A man and a woman of the Jews who were married committed fornication at the time when the Messenger of Allah (ﷺ) came to Medina. Stoning was a prescribed punishment for them in accordance with the Torah, but they abandoned it and followed tajbiyyah, meaning, the man was beaten a hundred times with a rope painted with tar and was seated on a donkey with his face towards the tail of the donkey. Their rabbis then assembled and sent some people to the Messenger of Allah (ﷺ). They said to them: Ask him about the prescribed punishment for fornication. The transmitter then mentioned the rest of the tradition. They version adds: They were not the followers of his religion, and he (the prophet) was to pronounce judgment between them. So he was given a choice in this verse:”If they do come to thee, either judge between them, or decline to interfere.
Prescribed Punishments (Kitab Al-Hudud)
Sunan Abi Dawud 4451 - Commentary by Classical Scholars
Historical Context
This incident occurred during the early Medinan period when the Jewish community sought the Prophet's judgment regarding their own religious law. The Jews had abandoned the Torah's prescribed punishment of stoning for married fornicators and substituted it with a humiliating public punishment involving tarred ropes and public shaming.
Legal Analysis
Scholars explain that the Jewish community's abandonment of the Torah's ruling demonstrates how religious communities sometimes modify divine laws to suit their desires. The term "tajbiyyah" refers to this substitution of the proper punishment with a lesser one.
The classical commentators emphasize that this incident establishes the principle that when People of the Book come to Islamic authorities for judgment, the Islamic ruler has the option to either judge according to their religious law (if it aligns with Islamic principles) or decline jurisdiction.
Quranic Reference
The verse referenced is from Surah Al-Ma'idah (5:42): "If they do come to you, either judge between them or turn away from them." Scholars explain this gives the Islamic state discretion in adjudicating matters for non-Muslims living under its protection.
Scholarly Interpretation
Imam Al-Nawawi and other classical scholars note that this hadith demonstrates the validity of judging non-Muslims by their own religious laws when they voluntarily submit to Islamic jurisdiction, provided those laws do not contradict fundamental Islamic principles.
The incident also shows the importance of implementing prescribed punishments consistently and not substituting them with arbitrary penalties, as this undermines divine justice.