Ihsan in the hudud (marital status for stoning and slander)

Ihsan (ihsan in this sense: marital status as a condition of the penalties) means in the lexicon the original sense of restraint, and among its other meanings chastity, marriage and freedom. Its technical sense varies with its two kinds: ihsan for stoning (for unlawful sex) and ihsan for slander. ¹

The chief condition of ihsan for stoning for adultery is marriage, which is subject to the five legal qualifications; the chief condition of ihsan for slander is chastity, which is required by law. The Qur'an and the hadith contain many references, such as the verse in al-Nur (33) enjoining chastity on those who cannot marry. ¹

There are two. Ihsan for stoning is a set of conditions which, if all are present in the adulterer, makes his punishment stoning; ihsan is the state that the joining of these conditions creates, there are eight, and each is a cause of stoning. Ihsan for slander is the joining of qualities in the one slandered that make the slanderer liable to flogging; the qualities differ with the form of the slander: an accusation of adultery, or a denial of lineage. ²

Ihsan for stoning requires that the adulterer be free, sane, adult, Muslim, and have married a woman in a valid marriage and had intercourse with her while both were in the state of ihsan. Sanity and puberty are conditions of liability to punishment, since there is no address without them; the other conditions are required so that the wrong is complete through the completeness of the blessing, since ingratitude for blessing is graver when blessings are many; these are great blessings, so stoning is tied to them. The Shari'a did not link stoning to rank or knowledge, because it did not so provide, and setting a measure by opinion is impossible. Chastity is required in ihsan for slander because one who is not chaste is not harmed by being accused of adultery, since it would be to establish what is already established; if he suffers another shame, that is truth, and the penalty for slander is for lying, not truth. ²

The jurists agree on some conditions and differ on others. Puberty and sanity are conditions of the basic liability and must be present in the ihsan and in the one without ihsan at the time of the offence. If intercourse was done by a child or a madman, and he came to puberty or sanity afterwards, the earlier act does not make him ihsan; he is then flogged as one without ihsan. ² Some Shafi'i jurists, a weaker view in the school, say the one who had intercourse becomes ihsan by intercourse before puberty or during madness, on the ground that the intercourse was lawful. The majority argue that stoning is the penalty of the one who has been married, and if the intercourse before puberty counted, a child or madman would be stoned, which no one holds. ³ The Malikis, the sounder Shafi'i view and a Hanbali view say it suffices that the conditions be present in one of the spouses, whatever the other's state; the Malikis, however, count a wife as ihsan only if her husband was adult. The Hanafis, the opposite of the sounder Shafi'i view, require puberty and sanity in both parties at intercourse for either to be ihsan. ³ Third, intercourse in a valid marriage. Ihsan requires intercourse in a valid marriage, in the front passage, since the state of being a previously married woman is attained by intercourse there; contract without intercourse does not make ihsan, nor does seclusion, nor intercourse short of the passage, nor intercourse by the back. The intercourse counted is penetration in the front passage that requires a bath, whether or not there was emission. Intercourse outside marriage, such as fornication or intercourse by mistake, makes no one ihsan by agreement. The marriage must be valid; if it was void, the majority say intercourse in it does not make ihsan, since it is intercourse in what is not owned, like intercourse by mistake. ³ Intercourse forbidden by the law, such as during menses or ihram, does not make ihsan even in a valid marriage. The Malikis add that the valid marriage must be binding, so that if a spouse has a defect or deception that gives an option of annulment, ihsan is not established. ³ Abu Thawr says intercourse in a void marriage makes ihsan, as reported from al-Layth and al-Awza'i, since void and valid marriages are alike in most rulings, like the dower, the forbidding of stepdaughters and mothers, and the attribution of the child; so also for ihsan. ³ Branches of the front-passage condition: intercourse by a eunuch who cannot have intercourse, or by an impotent or castrated man, does not make the woman ihsan; but if she bears a child whose lineage is established from the husband, a eunuch or impotent man does make her ihsan, since establishing lineage is a ruling that intercourse occurred. The castrated man, in most scholars' view, does not make his wife ihsan for want of the organ; Zufar disagreed, since establishing lineage from a castrated man makes the wife ihsan. ³ Intercourse with a woman with a closed passage does not make her ihsan, since intercourse is impossible with it closed. ⁴ Fourth, freedom. A slave is not ihsan even if he is a mukatab, partly freed, or a mother of a child by her master, since he is half a free person, and stoning has no half; to impose it wholly would contradict the text and agreed consensus. The Qur'an sets half the penalty for slave women against that of free married women, in the chapter of al-Nisa (25). ⁴ Abu Thawr disagreed and held slaves are ihsan and are stoned if they commit adultery; al-Awza'i is reported to hold a slave married to a free woman is ihsan, but not if his wife is a slave. ⁴ The jurists hold that a slave who is freed together with his slave wife, and then has intercourse with her after freedom, becomes ihsan, whether or not they knew of the freedom; and if a free man marries a slave woman, or a free woman marries a slave, there is no ihsan unless one has intercourse after freedom. ⁴ The Hanafis and Malikis require Islam for ihsan: a non-Muslim is not ihsan, and a dhimmi wife does not make a Muslim husband ihsan according to Abu Hanifa. The Hanafis rely on the case of Ka'b ibn Malik, whom the Prophet ﷺ forbade to marry a Jewess, saying she would not make him ihsan; and because ihsan requiring freedom is like ihsan for slander, in which Islam is a condition. ⁴ Al-Shafi'i, Ahmad and Abu Yusuf do not require Islam for stoning, so a Muslim who marries a dhimmi woman and has intercourse with her becomes ihsan, and both are ihsan. They rely on the report from Ibn Umar about two Jews who committed adultery and whom the Prophet had stoned, and on the argument that the offence of adultery is the same for a Muslim and a dhimmi, so the penalty must be the same. ^{4 5} Abu Hanifa holds that ihsan requires full conditions in both parties: the conditions must be present in the one who has intercourse and in the one with whom he has intercourse at the time; if they are not present in one of them, neither is ihsan, as a sane man who marries a mad or a young woman is not ihsan. For Malik it suffices that the conditions be present in one spouse. ⁵ The effect of ihsan on stoning. If one of two offenders is ihsan and the other is not, the ihsan one is stoned and the one without ihsan is flogged. The basis is a report of a man of the Bedouins whose son committed adultery with the wife of another man; the Prophet ruled that the son be flogged and exiled for a year, and that the woman be stoned, and he sent Unays to her, and she confessed and was stoned. ⁵ Ihsan need not continue for its effect to last: one who married once in his life, then divorced and remained single, and then committed adultery, is stoned. ⁵ Proof of ihsan. Ihsan is proved by a valid confession from a sane and free-choosing person; the one who confesses to ihsan must be sane and free-choosing, since a coerced or mad person's words count for nothing. It is also proved by the testimony of witnesses. Malik, al-Shafi'i, Ahmad and Zufar hold that two men suffice, since ihsan is a state of the person not bound to the act of adultery itself, so four men are not required for it as for adultery. Abu Yusuf and Muhammad hold that two men or one man and two women suffice. ⁵ The wording of the testimony is that they say: he married a woman and had intercourse with her or penetrated her. Abu Hanifa and Abu Yusuf say that saying "he went in to her" suffices, since when entry is joined with the letter for "with" it means intercourse; Muhammad says it does not suffice, since entry may be used for seclusion. ⁵ Stoning of the ihsan. The jurists agree that an ihsan adulterer, man or woman, must be stoned until death, though they differ on combining flogging with stoning. The penalty of stoning is established by the sunna and by consensus, from the Prophet's word and action, with detail in the entry on zina. ⁶ Ihsan for slander. To protect the honour of the chaste men and women, God forbade the slander of chaste men and women and attached to it worldly and otherworldly penalties. ⁶ Conditions of ihsan for slander. The one whose slanderer is flogged is one in whom the following conditions are present by agreement when the slander is adultery. In denial of lineage Abu Hanifa adds that the mother must be Muslim and free. ⁶ Freedom: there is no flogging for slandering a slave man or woman. ⁶ Islam: there is no flogging for slandering an apostate or an original unbeliever, since he is not ihsan for slander; the unbeliever is ihsan for stoning, but not for slander, because stoning is a humiliation of him and the flogging for his slandering would be an honour, and the unbeliever is not fit for honour. ⁶ Sanity and puberty: a child and a mad person are excluded, since adultery cannot be imagined from them. Abu Hanifa and al-Shafi'i require puberty absolutely, whether the slandered is a man or a woman; Malik does not require it for a woman but does for a boy, and counts a girl as ihsan if she can bear intercourse or if girls like her are had, since disgrace attaches to her. The reports from Ahmad differ. ^{6 7} Chastity from adultery: that the slandered has not had intercourse in his life that was unlawful, outside ownership and marriage, nor in a void marriage where the voidness is agreed. The three imams require actual chastity; Ahmad is content with apparent chastity, so that one against whom adultery is not established by evidence or confession and who was not flogged for it is chaste. ⁶ If the slander is of denial of lineage, flogging is agreed. If it is of adultery against one who cannot have intercourse, like the castrated or the one with a closed passage, Abu Hanifa, al-Shafi'i and Malik do not flog the slanderer; Ibn al-Mundhir says the same of the closed passage, al-Hasan says no flogging for the eunuch, since the disgrace is removed by knowledge that the slanderer lies. Ahmad requires flogging for slander of the eunuch, the castrated, the ill, the closed and the horned, by the general text on the slander of chaste women, and because possibility of intercourse is hidden so disgrace is not removed without flogging. ⁷ Proof of ihsan in slander: every Muslim is presumed chaste unless he confesses to adultery or is proved guilty by four just men; the one who must prove adultery and the lack of chastity is the slanderer. If the slanderer confesses the chastity of the slandered, the ihsan stands. If he denies it, he must prove the slandered lacks chastity, and if he cannot, he has no right to make the slandered swear. ⁷ Loss of ihsan: ihsan is lost by the loss of one of its conditions: whoever becomes mad, impotent or a slave loses ihsan. An apostate loses ihsan according to those who make Islam a condition. There is no flogging for slander if a condition of ihsan in the slandered was missing; the slanderer owes discretionary punishment if he cannot prove what he slandered. The three imams hold that the conditions must be present until the penalty is carried out, unlike Ahmad, who requires them only at the time of slander. ⁷ Effect of ihsan in slander: ihsan of the slandered brings two penalties: flogging of the slanderer, which is primary, and non-acceptance of his testimony, which is secondary. ⁷ Effect of apostasy on ihsan: if an ihsan man apostatises, his ihsan is not void according to al-Shafi'i and Ahmad and those who agree with them, such as Abu Yusuf, since the Prophet stoned two Jews who had committed adultery, and had Islam been a condition he would not have stoned them. ⁷ Abu Hanifa makes Islam a condition, so the ihsan of an apostate is void; Malik holds that the apostate loses the ruling of ihsan, and if he returns to Islam he is not ihsan except by a new ihsan, relying on the verse in al-Zumar (65) that shirk voids all deeds. ⁷