free persons rather than slaves. Allah, Mighty and Majestic, says:
“Once they are married, if they commit unlawful intercourse, their punishment is half that prescribed for free women” [al-Nisā: 25].
We also know that the verse refers to those who have not consummated a valid marriage, rather than those who have, because the Prophet’s established words and practice show that the prescribed punishment for an offender who has consummated a valid marriage is stoning, not flogging. Thus, the verse remains in force regarding free men and women who commit unlawful intercourse without having consummated a valid marriage. Al-Shāfiʿī takes the verse as applying generally to disbelievers and Muslims, without excluding slaves or those who have consummated a valid marriage. The literalists, who reject analogical reasoning, do not exclude females from its scope while leaving their male counterparts within it; they therefore prescribe one hundred lashes for a male slave who commits unlawful intercourse and fifty for a female slave. This is rejected by legal principles and refuted by reason. In all the prescribed punishments concerning theft, killing, brigandage, accusations of unlawful intercourse, and unlawful intercourse itself, free males and females are treated alike. The same therefore applies to male and female slaves regarding the punishment for unlawful intercourse, since the male slave shares the characteristic on account of which her punishment was made an exception: enslavement. The proof is that, were she freed, her punishment would become the full punishment. This is clear and presents no difficulty.
Section
Stoning becomes obligatory for an offender who commits unlawful intercourse when five conditions are met: being an adult, sane, free, Muslim, and having had lawful intercourse within a valid, binding marriage in which neither party retains an option of annulment, after the other four conditions have been met.
As for adulthood and sanity, there is no disagreement that they are valid conditions for stoning and flogging to become obligatory, because the Messenger of Allah (peace and blessings be upon him) said: “The pen is lifted from three: the insane person until he recovers, the child until he reaches puberty, and the sleeper until he awakens.” Likewise, I know of no disagreement among the jurists of the major centres of learning that freedom is a valid condition for stoning in particular to become obligatory. The same applies to intercourse within a valid marriage. As for our stipulation that the intercourse must be lawful rather than prohibited, the disagreement concerning this in the positions of Mālik and his companions is well known. Ibn al-Mājishūn held that prohibited intercourse within a valid marriage makes remarriage to the former husband lawful and establishes the marital status required for stoning. It is also reported from Mālik that it establishes the marital status required for stoning but does not make remarriage lawful. It is therefore incorrect