Book, and the Hadith must be taken as a Shari'ah evidence just as the Qur'an is taken. It is not permissible for a Muslim to say anything that suggests he suffices with the Qur'an without the Hadith. The Messenger ﷺ warned against this. It was narrated that the Prophet ﷺ said:
«يُوشِكُ أَنْ يَقْعُدَ الرَّجُلُ مِنْكُمْ عَلَى أَرِيكَتِهِ يُحَدِّثُ بِحَدِيثِي، فَيَقُولُ: بَيْنِي وَبَيْنَكُمْ كِتَابُ اللَّهِ، فَمَا وَجَدْنَا فِيهِ حَلَالاً اسْتَحْلَلْنَاهُ، وَمَا وَجَدْنَا فِيهِ حَرَاماً حَرَّمْنَاهُ، وَإِنَّ مَا حَرَّمَ رَسُولُ اللَّهِ كَمَا حَرَّمَ اللَّهُ»
"Soon there will be a man among you sitting on his couch, who when narrated one of my Hadiths, says: 'Between me and you is the Book of Allah; whatever we find in it as Halal we take as Halal, and whatever we find in it as Haram we take as Haram.' Indeed, what the Messenger of Allah has forbidden is just like what Allah has forbidden." (Reported by Al-Hakim and Al-Bayhaqi). In a narration from Jabir, attributed to the Prophet:
«مَنْ بَلَغَهُ عَنِّي حَدِيثٌ فَكَذَّبَ بِهِ، فَقَدْ كَذَّبَ ثَلَاثَةً: اللَّهَ، وَرَسُولَهُ، وَالَّذِي حَدَّثَ بِهِ»
"Whoever receives a Hadith from me and denies it, has denied three: Allah, His Messenger, and the one who narrated it." (Majma' al-Zawa'id from Jabir). Hence, it is an error to say we measure the Qur'an against the Hadith, and if it does not match, we leave it. This leads to abandoning the Hadith if it comes specifying (mukhasis) the Qur'an, qualifying (muqayid) it, or explaining its ambiguous (mufassal li mujmal) parts. This is because it would appear that what the Hadith brought does not match the Qur'an or is not present in it. Examples include Hadiths that attach branches to the root. Many detailed rulings brought by the Hadith were not mentioned in the Qur'an; rather, the Hadith brought them alone. Therefore, the Hadith is not measured against the Qur'an such that what it brings is accepted only if it is in the Qur'an and rejected otherwise. Rather, the matter is that if a Hadith contradicts what is in the Qur'an in a definitive sense (qat'i al-ma'na), then the Hadith is rejected in terms of its content (dirayatan), because its meaning contradicts the Qur'an. An example is what was narrated from Fatima bint Qais that she said:
«طَلَّقَنِي زَوْجِي ثَلَاثاً عَلَى عَهْدِ رَسُولِ اللَّهِ ﷺ فَأَتَيْتُ النَّبِيَّ ﷺ فَلَمْ يَجْعَلْ لِي سُكْنَى، وَلَا نَفَقَةً»
"My husband divorced me three times during the time of the Messenger of Allah ﷺ, so I came to the Prophet ﷺ, and he did not grant me lodging or maintenance." This Hadith is rejected because it contradicts the Qur'an, as it opposes the saying of Allah (swt):
﴿أَسْكِنُوهُنَّ مِنْ حَيْثُ سَكَنتُم مِّن وُجْدِكُمْ﴾
"Lodge them [in a section] of where you dwell out of your means." (QS At-Talaq [65]: 6). In this case, the Hadith is rejected because it contradicts the Qur'an which is definitive in transmission and meaning. However, if the Hadith does not contradict the Qur'an—even if it includes things the Qur'an did not bring or an addition to what is in the Qur'an—then both the Hadith and the Qur'an are taken. It is not said that we suffice with the Qur'an and what is mentioned in it, because Allah ordered both, and belief in both is mandatory.] End of quote from The Islamic Personality Volume I.
It is clear from the above that a Shari'ah ruling is taken from the purified Sunnah just as it is taken from the Noble Qur'an without any difference. It is not necessary for a ruling to be mentioned in the Noble Qur'an for it to be mandatory to follow; rather, the Shari'ah ruling is taken even if the Sunnah alone mentions it. Moreover, the issue of stoning the married fornicator (az-zani al-muhsan) falls under the category of the Sunnah explaining the Qur'an, because the Sunnah explains the Qur'an by specifying its generalities (takhsis 'ammuhu). Stoning the married fornicator is a specification of the generality of the verse that mandates lashing the fornicator, as explained below... It cannot be said that the Sunnah independently established the ruling of stoning because the ruling of stoning is part of the punishment for the fornicator clarified in the Qur'an. That is, the origin of the issue of the fornicator's punishment is clarified in the Qur'an, and the Sunnah came to explain the Qur'an by specifying the generality of the relevant verse, exempting the married fornicator and making his punishment stoning until death. Specifying the general text of the Book with the Sunnah is frequent and not limited to the issue of stoning the married fornicator.
Second: We previously answered on 12 Muharram 1441 AH (11/09/2019) regarding the issue of stoning the married fornicator, and I will quote for you what was mentioned in that answer as it addresses your query:
[You ask about the punishment of the married fornicator: Is it definitive in Islamic Fiqh? Is it from the Hudud (prescribed punishments) or is it from the Ta'zirat (discretionary punishments) as some contemporary scholars claim?
The answer to your question is as follows:
The punishment of stoning the married fornicator until death falls under the category of Shari'ah rulings (ahkam shar'iyya), not under the category of creeds ('aqa'id). Like all other Shari'ah rulings, its evidence does not require being definitive (qat'i) to be acted upon; rather, a preponderance of belief (ghalabat az-zann) is sufficient, as is well known in Usul al-Fiqh (Principles of Jurisprudence). Therefore, it makes no difference whether the evidence for this punishment is definitive or not in terms of implementing it. What matters is that a Shari'ah evidence for it is established. Many authentic Shari'ah evidences have been reported that clarify beyond any doubt that the punishment for the married fornicator is stoning until death, as mentioned below.
It is observed that some contemporary scholars do not follow a correct path in deriving Shari'ah rulings from their evidences. They strive, when searching for a Shari'ah ruling, to keep pace with the modern era and reach opinions that align with the rulings and views prevailing in the world, which Western civilization has imposed on people in the name of international laws and human rights conventions, etc. This is incorrect, because what is required is the ruling of Allah, not just any ruling, nor a ruling that aligns with the prevailing world laws and conventions. It is mandatory to take the Shari'ah ruling as it is from its evidences and make it the subject of application and implementation, and to call for it globally. It is the ruling suitable for all humanity because it is from the Creator of humanity, who knows their affairs, Glory be to Him:
أَلَا يَعْلَمُ مَنْ خَلَقَ وَهُوَ اللَّطِيفُ الْخَبِيرُ
"Does He who created not know, while He is the Subtle, the Acquainted?" (QS Al-Mulk [67]: 14)
أَلَا لَهُ الْخَلْقُ وَالْأَمْرُ تَبَارَكَ اللَّهُ رَبُّ الْعَالَمِينَ
"Unquestionably, His is the creation and the command; blessed is Allah, Lord of the worlds." (QS Al-A'raf [7]: 54)
Therefore, one should not pay attention to the statements of those who strive in their deductions to keep pace with the era and align with Western civilization, whether they do so under the pressure of reality or to please the Western disbelievers.
- The punishment for adultery for the married person (muhsan) is stoning until death, and for the unmarried person, it is one hundred lashes. This punishment falls under the category of Hudud in Islam. We have clarified the rulings of the Hadd for adultery in detail in the book The Penal Code (Nizam al-'Uqubat). I quote for you some of what appeared in the chapter "The Hadd for Adultery":
[Some say the Hadd for the female and male fornicator is one hundred lashes for both the married and unmarried alike, with no difference between them, due to the saying of Allah (swt):
الزَّانِيَةُ وَالزَّانِي فَاجْلِدُوا كُلَّ وَاحِدٍ مِّنْهُمَا مِئَةَ جَلْدَةٍ وَلَا تَأْخُذْكُم بِهِمَا رَأْفَةٌ فِي دِينِ اللَّهِ
"The woman or man found guilty of sexual intercourse - lash each one of them with a hundred lashes, and do not be taken by pity for them in the religion of Allah." (QS An-Nur [24]: 2). They claimed it is not permissible to leave the Book of Allah, which is definitive and certain, for solitary reports (akhbar ahad) where lying is possible, and because this leads to abrogating the Book by the Sunnah, which is not permissible!
However, the general body of scholars from the Sahabah, the Tabi'in, and the scholars of the cities throughout all ages say that the unmarried person is lashed one hundred times, and the married person is stoned until death, because the Messenger ﷺ: "stoned Ma'iz." And because of what was narrated from Jabir bin Abdullah: "That a man committed adultery with a woman, so the Prophet ﷺ ordered him to be lashed the Hadd, then he was informed that the man was married, so he ordered him to be stoned."
Looking at the evidences, we see that the saying of Allah (swt): "The woman or man found guilty of sexual intercourse - lash each one of them with a hundred lashes" is general ('am). The words "the woman" (az-zaniyah) and "the man" (az-zani) are among the expressions of generality, thus including the married and the unmarried. When the Hadith came, which is the saying of the Prophet ﷺ: "Go, O Unays, to the woman of this man, and if she confesses, stone her," and it was established that the Messenger of Allah ﷺ stoned Ma'iz after asking about his marital status (ihsan), and he stoned the Ghamidiyya woman and other authentic Hadiths—then the Hadith specifies the verse. These Hadiths specified this general meaning in the verse to refer to the non-married, and excepted the married from it. Thus, the Hadiths specified this generality and did not abrogate the Qur'an. Specifying the Qur'an with the Sunnah is permissible and occurs in many verses that came as generalities which the Hadith then specified.
The Shari'ah ruling indicated by the Shari'ah evidences—the Book and the Sunnah—is that the punishment for adultery is lashing the non-married one hundred times in accordance with the Book of Allah, and exile for a year in accordance with the Sunnah of the Messenger of Allah. However, exile is permissible, not mandatory, and is left to the Imam; if he wishes, he lashes him and exiles him for a year, and if he wishes, he lashes him and does not exile him. But he is not permitted to exile him without lashing him, because his punishment is lashing. As for the married person, the punishment is stoning until death, in accordance with the Sunnah of the Messenger of Allah ﷺ which specified the Book of Allah. For the married person, it is permissible to combine lashing and stoning—lashing first and then stoning—and it is permissible to restrict the punishment to stoning alone without lashing. However, it is not permissible to restrict the punishment to lashing alone because the mandatory punishment is stoning.
..........
As for the evidence for the punishment of the married person, there are many Hadiths. Abu Hurairah and Zaid bin Khalid narrated that a man from the Bedouins came to the Messenger of Allah ﷺ and said: "O Messenger of Allah, I adjure you by Allah to judge between us according to the Book of Allah." The other opponent, who was more knowledgeable, said: "Yes, judge between us according to the Book of Allah, and permit me to speak." The Messenger of Allah ﷺ said: "Speak." He said: "My son was a hired worker for this man and committed adultery with his wife. I was told that my son must be stoned, so I ransomed him with a hundred sheep and a female slave. Then I asked the people of knowledge, and they informed me that my son must be lashed one hundred times and exiled for a year, and that the wife of this man must be stoned." The Messenger of Allah ﷺ said: "By Him in whose hand is my soul, I will judge between you according to the Book of Allah. The slave and the sheep are to be returned, and your son is to be lashed one hundred times and exiled for a year. And go, O Unays—to a man from Aslam—to the wife of this man, and if she confesses, stone her." He said: "He went to her, she confessed, and the Messenger of Allah ﷺ ordered her to be stoned, and she was." The Messenger ordered the stoning of the married person and did not lash her. Ash-Sha'bi narrated: "That Ali (ra), when he stoned the woman, lashed her on Thursday and stoned her on Friday, and said: 'I lashed her according to the Book of Allah, and I stoned her according to the Sunnah of the Messenger of Allah ﷺ.'" Ubada bin al-Samit narrated that the Messenger of Allah ﷺ said: "Take from me, take from me; Allah has made a way for them. The virgin with the virgin: one hundred lashes and exile for a year. The previously married with the previously married: one hundred lashes and stoning." The Messenger says the punishment for the married is lashing and stoning, and Ali lashes and stones the married. Jabir bin Samura narrated that the Messenger of Allah ﷺ stoned Ma'iz bin Malik and did not mention lashing. In Al-Bukhari, from Sulayman bin Buraydah, that the Prophet ﷺ stoned the Ghamidiyya woman and did not mention lashing. In Muslim, that the Prophet ﷺ ordered a woman from Juhaynah, so her clothes were tied around her, then he ordered her to be stoned, and did not mention lashing. This indicates that the Messenger stoned the married person and did not lash them, and that he said: "The previously married with the previously married: one hundred lashes and stoning," indicating that stoning is mandatory, while lashing is permissible and left to the view of the Khalifah. Lashing was made part of the Hadd for the married along with stoning as a reconciliation between the Hadiths. It cannot be said that the Hadith of Samura—where he ﷺ did not lash Ma'iz but restricted it to stoning—abrogates the Hadith of Ubada bin al-Samit; this cannot be said because it has not been established which Hadith came later. Without proof of which was later, the omission of lashing does not invalidate its ruling or abrogate it. Thus, the lack of proof regarding which Hadith preceded the other negates abrogation, and there is no weightier evidence for one over the other. What came in the Hadith as an addition to stoning is considered a permissible matter, not mandatory, as the mandatory part is stoning, and the Imam has the choice regarding what is additional to reconcile the Hadiths...] End of quote from The Penal Code.
The conclusion: The punishment for the married fornicator is stoning until death. This has been proven by authentic, established evidences from the Sunnah of the Messenger of Allah ﷺ in the two Sahihs and other books of Hadith. It is a punishment that falls under the Hudud and is not from the category of Ta'zir.] End of quote from the previous answer.
In conclusion, you have judged yourself by yourself. You say: ("You might ask me why, for example, the movements of prayer or Wudu are not mentioned in the Qur'an and that not everything is mentioned there... etc. However, this is a final ruling—meaning it is basic like a mathematical rule where 1+1=2. Meaning, every matter found in the Qur'an we judge by, and what is not found there we do not take as a fundamental law. Yes, we can research and perform Ijtihad on the details, and we can take Hadith for the details, but we cannot take the foundation from the Hadith and leave the original source.") Here you permit taking from the Sunnah what explains how to perform prayer and you say this is permissible because it is fixed like 1+1=2! Yet it is no different from deducing evidence from the Sunnah for the married fornicator. In the case of prayer:
﴿وَأَقِيمُوا الصَّلَاةَ﴾
"And establish prayer" (QS Al-Baqarah [2]: 43). This is ambiguous (mujmal), and the Hadiths that clarified the manner of prayer—even if the Mujtahidin differed on the manner of bowing, prostrating, and reciting—these Hadiths are an explanation for the ambiguous. Likewise, the verse:
﴿وَالزَّانِيَةُ وَالزَّانِي﴾
"The female fornicator and the male fornicator" (QS An-Nur [24]: 2). This is general ('am) because the terms "the female fornicator" and "the male fornicator" are general terms. The Hadiths related to the married person specified this generality in which lashing was mentioned, specifying it to the non-married fornicator. So the matter here falls under the category of specifying the general (takhsis al-'am). If you have studied Usul, you will surely find that explaining the ambiguous, specifying the general, and qualifying the absolute (taqyid al-mutlaq), etc., are all categories of the Book and Sunnah that must be used as evidence in their proper Shari'ah manner.
Accordingly, the differentiation between explaining the ambiguous in the case of prayer and specifying the general in the case of adultery is a differentiation that is neither correct nor permissible unless you lack full knowledge of Usul al-Fiqh. I ask Allah (swt) for your guidance to the most upright path and that you exert your effort in understanding Usul al-Fiqh so that the question is within its proper field and not in another context.
I hope the matter has become clear now.
Your brother, Ata bin Khalil Abu al-Rashtah
02 Jumada al-Akhira 1442 AH Corresponding to 15/01/2021 CE
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