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Pavel Pavlovitch
sunna did the abrogation of the Qurʾān, it needs to proceed from the
same divine source (tanzīl). 45
The ʿUbāda tradition is the unmistakable crux of al-Shāfiʿī’s
justification of the stoning penalty. It, however, institutes a dual penalty
for both the adulterers and fornicators. Insofar as al-Shāfiʿī advocates a
single stoning penalty for adultery, he has to look elsewhere for its
origin. To this end, he takes advantage of two prophetic traditions. In the
first, the Prophet punishes a man identified as Māʿiz b. Mālik after his
voluntary confession to adultery. The second tradition relates the story of
a servant (ajīr) who committed zinā with the wife of his employer. The
servant, who was bikr, was flogged and banished; his master’s wife, who
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was muḥṣana, was stoned. In both cases, the adulterer is stoned but not
flogged. These traditions allow al-Shāfiʿī to conclude (e silentio) that the
actual prophetic practice emended (nasakha) the ordinance of the ʿUbāda
tradition so that flogging was excluded from the adulterers’
punishment. 46 Hence, the adulterers must be stoned but not flogged.
Thus, al-Shāfiʿī considers the Māʿiz b. Mālik and the employer’s wife
as traditions subsequent to the ʿUbāda tradition. Al-Shāfiʿī seldom turns
his attention to other traditions that argue for or against the dual penalty
for zinā. At one occasion he cites the Sharāḥa tradition 47 but only to
refute it promptly by a reference to the traditions about Māʿiz b. Mālik
and the employer’s wife. Unlike the ʿUbāda and Māʿiz traditions, which
al-Shāfiʿī marshals in a chronological order, he does not speak about the
chronology of the Sharāḥa tradition. Nevertheless, the context in Kitāb
al-Umm suggests that at the time of its composition (and the time of the
composition of al-Risāla, for that matter) the narratives about Māʿiz, the
employer’s wife and Sharāḥa coexisted as polemical arguments in the
debate about the possibility of inflicting a dual penalty for adultery.
The works of Mujāhid b. Jabr, Muqātil b. Sulaymān, Abū ʿUbayd, al-
Muḥāsibī and al-Shāfiʿī show a tendency of gradual elaboration in their
treatment of the stoning penalty. Mujāhid’s work represents, to my mind,
the earliest stage in this development. To Mujāhid’s rude paraphrastic
exegesis, one adds his lack of interest in the origin of the rajm penalty,
which he does not discuss either ad Qurʾān 4:15–6 or ad Qurʾān 24:2. It
45 The problematic nature of al-Shāfiʿī’s insistence on the sovereignty of the
Qurʾān and the sunna later led Shāfiʿīya to accept that the sunna might abrogate the
Qurʾān (Melchert, “Qurʾānic Abrogation,” 86–7; idem, “The Meaning,” 290).
46 Al-Shāfiʿī, Risāla, 132.
47 Al-Shāfiʿī, Kitāb al-Umm, ed. Muḥammad Zuhrī al-Najjār, 8 vols. (1st ed.,
Cairo: Maktabat al-Kulliyyāt al-Azhariyya, 1381/1961), 7:180.