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Comparative Study of Stoning

Punishment in the Religions of

Islam and Judaism

Sanaz Alasti*

Volume 4 – No. 1 –Spring 2007

* Sanaz Alasti is currently a CA S.J.D. (Scientiae Juridicae Doctor) Candidate, Golden

Gate University School of Law, San Francisco, CA; LL.M, Tehran University, Tehran,

Iran (2003); LL.B (Honors), Allameh Tabatabae University, Tehran, Iran (2001).

Abstract

This Article under takes a comparative study of stoning in Islam and Judaism. In

Islam stoning (rajm), which is one of the punishments originally, came from Hodoud

(Hodoud are punishments that the kind, the quantity and the quality of them are

determined in shariah) is the penalty of adultery. But in Judaism stoning was only one of

the four kinds of penalties used in cases like adultery; sodomy, idolatry and the ways in

which this punishment is executed are quite different in Islam and Judaism. By

comparing the size of the stones and the way it is done, one can say that in Islam the aim

of this punishment is to be more painful. In Islam, there are no clear instructions about

stoning in Quran, but there are some implications in Hadiths (saying and stories about

Prophet Mohammad’s behaviors told by his close followers), but it has been mentioned in

Torah. Stoning is a kind of punishment that no matter for what reasons or charges is

executed; it contradicts the International human right agreements such as Universal

Declaration of Human Rights, the International Covenant on Civil and Political Rights,

the Second Optional Protocol to the International Covenant on Civil and Political Rights,

and the Convention against torture and Other Cruel, Inhuman or Degrading Treatment

or Punishment. In Muslim world statistics shows, they still execute stoning as a

punishment (sometimes in public), but in Judaism we can find just some implications in

history. Therefore, considering the contemporary standards of societies we can

deliberate various evidentiary, procedural, and barriers to imposition of the stoning.

About the Author

Sanaz Alasti is currently a CA S.J.D. (Scientiae Juridicae Doctor) Candidate, Golden

Gate University School of Law, San Francisco, CA; LL.M, Tehran University, Tehran,

Iran (2003); LL.B (Honors), Allameh Tabatabae University, Tehran, Iran (2001).

Research interest is on penology, history of criminal justice, comparative criminal justice

systems. Contact Information: Golden Gate University, School of law, Advanced

International legal studies program, San Francisco, CA, E-mail: alasti_law@yahoo.com.

Comparative Study of Stoning Punishment in the Religions of Islam and Judaism

Introduction

This essay is an attempt for a comparative study of stoning punishment in the

religious context of Islam and Judaism. Since there has not been an exclusive essay or

thesis on this matter, its review seems to be a necessity. Especially the many and constant

problems made by the execution of this kind of punishment. In some Muslim countries,

governed by shari’ah law, stoning is still practiced. These countries include Nigeria,

Saudi Arabia, Sudan, and the United Arab Emirates. At the beginning of 2002, four

stoning verdicts against women in Islamic states were announced: two in Nigeria, one in

Sudan and one in Pakistan. All of these were charged with adultery. Stoning punishments

were issued recently in Nigeria for the crimes of adultery and sodomy.

In Iran stoning is not practiced currently and even before 2002, stoning was rare

in Iran, (Although hanging is a common punishment for serious offenses, such as drug-

smuggling and murder). Because the Iranian Penal Code provides the most complete

legal formulae for stoning, among the Islamic countries, it is the code that will most often

be cited in this paper.

While the human rights argument is an important one, this paper argues that the

only means of affecting permanent change in Islamic adultery laws is through vigorous

Islamic dialogue over the proper interpretation and application of these laws in the

Shari’ah. Close analysis of the complexities and contradictions of these laws, combined

with a proper reform methodology of the Shari’ahh, entails an end to what is an archaic

and grossly misapplied practice.

This research is organized in to eight sections. In Section one I attempt to describe

and define stoning punishment in Islam and Judaism. Section two argues about the crimes

for which death by stoning is prescribed in Islam and Judaism. Section three and four is

study of evidentiary process, execution procedures and stoning location. Section five

reviews cases that may result in reversal of stoning. The sixth Section is concerned with

stoning in Muslim countries as a major human rights issue in violation of International

conventions. In Section seven describes how based on the contemporary standards of

societies, stoning as a punishment is cruel and unusual. Finally Section eight examines

how without challenging the stoning per se as punishment in religious textual resources,

the evidentiary, and procedural, barriers may lead to the moratorium.

Definitions

Stoning is a form of capital punishment in which the convicted criminal is put to

death by having stones thrown at them, generally by a crowd. In some cultures, this was

seen as allowing the larger community to participate in the administration of justice.

Stoning has been used since ancient times to punish people judged as criminals; these

included prostitutes, adulterers, and murderers. Stoning became criticized as cruel and its

use in most places was abandoned for methods believed to be more humane, namely

hanging and decapitation.

Stoning as a form of punishment is provided in the criminal codes of the

following Muslim countries

: Iran, one province in Indonesia (Aceh), two federal states

of Malaysia (Terengganu, Kelantan), twelve federal states in Northern Nigeria (Bauchi,

Borno, Gombe, Jigawa, Kaduna, Kano, Katsina, Kebbi, Niger, Sokoto, Yobe, and

Zamfara), Pakistan, Saudi Arabia, Sudan and the United Arab Emirates. However,

provisions providing for stoning in the penal codes do not necessarily entail its strict

application.

Definition of stoning in Islam

To understand stoning as a punishment in Islamic criminal law, one must consider

that Islamic criminal law does not form an integrated whole. Rather, it deals with

relatively few specific legal questions, since the Qur’an gives insufficient details on crime

and appropriate punishment for a comprehensive code of criminal law. Most Muslim

countries possess statute law, orientate towards various European, e.g. French or Italian,

codes of law. These statutes regulate details the Quran or the hadith did not regulate.

Only Saudi Arabia and Oman lack a general criminal code. In Iran following ratification

of the Islamic Penal Code (1983) the modern Penal Code of Iran that was regulated in

accordance with novel concepts of crime and punishment was abolished. The present

criminal law in Iran based on the 12 Imami Shii version

of Shari’ah law (Islamic law).

In Iran there are 5 different punishments based on Article 12 of Islamic Penal

Code: 1- Prescribed punishment (Hudoud); 2- Retaliation (Qisas);

3-Taazir

(Discretionary punishment),

4- Preventive punishments

; 5- Blood money (Diyat).

The word Hudud is the plural form of Hadd (prescribed punishment) meaning

restraint, obstruction, hindrance or prohibition. Stoning is included in Hadd or hudud

crimes which are crimes with fixed punishment in the Holy Quran and Sunnah. The

punishment in Hudud is not subject to any amendment, alteration or commutation,

substitution, change or waiver by the judge, ruler or any person in authority. Infliction of

Hadd punishment is restricted when the accused person repents. For instance, if a thief

repented and returned the stolen property before being prosecuted then Hadd lapses. The

sanction for prescribed punishment in many cases is corporal punishment from flogging

to death penalty and because Hadd is the principle punishment there is no alternative

sanction for under Islamic law.

The punishment of stoning to death (rajm) has a long tradition in Islam. When it

comes to the practice of stoning adulterers, however, the traditions indicate that Talmudic

law primarily influenced Muhammad. The Hadith present Muhammad as initially

prescribing stoning explicitly for Jews who had been found guilty of adultery then later

referring to the Jewish law whenever is passing similar sentences on members of his own

community. Muhammad even criticized the Jews for relaxing their adultery laws when

Jewish people replaced stoning with smearing of coal on the face.

The Qur’an (24:2 Surah a Nur) only stipulates 100 lashes for the adultery. When,

Prophet Muhammad stoned a number of men and women and so this punishment is

Shari’ahh, Islamic Law. Based on the following Hadiths

(sayings and actions of Prophet

Muhammad or tradition) stoning is the punishment for adultery:

- The Prophet said: “When unmarried couples fornicate they should

receive one hundred lashes and banishment for one year. In the cases of

a married male committing adultery with a married female, they shall

receive one hundred lashes and be stoned to death. If one of the pair is

unmarried, one hundred lashes and exile for a year.”

- The Prophet said: “Do not stone the adulteress who is pregnant until

she has had her child.” After the birth she was put into a ditch up to her

chest and the Prophet commanded them to stone her. Khalid came

forward with a stone which he threw at her head, and there spurted

blood on the face of Khalid and he cursed her. The gentle Prophet

prayed over her and she was buried.

- Malik came to Abu Bakr and said: “I am a base fellow for I have

committed adultery.” Abu Bakr replied: “Repent before the Lord and

tell no one else.” The man still felt guilty and went to Umar who gave

him the same reply. Still feeling guilty he went to the Prophet who

asked if he was ill or mad, married or single. On hearing that Ma’iz was

healthy and married, the Prophet ordered him stoned to death.

- The Prophet was told: “ My son was employed with this man; he

committed adultery with his wife. I gave 100 sheep and a slave girl in

compensation.” The Prophet said: “Take back your sheep and your

slave girl. Your son will receive 100 lashes and a year in exile. As the

adulteress has confessed she will be stoned.”

After Muhammad’s death, the first generation of Muslim legal scholars included

adultery, as one of the six major offenses (Hudud) in Islamic law for which the penalty is

fixed by God in the Qur’ an. Furthermore the application of Hudud is the right of God

(haqq Allah). This made adultery an unalterable and unpardonable component of the

Islamic Penal Code. Unlike the other five major offenses (hadd) which were clearly laid

out in the Quran, both the application and the definition of adultery have been sources of

confusion and controversy in the Islamic legal tradition for centuries. Inconsistencies

between the Quran and the Hadith, with regard to the punishment for adultery, were

ultimately explained by the Caliph 'Umar

based on following Hadiths:

- A man went on a journey with the slave-girl of his wife and went into

her. The envious wife reported it to Umar who said the husband would

be stoned unless the slave girl was owned by him. The wife spoke out

to save him: “ I had given her as a gift.”

- Umar said, “ I am afraid that after a long time has passed, people may

say, ‘We do not find the Verses of the Rajam in the Holy Book and

consequently they may go astray by leaving an obligation that Allah

has revealed.’ Surely Allah's Apostle carried out the penalty of Rajam,

and so did we after him.”

Umar's claim has only furthered the stoning discourse among Shari’ ahh scholars,

most of whom question the tradition's ability to abrogate the Quran in the first place.

Because 'Umar was the only source to report the inclusion of the “ verse of stoning,” it

cannot be considered reliable for determining Shari’ahh. In any case, it is highly unlikely

that 'Umar's “ verse of stoning” is genuine.

If it were, it would be an extremely complex problem for Muslim jurists to

explain, for how could a revelation originally be part of the Quran but fail to be included

in the sacred text. Punishment for adultery relies, according to 'Umar, solely on the

Sunnah and not on the Quran violates the very definition of hudud as "punishments

mandated by God." Indeed, this fact alone should be enough to put an immediate end to

the practice of stoning adulterers.

Muhammad tradition occasionally orders stoning however, the most reliable

Hadith are not free from controversy. Because tradition demonstrates that Muhammad

may have confirmed stoning not lashes as punishment for adulterers, there was a great

deal of confusion as to whether he had done so before after Surah al Nur, which

unmistakably prescribes 100 lashes for adultery.

Definition of stoning in Judaism

To understand the biblical death penalties, one must consider not only the written

Torah, the first five books of the Bible, but also the Jewish Oral Law, that is, the Talmud,

a sixty-tractate, 5000 folio page masterpiece, whose two parts are the Mishnah and the

Gemara. The Mishnah, which generally states terse, black-letter law, was redacted circa

200 C.E.; the far lengthier Gemara, which is an extraordinary commentary consisting

largely of rabbinic debates, invoking biblical, mishnaic, and midrashic sources, was

redacted some three centuries later. Indeed, at least from the perspective of traditional

Judaism, to divine original intent with respect to any law, one must view the Bible and

the Talmud as an indivisible partnership in which it is often difficult to discern who the

senior partner is.

Capital punishment is a penalty prescribed by Biblical law for offenses that

violate ritual prohibitions (such as deliberate desecration of the Sabbath) as well as laws

regarding interpersonal relationships (murder, kidnapping, incest).

The Mishnah

mentions four methods of execution for a capital crime (stoning, burning, strangulation

and beheading) (Mishnah, Sanhedrin 49b-50b

In the Old Testament of the Bible, stoning is prescribed as the method of

execution for crimes such as murder, blasphemy or apostasy. However, the Talmud

seriously limits the use of the death penalty to criminals who were warned not to commit

the crime in the presence of two witnesses, and persisted in committing the crime also in

front of two witnesses. It was said about the death penalty if a court killed one person in

seventy years, it was a barbarous court and should be condemned as such (Extracts from

Deuteronomy 13:6 to 13:10).

If thy brother, the son of thy mother, or thy son, or thy daughter, or the

wife of thy bosom, or thy friend, which is as thine own soul, entices

thee secretly, saying, Let us go and serve other gods, which thou hast

not known, thou, nor thy fathers. (13:6). But thou shalt surely kill him;

thine hand shall be first upon him to put him to death, and afterwards

the hand of all the people. (13:9)And thou shalt stone him with stones,

that he die; because he hath sought to thrust thee away from the LORD

thy God, which brought thee out of the land of Egypt, from the house

of bondage. (13:10)

Palestine being a very rocky country, the abundance of stones made it accessible

to use rocks as missiles. Stone throwing might be merely a mark of hatred and contempt

(Bible, 2 Samuel 16:6-13) or the means of carrying out murderous intentions against

which provision had to be made in the Law (Bible, Exodus 21:18, Numbers 35:17).

Death by stoning was first an expression of popular fury analogous to “ lynching.”

“ Later it came to be a socially acceptable and legally recognized method of execution.

Stoning was regulated by law as an appointed means of capital punishment (Bible,

Deuteronomy 17:5-7; Acts 7:58). Stoning is also mentioned in Acts 7:57-58, as the

means by which Stephen the first Christian martyr was put to death: “ And casting him

forth without the city, they stoned him.”

Stoning crimes

A. In Islam

Stoning as the punishment of adultery applies to an illicit sexual liaison where at

least one of the parties is married to a third party. Article 63.of Iran Penal Code indicates:

“ Adultery is the act of intercourse, including anal intercourse, between a man and a

woman who are forbidden to each other, unless the act is committed unwittingly.” It does

not include premarital sex, although that too is forbidden. Both adultery and fornication,

although the penalties differ, are classified together in Islamic law as Zina. Adultery is

punishable by death by stoning.

The definition of adultery is complicated by the different interpretations of

Muslim sexual ethics. Some Muslim jurists argue that adultery should not be applied to

instances where a married person is unable to consort with their spouse due to legally

acceptable conditions, such as prolonged travel, or life imprisonment. Shi'ite schools of

law contend that adultery can be eluded by using a temporary marriage (mut'a) between

unmarried persons, while sodomy certainly falls in the category of zina; it is supposed to

connote homosexual behavior (liwat). As such, sodomy is often regarded as a sexual

deviation, not adultery, because sodomy challenges the harmony of the sexes and upsets

God’s will for creation.

If adultery is committed by a legally married man with a permanent wife or by a

legally married woman with a permanent husband, then the punishment is death by

stoning. A man who commits pedophilia is stoned to death, a woman guilty of the same

crime may receive only lashes; this is because the fact that Islamic law commonly

recognizes the age of puberty to be nine for girls and fifteen for boys.

B. In Judaism

Mishna, Sanhedrin 7.4 concerns offenders sentenced to death by stoning:

[1] one who has intercourse with his mother or his father’s wife, his

daughter-in-law, a male or a beast; [2] a woman who copulates with a

beast; [3] the blasphemer and the idol-worshipper; [4] one who curses

his father or his mother; [5] one who has intercourse with a betrothed

girl; [6] the instigator (to apostasy) [mesith] and the imposter [maddich;

cf. Deut 13]; [7] the sorcerer, and [8] the disobedient or rebellious son.

In addition to stoning crimes such as adultery or rape with a betrothed girl,

idolatry,

blasphemery,

sorcery,

cursing parents,

bestiality,

adultery

and incest

the Old

Testament prescribed stoning as the penalty for other different crimes:

- “ If, however, the charge is true and no proof of the girl's virginity can

be found, she shall be brought to the door of her father's house and

there the men of her town shall stone her to death. She has done a

disgraceful thing in Israel by being promiscuous while still in her

father's house. You must purge the evil from among you”

(Deuteronomy 22:20-21). Contrary to this approach, in Islam even

regency of woman does not determine adultery.

- “ For six days, work is to be done, but the seventh day shall be your

holy day, a Sabbath of rest to the LORD. Whoever does any work on it

must be put to death.”(Exodus, 35:2). Although stoning as a

punishment for Sabbath breaking not indicated in the Bible, the Talmud

prescribed stoning for Sabbath breaking.

- “ If, however, the bull has had the habit of goring and the owner has

been warned but has not kept it penned up and it kills a man or woman,

the bull must be stoned and the owner also must be put to death”

(Exodus, 21:29).

- “ If a man lies with a man as one lies with a woman, both of them have

done what is detestable. They must be put to death; their blood will be

on their own heads” (Leviticus, 20:13).

Evidentiary & execution procedures

A. In Islam

The number of confessions necessary for an adultery conviction is derived in the

Iranian Penal Code in the following manner: The accused was forced to confess four

times before his conviction was accepted; sentencing occurred if both perpetrator and

victim admit the "crime". Otherwise, four independent male witnesses have to be found.

These four witnesses must all profess to be direct eyewitnesses to the crime. If four men

are not available, three men and two women will suffice. In cases of fornication shari'ah

prescribes that a condemned are be punished with 100 lashes, if unmarried or with death

by stoning, if married, since this would then constitute adultery (Islamic Penal Code of

Iran, Articles 68, 74, 75).

The convicted person is wrapped in a shroud and placed into a pit then buried

either to the waist (man) or to the chest (woman).

"If the individual is sentenced to

flogging and stoning, flogging is carried out first and stoning is carried out

consequently." (Article 89, Islamic Penal Code of Iran).

If the adultery was proven in court by confession, the judge has the responsibility

of throwing the first stone. If the case was proven through witnesses, they start first,

followed by the judge then others who are present, numbering no less than three. The

lack of presence of the religious judge or not throwing the first stones by the religious

leader or the lack of witnesses would not prevent the sentence; it should be carried out

under any circumstances (Article 99, Islamic Penal Code of Iran). "The stones are then

hurled one by one until the accused is killed. The Iran Penal Code explicitly outlines

proper stones usage. Article 104 states, with reference to the penalty for adultery: ’’the

stones should not be too large so that the person dies on being hit by one or two of them;

they should not be so small either that they could not be defined as stones’’. Under the

law, the stones must be big enough to injure but not kill with just a few blows."

B. In Judaism

A court of at least 23 judges would have to be satisfied, to a legal certainty, that

the capital offense had been committed by the accused before the court could impose a

death sentence. Since the testimony of two eye-witnesses was required, and the witnesses

were subjected to searching and detailed interrogation by the court, there was rarely an

instance when the evidence met the prescribed legal standard.

The execution of the criminal usually took place outside the city walls, and

according to Deuteronomy 17:7, the witnesses in the case were to cast the first stone:

“ Thou shalt bring forth the man or the woman, who have committed that most wicked

thing, to the gates of thy city, and they shall be stoned. By the mouth of two or three

witnesses shall he die who is to be slain. The hands of the witnesses shall be first upon

him to kill him, and afterwards the hands of the rest of the people”(Deuteronomy 17:5-7).

Death by stoning is carried out by hurling stones at the condemned until they die

from the force of the objects thrown at them.The Talmud describes the stoning

punishment (called Skila in Hebrew) in different terms than the stereotypical notion of

hurling rocks at an immobile defendant/victim. Rather, the defendant is brought to the top

of a large scaffold, and thrown off. After that (if the defendant was not already dead) very

large rocks were dropped on the defendant.

The Mishna in tractate Sanhedrin (45a) describes execution by “ stoning.” The

condemned defendant was pushed from a platform set high enough above a stone floor

that his fall would probably result in instantaneous death.”The place of stoning was the

height of two men. One of the witnesses knocked (the convict) down on his back. If he

turned over on his chest, the witness turned him on his back. If he died right away, that

was enough; but if not, the second (witness) took a stone and dropped it on his chest. If

he died right away, that was enough; but if not he was stoned by all Israelites present.

According to the Talmud the height from which the accused was pushed was

substantial enough that death was virtually certain. An immediate death (Leviticus

19:18), "You shall love your fellow as yourself." This commandment requires a court to

select for a condemned man a humane (i.e., painless) death. Rashi, the leading medieval

commentator on the Talmud, explained that when the Talmud says a “ humane death” it

means a “ quick death” (Sanhedrin 45a).

The Gemara discusses why the Mishnah prescribed the height it did when it is

clear from other sources where a lesser height is sufficient to cause death. The answer is,

because the Sages wished to bring about a "favorable death," one that would not prolong

his death agony. A fall from a greater height would cause death sooner and with less pain.

Raising the stoning ground higher smashed the defendant/victim body to become

"grotesque," "adding markedly to the indignity of his execution."

A Mishnaic source states that the second stone was so heavy it had to be lifted by

two men, but then it goes on to say that "he would take it and throw it on the chest of the

condemned." The Gemara disagrees, concluding that the stone will have a greater

velocity if thrown by one person. If the two were to throw the stone, it would be difficult

to coordinate the exact moment of release, and thus one witness might lift the stone while

the other was released it. In contrast the Mishnah rule if the defendant does not die as a

result of the stone hurled at him, then all Israel must stone him. Another Mishnaic era

source says "it never happened that a person repeated the stoning procedure."

The Gemara Sages resolve the apparent contradiction, asserting the Mishnah is

only giving the law if the stone does not kill the defendant. If that is not the case,

however, that is, the condemned man dies, and then no additional stoning by the

congregation is required. The Gemara challenges this premise; it critiques then refutes

various proofs. Finally, the Gemara finds only one Mishnaic era source supporting the

view that generally biblical verses must be followed literally (Sanhedrin 45a (3)).

Considering the stones size and execution conditions the Rabbis’ ultimate concern

was that the execution be as quick and as painless as possible, with minimal

disfigurement. When one Rabbi suggested that the height of the platform should be

increased so death by falling would be certain, another Rabbi responded that raising the

platform is unacceptable, a fall from too high would result in disfigurement.

When a male condemned is near the stoning grounds, court officials remove all

clothing, save for a piece of material to cover the man's genitals. Rabbi Yehudah, argues

that the only difference between a condemned man and woman is that "both in the front

and in the back" she is covered, but otherwise disrobed. The Sages argue, however, that

only a man is stoned unclothed. The Gemara contends that a redundancy in the biblical

text, "and they shall stone him," establishes that only male condemned are to be stoned

naked. Rabbi Yehudah, on the other hand, explains the extra word as implying that each

condemned be stoned to death without clothing, and that gender is irrelevant (Sanhedrin

45a (1)).

The Mishnah begins with the words Nigmar Ha-Din (when the judgment has been

concluded). The stoning punishment begins with one foot in the court, the decision and

the language of the court. The bulk of the Mishnah is focused on procedures in the

stoning house for the execution. The last two Mishnahs Five and Six, the stoning

punishment returns to the court: Executioners would not bury the condemned in the

graves of his father; separate gravesites were prepared for those executed by decapitation

and strangulation, and for those executed by stoning and burning. When the flesh is

consumed, they gather and bury the bones. And the relatives come and ask after the

welfare of the judges and the welfare of the witnesses, that is to say, that we have nothing

in our hearts against you, that you judged a judgment of truth. And they would not mourn

with full ceremonies, but they would mourn the day of the death, since mourning the day

of the death is only in the heart.

Thus the execution begins and ends in the court house, after a long detour through

the stoning house. Through this sequence, the Mishnah emphasizes the link between the

court and the execution. The stoning punishment ends with the relatives making

reconciliation with the court. Separate burial is prescribed for the criminal, not in the

gravesite of his fathers but in "gravesites prepared for the court." The criminal, now as a

corpse, makes his way back to the court, so to speak, which, in a final act of

appropriation, refuses to hand the body over to the family.

Stoning Location

When the judgment has been concluded, executioners take the condemned out to

stone him. The stoning house was outside the court house, as the Bible said, “ Take out

the blasphemer” [Lev. 24:14]. The condemned stand at the entrance of the court, and the

scarf is placed in his hand. One person rides the horseback far to monitor the condemned

see him. Another says, “ I have to argue for his innocence,” that person waves the scarf,

and the horse runs and stops him. If the condemned says, "I have to argue for my own

innocence," they bring him back, even four or five times, only provided there is substance

in his words.

The Biblical text first establishes that the execution site (stoning house) must be

far from the court house, citing Leviticus 24:14 and it then stages a rescue effort on

behalf of the convicted criminal. As he is processed from the court to the execution site,

exonerating evidence is sought in a last-ditch attempt to reverse the verdict. The exegesis

provided in this Mishnah is peculiar. In Leviticus 24:14, God delivers to Moses a

command for the community to stone a blasphemer. God directs the people to perform

their stoning "outside the camp": "Take the blasphemer outside the camp; and let all who

were within hearing lay their hands upon his head, and let the whole community stone

him." While the verse quoted requires that the criminal be taken outside the camp, the

Mishnah requires that the criminal be taken outside the court.

In Islam it is not possible to conduct the stoning in territory of Islam’s enemies. In

addition it should be executed in public. Article 101 of the Iran Penal Code stipulates: "It

is adequate that the religious leader should notify people about the time of carrying out

stoning and it is required that a number of believers, no less than three, be present at the

time of carrying out the sentence.” Article 107 stipulates: "The presence of witnesses is

necessary at the time of carrying out the stoning but their absence would not make it null

and void. In Judaism also based on Deuteronomy17:7 stoning should be executed in

public.

Reversal of Punishment

A. In Islam

Victims who can dig themselves out are acquitted. If the condemned escape from

the hole during the stoning and guilt is proved by his own confession, it will result in

pardon. If the crime has been proved by confession escape indicates withdrawal.

Men stoned to death are buried to the waist, while women are buried deeper, to

prevent the stones from hitting their breasts; as for women the possibility of escaping is

much fewer than men. That is why in Islamic countries fewer men have been stoned than

women. This apparent regard actually has a negative impact for women: If a prisoner

manages to pull free during a stoning, he or she can be acquitted. In addition, the escape

of witness, the denial after confession and repentance of sin will also result in avoiding

the punishment.

It should also be noted that the law usually provides a stay of execution for a

pregnant or nursing woman if there is no one to care for the child. In some cases the

capital punishment would merely be postponed until the child is old enough to no longer

need nursing.

B. In Judaism

There are also conditions about avoiding this punishment in Judaism. Witnesses

push the condemned by their hips so they fell the ground sideways. If the condemned fell

on their chests, they turned onto their hips. If the fall killed the defendant, no stones were

cast. If they survived, then other witnesses dropped a stone on their chests. If they died no

further stones were cast. If they survived, "all of Israel," that is, all present at the

execution, stoned them to death.

Despite the Gemara grapples with yet another statement of the law, this is that if

the witnesses’ hands are severed before they can carry out the execution, then the

defendant must not be killed (Sanhedrin 45b (1)-(2)). This practice is based on

Deuteronomy 17:7, which states that "the hand of the witnesses shall be upon him first to

put him to death."

Stoning and human rights

There is no question that stoning is a grave human rights issue. It explicitly

contradicts Article 5 and 3of the Universal Declaration of Human Rights; Article 7 and 6

of the International Covenant on Civil and Political Rights; the Second Optional Protocol

to the International Covenant on Civil and Political Rights; aiming the abolition of the

death penalty as well as the Convention Against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment.

The oldest existing International conventions, is the Universal Declaration of

Human Rights was adopted in 1948. It protects individuals from torture and cruel,

inhuman, or degrading punishment. Following the Universal Declaration, the United

Nations ratified the Convention for the Protection of Human Rights and Fundamental

Freedoms in 1950. It was followed by the International Convention on Civil and Political

Rights in 1966. Both of these International conventions prohibit cruel or torturous

punishment. Whereas the three aforementioned documents are general conventions which

target a variety of human rights concerns, a more recent agreement focuses specifically

on problems regarding punishment. Article 5 of the Universal Declaration of Human

Rights provides that “ No one shall be subjected to torture or to cruel, inhuman or

degrading treatment or punishment.” Article 3 of the Universal Declaration of Human

Rights states that “ everyone has the right to life, liberty and the security of person.”

Article 7 of the International Covenant on Civil and Political Rights (ICCPR)

provides that "no one shall be subjected to torture or to cruel, inhuman or degrading

treatment or punishment. In particular, no one shall be subjected without his free consent

to medical or scientific experimentation." Article 10, paragraph 1 of the ICCPR states

that "all persons deprived of their liberty shall be treated with humanity and with respect

for the inherent dignity of the human person." The United Nations Human Rights

Committee, in its authoritative general comment on Article 7 of the ICCPR, emphasized

that the absolute prohibition of cruel, inhuman or degrading punishment must extend to

corporal punishment. Article 6, paragraph 1 of the ICCPR states:

1. Every human being has the inherent right to life. This right shall be

protected by law. No one shall be arbitrarily deprived of his life. 2. In

countries which have not abolished the death penalty, sentence of death

may be imposed only for the most serious crimes. (Emphasis added).

In addition, the ICCPR states a "sentence of death may be imposed only for the most

serious crimes.”

While “ serious crimes” are not defined, it does not seem possible that

the international standards would accept adultery as the type of crime for which the death

penalty may be imposed.

In 1984, the United Nations General Assembly adopted the Convention Against

Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in which

torture is defined as "any act by which severe pain or suffering, whether physical or

mental, is intentionally inflicted on a person for such purposes as punishing him for an

act he has committed or is suspected of committed."

. Although Iran failed to sign this

Convention, fifty nations, including the Nigeria, Sudan, and Saudi Arabia, are parties to

the agreement. Due to such strong international acceptance, this convention is no longer

merely an agreement, but rather rises to the level of customary law. Accordingly, it binds

other nations in addition to its signatories. Moreover, the incorporation of the right to

freedom from torture and cruel, inhuman, or degrading punishment into eighty-one

national constitutions further renders the provision a “ general principle of law.” Under

this Convention, the definition of an act of torture is any act which causes “ severe pain or

suffering,” excluding pain and suffering which result from “ lawful sanctions.”

Amnesty International opposes the death penalty as the ultimate cruel, inhuman

and degrading punishment, In December 2001, the UN General Assembly expressed its

concern about “ the growing number of executions in the absence of respect for

internationally recognized safeguards and, in particular, public and especially cruel

executions, such as stoning.” Amnesty International greatly welcomes that the concerns

of the world community seem finally to have been taken into consideration, when Iran

announced on 26 December 2002, in the course of negotiation with the European Union,

to temporarily suspend the punishment of death by stoning. Iran imposed a moratorium

upon stoning in December 2002 under a directive from the Head of the Judiciary, which

was welcomed by Amnesty International.

The significant issue is these international agreements are Western documents

reflect neither Islamic culture nor Islamic notions of human rights. Some scholars have

argued that Islam is not silent on the issue of human rights and, in fact, has a long and

distinguished tradition of human rights. The egalitarian community that the Prophet

Muhammad founded in Medina instituted radical social and economic reforms that not

only gave enormous rights to marginalized groups - including bestowing the then

unprecedented rights of women to divorce their husbands and to inherit and maintain

their own property - but also thoroughly revolutionized the archaic legal system of pre-

Islamic Arabia.

Others attempt to find the modern concept of "human rights" in the Qur’an and

Sunna, dismissing anything not found in the original sources as un-Islamic. The

difficulty with this approach is that the original texts do not address the modern nation-

state and the problems which arise therein. Indeed, most of the "rights" conservative

Islamic thinkers embrace are those of individuals viz à viz each other.

Stoning and contemporary standards of societies

Evolving standards of decency that mark the progress of a maturing society are

final resort for challenging the stoning punishment. Why does stoning appear so

revolting? Because we are civilized and do not do that sort of things any more. Emile

Durkheim believed that society’ s punishments are a window through which its “ true

nature” can be viewed. And an important reason why this punishment is thought of with

such repugnance is that they have been historically linked to the process of torture.

In many cases two terms are synonymous, often what one individual would call a

just form of punishment another would term torture. In many cases the actual punishment

which society imposed was preceded by torture.

The debate over the application of the cruel and unusual punishment to the

practice of stoning includes that the words “ cruel,” “ unusual” and “ punishment” have

changed their meanings. The debate surrounds whether the application of the cruel and

unusual punishments should be tied to perceptions of values and customs

contemporaneous with its enactment, or whether that the principle must ever reflect

current, evolving, presumably progressive, values.

The punishment, the harshest in Talmudic law, was intended to be as quick and

painless as possible given the nature of the punishment. (That is, there are quicker and

more painless punishments, but the Talmud specifically condemns long, drawn out, and

torturous punishments).

Harsh Biblical penalties were carried out to the letter at one time, but certainly by

Mishnaic times courts favored a lenient interpretation of the law. Stoning was replaced

by the quicker method of simply pushing the convicted off a ledge. Stone hitting a

person’s body was the same as a person’ s body hitting stone ran the argument. Stoning

horses were constructed using a ledge placed at twice the height of a man, as it was

determined that this height would kill the man but not mutilating the body. If the

condemned was not killed, a heavy stone was dropped on his chest to kill them quickly.

Contemporary Jewish Law coincides with the Jewish Legal doctrines from two

millennia ago. It is not permissible to execute a condemned man or woman by methods

that cause unnecessary pain, delay or disfigurement. Even in the rare case when the State

has determined that the accused must be put to death because a heinous offense was

committed, the condemned is legally entitled to consideration and dignity.

This paper does not address the question of whether all capital punishment should

today be rejected as “ cruel and unusual” punishment. But almost two millennia ago the

Rabbis of the Talmud, in prescribing methods for imposition of the death penalty were

concerned about the same factors that have emerged from this Court’ s Eighth

Amendment jurisprudence. Primary concerns under Talmudic law: (1) The prevention of

unnecessary pain and (2) Avoidance of mutilation or dismemberment of the body.

Therefore, the four means of execution described in the Talmud were designed to

minimize the pain of the person who was being put to death, and to avoid mutilation of

his or her body. The methods described in the Talmud, therefore, differ significantly from

what is assumed from a reading of the Biblical text.

Thus contemporary Jewish law considers the standard of decency for this reason

they do not execute stoning and this is possible for Muslim jurists to adopt this approach,

“ most Muslim policymakers in offending countries want to make changes in certain

aspects of their strict penal codes and they are looking for the language and justifications

that would make it palatable to do so. Regardless, change, if it is to be both compelling

and permanent, must always come from within”

The more the situation of the Muslim community changed, the more the

Revelation altered to match the community's needs. To coordinate with the contemporary

standards of Islamic societies Islamic scholars developed a vital exegetical tool called

Naskh, which can best be understood as the purposeful abrogation (not cancellation) of

one verse with another. For the vast majority of Muslims in the world, Naskh signifies

that the Qur’an is a living, evolving scripture developed alongside the Muslim

community. More than anything else, however, Naskh demonstrates the importance of

historical context in Quranic interpretation. At the very least, according to Abdullahi An-

Na'im, Naskh exposes the possibility that modern situations can allow the later Medinan

texts of the Quran to be superseded by the more universal Meccan verses because, to

quote the great Sudanese legal reformer Mahmoud Mohamed Taha: "the Meccan and

Medinese texts [of the Quran] differ, not because of the time and place of revelation, but

essentially because of the audience to which they are addressed." And while it is true that,

with the Prophet Muhammad’s death, the Revelation ceased evolving, it would be

counter-factual to argue that the Muslim community has also ceased evolving over the

past fifteen hundred years. Quite the contrary, the fact is there can be no question that the

Shari’ahh was developed within a clear historical context. Like the Quran, the tradition,

the second most important source of Islamic law, is also a response to specific historical

circumstances. Indeed, countless traditions strive to explain the historical context in

which a certain revelation was revealed.

Thus, personal dignity and humanity are highly valued in current societies,

Muslim jurists should continue adapting these tools to prohibit punishments that violate

these values and would have to be deemed problematic and in contrast to the idealism

embodied in the ban on cruel and unusual punishment.

Abolition of stoning or moratorium

Although stoning exists in the Islamic and Jewish textual references without

substantial abolition, it is possible to consider various evidentiary, procedural, and

barriers against the stoning. Barriers such as lack of just and ideal religious criminal

justice system, prevention of stoning in case of doubt, evidentiary requirement and

considering 21 century make stoning increasingly rare.

The judges of the Rabbinic Courts were deemed to be agents of God, and indeed

the word used for such judges in the Bible is often the same as one of the names of God -

a name that denotes His aspect of Strict Justice.

In the Talmud, the power of criminal punishment was withdrawn from the Jews

forty years prior, at the time of the destruction of the Second Temple, before the Rabbinic

period began. Based on the Talmudic evidence as well as historiography of Roman

Palestine in this period, it remains a matter of more than some doubt whether the

Mishnah’s procedure for capital punishment was ever implemented, indeed, whether

much of the Mishnah’s entire set of legislations was ever implemented in its own time. If

the legislators who authored the Mishnah assumed a set of political conditions in which

they were unable to carry out the death penalty, surely that would alter our reading of the

role that violence plays.

Although the Biblical text contemplates frequent imposition of capital

punishment, the weight of authority among rabbis of the Mishnaic period (1st-3rd

centuries of the Common Era), who first committed to writing what had theretofore been

transmitted from generation to generation as the Oral Law, clearly condemned frequent

executions. The Mishna in the tractate Makkoth (7a) declared:

The Sanhedrin that executes one person in seven years is called

“ murderous.” Rabbi Elazar ben Azariah says that this extends to one

execution in seventy years. Rabbi Tarfon and Rabbi Akiva say, “ If we had

been among the Sanhedrin, no one would ever have been executed.” Rabbi

Simon ben Gamliel responds, “ Such an attitude would increase bloodshed

in Israel.”

This exchange among Rabbis living in the first and second centuries reflects

differences over the deterrent value of capital punishment that continues among legal

scholars to this day. Some Rabbis of the Mishnaic period (such as Rabbis Tarfon and

Akiva) were unwilling to participate in any process that would take human life, while

other rabbis (like Rabbi Simon ben Gamliel) believed that capital punishment had a

deterrent effect that permitted it to be employed.

In Jewish law stoning was used mainly for crimes that affected the wellbeing of

the whole community. It was carried out collectively; prosecuting witnesses were

required to cast the first stones. The heavy responsibility of carrying out the execution

was supposed to deter witnesses from making false accusations.

Several currents of thought exist in the Islamic world today. Disagreements are

numerous, deep and recurring. Among these, a small minority demands the immediate

and strict application of hudoud, assessing this as essential prerequisite to truly defining a

"Muslim majority society" as "Islamic". Others, while accepting the fact that the hudûd is

found in the textual references (the Quran and the tradition), consider the application of

hudoud to be based on the moves of the society must be just and, for some, has to be

"ideal" before these injunctions could be applied. Thus, the priority is the promotion of

social justice, fighting against poverty and illiteracy etc. Finally, there are others, also a

minority, who consider the texts relating to hudoud as obsolete and argue that these

references have no place in contemporary Muslim societies.

All Muslim jurists, of yesterday and of today and in all the currents of thought,

recognize the existence of scriptural sources that refer to corporal punishment (Qur’ an

and Sunna), stoning of adulterous men and women (tradition). The divergences between

the Muslim jurists are primarily rooted in the interpretation of a certain number of these

texts, as well as divergent views on the relevance to the contemporary era.

The majority of the Muslim jurists, historically and today, are of the opinion that

these penalties are on the whole Islamic but that the conditions under which they should

be implemented are nearly impossible to reestablish. These penalties, therefore, are

“ almost never applicable”. The hudoud would, therefore, serve as a “deterrent,” the

objective of which would be to stir the conscience of the believer to the gravity of an

action warranting such a punishment. The penalties are Islamic, but conditions are not

appropriate for their implementation.

In Islam, “ Hudoud punishments are to be prevented in case of doubt”. This based

on the prophetic tradition: “ Prevent the application of Hadd punishment as much as you

can whenever any doubt exists.” The standard of proof in Hudud punishment is very high

and difficult to attain. It is even recommended by the Shari’ ahh that a judge suggest the

possibility of withdrawal of confession to an accused who has confessed to the

commission of crime.

Because of the severity of punishment there are very strict evidentiary

requirements for proving adultery. For instance there must be four male witnesses instead

of normal two, or the accused must confessed to the crime. Some jurists have considered

that it is meritorious for the witnesses not to testify, leaving the offender to atone for the

offence privately with God. Witnesses are constrained by the opyactical consideration

that if the accusation is dismissed then they are subject to the punishment for false

accusation of adultery.

Considering the above approaches, Iran has imposed a moratorium on stoning.

Prior to 1983 stoning as a punishment did not exist in Iran. In ancient Iran punishments

were harsh but we can not find precedence of stoning as a punishment during this era.

After the invasion of Arabs in Iran, the central government was defeated and criminal

justice system of ancient Iran was collapsed. Muslims enforced Islamic criminal rules to

establish order, social security and promotion of Islam. Although Islamic punishments

were administrated up to ratification of criminal Code in Iran; When Pahlavi Dynasty

replaced the Qajar Dynasty (1779-1925) stoning was not practiced in Iran. The present

punishment system in Iran is based on the Twelve Imami Shii version of the Shari’ ah

law. This system was formed in the early 1980s. In 1983 the first specific Islamic Penal

Statute was ratified (Statute of Retaliation and Prescribed Punishments). Based on this

statute stoning was applicable for the adultery. Subsequently and now chapter 2 of the

Islamic Penal Code is about prescribed punishments (Ratified in 1992). Although stoning

was imposed in the early years after the 1983, stoning was rarely applied (Before 2002).

The Iranian moratorium on stoning was announced in December 2002. The head

of the judiciary sent a directive to judges instructing them to stop issuing death verdicts

by stoning, Ayatollah Mahmud Hashemi-Shahrudi, head of Iran's judiciary, indicated that

execution by stoning would be replaced with other means of punishment. He did not say

whether this was a temporary or permanent move, but some Islamic jurists have defended

stoning as part of Islamic law and thus impossible to abolish it per se.

Shi'i Islam, follows a line of succession from the family of the Prophet rather than

Sunni acceptance of the authority of the Caliphs, is better suited for flexibility in deciding

current legal issues. The main branch, Twelve Shi'ism, believed 12 imams were the direct

descendants of Mohammed and succeeded him as the true Caliph. The last disappeared

while a child and is known as the "hidden Imam" who will eventually return to rule the

Islamic world. During the occultation of the Twelfth Imam, the people are to be guided

by Mullahs empowered to interpret the laws. They can engage in modern individual legal

reasoning by a Muslim jurist (Ijtihad) to resolve conflicts between traditional Islamic law

and international human rights, the prominent Shi'i clerics in Iran can be a positive force

for safeguarding human rights in that country and an example to other Muslim

governments. For instance former Iranian President Rafsanjani declared that stoning is

not an appropriate punishment, and is generally only imposed by tasteless judges. This

could be an isolated remark; it could also be a first step toward a revival of Shi’i ijtihad in

this area. Based on above interpretation other jurists in Iran also challenging the stoning

punishment:

Grand Ayatollah Naser Makarem Shirazi said in a written fatwa or

religious ruling “ In certain circumstances, death by stoning can be

replaced by other methods of punishment.” Shirazi is a highly influential

cleric in the city of Qom — Iran's religious center. Abiding by the ruling

of senior clerics is considered a religious obligation for the country's

Shiite-dominated Muslim population: Ayatollah Hussein Mousavi Tabrizi,

another senior cleric in Qom, about 80 miles south of the capital Tehran,

said stopping stoning was a response to the demands of modern age. “ Any

punishment, including stoning, that defames Islam or depicts a bad picture

of the religion in the world is harmful to Islam and it is fully Islamic to

stop it.”

Modern application of Jewish law implements the principle of humanity and

consideration for this issue too. The State of Israel has abolished capital punishment for

all offenses other than genocide, war crimes, and crimes against humanity, crimes against

the Jewish people, and treason in wartime. The only execution that has taken place in

Israel was the execution of Adolf Eichmann, in which the condemned man was hanged.

In an important prisoners’ -rights case, however, Deputy President of the Supreme Court

Menachem Elon wrote an opinion in which he said (State of Israel v. Tamir, 37(iii) P.D.

201 (1983)): Jewish Law was particularly insistent on the preservation of even a

criminal’s rights and dignity during the course of punishment. Maimonides, after dealing

with the types of punishment a court may impose, including imprisonment, concludes:

“ All these matters apply to the extent that the judge deems appropriate and necessary for

the needs of the time. In all matters, he shall act for the sake of Heaven and not regard

human dignity lightly. He must be careful not to destroy their dignity.” According to

Jewish law, a death sentence must be carried out with the minimum of suffering and

without offense to human dignity. This is based on the Biblical verse, “ Love your fellow

as yourself,” and the rule is, “ Choose for him a humane death.” From this we declare that

even a condemned felon is your “ fellow.”

Yet, despite the fact that the stoning of adulterers is a problematic and

inconsistently applied punishment in Islamic law, the practice continues unabated in a

number of conservative Muslim countries, particularly within their poor, rural regions.

Conclusion

As a general rule, the Islamic punishments in some extends belongs to the Arabs

tribal system of punishment, in addition; Imam Bukhari narrates a Hadith (tradition) on

the authority of Ibn Abbas that the law of retaliation was originally prescribed to the

Israelites. It shows these punishments belong to many ancient cultures. But if a poll were

conducted tomorrow in Iran and other Islamic countries, we would find considerable

support for stoning? How stoning as a formal punishment that is not deeply rooted in

Iran’s cultural and background can be applied. In determining the possibility of

moratorium or abolition of stoning we should contemplate that the application of stoning

to be conditional upon the society, which must be just before this punishment, could be

applied.

Considering that the opinion of most Islamic scholars regarding the

comprehension of the texts and the application of stoning are neither explicit nor

unanimous, accepting the fact that the Quran mentions adultery in some twenty-seven

verses, it never mentions stoning as a possible punishment. Instead, it calls for lashes in

one verse, ignoring for a moment the rather absurd incongruity of finding four blameless

men who have simultaneously witnessed the very private act of sexual intercourse

between two people, it must also be noted that one of the six hudoud in the Shari’ ahh is

the false accusation of adultery, a crime punishable by eighty lashes, bearing in mind that

under Jewish law, even in the case of stoning, which is the most severe form of capital

punishment and is presumably reserved for the worst offenses, being necessary for

expiation of the particular sin, the Rabbis sought in the first instance to prevent

conviction (e.g., by reopening the case as often as necessary), and, if that failed, to

prevent execution (by requiring that the biblical verse be followed literally), and, at the

very least, to minimize suffering and indignity and bring about a "favorable death”, and

finally taking in to account all various evidentiary and procedural barriers to imposition

of stoning can lead to Muslims through the world to place an immediate moratorium on

the application of stoning.

I am not discussing the question of whether stoning should be abolished per se but

Islamic countries which still apply stoning can learn Jewish and shiism approaches.

Furthermore in according to the contrast of these punishment with human rights, while

particular countries may treat people arbitrary and severely curtail their human rights, this

is in spite of, rather than in keeping with, Islamic law. Because religions have the ability

to adapt themselves with ideas. Therefore, our Islamic laws need to be updated and meet

demands of the modern time, for this reason it has been mentioned in Bible “ religions are

for human being not human being for religions.”

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Notes

The criminal codes of these Islamic countries are based on Sunnah or Shiite school of

Islam. Sunni Islam acknowledges four schools of law (madhahib, pl. of sg. madhhab =

path, teaching, school), which developed during the course of the 8th century AD in the

large centers of Islamic learning. Each of them is named after its founder or one of his

students: Hanifite, Maliki, Shafi'ite and Hanbali schools. They differ in dogmatics and the

interpretation of Qur'an regulations, i.e. the practical rules in the life of the individual. In

addition there is one Shiite school of law

The most important Shiite school of law is the school of the Jafarites or Imamites.

According to Shiite belief it goes back to the Sixth Imam Hazrat Ja'far As-Sadiq (700 -

765). Written records have existed since the 11th century.Shiite Islam differs from Sunni

Islam that it believes in the system of the "Imamate". This means that, after the prophet,

the only true leader of the Muslims, at a given time, is an Imam, who, like the prophets, is

directly appointed by god. The Imam must be a direct descendent of the family of the last

prophet. Like the prophets, the Imam is sinless (masum) and his rulings should therefore

be obeyed under any circumstances. Unlike in Sunni Islam, where the Caliph is the

political but not the religious leader of the community, Shiite Islam believes in both the

political and the religious authority of the Imam.Shiite Islam regards the Imam to be an

autonomous source of religious behavior with the same standing as the Qur'an and the

hadith and must therefore be obeyed the same way. This means that any behavior

contradicting the instructions of the Imam is just as sinful and punishable as behavior

contradicting the Qur'an and the hadith. Today the Twelve Shia can be found mainly in

Iraq, Iran and the Indo-Pakistani area, as well as minority groups in Afghanistan,

Lebanon, Central Asia, Turkey, Bahrain and in the Persian Gulf States.

The present punishment system in Iran based on the Twelve Imami Shii version of the

Shari’ah law. This system formed in the early 1980s during the tenure of the Ayatollah

Ruhullah Mosavi Khomeini. In 1983 the first specific Islamic penal Statute was ratified

(Statute of retaliation and prescribed punishments). Based on this statute flogging,

mutilation and stoning were applicable for crimes with fixed punishment in the Holy

Quran and tradition. Therefore for other crimes jurists still refer to the modern penal

Code of Iran. In 1984 discretionary punishment statute was ratified. Subsequently and

now chapter 2 and 3 of the Islamic penal code is about retaliation and prescribed

punishments (ratified in 1992). And, immediately after, chapter 5 of Islamic penal Code

was ratified in 1997 (discretionary and preventive punishments). Furthermore, Article

729 of this statute abolished all contrary statutes including modern penal Code of Iran.

It is prescribed in the Holy Quran thus:” We ordained therein for them, life for life, eye

for eye, nose for nose, ear for ear, tooth for tooth and wounds equal to equal.

Meaning to prevent, to respect, and to reform. In the Islamic legal context, Taazir is

defined thus: discretionary punishment to be delivered for transgression against Allah, or

against individual for which there is neither fixed punishment nor penance.Taazir denotes

a punishment aimed at the prevention of crime and reformation of the criminal. It is

stated by a scholar that the aim of Taazir punishment is thus: disciplinary, reformative

and deterrent…. Taazir punishments are not textually specified either in the Holy Quran

or Sunnah of the Holy Prophet. But they mentioned some crimes for which there is no

fixed punishment and concerning which it is left for the judge or the ruler to decide what

sort of punishment to impose the manner of inflicting it (such as imprisonment, fine and

flogging less than prescribed punishments).

Preventive punishments are prescribed by government in order to protect order and

regard of public interests in violation of governmental regulations. Such as imprisonment,

fine…

Blood money (Diyat) is defined as compensation that is prescribed by holy Quran and

tradition.

A hadith recorded by al-Bukhari, on the authority of ibn Umar states: A Jew and a

Jewess were brought to Allah's Apostle (S) on a charge of committing illegal sexual

intercourse. The Prophet asked them: 'What is the legal punishment (for this sin) in your

Book (Torah)?' They replied: 'Our priests have innovated the blackening of faces with

charcoal and Tajbiya' (being mounted on a donkey, with their faces in opposite

directions, then mortified in public). Abdullah bin Salaam said: 'O Allah's Apostle, tell

them to bring the Torah.' The Torah was brought, and then one of the Jews put his hand

over the Divine Verse of the Rajm (stoning to death) and started reading what preceded

and what followed it. On that, Ibn Salaam said to the Jew: 'Lift up your hand.' The Divine

Verse of the Rajm was under his hand. So Allah's Apostle (S) ordered that the two

(sinners) be stoned to death, and so they were stoned."

Some of the Hadith no doubt have a claim top authenticity, but many, perhaps most, do

not.

Caliph ‘Umar is the second Caliph based on Sunnah school of Islam; therefore his

indication is not a source for Shitte school.

Mosaic Law defines 36 capital crimes, including murder, sexual offences, idolatry,

blasphemy and desecration of Sabbath.

But the Bible lists three methods of execution.

Article 83.of Iran Penal Code:” Adultery in the following cases shall be punishable by

stoning: (1) Adultery by a married man who is wedded to a permanent wife with whom

he has had intercourse and may have intercourse when he so desires; (2) Adultery of a

married woman with an adult man provided the woman is permanently married and has

had intercourse with her husband and is able to do so again.” Note. Adultery of a married

woman with a minor is punishable by flogging.

Bible, Deuteronomy, 22:23-26:“ If a man happens to meet in a town a virgin pledged to

be married and he sleeps with her, you shall take both of them to the gate of that town

and stone them to death—the girl because she was in a town and did not scream for help,

and the man because he violated another man's wife. You must purge the evil from

among you. But if out in the country a man happens to meet a girl pledged to be married

and rapes her, only the man who has done this shall die. “

Id, Deuteronomy, 17:2-6: “ If a man or woman living among you in one of the towns

the LORD gives you is found doing evil in the eyes of the LORD your God in violation

of his covenant, 3 and contrary to my command has worshiped other gods, bowing down

to them or to the sun or the moon or the stars of the sky, 4 and this has been brought to

your attention, then you must investigate it thoroughly. If it is true and it has been proved

that this detestable thing has been done in Israel, 5 take the man or woman who has done

this evil deed to your city gate and stone that person to death.”

Id, Leviticus, 24:16: “ anyone who blasphemes the name of the LORD must be put to

death. The entire assembly must stone him. Whether an alien or native-born, when he

blasphemes the Name, he must be put to death”.

Id, Leviticus, 20:27: “ A man or woman who is a medium or spiritist among you must

be put to death. You are to stone them; their blood will be on their own heads”.

Id, Leviticus, 20:9: “ If anyone curses his father or mother, he must be put to death. He

has cursed his father or his mother, and his blood will be on his own head”.

Id, Leviticus, 20:16: “ If a woman approaches an animal to have sexual relations with it,

kill both the woman and the animal. They must be put to death; their blood will be on

their own heads”.

Id, Leviticus, 24:16: “ If a man commits adultery with another man's wife—with the

wife of his neighbor—both the adulterer and the adulteress must be put to death”.

Id, Leviticus, 20:12: “ If a man sleeps with his daughter-in-law, both of them must be

put to death. What they have done is a perversion; their blood will be on their own

heads”.

And see Article 102 of Iran Penal Code stipulates that "for stoning, men should be

buried up to their waist and women must be buried up to their chest."

See Maimonides, Mishneh Torah, Book of Judges, Sanhedrin, chapter XII.

Mishnah Sanhedrin Chapter Six is about the Court House and the Stoning

House,Talmud, p 318-322

Article 91.of Islamic Penal Code Indicates:” An adulteress shall not be punished while

pregnant or in menstruation or when, following birth and in the absence of a guardian, the

newborn’s life is in danger. If, however, the newborn becomes the ward of a guardian the

punishment shall be carried out.”

Universal Declaration on Human Rights, U.N. GAOR, Supp. No. 16, U.N. Doc.

A/6316, (1967).

International Covenant on Civil and Political Rights, Dec/16/1966, U.N.T.S. No 14668,

vol 999.

. Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or

Punishment, 39 U.N. GAOR, 39th Sess., Supp. No. 51, at 197, U.N. Doc. A/RES/39/46

(1984) [hereinafter "Convention against Torture"].

“ Moratorium” generally means “ a temporary cessation” usually for tactical reasons.

Iran’s secular criminal justice system was formed under the Pahlavi Dynasty and its

two monarchs, Reza Shah (1925-1941) and Mohammad Reza Shah (1941-1979). Modern

criminal law was based on modern capitalist notions of crime and punishment. First penal

Code of Iran was ratified in 1926.