As-Siyasah ash-Shari'ah fi Islah ar-Ra'iy war-Ra'iyah [Public Policy
in Islamic Jurisprudence]
[Translated from Arabic by Omar A. Farrukh in the following edition:
Ahmad ibn Abd al-Halim Ibn Taymiyah (lived 1263-1328). Ibn Taimiyya on
public and private law in Islam; or Public policy in Islamic jurisprudence.
Beirut, 1966, pp. 118-119.]
Penalties concerning adultery
The jurists have different opinions as regards the woman who becomes pregnant. though she has neither a husband nor is she the bond-maid of a known master, nor did she pretend to be pregnant (of a marriage which turned out to be false and consequently annulled). Ahmad, as well as others, holds two opinions about this. It is said that she deserves no punishment, because she might have become preganant under compulsion or [accidentally: from the bath, for instance, cases of which have been known to happen] or [of a marriage proved latter to be false: proved later that the couple were close relatives; or as a result fo sexual intercourse in doubtful circumstances (a woman imagining that a certain man was her husband), etc...]. It is also said that penalty should not be inflicted upon her, a view originating from the (time and from the cases in the days of the) four Caliphs (successors of the Prophet). This conforms well with the principles of Islamic Law and is, at the same time, the view expressed by the Medinese school of law. Further, rare circumstances should not be taken into consideration. It is more probable, too, that the pregnant woman and the witnesses she might furnish may all tell lies.
As for sodomy, certain learned men in the law prescribe the same penalty as that for adultery; certain others think that it should be less. The right view to which all the Companions (of the Prophet) agree is that the couple: the upper and the lower (the active and the passive) should be put to death, whether the term muhsan applies to them or not. The compilers of the Sunan have related, on the authority of 'Abdullah Ibn 'Abbas, may Allah bless him, that the Prophet, peace be upon him, has said: "When you find a couple practising the act of the people of Lot, put both to death: the doer and the done to (the active and the passive)."
Abu Dawud has related from 'Abdullah Ibn 'Abbas, may Allah bless them, that the bikr (young man, a celibate) found practising sodomy should be put to death. The same view is related from 'Ali Ibn Abi Talib, may Allah bless him.
The Companions of the prophet did not vary in opinion as to putting the sodomite to deathm, but they did differ about the form of death he was to suffer. It is related from Abu Bakr as-Siddiq, may Allah bless him, that he should be burned, others said that he should simply be put to death. Some others said that a wall should be caused to fall on him so that he might die under the falling stones. Others said that both the active and the passive sodomites should be shut up in the most rotten place until they died. Some said that he should be lifted to the highest wall in the neighbourhood and then thrown down and stones thrown at him, as Allah did to the people of Lot. This is one (saying) related by Ibn 'Abbas. Another, related also by him, is that the sodomite is to be stoned. This latter view is agreed upon by most of the early jurists from the pure analogy of the stoning of the people of Lot (with stones from Heaven).
Stoning of the adulteror and sodomite is imposed in imitation of the stoning which the people of Lot were subjected to. Thus, the (sodomite) couple should be stoned to death whether they both were free men or slaves, or whether one of them was a free man and the other was a slave, provided they were both mature. If one of them was a minor he would suffer a punishment less than death. Then only the mature is stoned to death.