JOURNAL OF ARABIC AND ISLAMIC STUDIES

JAIS
ONLINE
Pavel Pavlovitch
The ʿUbāda b. al-Ṣāmit tradition: isnād-cum-matn analysis
I have chosen to analyse the ʿUbāda tradition for several reasons: it is the
main argument in favor of the dual penalty for adultery; it bears upon
Qurʾān 4:15–6 and 24:2; and it seems to be the oldest sunnaic material
included in the exegesis of these verses. The last point is of special
significance for the current study. Even though the reference to the
ʿUbāda tradition in Muqātil’s commentary seems as a later intrusion,
isnād-cum-matn analysis may show that the tradition existed before the
middle of the second century AH. If this is the case, then the ʿUbāda
tradition may have been part of the original Muqātil narrative, and the
results of our literary analysis will have to be reconsidered.
163
G. H. A. Juynboll maintains that the most likely CL in the ʿUbāda
bundle is Qatāda b. Diʿāma (61–117/681–735). Juynboll reckons that in
its basic elements the legal maxim treating the punishment for adultery
and fornication “is most probably due to Ḥasan [al-Baṣrī], while the
beginning of the discussion on the punishment may go back to the
lifetime of the Prophet”. 56 Although conceding that “the strands
converging in Ḥasan are technically speaking deficient and have the
appearance of later back-projections,” Juynboll still maintains that
“Ḥasan may be considered as at least one of Islam’s earliest fuqahāʾ who
underlined the said punishments for adultery in this maxim”. 57
Juynboll’s conclusion, which is apparently at odds with his own isnādanalytical
criteria, is most likely derived from Schacht’s principle,
according to which short legal maxims reflect an early stage in the
development of Islamic jurisprudence. 58
If al-Ḥasan al-Baṣrī (d. 110/728) should be recognized as one of the
earliest jurists who defined the penalty for adultery and fornication in
terms of the legal maxim al-bikr yujlad wa-yunfā wa-l-thayyib yujlad
wa-yurjam (The virgin should be flogged and banished, and the nonvirgin
should be flogged and stoned), one wonders why the maxim
was unknown to al-Ḥasan’s contemporary, Mujāhid b. Jabr. Various
reasons may be put forward to explain Mujāhid’s ignorance: the
maxim may have been unknown in the Hijaz; or it may have been
omitted from Mujāhid’s commentary in the process of transmission.
Another possibility is that the maxim emerged after both Mujāhid and
al-Ḥasan al-Baṣrī had passed away. Qatāda b. Diʿāma (60–117/680–
735) seems more suitable for a CL who circulated the maxim in the
56 ECḤ, 442.
57 Loc. cit.
58 Schacht, Origins, 180–9.