“Stoning” in Iran’s Islamic Penal Code and Its Jurisprudential and Legal Foundations in Islam/Amene Abyar

Monitoring and activities of international and national organizations: Throughout the history of the despotic rule of the Islamic Republic of Iran, official international organizations have undertaken many activities and monitoring efforts to curb Iran’s oppressive judicial apparatus, yet unfortunately, due to the absence of enforcement mechanisms, these organizations’ monitoring has been unable to compel Iran’s system to respect human rights. Most of the activities of these organizations, both foreign and domestic, have been without result, and as long as these human rights organizations do not find and possess enforcement mechanisms to obligate their members to implement and respect human rights principles, we will make no progress in restraining despotic and oppressive systems like the Islamic Republic of Iran’s government from respecting human rights.

Amnesty International – a human rights advocacy group – in October 2006 issued a press statement demanding that the Iranian government remove stoning from Iran’s criminal laws. Coinciding with the issuance of this statement, an Iranian parliamentary delegation traveled to Brussels to meet with the Women and Gender Equality Committee of the European Parliament. Elham Aminzadeh, deputy chair of the Foreign Relations Committee of Iran’s National Security Commission, said to ISNA news agency in this regard: “The legitimacy of this European parliamentary committee is the Internet and Amnesty International, which is not a source for us.”(1)

According to Amnesty International statistics, 77 cases of stoning have been recorded since the beginning of the despotic rule of the Islamic Republic of Iran, and it is clear that due to the news and security censorship prevailing in Iran and the lack of real information, the number of those stoned is higher than this.(2)

1- ISNA news agency, dated October 2006
2- The first case of stoning in Iran after the 1979 Revolution occurred in June 1980 in the city of Kerman by stoning a man and woman to death.

The contradiction between the Islamic Republic of Iran’s claimed membership in international human rights organizations and the regime’s despotic and life-denying actions:

This has been obvious throughout the decades of the despotic rule of the Islamic Republic of Iran; a regime that, despite membership in human rights and humanitarian organizations, acts contrary to human rights and always denies its oppressive actions and lies – a subject that itself requires separate detailed reporting in this article that would extend to volumes. However, for brevity, we will refer to the regime’s non-committal membership in several basic human rights organizations:

• Iran’s membership in Amnesty International and its emphasis on member governments’ commitment to human rights obligations
• Iran’s membership in the International Covenant on Civil and Political Rights (ICCPR) and this covenant’s emphasis on not executing and not taking life-denying actions, prohibition of torture, and cruel, inhuman and degrading treatment and punishment
• Iran’s membership in the United Nations – Human Rights Commission; an organization that has demanded that capital punishment for crimes be limited only to the most serious crimes! These crimes are defined in UN resolutions and it adds that the death penalty should be an exceptional measure

Part Two

Jurisprudential examination of the crime of adultery with the punishment of stoning (rajm/stoning to death):

What can be understood from interpretations (hermeneutics) of religious texts and religion is that religion came through its messengers to free humanity from the chains and shackles (superstitious customs, oppressive and degrading laws and morals) that had been placed on the hands and feet of weak people. (Verse 157, Surah Al-A’raf)

And since this is the program of religion, confirmation of this important matter has come in all religions and has always followed the method of commanding good deeds and forbidding evil deeds in programs of eliminating ignorance and breaking chains in primitive and oppressed societies. To bring minds closer to the subject, we will briefly point out passing examples of these chains in intellectual and social forms such as intellectual superstitions, backwardness, discrimination and class exploitation, etc.:

• Enslavement and slave buying
• Tearing a part of a garment that has become unclean or a part of a defiled body in primitive peoples
• Blood revenge and retaliation in all cases of murder, whether intentional or accidental, whether the perpetrator is insane or sound
• Cutting off the hands of thieves or, in case of non-payment of compensation and fines and recovery of property and obtaining a pledge through oath that they will not steal again, throwing them into the Nile River to be eaten by crocodiles (Ancient Egypt)
• Throwing an adulterous woman into the Nile River to be eaten by crocodiles and striking the adulterous man with one hundred lashes
• Execution for tomb and cemetery grave robbers
• Execution of the criminal’s family and confiscation of his property and his family and companions’ property, such as the punishment of Achan among the Israelites (time of Joshua)
• Suffocating and killing the wives and children of the deceased and burying them together so that life could continue together in the afterlife

And other superstitious, oppressive and degrading punishments and laws that extend throughout the breadth of human social history and across all nations and peoples in all continents on Earth, the mention of which requires a separate topic.

• Stoning of adulterers in particular and some other crimes in general

These intellectual-moral chains of societies were proportional to the intellectual development of humanity, unfortunately even until centuries after the birth of Christ (595 CE), barbaric punishments were imposed and even continued until the eighteenth century. Again, to prepare and bring minds closer to examine the religious foundations of stoning, it is necessary to refer to this period; Pope Gregory the First, for example, recommended the following punishments to death for the following crimes:

• Punishment of being eaten by a wheel for pride
• Punishment of throwing in icy water for envy
• Punishment of feeding rats, hedgehogs and snakes for greed and avarice
• Punishment of throwing in fire for lust
• Punishment of burning by fire for sorcerers (alchemists and scientists) to such an extent that even Protestants between the 15th and 18th centuries burned hundreds of thousands of women as witches alive in Europe
• Punishment of being torn to pieces alive for anger
• Punishment of throwing into a snake pit for laziness
• Punishment of fitting an iron muzzle for women who talked too much

Death penalty by drowning, hanging and placing under stone for sorcerers (year 1692) in the Massachusetts Bay area on the east coast of America only because of “dreaming” against the accused.

Historical background of the punishment of stoning (rajm/stoning to death) in other and ancient religious texts:

• In the Sumerian tablets more than 7000 years ago it says: “…and a woman who has had intercourse with two men should be stoned.” (Alireza Bahmani – History of Stoning)
• In the Code of Hammurabi approximately 4000 years ago, there is reference to the punishment of drowning an adulteress woman.
• The ruling of stoning in the Torah of the Jews is clearly stated and for many crimes such as sorcery, blasphemy and idolatry in general and adultery in particular, the punishment of stoning is mentioned. (The Arabic Torah – p. 217 – Chapter 22)
• The ruling of stoning in the Bible, since Christ did not bring a new law and was the executor, preacher and supporter of the law of Moses, the Prophet of the Israelites, therefore they acted according to the previous law on this ruling (stoning), and the story of that Pharisee woman and her stoning and being stoned by the Pharisees and the reporting of it in the Bible is famous and documented.
• Stoning and stoning in Islam (this section of the article attempts to examine its jurisprudential foundations) has no jurisprudential basis and evidence to be mentioned, and there is no mention of this heinous and terrible punishment in the Quran.
• Stoning and stoning in the later and contemporary period of human society is also referred to in the first section of this article as it should be and is related to the individual despotic system of Iran’s clergy among all systems believing in stoning, and it is clear that its repetition in this section is beyond the scope.

The argument and citation of Iran’s judicial system for the jurisprudential and legal nature of the punishment of stoning to death for adultery!

• Reference to the alleged verse of stoning that does not exist in the Quran:

A. “The old man and the old woman, if they commit adultery, stone them certainly as a punishment from Allah, and Allah is Mighty, Wise.”

B. “The old man and the old woman, if they commit adultery, stone them, for they have satisfied their lust!”

• Reference to hadiths that perhaps reported incidents of execution of stoning, such as the hadith of “Ma’iz ibn Malik” and “Al-Ghamidiyyah” and “Al-‘Asif.”
• That the verse of Light, verse (2), is not a repealing verse of the alleged verse of stoning but rather a specifying verse. Because with the coming of the verse of Light, the punishment of lashing actually repealed any previous ruling, but they consider this repeal to be specification, meaning that lashing is for those without spouses and stoning to death is for married adulterers!

Refutation of the arguments and citations of Iran’s judicial system on the punishment of stoning for adultery:

To refute it, we must refer to sufficient evidence, but since sufficient evidence is usually lengthy and tedious, we were forced to preserve the scientific framework of this discussion, we mention the essence and result of “conflicting opinions” and as far as possible avoid presenting details of “it is said and it is said” that make the text long and tedious, but to remedy this deficiency, an effort has been made to mention the source and basis of the argument so that the reader, if they wish detailed explanations, can follow and pursue it.

A. Refutation of the alleged verse of stoning in the Quran:

1- The claim of the verse of stoning contradicts the subject of the preservation of the Quran on the part of God, which says We have revealed the Quran and We will certainly preserve and protect it well and correctly. (Verse 9, Surah Al-Hijr)

Of course, the Mu’tazilites and followers of the system (with emphasis on the z and opening of the n 160/231 AH) among the students of Hisham ibn al-Hakam also consider the non-mention of it in the Quran as evidence for the illegality of stoning, knowing that they believe in specification and restriction of the Quran through hadiths and not its abrogation.

2- Ali (may God be pleased with him) in a hadith differentiated stoning from lashing and did not attribute it to the Quran (Sahih Bukhari – Volume 8 – Book 82 – Number 803), and the Kharijites of Ali’s time did not accept stoning either, and even now all their jurisprudential schools such as Ibadiyyah and others do not consider stoning an Islamic ruling, so they denied stoning (Sheikh al-Islam Fakhr al-Din al-Razi). Their argument was that the punishment of stoning does not appear in the apparent text of the Quran and in the mutawatir Sunnah of the Prophet, stoning does not exist.

• Eloquent speakers and rhetoric experts of Quranic literature, as interpreters and hermeneutists, consider the context and phrasing of the alleged verse of stoning to be very simple and fabricated, because the “fa” of consequence in “farjumuhuma” (stone them) comes without a rhetorical and literary reason, because when conditional particles are mentioned, the “fa” of consequence does not come, and when a condition comes without a visible particle but understood “fa” of consequence comes, such as:

“The fornicatress and the fornicator, flog each of them a hundred stripes…” (Verse 2, Surah Al-Nur)(1) Therefore, the context of the alleged verse of stoning does not read with eloquence and rhetoric, and is evidence of the fabrication of the statement.

• The verses of the Quran as revealed revelation had reporters and writers who documented it, and to prevent its being altered like previous religions, there were more than hundreds of Quran memorizers, as there are now, and none of these forgotten verses were either memorized or recited.
• From a legal perspective as well, it does not harmonize with other different jurisprudential rulings, because with the condition of old age and old age mentioned in the alleged verse of stoning, an adulterer under any other conditions (other than old age) is also stoned.

B) Refutation of hadiths such as the hadith of “Ma’iz ibn Malik” and “Al-Ghamidiyyah” and “Al-‘Asif” that report incidents of stoning, and these three hadiths are among a total of ten hadiths concerning stoning. (Of course, the hadiths of stoning are numerous, but their narrative roots reach ten hadiths)(1)

1- These hadiths, setting aside the matter of narrative discussion and its chain, if we were to consider them correct on the basis of their own narrative principles as a matter of accommodation, the problem remains with the hadith of Al-‘Asif, whose narrator, Al-Zuhri, is one of the successors (Tabi’in), and he is the only successor who narrates it and no one else in his generation narrates this hadith, and since he is unique and alone in narrating it, the hadith is cast out from correctness and authenticity, and all hadiths after these ten hadiths are all related to other generations narrated through isolated reports (one chain of narrators from narration not multiple chains of narrators simultaneously). The hadith in this generation (Tabi’in) is unique, and a unique hadith is not acceptable among hadith scholars.

2- Furthermore, we have hadiths like the methods of proving hadiths of stoning (stoning to death) that the Prophet in certain incidents did not stone and executed the punishment of lashing and whipping, such as a hadith narrated by Malik from Zayd ibn Aslam that a man confessed to adultery against himself and the Prophet, after raising objections so that the punishment would not be executed, was forced to execute the punishment and at his command the man was whipped. And that too was whipping that did not cause wounds, did not tear the skin, the hand of the one striking the whip did not come out from under his armpit, was not consecutive (between the strokes) with a whip neither severe nor light (between the whips)!

3- And more important than this hadith, i.e., the Sunnah, and the Sunnah can be abrogated by the Quran just as many of the Prophet’s ijtihads were abrogated after the revelation of the verse of abrogation, such as not taking captives during war (the incident of the Battle of Badr and the Prophet’s ijtihad on taking captives) and changing the direction of prayer from Jerusalem (Bait al-Maqdis) to the Kaaba after the Prophet prayed toward Jerusalem for 16 years. And likewise, stoning was abrogated by verse 2 of Surah Al-Nur, which replaced stoning with lashing.

4- Conversely, verses are not abrogated by the Sunnah as a principle, even though its permissibility is among some jurists, and it is not essentially abrogation but specification, and in reality, we do not have an incident in the period of execution of religious rulings where the Sunnah abrogates the Quran.

5- Al-Shaybani reports that I asked Abdullah ibn Ja’far, “Did the Messenger of Allah carry out the punishment of stoning?” He answered, “Yes.” I asked, “Before the revelation of Surah Al-Nur or after it?” He answered, “I don’t know.” (Sahih Bukhari, Volume 8, Book 82, Number 804)

6- The mere mention of stoning as part of common narrations of both parties and also in hadith collections without paying attention to the characteristics of narration – does not give credibility to it; because there are many rare, anomalous, unfamiliar, weak, unknown and false hadiths that are mentioned among common narrations and hadith collections; this is customary and clear among hadith scholars that hadiths are distinguished as correct from incorrect through the tools and rules of “ta’dil and jarh” (authentication and criticism of hadiths).

C) Refutation that the verse of Light is a specification of the alleged verse of stoning:

1- The fact that the alleged verse of stoning, based on the evidence previously mentioned, has no external existence, and for the same reason, the claim of the preservation of the Quran by God and the existence of a verse with recitation abrogated and the ruling remaining, and a ruling so heinous, terrible and unholy, does not read well with the statement of preservation and protection of the Quran.

2- Therefore, the reasoning of Iran’s judicial system descends to the same level of Sunnah and hadith, and in the reality of the period of execution of religious rulings, we do not have an incident where Sunnah and hadith have abrogated the Quran. Yes, among “the Hanafis,” mutawatir Sunnah specifies verses and specification is clearly not abrogation.

3- Surah Al-Nur, verse 2, “flog the fornicatress and the fornicator with one hundred stripes each” abrogated the previous Sunnah just as the Quran essentially came to abrogate intellectual, superstitious and moral chains of societies, but gradually in establishing revolutionary laws and abrogating rigid and reactionary laws took place gradually and stage by stage. Even the basis for establishing circumstantial and gradual laws is observed in the narration of “Barsisa” the Jew living in Fadak. When the Prophet asked two Jews about the ruling of punishment for fornicators and committed them to answer correctly and they answered: yes, the ruling of stoning to death was in the Torah, but when in the execution of the ruling among two similar accused, different in conditions (rich and poor), a difference arose, they had changed it to lashing and for their disgrace, they paraded them in the city.

Note: Even in the later period of the Jews before Christ, the basis for gradual change of this ruling had preceded, and in Islam it was definitively abrogated by verse 2 of Surah Al-Nur and this is the famous method of religions in changing the intellectual-moral chains of human societies. But this striking example of “establishing gradual laws in religions” is itself an important matter worthy of careful examination in the field of law.

Source: Hrana