In answer to the video "Top 5 Misconceptions About Islam - Debunked (Merciful Servant)"
The Quran does therefore mention the death penalty for certain transgressions. The question then arises as to why would it omit doing likewise in the context of adultery, which is spoken of in greater length than murder and fasad fil ard?
There are 2 ways to reconcile the ahadith of stoning in the times of the prophet and the caliphs, with the Quran. It is highly possible that the prophet imposed it prior to the revelation of sura nur, as some among the companions wondered
"Narrated Ash-Shaibani: I asked `Abdullah bin Abi `Aufa about the Rajam (stoning somebody to death for committing illegal sexual intercourse). He replied, "The Prophet carried out the penalty of Rajam," I asked, "Was that before or after the revelation of Surat-an-Nur?" He replied, "I do not know".
As no other case of fornication requiring punishment was brought to the prophet until the prophet died, the caliphs afterwards kept practicing stoning based on ijtihad. The cases of stoning in the prophet's lifetime involved married persons and thus the caliphs restricted the words in sura nur to non-married fornicators, who would then be lashed.
Another possibility is that the cases of zina brought to the prophet, and whose details are not completely known, were judged as crimes of widespread corruption/fasad fil ard. The same applies to those cases brought to the caliphs.
The goal of punishments in Islam is to avoid spreading sins and protecting the society as a whole. For example after mentioning the law of retaliation in case of murder, the Quran says that such law is meant to "give life", ie to securize society because it is a powerful deterrent and another means of remaining God-conscious (taqwa) 2:178-9.
Zina in Islam is among the worst sins, due to its vicious ramifications, especially when made public as in the case spoken of in sura 24, hence the 100 lashes. The severity of the punishment for the sin is at the level of its seriousness, and given that severity, a false accusation or an accusation not supported by 4 truthful eyewitnesses results in 80 lashes for the accuser. The woman's testimony in that case has the same value as her accuser's. Both are made to solemnly swear, several times calling God to witness of their truthfulness and ultimately calling for God's curse on oneself in case of lie.
The Bible in contrast gives no benefit of the doubt to the accused wife, who is immediately considered guilty by default and is made to undergo humiliating and strange rituals to prove her innocence Numbers5:11-31. Without forgetting the fact that in Jewish law, women arent even allowed to serve as witnesses in legal matters in a court of law.
In the Quran the accuser who cannot bring forth the evidence required will be considered untrustworthy in court 24:4,33:58. Exception is made for the one who sincerely repents, ie publicly withdraws his false accusation, and mends his ways 24:5. Repentance by the false witness however will not exempt him from physical punishment, which is the victim's legal right and which in addition discourages false testimonies as well as mere circumstantial evidence. The Quran clearly gives the benefit of the doubt to the one on the receiving end of an accusation. The aim is to put a stop to false accusations, slander and gossip. This mechanism makes sure that similar repercussions are returned upon the false accuser, physically and in his/her reputation. When a society allows its members to freely slander one another with no or very little preemptive measures, it potentially causes its own disintegration starting from the nucleus of the family. And none is safe from harm, from the regular citizen to the most respected authority. The Quran, to illustrate, has crystallized an incident involving one of the prophet's wives, falsely slandered to such an extent that it brought turmoil within the prophet's household for a full month, interrupting the normal course of affairs at the level of the state.
Of course, in case one's accusation is true despite the lack of evidence, one is free to divorce the partner, but as basic common sense requires, one is not free to accuse another publicly without strong evidence.
As can be seen the Quran in matters of chastity goes to great extents to protect the integrity of the righteous members of the community and the spread of sexual misbehaviour; first, in the case of real, proven cases, by providing a strong deterrent, ie the 100 lashes (or half in special cases). Second, in the case of calumnies, by providing a mechanism through which the potential accuser can hardly succeed in his/her scheme, risking bigger repercussions on the accuser than the accused. As a linguistic observation, it is worthwhile noting the Quran's eloquent choice of words as it speaks of slander with yarmuna, picturing one being pelted and injured, it omits the accusation altogether. The burden of proof demanded by the Quran in cases of adultery is set at a nearly impossible threshold and as is clarified in the sharia, based on the prophetic guidance, the burden upon Muslim judges in cases of zina is not to seek conviction, but getting the individual to withdraw their confession, since practically speaking, due to the high standard of the testimony required, only confession leads one to be convicted. The Judge then encourages the accused to repent and live righteously, meaning What Jesus did in the NT. When a person came to the prophet confessing his adultery, he was repeatedly ignored so as to to repent and mend his ways
"A man from the tribe of Aslam came to the Prophet and confessed that he had committed an illegal sexual intercourse. The Prophet turned his face away from him till the man bore witness against himself four times. The Prophet said to him, "Are you mad?" He said "No." He said, "Are you married?" He said, "Yes." Then the Prophet ordered that he be stoned to death, and he was stoned to death at the Musalla. When the stones troubled him, he fled, but he was caught and was stoned till he died. The Prophet spoke well of him and offered his funeral prayer".
Prior to delivering the sentence, the prophet tried to mitigate the self conviction so as to find him way out
"Probably you have only kissed (the lady), or winked, or looked at her?" He said, "No, O Allah's Messenger!" The Prophet said, using no euphemism, "Did you have sexual intercourse with her?" The narrator added: At that, (i.e. after his confession) the Prophet ordered that he be stoned (to death)".
The noble prophet is here trying to make him retract his statement so that his judgement is deferred to the hereafter
"and whoever commits something of such sins and Allah screens him, it is up to Allah whether to excuse or punish him".
In a similar case the prophet kept postponing the verdict of an adulteress for 3 years
"There the Ghamidi woman came and said: ‘Allah’s Messenger, I have committed zina (adultery), purify me’ but he turned her away. The next day she said: ‘Allah’s Messenger, why are you turning me away? Perhaps, you turn me away as you turned Ma’iz away. By Allah, I am pregnant.’ He said: ‘Then no (not now), go away until you give birth.’ When she gave birth, she brought the child to him wrapped in a cloth, and said: ‘Here he is, I have given birth.’ He said: ‘Go away and breastfeed him until he is weaned.’ When she had weaned him, she brought the boy to him, with a piece of bread in his hand and said: ‘Here, O Prophet of Allah, I have weaned him, and he is eating food.’ He handed the boy over to one of the Muslim men, then he ordered that a pit be dug for her, up to her chest and he ordered the people to stoned her".
This was the way of the prophet, he prioritized repentance and reform instead of retribution
"While I was with the Prophet a man came and said, "O Allah's Messenger! I have committed a legally punishable sin; please inflict the legal punishment on me'.' The Prophet did not ask him what he had done. Then the time for the prayer became due and the man offered prayer along with the Prophet , and when the Prophet had finished his prayer, the man again got up and said, "O Allah's Messenger! I have committed a legally punishable sin; please inflict the punishment on me according to Allah's Laws." The Prophet said, "Haven't you prayed with us?' He said, "Yes." The Prophet said, "Allah has forgiven your sin." or said, "....your legally punishable sin".
Because four people would have to be eyewitnesses to the adultrous/fornication act, then how could four people possibly see the act unless they were either commiting their lewdness with the intention of being seen by others (pornography, orgies, etc.) or so headless that they were not concerned with whether or not someone sees them. Neither of these two things occur except in societies that have become extremely corrupt in regards to sexual morality. It is to be noted however, that the act of fornication, like all sins, remains unlawful even if hidden from the public
6:120"And abandon outward sin and the inward one; verily those who commit sin soon shall be recompensed with what they used to commit".
As a side note, zina/sex outside the legal bonds, is included as a fahisha but not all fahisha are zina. Fahisha is a broader term that includes anything that is abominable, morally reprehensible, in words or deeds. In 4:15-16 we read of what is to be done in cases of fahisha in general. A woman convicted of fahisha through the testimony of 4 witnesses must be restrained. The Arabic does not entail confinement or imprisonment. She must by all means be prevented from continuing down her course
"until death takes them or Allah makes a path for them".
The "path" being, as said in the following verse, forgiveness and freedom in case of sincere repentance and reform. This is in contrast to the prophet-king David's alleged perpetual and unconditional imprisonment of his unfaithful concubines 2Sam20:3. Should the woman not show any signs of reform and insists in her will to misbehave even during the period of restrainement, then she is to undergo an unspecified physical punishment. That particular point is to be determined according to the judge's discretion, depending on the crime. For example if the fahisha is adultery/zina then the type of punishment is specified in sura 24. In all cases, that punishment is to be interrupted as soon as repentance and a clear will to mend her ways are expressed. Should the punishment not deter her or awaken her conscience, then she is to remain in a life of confinement and occasional physical punishment until she decides to stop, repent and mend her ways. The man who is convicted and his crime testified by 4 witnesses must immediately undergo physical punishment, in contrast to women who are allowed a time of reflexion prior, to be interrupted if sincere repentance and will to reform are expressed.
Among all misdeeds included in "fahisha", only adultery requires public punishment. Adultery, when it is committed in such a way that 4 witnesses are able to testify to it, is an evil with far reaching damaging effects within the society. The guilty is made to face the most pious elements of the community during his punishment. The Quran describes these public witnesses as
"a part of those who have believed".
This symbolically shows the guilty that he or her act is one that threatens all uprightness, goodness in a community. It is interesting to not here the Quran's stress on the righteousness of the witnesses, those who are the least prone to such transgressions, which bellies the idea that the public nature of the punishment is meant as a deterrent to other potential sinners witnessing the culprit being punished. Rather, the idea of undergoing a severe physical punishment coupled with the humiliation of being exposed to the known pious members of the community is the deterrent. The eyewitnesses to the punishment also serve as a lever to control both the judge and the executer. No abusive punishment can this way be inflicted.
The 4 witnesses testimony is speaking of cases of consensual, non-marital sex. Rape is an aggression which isnt subject to the 4 witnesses rule. A woman is fully within her rights to go to the police and expect them to look for evidence such as DNA, finger prints, and other evidence to catch her rapists. Even the scholars that wrongly treat rape as fornication, have moved beyond the 4 witnesses requirements and have accepted these other factors as valid evidences. It is the verse 5:33 which applies to such a case, regardless of whether the aggressor has his way with the victim
"Narrated Wa'il ibn Hujr: When a woman went out in the time of the Prophet for prayer, a man attacked her and overpowered (raped) her. She shouted and he went off, and when a man came by, she said: That (man) did such and such to me. And when a company of the Emigrants came by, she said: That man did such and such to me. They went and seized the man whom they thought had had intercourse with her and brought him to her. She said: Yes, this is he. Then they brought him to the Messenger of Allah. When he (the Prophet) was about to pass sentence, the man who (actually) had assaulted her stood up and said: Messenger of Allah, I am the man who did it to her. He (the Prophet) said to her: Go away, for Allah has forgiven you. But he told the man some good words (AbuDawud said: meaning the man who was seized), and of the man who had had intercourse with her, he said: Stone him to death. He also said: He has repented to such an extent that if the people of Medina had repented similarly, it would have been accepted from them".
The Bible speaks of rape cases, and their consequences. For example if a virgin pledged to another man is raped within city gates, but fails shouting out for help, then both are to be pelted to death. If the aggression occurs out in the field, where nobody would be able to hear her cries regardless, then she is cleared of "tacit consent" and only the rapist is executed Deut22:23-27. As to the case of a single girl, not pledged to any man, then the harsh punishment for the rapist is to pay a sum to the girl's father, marry the girl and never divorce her v27-28! The words in that verse denote coercion by the man, who is now free to keep raping his legitimate wife for the rest of her life. In short, although the Bible clearly mentions rape cases, it fails to prescribe a punishment for the rapist of a single woman who is not pledged to another man.
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