his son one hundred lashes and banished him for a year.” Women and slaves are not subject to banishment. This is the position of Mālik and all his companions, contrary to Abū Hanīfa, who held that a person who commits unlawful intercourse is not banished unless the ruler considers it appropriate, in which case he imposes it as a discretionary punishment, not as a prescribed punishment. Those who hold this view argue that Allah says:
“As for the woman and the man who commit unlawful intercourse, flog each of them with one hundred lashes” [al-Nūr: 2].
He did not mention banishment, so establishing it would constitute an addition to the text. An addition to the text constitutes abrogation, and the Quran cannot validly be abrogated by solitary reports. However, it cannot be conceded that every addition to a text constitutes abrogation. Rather, it establishes a separate ruling if it does not alter the original ruling. Banishment is established by the Sunnah, whereas flogging is established by the Quran.
Al-Shāfiʿī held that a free woman is to be banished, because the Messenger of Allah (peace and blessings be upon him) said: “For a previously unmarried man and woman, one hundred lashes and a year’s banishment.” He held two opinions concerning female and male slaves: according to one, they are not banished; according to the other, they are banished, because Allah Most High says:
“If they commit unlawful intercourse, their punishment shall be half that of free women.”
The wording is general. Moreover, this is a prescribed punishment that can be divided, so slaves are subject to a share of it.
Our evidence that women are exempt from banishment is his statement: “A woman must not travel a day and a night’s journey unless accompanied by a male relative whom she is permanently forbidden to marry.” As for the slave’s exemption, Allah Most High says:
“As for the woman and the man who commit unlawful intercourse, flog each of them with one hundred lashes” [al-Nūr: 2].
He also says:
“Once they are married, if they commit unlawful intercourse, their punishment shall be half that of free women” [al-Nisāʾ: 25].
He did not mention banishment, so we establish it only where there is evidence for it. This is also supported by the apparent meaning of the Prophet’s words (peace and blessings be upon him) concerning a slave woman: “If she commits unlawful intercourse, flog her; then, if she commits unlawful intercourse, flog her.” He repeated flogging, but not banishment. Flogging is known to be among the prescribed punishments for unlawful intercourse, so banishment would have had even greater reason to be mentioned had it been obligatory. Furthermore, a slave’s service is his master’s due, and that right cannot be overridden without evidence.
According to Ibn al-Qāsim’s position and his transmission from Mālik, banishment means being imprisoned outside one’s own locality for a year. According to Mutarrif’s position, which he also transmitted from Mālik, it means imprisonment without exile.
Section
Whether a free man commits unlawful intercourse with a free woman, a male slave with a female slave, a free man with a female slave, or a male slave with a free woman, whichever of them is enslaved receives the prescribed punishment for slaves, and whichever is free receives the prescribed punishment for free persons. The exception is the view reported from al-Awzāʿī that a male slave who commits unlawful intercourse with a free woman is stoned, whereas one who does so with a female slave is flogged. This is untenable, because one who commits unlawful intercourse does not