Q. Islam requires "four" witnesses in instances of sexual misconduct such as, adultery, fornication, and homosexual intercourse (male and female). What is the reason behind the number "four?" If there are only two or three witnesses, does that mean there is no case against the defendants?
A. Before getting to the answer proper, let me point out that the issue you raise is often adduced by those who argue against qiyas. Their premise is that murder is definitely a more serious crime, yet it only takes two witnesses, and fornication -- not warranting death -- takes four. The mere fact that they adduce this argument shows that there is a lack of understanding on the issue. Now murder is a crime against Allah and humankind together, and the most severe punishment is death, although the Qur'an allows for avoidance of this in some cases, either by diya, or by forgiveness.
Adultery and that which is deemed sexual misconduct too is a crime against Allah and humankind as well. But there is no life taken, and there are other social / psychological factors which may influence this behavior. In the case of homosexuality, we have dealt with this matter elsewhere on this site. In the case of fornication and adultery, let us note that there is no death penalty prescribed by the Qur'an, although the overwhelming majority of our jurists, in some totally inexplicable deviation from the Qur'anic weltanschauung, have decided that the sentence is Deuteronomic capital punishment. We know that a spouse, while being hurt by the other's indiscretion, may be forgiving. We know too that like all human beings, one may commit an indiscretion, and repent afterwards for it. In the case of fornication and adultery, although a sin is being committed -- and a sin is what only Allah may deal with -- then that matter must lie between Allah and the perpetrator.
As far as the horizontal dimension is concerned, i.e. the act against humankind, one must look at how this error is committed. Generally, an act of fornication or adultery will be committed in some sort of secrecy, thereby, even in its evil, showing some respect for the rights of other human beings. This means that the perpetrators recognize that what they are doing is wrong, and will be condemned by others. Therefore, they do it in secret, and the matter then is to be decided by the One who sees all, and knows all. To be seen by four witnesses, and the specifications are that such eyewitnesses must be witness to the same act, and must not have conspired to do so by spying or any other form of clandestine observation, then it shows that there must have been a double wantonness involved: that of the abandonment of sexual propriety, as well as the total disregard of societal values. In short, the perpetrators must have spit in society's face as if to say that they are like animals, copulating in public.
This brings to focus on the issue of numbers. Before we postulate, let us point out that nowhere has Allah pointed out the reason for the stipulation of four witnesses. Our reason, therefore, is an exercise in human thought, with its restrictions and possibility of error. We nonetheless proceed to propound a reason, for like Abraham, we too do not doubt Allah's sovereignty and wisdom, but this does not prevent us from satisfying our hearts, from seeking the reason behind certain things, especially when they relate to humankind's interaction.
As we have shown above, the issue has boiled down to one of spitting in society's face. We know that the Qur'an has come to lighten things for us, not to make them more difficult. In the case of certain heinous crimes, as murder and theft, two witnesses are involved. Is this in keeping with Allah's legislation in the Hebrew bible? There is no reason to suggest otherwise. In the Arabic, three is the least possible number for plurality. Therefore, four is one more than this number of plurality. We may say that in the case of three witnesses, the minimum of plural witnesses has been attained. In the case of four, that which is over and above has been reached, an almost impossible number in terms of anyone who has any values, and attainable only in cases of basest wantonness.
This brings us to the other point in your question about what happens in the case of the four witnesses not being reached. Remember that the Shari'ah's goal is to promote repentance and forgiveness, not annihilation and punishment. This, taken into account with what we have propounded above, forces those who see any act deemed as sexual impropriety, to think twice before causing any public humiliation. They may, however, on the basis of personal ijtihad, act in a manner that they deem fit, such as by letting the perpetrators know that they have been seen, and possibly counseling them against evil (al amr bi'l maruf wa nahy an al munkar), or by body language showing their repugnance, etc.
Now what happens in the Shari'ah courts if a charge is brought and there are less that the required amount of witnesses? Let us say that two or three people see adultery being committed. They are honest, but ignorant of the law. They bring the matter up before the Qadi. In such a case, the person to whom they make their report (the Qadi's secretary) will explain to them the aspect of slander, etc. He/she explains to them that they may be honest, and what they saw did in fact occur, but that Islam is not concerned with punishing people, but with making them know that they should follow the societal rules. If they insist, being aware that they are only two or three, then certainly they are going against the intent of the law, as well as the letter, exhibiting some form of malice or a holier than thou attitude, putting themselves above divine wisdom, and therefore merit the punishment of slander.
Now as far as the accused goes, there is what is known as "tazir." They may not be sentenced for the full extent of the alleged crime, but it does not mean that, according to traditional jurisprudence, which takes its wisdom from the Biblical verses, they cannot be punished (See Deuteronomy 17:6 "At the mouth of two witnesses, or three witnesses, shall be he that is worthy of death be put to death, but at the mouth of one witness, he shall not be put to death." See also Deut. 19:15 and Numbers 35:30 "...but one witness shall not testify against any person to cause him to die."). And so, if it is established, for example, that the two people were in a compromising position, the Qadi may dictate that they can be punished for that societal infringement. The punishment is at his discretion, since he supposedly embodies the people's representation in dictating societal norms, and what may be imposed solely from the people's perspective when such norms are transgressed, even though the letter of the law cannot prove that the crime in its fullest did occur.
What happens if the two accused deny everything totally? In this case, the Qadi has two choices. He may investigate further, based on the evidence, to see if something is afoot. He may question them separately, he may cross-examine, use whatever is the societally normal methods to arrive at some semblance of the truth, and after arriving at it, perform "tazir." Or he may let them go, it is ultimately up to how he sees things, for Allah has made the exaction of human justice dependent upon our human perception, knowing full well that judges will differ in their take on things. And Allah knows best.
Posted August 25, 1999