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Pavel Pavlovitch
In addition to its importance for Islamic jurisprudence (fiqh), the
ʿUbāda tradition has considerable exegetical implications. It has a
bearing on the issue of abrogation (naskh), the relationship between
the prophetic tradition (sunna) and scripture, and by extension, on the
concept of revelation (waḥy). For a long time, these aspects have
aroused the interest of Western students of Islamic exegesis and fiqh;
the historical development of the ʿUbāda tradition, however, remained
fairly marginal to the topic of their studies. 7 Although I cannot avoid
discussion of the attendant exegetical and legal environment in the
present article, it will serve mainly to facilitate the historical
reconstruction of the ʿUbāda tradition.
6 Muslim jurists employ the term zinā (also zināʾ) to describe sexual
transgression in general. With regard to the penalty for zinā, two categories of
offenders (zān in , pl. zunāt) are distinguished by additional qualifications. These are
the virgin zān in , known as bikr, and the non-virgin zān in , known as thayyib. A
related fiqhī term is iḥṣān, which denotes the state of lawful marital relationship of a
free person professing Islam. In this article, I will use the term “fornicator” and its
cognates to designate the virgin transgressor (i.e. bikr or al-ladhī lam yuḥṣan), and
the term “adulterer” and its cognates to designate the non-virgin transgressor (i.e.
thayyib or muḥṣan).
7 John Burton has discussed the role of the ʿUbāda tradition in the context of the
abrogation (naskh) theory. He focused primarily on al-Shāfiʿī’s elaborate theory
that tries to reconcile the view that the Qurʾān and the sunna are self-subsistent
sources of law with the fact that the ʿUbāda tradition alters the Quranic ordinance
for 100 lashes in a way tantamount to naskh (John Burton, “The Meaning of
‘Ihsan’,” JSS, 1 [1974], 47–75; idem, The Sources of Islamic Law [Edinburgh:
Edinburgh University Press, 1990], 122–64; idem, “The penalty for adultery in
Islam,” in Approaches to the Qurʾān, ed. G. R. Hawting and Abdul-Kader A.
Shareef [London and New York: Routledge, 1993], 269–84). Albeit ostensibly
historical, al-Shāfiʿī’s approach derives from a legal fiction that has nothing to do
with the actual history of the ʿUbāda tradition. Patricia Crone has referred to the
stoning penalty in general to elucidate the rupture between the Quranic ordinances
and the laws enacted by means of sunna (Patricia Crone, “Two Legal Problems
Bearing on the Early History of the Qurʾān,” JSAI 18 [1994], 15). Christopher
Melchert has dealt with the ʿUbāda tradition as part of his study of the Quranic
abrogation during the third century AH, but, due to the thematic confines of his
article, is not interested in the development of the ʿUbāda tradition itself
(Christopher Melchert, “Quranic Abrogation Across the Ninth Century: Shāfiʿī,
Abū ʿUbayd, Muḥāsibī and Ibn Qutayba,” in Studies in Islamic Legal Theory, ed.
Bernard G. Weiss [Brill, 2002]).
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