on either view to stipulate that the intercourse be lawful rather than prohibited. Such a stipulation is valid only according to Ibn al-Qāsim’s position and his report from Mālik that prohibited intercourse neither makes remarriage to the former husband lawful nor establishes the status required for stoning.
As for Islam, al-Shāfiʿī and Abū Hanīfa dispute its validity as a condition for stoning to become obligatory. Their evidence is the apparent meaning of the statement of ʿUmar ibn al-Khattāb (may Allah be pleased with him): “Among what was revealed was: ‘The man and woman who have consummated a marriage—stone them without fail,’” and the fact that the Messenger of Allah (peace and blessings be upon him) stoned the two Jews. Neither provides proof for their position. As for ʿUmar ibn al-Khattāb’s statement, it implicitly presupposes the status required for stoning. Although we differ over its meaning, they understand it to mean freedom, whereas we understand it to mean both Islam and freedom. As for the Messenger of Allah (peace and blessings be upon him) stoning the two Jews, he did so according to the ruling of the Torah, not the law of Islam. Thus Ibn ʿUmar (may Allah be pleased with him) said: “The Messenger of Allah (peace and blessings be upon him) stoned the two Jews when the prescribed punishment for Muslims was flogging, and the two Jews were not then under a covenant of protection.” This is as we explained earlier, so the hadith affords them no support.
Evidence supporting Mālik’s position (may Allah have mercy on him) is the report that the Messenger of Allah (peace and blessings be upon him) said: “Whoever associates partners with Allah does not possess the status required for stoning.” If authentic, this is an explicit statement on the very point in dispute. By analogy, the deficiency associated with disbelief is greater than that associated with enslavement, since disbelief is the cause of enslavement. If the deficiency associated with enslavement prevents a person from acquiring the status required for stoning, then that associated with disbelief is all the more deserving of doing so.
There is another consideration: it has been held that disbelievers are not subject to any of the legal prescriptions of Islam, on account of the words of Allah, Mighty and Majestic:
“A man guilty of unlawful intercourse marries only a woman guilty of unlawful intercourse or a polytheistic woman; and a woman guilty of unlawful intercourse is married only by a man guilty of unlawful intercourse or a polytheistic man. This is forbidden to the believers” [al-Nūr: 3].
If, as this verse indicates, unlawful intercourse is not forbidden to disbelievers, how can they rightly be stoned for something that was neither forbidden to them nor something they were commanded to avoid?
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There is no disagreement among the scholars that stoning is obligatory for a person who commits unlawful intercourse when all these conditions are met. Only the renegade Khawārij dissent, and their dissent carries no weight.