The Book of Slander (Qadhf)
The discussion in this book concerns: the act of slander itself, the slanderer, the one who is slandered, the punishment that becomes obligatory, and the evidentiary means by which it is established.
The foundational proof-text is the Almighty’s words:
“Those who accuse chaste women and then do not produce four witnesses…” (al-Nūr 24:4).
The slanderer. The jurists agree that two conditions must be met for liability: the slanderer must have reached puberty and be of sound mind. It makes no difference whether the person is male or female, free or enslaved, Muslim or non-Muslim.
The slandered party. They also concur that five qualities must be present in the person accused: adulthood, freedom, chastity, Islam, and the physical capacity for sexual intercourse. If any one of these is missing, the ḥadd is not enforced. In general, the majority stipulate freedom in the slandered party, though a contrary opinion is possible. Mālik further requires, in the case of a woman, that she be old enough to be capable of intercourse.
The kinds of slander for which the ḥadd is due. There is agreement on two scenarios:
- The slanderer attributes fornication or adultery to the accused.
- He denies the accused’s lineage when the accused’s mother is a free Muslim woman.
They differ when the mother is a non-Muslim or a slave. Mālik holds that, whether she is free or enslaved, Muslim or non-Muslim, the ḥadd is still obligatory. Ibrāhīm al-Nakhaʿī—whose view is adopted analogically by al-Shāfiʿī and Abū Ḥanīfah—states that no ḥadd is incurred if the accused’s mother is a slave-woman or a Kitābīyah.
All agree that if either of these two accusations is expressed in explicit wording, the ḥadd must be carried out. They disagree, however, when the accusation is conveyed by innuendo. Al-Shāfiʿī, Abū Ḥanīfah, al-Thawrī, and Ibn Abī Laylā say that no ḥadd applies to indirect speech, though Abū Ḥanīfah and al-Shāfiʿī nonetheless impose a discretionary punishment (taʿzīr). Among the Companions who espoused this view is Ibn Masʿūd.
Mālik and his companions, by contrast, hold that the ḥadd applies even to innuendo. A case of this kind arose during the caliphate of ʿUmar; he consulted the Companions, who differed among themselves, and he ultimately ruled that the ḥadd be enforced.
Mālik’s rationale is that a euphemism, by the force of custom and common usage, can occupy the same position as an explicit statement, even though the word employed is metaphorical. The majority counter that the ambiguity inherent in such borrowed language constitutes a doubt, and the prescribed penalties are averted by doubts.
The truth is that euphemistic speech can in some contexts stand in place of explicit wording, while in others it is too weak to do so; for when it does not