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Late Roman Law and the Quranic Punishments for Adultery

2022; Wiley; Volume: 112; Issue: 2 Linguagem: Inglês

10.1111/muwo.12436

1478-1913

Juan Cole,

Marriage and Sexual Relationships

The most extraordinary thing about the Islamic law of adultery is that the prescriptions of the foundational text, the Qur'ān (c. 610-632), were widely set aside by Abbasid-era jurists and governments in favor of a Judaizing oral tradition of Medina originating in the eighth century. While Jewish law was clearly one of the influences on Islamic law, it was hardly the only one and, in some instances, positions are taken in the Qur'ān that are antithetical to halakha. For instance, the Qur'ān permits forms of inter-marriage among Abrahamic communities, whereas rabbinical law prescribes Jewish endogamy.1 Although quranic decrees on adultery overlapped with Jewish ones in ordaining counseling and separation, they never mention stoning and the verses that command house arrest and stripes for adultery do not have exact parallels in Jewish law. The Qur'ān allows for repentance and reconciliation. Even whipping, the harshest permitted punishment, underlined community justice and yet the possibility for reconciliation. As Foucault argued, public flogging was performative and not just procedural: "the condemned . . . published his crime and the justice that had been meted out to him by bearing them physically on his body."2 Stoning in contrast, as a form of capital punishment, signaled the revenge of the divine and of society on a member who had irreparably violated the law and could not be redeemed. In the Qur'ān, there are crimes that can receive the death sentence, such as brigandage (al-fasād fī al-arḍ), but adultery does not appear to be one of them. I will argue that in seeking the origins of quranic punishments for adultery, we must look not only to the Jewish tradition but to Christian Rome. Justinian (r. 527 - 565) moved away from capital punishment for adulteresses at least. Julia Hillner argued that the late antique Roman legal approach, informed by Christianity, put an emphasis on reformative punishing in three distinct ways. The publication of laws in itself was seen as impressing upon the public the consequences of wrongdoing. The penalties prescribed for non-capital crimes were seen as having an educating effect, and for this reason magistrates were given wide discretion in how harshly to penalize those convicted, with some seen as curable and others as incorrigible, a Platonic distinction. Third, the Eastern Roman Empire often incorporated into the statutes the possibility of penance on the part of the miscreant, seeing punishments as a cure for the sick soul.3 An Eastern Roman context for some Islamic law has become increasingly plausible as historians and archeologists have gained a firmer understanding of how intertwined the Hijaz was with Roman provinces to the north, of the three Palestines and Roman Arabia.4 This understanding has not yet been applied in the case of laws on sexual morality, our subject here. Regarding adultery, biblical law punishes only in the case where a married or betrothed woman has sex with a man other than her husband. Men could have sex with persons other than their wives, including prostitutes, concubines and secondary wives.5 Leviticus 20:10 says, "If a man commits adultery with the wife of his neighbor, both the adulterer and the adulteress shall be put to death." The Bible explicitly commanded stoning in one instance. Deuteronomy 22:23-24 says, "If there is a young woman, a virgin already engaged to be married, and a man meets her in the town and lies with her, you shall bring both of them to the gate of that town and stone them to death . . ." The punishments mentioned in Deuteronomy were the harshest allowable, but it was understood, as was customary in the wider Near East, that lesser sanctions could also be imposed. It is unclear how common it was among Jews for adulterers to be put to death. There is some evidence in the Hebrew Bible that in practice, adulterous wives were simply divorced and sent away, rather than executed (Jer 3:8). In the New Testament, John 8:3-7 does depict the Pharisees as preparing to stone a woman caught in adultery (μοιχεία).6 In late antiquity, the question became moot. After the Roman destruction of the Second Temple in 70 CE and the failure of the Bar Kochba revolt against the empire in 135, the Jerusalem legal council (Sanhedrin) ceased judging capital crimes such as adultery, perhaps with the implication that capital punishments had become the prerogative of Roman civil law. By about 220 CE, rabbinical commentators had developed an oral body of rabbinical law, the Mishna. By about 400 CE, the Palestinian Talmud, a further corpus of commentary and super-commentary on the Mishna, had been completed. And by sometime in the 600s CE, the Babylonian Talmud was finished. Although it must have been a purely abstract exercise, the Tractate Sanhedrin in the Talmud specified means of execution in various cases. If two men in turn have illicit sex with an affianced virgin, the first is to be stoned and the second strangled. A man who commits adultery with a married woman is to be strangled. A fiancée who commits adultery is to be stoned at the door of her father's house or at the place where the crime was committed.7 Of this body of Jewish legal material, the Qur'ān refers to Mishna teachings (Sanhedrin 4:5) preserved in the Palestinian Talmud when it prohibits murder (The Table 5:32).8 Nevertheless, it will be shown that the punishments prescribed for adultery in the Qur'ān predominantly show late Roman influences along with some influence of Jewish law. Roman law on adultery changed significantly through time. Augustus (r. 63 BCE – 14 CE) legislated on marriage early in his reign as the first emperor, in part over anxieties that the Roman aristocracy was not marrying and having children under what he saw as an increasingly decadent republic, and in part to better regulate the inter-generational transmission of property among the elite. He for the first time made adultery a crime that was adjudicated in court, rather than leaving it to private justice. Adultery cases concerned only respectable wives of the notable classes. From the old practice of private justice, he kept only the provision that a father could kill his adulterous daughter if he discovered her with her lover in his own house or that of his son-in-law. Outside of that occasion, the case went to a standing court. Women found guilty forfeited part of their dowry and property, were divorced, and could be exiled and forced to wear a man's toga rather than female dress, as was the custom among prostitutes and actresses. In theory, their male paramour was also fined property and banished to a different island, though literary sources suggest that only women were de facto punished.9 The court in Rome could in later centuries be busy. The historian Cassius Dio, made consul there in the early 200s, discovered a backlog of 3,000 adultery cases.10 Emperor Constantine threw his support to Christianity in the early fourth century, though in more ambiguous and less reified ways than historians once thought.11 Constantine legislated anew on adultery. He restricted those with standing to alert the courts to an adultery case to the father, husband or other close relatives, whereas Augustus Caesar had permitted such informing by any citizen. Constantine also made it clear that adultery charges were criminal, not civil, and could only be brought against propertied women and their paramours. The wife of a landowner could be charged, but not her maid. Christian Rome at some point made adultery a capital crime, at least for the male interloper. The Code of Theodosius II (r. 401-450) specified the punishment for adultery as being sown into a sack and burned alive (which was also the punishment for killing one's father), and some authors asserted that this provision went back to Constantine. A law of 459 hearkened back to Augustus in allowing an adulterous woman instead to be exiled.12 Literary sources suggest that adultery was handled differently by various local authorities in the Christian Roman Empire. In some instances, a divorce was ordered, in others an execution. For officials to give criminals lesser sentences than prescribed in imperial codices was common throughout the empire and over the centuries.13 In the first years of his long reign, Emperor Justinian (r. 527-565) upheld the death penalty for upper-class adultery. He maintained this attitude with regard to men. The Novel ("new law") 134:10 of the year 556 awards some of the male adulterer's property to his wronged wife and urges that law commissioners impose on him the punishment prescribed by Constantine, which implies a death sentence.14 The emperor appears to have had a change of heart with regard to the erring woman, however. For her, the contemporary Latin translation of his Novel speaks of "competentibus vulneribus," which Minnuci glosses as scourging.15 Reno translates the sentence, "[We order], however, that an adulterous woman, after undergoing the appropriate corporal punishment, be sent to a monastery."16 The Latin Authenticum, was produced in the late 550s in Constantinople as a word for word and therefore inelegant translation of the Greek and was very quickly transmitted to Italy. It may be viewed as containing information on the mid-sixth-century contemporary understanding of the Greek in Constantinople. Since the Authenticum was intended as a study aid for law students, it is understandable that it elaborated in Latin where the Greek original was telegraphic or obscure.17 The Greek text used a bland phrase, saying that the adulteress is to "undergo appropriate punishments (προσηκούσαις ποιναῖς)." It is difficult to understand why the author of the Latin word-for-word translation would have introduced corporal punishment into the law if it was wholly unauthorized by imperial practice and intentions. That flogging was prescribed in 134:10 would be no surprise, since it was widely used in the Eastern Roman Empire.18 Justinian's Novel 14 of 535 had decreed lashing for pimps when he outlawed pedophiliac brothel-keeping and trafficking in young girls. The text said that henceforth such traffickers would be arrested "and suffer the most extreme of penalties."19 The Augustus later explains what he meant, saying of the pimp, "He himself will, as we have just said, be subject to corporal punishment, and will be banished as far as possible away from this great city." Flogging had initially been associated with slavery, and until the sixth century was not applied to upper class criminals. Its use with regard to a pimp was class-appropriate. Justinian, however, expanded the use of flogging, threatening to apply it even to provincial judicial officials found guilty of giving kickbacks to gain their post or of taking bribes.20 It was during this time that the morals of almost all women too were corrupted. For they were given full license to cheat on their husbands and no risk or harm could come to them because of their behavior. Even those convicted of adultery remained unpunished, because they would go straight to the empress and turn the tables by hauling their husbands into court through a counter-suit, despite the fact that the men had been charged with no crime. All the men could do, even though they had not been convicted of anything, was to pay back to their wives the dowries that they had received, only two-fold, to be whipped and then, for most of them, led off to prison.21 After Justinian, officials in regions with a Roman heritage prescribed lashes for some sexual crimes. In the seventh-century Visigothic kingdom in Spain, a married woman who slept with another's slave was sentenced to 100 lashes and women who were convicted of prostitution received 300 lashes, which was the largest number of stripes given for any crime in that code.23 In eighth-century Byzantium, men were lashed for fornication.24 In Justinian's Novel 134:10, the guilty woman would be first subject to corporal punishment and then be sent to a monastery. The wronged husband could retrieve her from the cloister within the space of two years. This grace period allows for reconciliation after she has been scourged and done penance in the nunnery and may be intended to make a provision for her being pregnant at sentencing and giving birth. It may also derive from a Christian concern for reconciliation and the sanctity of marriage, which outweighs the crime, unlike in old pagan Roman thinking. Hillner argues that Justinian substituted internment in a monastery for the previous Roman custom of exile.25 If the cuckolded husband declines to take her back, she is to take the tonsure and become a nun for life.26 The technical term for this form of imprisonment was detrusion. In the West, Justinian's legislation had its greatest impact in Italy, and Reno notes that immediately after this Novel, "Pope Pelagius I (556-61) directed that the female malefactor--if her husband refused to accept her back -- should be relocated to a place where she would not be permitted to 'misbehave' (locum in quo ei non liceat male vivere)."27 In the last quarter of the sixth century in Constantinople, Athanasios of Emesa produced a digest for law students of Justinian's novels. It refers to 134.10 twice. At 1.P.5.4 the author says that the law prescribes that chastened (σωφρονιζομένας [i.e. already punished by whipping?]) adulterous women are to be thrust into a monastery and then their wealth should be expropriated, whether or not they have children or parents.28 Elsewhere the author explains that the woman's personal property (presumably her jewelry and other valuables about her person) is to be confiscated from the monastery in which she is interned.29 This jewelry and other personal property was likely from her dowry and so this measure is consonant with Novel 17.8, which awards the dowry and any gifts given before marriage to the cuckolded husband.30 This concern with the woman's property led Hillner to suggest that the "appropriate punishment" mentioned in the Greek text of Novel 134.10 was this fine.31 The Latin Authenticum's specification of corporal punishment cannot, however, be ignored, and since jurists tended to be bilingual it would have influenced late sixth- and seventh-century interpretations of the Novel even in the Roman East. Athanasios, for example, clearly knows Justinian's long Latin preface to Novel 17 in the Authenticum, which either did not appear in the Greek compilation of the Novels.32 Moreover, in Athanasios's gloss, the confiscation of property comes after she has been immured in the nunnery, whereas the "appropriate punishment" in the text of Novel 134.10 comes before her detrusion. The idea of monastic confinement for adulterers was new with Justinian. Formal Roman law had until that point usually prescribed the penalties of "execution, exile, forced labor, property confiscation, and corporal punishment."33 Nevertheless, Roman imperial officials had routinely imposed imprisonment for crimes on an ad hoc basis.34 Being sent to a monastery fit with a Christian ethos since it allowed for penitence and a reformation of the soul. Historians have seen this decree on the detrusion of adulteresses as the embryo of the later European institution of the prison. Roughly 70 years after the Justinianic Novel on adultery and 2,900 km. to the southeast of Constantinople, very similar punishments for adultery were prescribed in the Qur'ān. While some language in the Muslim scripture's treatment of adultery bears a likeness to later rabbinical counsels, it differs from biblical law, where adultery is a capital crime punished by such forms of execution as strangulation or stoning. Although the post-Second Temple rabbis did widely prescribe flogging as a punishment for various infractions, they only permitted 39 lashes. The Qur'ān's prescribed punishments also differ from Zoroastrian law and practice in the Sasanian period. One legal text from that era commands mutilation in the form of cutting off the nose of the adulteress, while under some circumstances the punishment was death, though evidence exists for less severe penalties, such as being divorced and fined.35 In the Muslim scripture the problem of illicit sex is seen as posing a danger to society.36 The Qur'ān speaks tenderly of marriage and faithfulness. Rome 30:21 says, "Among his signs is that he created for you from among yourselves spouses so that you might find tranquility in them, and he instilled between you love and compassion. In this are signs for a thoughtful people." In contrast, adultery brings with it the danger of depravity and its slippery moral slope. The Night Journey 17:32 admonishes, "Do not go near to adultery, for it is debauchery and evil as a path." Holger Zellentin argues that the Arabic al-fāḥisha, which I render as "debauchery," is likely a loanshift from the Greek πορνεία, understood in late antiquity as a catch-all term for illicit sex.37 At the same time, unjust allegations directed at innocent women for some ulterior purpose are also dangerous for public order. In The Light 24:4-5, the Qur'ān warns: "Those who accuse chaste women, but then do not provide four witnesses, lash them with eighty stripes and never thereafter accept any testimony from them, for they are morally corrupt—except those who afterward repent of this deed and make things right. For God is forgiving, compassionate." The singling out of "chaste women" for special protection from slander and false accusations continues the Roman convention that adultery is a crime pertaining especially to respectable women. The Code of Justinian also prescribes corporal punishment or literally "torment" for false witness, though this is a general principle whereas the Qur'ān deploys it specifically for scurrilous accusations of adultery. The Code 4.20.13 says "Whoever gives false testimony first perjures himself; then he is prosecuted as a forger, and if he is suspected of lying in the very moment of his testimony is subject to torture (βασάνοις)."38 Hillner explains that the term basanois, meaning painful tests, has New Testament overtones (Matthew 4:24, Luke 16:23). Justinian in the Codex is "probably indicating corporal punishment."39 As we saw above, with regard specifically to false charges of adultery, Novel 117.9.4 stated that a wife may divorce her husband were he to accuse her of adultery without sufficient proof. The wife would receive financial compensation and, in addition, could initiate a countersuit for false accusation. The husband would be punished in the same way that the wife would have been if the offense had been proven, which the Secret History suggests was, by 550, flogging and jailing.40 In the Qur'ān various punishments are prescribed for the crime of adultery, though it may make a distinction between adultery and flagrant, public sexual indiscretions.41 The Women 4:15 says, "Those of your women who commit debauchery (al-fāḥisha), seek the witness against them of four among you. If they so testify, immure them in houses until they die or until God makes a path for them." Writing likely in the 760s the author of the earliest extended Qur'ān commentary, Muqātil b. Sulaymān, interpreted "debauchery" as the adultery of a married woman.42 In contrast, Ṭabarī (A.D. 839-923), writing in the ninth or tenth century said that the woman at issue could have a husband or be without a husband and he glosses al-fāḥisha as al-zinā, saying that these terms referred to any sort of illicit sex including adultery or fornication.43 The word, however, does not seem to mean simply adultery. It implies an open flouting of community standards, as in Divorce 65:1, where husbands divorcing their wives are forbidden to expel them from their homes during the `idda or three-month delay to see if they are pregnant. The exception is if they have committed fāḥisha mubīna, open debauchery. I suggest that al-fāḥisha connotes "flagrant or public sexual immorality," since for most acts of adultery it would not be plausible that four witnesses could be gathered. One sort of debauchery that could have resulted in a sentence of immurement may have been temple prostitution, which may be referred to at The Heights 7:28, "When they commit sexual improprieties, they say: 'We found our forebears doing that, and God ordered us to behave that way.'" This commandment that the debauched woman be immured recalls Justinian's decree of detrusion in a nunnery for life. The Qur'ān, however, rejects the institution of monasticism (Iron 57:27). Thus, the flagrantly straying wife was likely confined in a house (presumably the father's) until something changed her fate. If the immurement was influenced by Novel 134:10, which mentions the possible escape of the adulteress if her husband took her back, the "way" God might find for her could possibly include a decision by her husband to relent. Or, since The Light 24:3 speaks of divorced adulterers marrying other adulterers, perhaps she could escape through an offer of marriage from another divorced adulterer among the believers after they had repented.44 Marsham has noted that imprisonment was known as a punishment in Arabia, and that the poet `Adi b. Zayd (d. 600) composed verse complaining of his jailing by the Nasrid Nu'mān III in Hira at the end of the sixth century.45 Although, as Zellentin says, rabbinical law prescribed confinement for repeat offenders, it was not specifically prescribed for adultery, and it seems to have been envisaged as a form of capital punishment, since those immured were to be fed bad food until their stomachs ruptured (Mishna Sanhedrin 9:5 and Babylonian Talmud Sanhedrin 81b).46 The Women 4:15 seems much closer to the spirit of Justinian's Novel 134:10 here. I reason that the Qur'ān 4:15 is most likely speaking of the wives of Muhammad's followers who openly have affairs with persons outside the fledgling community of believers or who engaged in sex outside or prostitution (hence the possibility of four witnesses). I say this because 4:15 does not use the dual or mention any punishment for the man, speaking only of "your women." In adultery, it takes two to tango. How to explain this absence of the partner from the verse? I would suggest that if the man was a pagan, he would not have been under the authority of the Prophet. He would have been liable for a clan demand for recompense for a tort, but that mechanism was part of tribal law and outside the scope of the Qur'ān. It was only inside the community of Believers that the writ of the Qur'ān ran. In The Cow 2:221, a verse probably dating to the period soon after the Emigration of the Prophet and his community to Medina in 622, marriage with pagans is forbidden. The adultery of a believing woman with a pagan therefore would have been especially shameful. Late-antique church principles offer some support for this interpretation. The circa 306 Council of Elvira, which, despite having been convened in the West influenced subsequent canons throughout the empire, forbade marriage between Christians and pagans and commanded five years of penance where a Christian committed adultery with a pagan or a Jew.47 The Light 24:2 says, "The male sexual sinner (al-zānī) and female sexual sinner (al-zāniya)--give each a hundred lashes. Let no tenderness overtake you in the service of God, if you truly believe in God and the last day. Let a band of believers witness their chastisement." The Light 24:3, goes on to forbid these sinners to marry any but other sinners or pagans, "and this has been forbidden to the believers." Tabari interprets the sinners here as unmarried persons, that is, he sees the verse as about fornication rather than adultery, and this is the consensus of the later exegetes. There is nothing in the verse, however, to suggest this interpretation, and elsewhere (apud Q. 4:15) Tabari sees al-zinā as synonymous with al-fāḥisha, having them both refer to adultery among other sexual crimes. One of the earliest Arabic dictionaries, the Kitāb al-ʿAyn of al-Khalīl b. Aḥmad, ties al-zinā to having an illegitimate child, and so it could mean more than adultery and imply having children out of wedlock.48 Although the ordering of chapters of the Qur'ān is a controversial subject and most authorities put The Light after The Women, I would point out that 24:57 assures the Prophet that the pagans are not invincible (mu'jizīn), which seems to me an issue that would have arisen early in the Medina period, since both the Qur'ān and the later tradition speak of reverses visited on the pagans later in the 620s. I therefore suggest that The Light 24 precedes The Women 4. The Women 4:16 says of "debauchery" (al-fāḥisha), "Those who commit it from among you, punish both of them. If they repent and make things right, then let them be. Truly, God is forgiving and compassionate." Ṭabarī interprets the phrase "let them be (a'riḍ `anhumā, 'turn away from them')" as "Forgive them (iṣfaḥū `anhumā), and cease the punishment I commanded you to mete out to them to penalize them for having committed debauchery (al-fāḥisha), and do not punish them after their repentance."49 In my view, this is the correct interpretation of the phrase, and like Ṭabarī in his gloss on Q. 4:15, I interpret al-fāḥisha here as any unmarried sex, including fornication and adultery, but I believe the implication is that the misbehavior be very public or repeated. The verse firmly indicates that in the Qur'ān adultery is not considered a capital crime, since its text holds out forgiveness to the repentant, a possibility that execution would forestall. This forgiveness for both sexes is a stark departure from Roman law. The Qur'ān took even further than did Justinian the principle of forgiveness, extending it to both the repentant adulterer and the adulteress. The verb "to torment" or to "punish" (adhūhumā) in Women 4:16, which recalls Justinian's βασάνοις, is perhaps purposely vague, since there is reason to think that in the Qur'ān multiple punishments are envisaged for adultery, depending on whether the crime was a lapse or was habitual and flagrant. The vague diction here resembles the Greek of Novel 134:10, which speaks only of "appropriate" punishment, whereas the contemporary Latin gloss specified corporal punishment. Ṭabarī reveals that some exegetes maintained that the chastisement consisted of "a punishment by word and tongue, such as scolding and rebuking for the debauchery they committed." It is possible that one of the penalties envisaged here was the flogging mentioned in The Light 24.2, though that was likely reserved for egregious or repeat offenders, or perhaps for having a child out of wedlock. As noted, many exegetes maintained that the latter passage was revealed after the The Women 4:16, but we cannot be sure of this sequence. Other commentators alleged different meanings for the two different terms that are used in the verses for illicit sex, with The Light 24:2 referring to al-zinā while The Women 4:16 refers to al-fāḥisha. I believe these two terms, however, are exact synonyms, as Ṭabarī sometimes held but sometimes did not, with al-fāḥisha being an Arabic loanshift from the Greek πορνεία and al-zinā being a cognate of the Hebrew zanah.50 In the Hebrew Bible, zanah is like πορνεία in signifying any unsanctioned sex between unmarried people, but it has the connotation of flagrancy and frequently refers to prostitution.51 Some Abbasid commentators defined al-zinā as fornication between two unmarried persons, while they saw al-fāḥisha as adultery. There is, however, no philological basis for this distinction. It was merely convenient for some jurists writing two centuries after Muhammad in resolving what they saw as contradictions among the three verses under consideration, and there is no reason to believe that they had special insight into sixth- and seventh-century Arabic usage. Ṭabarī seems confused, since he sometimes identified al-fāḥisha and al-zinā, and sometimes tried to distinguish between them. If we consider the Hebrew cognate of al-zinā, it seems to me that rather than narrowing its meaning to fornication, we should widen it to "flagrant illicit sex" of all kinds and also translate it "debauchery." The command in 4:16 "to punish" both sinners seems on the surface to contain a discrepancy with what went before. How is it that 4:15 calls for lifetime house arrest and the subsequent verse lets the two sinners off after being "punished" in an unspecified way? I propose a different solution to the apparent contradiction between 4:15 and 4:16 than that proffered by most medieval Muslim commentators. As noted, some argued that 4:15 concerned adulteresses whereas 4:16 concerned two virgins fornicating.52 The verses themselves, however, tell against any such distinction, since 4:16 says it is speaking of "those who commit it," i.e. al-fāḥisha in the previous verse. There is nothing in the text itself, then, to suggest this distinction. Ṭabarī admits that some exegetes rejected the notion that Q. 4:16 concerned two young unmarried virgins.53 Most commentators believed that some verses of the Qur'ān abrogated others, but this solution is unlikely here given that the verses follow one another directly and use the same term for double duty.54 Rather, the apparent inconsistencies are better resolved by considering that different punishments for adultery are being prescribed for different situations. I argued above that The Women 4:15 likely addresses the issue of a woman from among the believers who had flagrant, illicit sex with a partner from outside the community, so that it only speaks of punishment for her, with her partner in crime being beyond the reach of quranic sanction. In contrast, the Women 4:16 speaks of two persons, both "from among you," who had unmarried sex. It is therefore speaking of a case where both trespassers were believers and under the judgment of the Qur'ān. Ṭa