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Article 340 of the Jordan Penal Code, reads
in part, “Anyone catching his wife or one of his immediate family in a
flagrant act of fornication with another person, and kills, injures or
harms both or either of them, will benefit from the exculpating
excuse…” In response to recent moves by King Abdullah II of Jordan to
eliminate this part of the code, one “Islamic” group responded,
“those who are voicing their concern for the lives of a group of women,
they ought to show concern for their lives as chaste women with their
honor protected, otherwise, what is life worth for a woman who profaned
her honor and stained the reputation of everyone related to her? Who would
repair the moral damage that she has inflicted upon her family? Her
killing would probably be a salvation for her from the misery of living
with her sin.” This response outraged many Muslims. For
that reason, I decided to research the Islamic ruling on the matter of
“honor killings”, which are usually applied one-sidedly to women, but
rarely if ever to men. Here is a traditionalist ruling on this
matter according to the principles (usul) of fiqh of the scholars, based
on the evidences from Quran, hadith, consensus (ijma`a) and analogy (qiyas).
I have taken excerpts from Al-Istidhkar[i] by Ibn ‘Abd al-Barr. Abu
‘Umar Yusuf b. ‘Abdallah b. Muhammad Ibn ‘Abd al-Barr, may Allah
have mercy upon him and upon us, a well-known Maliki scholar of Qurtuba
(Andalusia in present-day Spain) who died in the last half of the fifth
century of the glorious hijra. He
was a faqih (jurist), a historian, and a muhaddith (scholar of Prophetic
Traditions), although he is more famous as a muhaddith than as a faqih.
His Istidhkar is one of two massive commentaries the author wrote
on the Muwatta` of Imam Ahl al-Madina, Malik b. Anas, may Allah be
well-pleased with him. While
the other work – al-Tamhid – is primarily a work of hadith, al-Istidhkar
is a veritable encyclopedia of the legal opinions (fiqh) of the early
scholars of Islam. Chapter: "The Legal Ruling (qada`)
Regarding One Who Discovers a [non-Mahrim] Man With His Wife" This hadith includes the following legal
principles: The prohibition against applying a legal penalty without legal
authority (bi ghayri sultan) and without witnesses; cutting off the means
to shedding the blood of a Muslim based merely upon the claim of his
accuser, the one seeking the shedding of the accused's blood.
[In this case] the truth of the claim would be known only by [the
accuser's] own statement and Allah, may He be glorified and sanctified,
has made the life of a Muslim a precious thing, and has made the sin in
taking it great as well. Therefore,
it [legal punishment] is permissible only under the conditions in which
Allah has permitted it. [Application
of legal punishments] is exclusively for the government so that it may
apply that which Allah has commanded in His book or on the tongue of His
Prophet (S). Malik followed that hadith with an opinion
of ‘Ali [b. Abi Talib], may Allah be well-pleased with him, which
clarifies the rule. Malik narrated from Sa'id b. Yahya from
Sa'id b. al-Musayyib that "A man from Syria, with the name of Ibn
Khaybari, discovered a man with his wife so he killed him, or both of
them. Mu'awiya b. Abi Sufyan was unsure of how to rule in his case,
so he wrote a letter to Abu Musa al-Ash'ari, asking him to ask 'Ali b. Abi
Talib about that [case]. So
he asked 'Ali about it, and 'Ali told him, 'This is not a case in my
domain. I beseech you to tell
me [its circumstances].' Abu
Musa al-Ash'ari said: ‘Mu'awiya b. Abi Sufyan wrote me a letter
directing me to ask you this question.’
Ali said, 'I am Abu Hasan -- if he [Ibn Khaybari] does not produce
four witnesses, let him be given with a rope [to the relatives of the
deceased]." Ibn Jurayj, Ma'mar, and al-Thawri, reported
it, or its near equivalent, from Yahya b. Sa'id from Sai'd b. al-Musayyib. Ibn 'Abd al-Barr said: It means, according
to him, that he [Mu’awiya] should deliver him [Ibn Khaybari] with a rope
around his neck to the relatives of the victim so that they may take qisas
against him. It was also said
that he meant that [Mu’awiya] should deliver him [Ibn Khaybari] with a
rope around his neck to the relatives of the victim so that they may take
qisas against him unless he produces four witnesses to an act of adultery
whose obligatory punishment is stoning [ii]. . . . . .The bulk of jurists in the townships,
the people of opinion and the people of transmitted knowledge[iii] concur
in the opinion of ‘Ali, may Allah be well-pleased with him, bountiful
praise to Allah. ‘Abd al-Razzaq mentioned from Ma’mar
from al-Zuhri, who said: “A man asked the Prophet, may Allah grant him
abundant blessings and peace, saying ‘A man discovers another man with
his wife; shall he kill him?’ The
Prophet, may Allah grant him abundant blessings and peace, said, ‘No,
not without proof.’” Abu Bakr b. Abi Shayba said: "‘Abda
b. ‘Asim told me from al-Hasan, that he said, ‘Punishments are [the
responsibility] of the government.” A similar [opinion] is attributed to Ibn Muhayriz, ‘Ata` al-Khurasani, and ‘Umar b. 'Abd al-'Aziz, and there is no disagreement on this point. Conclusion NOTES [i] Al-Istidhkar al-jami’ li-madhahib
fuqaha` al-amsar, Beirut, Mu`assasat al-risala, 1414/1993, Vol. 22, pp.
149-54 [ii] “al-zina al-mujib li-l-rajm.” While in the case of Ibn Khaybari, it appears that his wife
would have been subject to rajm if he could prove his accusations, it is
possible that a legal impediment would have prevented her from being
subject to this punishment. The
more general point is that not all acts of adultery, zina, are punished by
rajm. Thus, even if someone
were to have four witnesses to the act, but the adulterers were not muhsan,
because they had never been married, for example, this defense would be
inapplicable, wa allahu a’lam. [iii]“wa ‘ala qawli ‘ali radiya
allahu ‘anhu jama’at fuqaha` al-amsar wa ahl al-ra`y wa al-athar.” In addition to the narrow legal rule
discussed by Ibn ‘Abd al-Barr in this context, there is a great lesson
to Muslims regarding cooperation to further righteousness (al-ta’awun
‘ala al-birr wa-l-taqwa), even among foes.
As is well-known, Mu’awiya, may Allah be well-pleased with him,
and ‘Ali, may Allah ennoble his countenance, were engaged in a bitter
dispute regarding the proper course of conduct to be pursued against those
who murdered our master, ‘Uthman b. ‘Affan.
Indeed, Mu’awiya refused to give bay’a (allegiance) to our
master ‘Ali as a result of this disagreement, which eventually led to
armed conflict between the two. Nevertheless, Mu’awiya, when faced with a problem for which
he did not know the answer, wrote to the man with whom he was involved in
a bitter political dispute, because he knew that Rasulallah, may Allah
grant him abundant blessings and peace, had described ‘Ali b. Abi Talib
as “the most learned of you in giving legal judgment (“inna aqdakum
‘ali).” Likewise, ‘Ali
did not hesitate in giving Mu’wiya sincere advice (nasiha) when he
asked, although he no doubt considered his wilaya over Syria at that time
to be an act of rebellion against his rule. I ask Allah subhanahu wa ta’ala to grant us from His mercy the akhlaq of the Salaf as exemplified in this report. Mohammed Fadel is an American-Muslim of Egyptian origin with a Ph.D. in Near Eastern Languages from the University of Chicago, dissertation in Islamic law, and a J.D. from the University of Virginia. Source: The
Islamic Supreme Council of America & The Muslim Magazine |