Muhammad Abu Zahra was one of the foremost authorities on Islamic law in the 20th century, whose works on the various schools of Islamic law continue to be used in academia. He was a member of Al-Azhar University’s Academy of Islamic Research and a Professor of Islamic law at Cairo University. He was loved by his students for his personality that united piety, open-mindness and a great sense of humor.
In the year 1972, two years before his death, at in Islamic conference held in the city of al-Bayḍāʾ in Libya, he shook the scholarly community by declaring his informed personal opinion (ijtihād) regarding the stoning of adulterers in Islam, in which he rejected the punishment based on a number of arguments. While his arguments are not conclusive, they deserve to be taken seriously. If even there is the slightest chance that he is correct, then that should be sufficient to put a permanent suspension on this punishment, because it involves the taking of human lives, and we cannot do that if we cannot be sure whether God really commands it or not.
The reason why the majority of scholars defend the punishment is not that they like it. The historical evidence shows that Islamic judges have been extremely loathe to carry out this punishment, to the point of accepting to be banished from their cities rather than sign the order to stone someone. The reason they defend it is that it is mentioned in a number of authentic narrations. Putting these narrations into question would require rebuilding the foundations of the field of hadith studies from scratch, a task that most scholars have been unwilling to contemplate until recently, although things appear to be slowly changing with respected hadith scholars like Ṣalāḥ al-Dīn al-Idlibī engaging in content criticism and finding it acceptable to reject “authentic” narrations even in al-Bukhari and Muslim that go contrary to empirical evidence.
Without further ado, below is a translated article written by a young Yusuf al-Qaradawi, the respected Egyptian scholar, on Sheikh Abu Zahra’s opinion (here is an archived link to the Arabic original taken from al-Qaradawi’s website).
Beginning of translated article
In this forum [referring to the 1972 conference], the Sheikh Abu Zahra exploded a fiqhī (jurisprudential) bomb that shook the attendants, by surprising them with his new opinion. The Sheikh, may God have mercy on him, stood up during the conference and said: “I have been keeping secret a jurisprudential opinion for the past 20 years. I had spilled the beans to Dr. ʿAbd al-ʿAzīz ʿĀmir, isn’t it so doctor?” The doctor [who was present] replied in the affirmative. [He continued:]
It is time for me to make it public before I meet God, glory to Him, in case He asks me why I kept my knowledge secret and did not show it to the people. This opinion is related to the issue of the stoning of married adulterers. My opinion is that stoning was a Jewish practice that the Messenger at first followed, until the practice was abrogated by the punishment of a hundred lashes in Sūrat al-Nūr. And I have three arguments for this: First, God, glory to Him, says:
"When they are married, if they commit adultery, their punishment shall be half that of free women." [The Quran, verse 4:25]
Stoning is not a punishment that can be halved, which shows that the punishment is the one mentioned in Sūrat al-Nūr [i.e. 100 lashes].
My second argument is what al-Bukhārī narrates in his Ṣaḥīḥ from ʿAbdullāh bin Awfā that he was asked whether the punishment of stoning was carried out before or after Sūrat al-Nūr was revealed, and he replied that he did not know.
My third argument: The hadith they relied on [in support of stoning], saying that it was first part of the Quran then it was abrogated while its ruling remained, is not something that a rational mind can accept. Why would a verse be abrogated but its ruling remain in force?
And the argument that it was part of a written book of Quran but a she-goat ate the page cannot be logically accepted.
When the Sheikh finished his speech, most of the attendants started to verbally assault him. Many stood up and repeated what the books of fiqh say on these arguments. But the Sheikh remained steadfast in his stance.
When the meeting broke up, I [i.e. Yusuf al-Qaradawi] said to him: “O Mawlānā [Our Master], my opinion is similar to yours, but it is more likely to be accepted.” He asked what my opinion was. I said: “It is mentioned in authentic hadith that the punishment of the unmarried is 100 lashes, while the punishment of the married is 100 lashes along with stoning.”
He said: “And what is your conclusion from this hadith?”
I said: “Your Honor knows that the Ḥanafīs say regarding the first part of the hadith that the punishment is flogging, but that banishment and exile is allowed according to the judgment of the ruler, but that it is not obligatory in all cases. In addition to this, authentic narrations have come to us regarding stoning during the Prophetic time. He carried out stoning against Jews, against Māʿiz [bin Mālik], against al-Ghāmidīya [a woman’s name], and he sent one of his Companions to investigate the laborer’s wife, telling him to carry out stoning if she confesses. It is also narrated that Umar and Ali carried out stoning after the time of the Prophet.”
The Sheikh did not agree with me. He said:
O Yusuf, is it conceivable that Muhammad bin Abdullah, the Mercy Gifted to Mankind, would stone people to death? This is Judaic law, and it fits the cruelty of Judaic culture.
[It is unclear whether this following paragraph is Abu Zahra or al-Qaradawi speaking:] Sheikh al-Zarqā [a renowned 20th century Syrian scholar] agrees with the majority, but he disagrees with them in his definition of muḥṣin [the category of adulterers that can be stoned]. They say that a muḥṣin is any person who has married at some point, even if they have divorced or their spouse has died and are currently unmarried. But al-Zarqā says a muḥṣin is one who is presently married. This is also the opinion of the Sheikh Rashid Rida which he has mentioned in his Tafsīr al-Manār.
[Al-Qaradawi speaking:] I thought for a long time about Abu Zahra’s statement that he had kept his opinion secret for twenty years. Why did he keep it secret and not mention it in a lecture, book or article? He did that out of the fear that the masses would move against him and that his character and reputation would be maligned and vilified as happened in this conference. I said to myself, “How many new opinions and ijtihāds are locked up in their owners’ hearts until it dies with them without anyone hearing of them or transmitting them?”
That is why when I spoke of the framework for modern ijtihād, I said that we should open our hearts to those who make mistakes in their ijtihāds, for in this way ijtihād is revived and flourishes. A mujtahid is a fallible human. It is their right, no, even their obligation, to perform ijtihād and to publicize their opinions. It is not obligatory on them to always be right. As long as we close our hearts to opinions that go against the majority, ijtihād will not grow and will not give its fruits.
The truth is that what some people consider to be in error might actually be the correct opinion, especially when times and places change. It appears that the violent attack that Sheikh Abu Zahra faced made him keep silent about his opinion [after the conference], so that he did not write it down. Perhaps the reason is that he did not live long after it, for he died some months later, may God’s mercy and pleasure be with him. I saw that in his book Crime and Punishment in Islamic Law he had attributed this opinion to the Khawārij and mentioned them using the same arguments that he mentioned in Libya. I believe that was before the conference [i.e. his book was published before the conference, this seems to be confirmed by WorldCat.org which lists versions of this book published in 1970 and before].
End of translated article