the previously married, the Muslims are unanimously agreed that their prescribed penalty is stoning, save for a small heterodox sect who held that every adulterer is to be flogged. The majority embraced stoning because the ḥadīths establishing it are indisputable; they therefore regarded the Sunnah as specifying the Qur’ānic text—namely His words,
“The adulteress and the adulterer…” (Q 24:2).
The jurists then differed on two points:
- Is flogging to be combined with stoning or not?
- What are the exact conditions of iḥṣān?
On the first question, the scholars disagreed whether a person liable to stoning must also be lashed beforehand. The majority said that no lashing is carried out on one who is to be stoned, whereas al-Ḥasan al-Baṣrī, Isḥāq, Aḥmad, and Dāwūd maintained that the muḥṣan adulterer is flogged first and then stoned.
The principal evidence of the majority is the report: “The Messenger of Allah, peace and blessings be upon him, stoned Māʿiz, stoned a woman from Juhaynah, stoned two Jews, and stoned a woman from ʿĀmir of the Azd.” All of this is recorded in the sound collections, and nowhere is it related that he flogged any of them. Their rational argument is that the lesser ḥadd is subsumed under the greater: the purpose of the ḥudūd is deterrence, and flogging adds nothing to deterrence once stoning has been decreed.
The second group cite the universal wording of His statement,
“The adulteress and the adulterer—flog each of them one hundred lashes” (Q 24:2),
which makes no distinction between muḥṣan and non-muḥṣan. They also adduce the ḥadīth of ʿAlī, may Allah be pleased with him—recorded by Muslim and others—that he flogged Shurāḥah al-Hamdāniyyah on Thursday and stoned her on Friday, saying, “I flogged her according to the Book of Allah, and I stoned her according to the Sunnah of His Messenger.” They further appeal to the ḥadīth of ʿUbādah ibn al-Ṣāmit, in which the Prophet—peace and blessings be upon him—said:
“Take from me; Allah has now appointed a path for them: the virgin with the virgin—one hundred lashes and a year’s exile; the previously married with the previously married—one hundred lashes and stoning with stones.”
As for iḥṣān, they are all agreed that it is a prerequisite for the penalty of stoning.