What is the evidence that the hadd is not applied to one who falsely accuses his slave of zina?
Machine translationRead the Arabic original
The questioner : ... ؟
The Shaykh : There is no doubt that this is forbidden, but the condition of chastity (ihsan) that Allah the Exalted has stipulated for the hadd does not apply to a slave; it applies only to a free person. A hadith has been reported, but Allah knows best regarding its authenticity, and it appears to be weak, stating that if a person falsely accuses his slave, the hadd will be applied to him on the Day of Resurrection. Allah knows best about its authenticity; its meaning is that the hadd is not applied in this world.
The questioner : ... ؟
The Shaykh : There is no difference, as long as we have stated that... there is no difference.
The questioner : ... ؟
The Shaykh : I told you that one is not considered chaste (muhshan) unless he is free. As long as the Shari'ah stipulates the condition of freedom for ihsan, we must say that the hadd is negated if the person is a slave.
Do not confuse your minds. As long as it is known in the Arabic language that the term "muhshan" (chaste) is applied only to free people, the matter is concluded and the difficulty is resolved. And Allah, Glorified and Exalted is He, has made the hadd obligatory upon one who falsely accuses a chaste person[An-Nur 24:4], unlike slaves. If a person comes and is judged by the general meaning without referring to the linguistic meaning of the term in Arabic, that is an error. It is true that "muhshanat" (chaste women) is general in its meaning, but if its meaning is not applied except to free people, then slaves were not included in it in the first place, so we do not say that they were excluded, and the burden of proof is on the one who excludes them. In fact, the slave was not included in the meaning of "muhshan" at all. Pay attention to this rule: if something is not included in the term in the first place, we do not demand evidence from the one who excludes it. So, as long as in the Arabic language the "muhshan" is the free person, what is the case? If we say that one who falsely accuses a slave is subject to ta'zir, we do not say to him, "Give us the evidence that he was excluded from the general meaning," because he says that he was not included in the original meaning in the first place, so we do not say to the one who excludes him, "The burden of proof is on you."
The questioner : ... ؟
The Shaykh : This is what is in the Arabic language:[Al-Ma'idah 5:5] [An-Nisa 4:25] What is meant by "muhshanat"? Free women. So, the "muhshan" in its general usage is the free person. Yes, that is correct.
The questioner : ... ؟
The Shaykh : We say that the slave was not included in the first place; the slave was not included in ihsan in the first place. And this hadith is one of the instances of slaves for whom a person is not flogged. If a man falsely accuses his slave, the hadd is applied to him on the Day of Resurrection. And if he falsely accuses another person's slave, he is subjected to ta'zir, because by doing so, he lowers his value and people's desire for him, so he is subjected to ta'zir to deprive his master of this benefit.
So, O brothers, pay attention to the fact that if a person falsely accuses someone who is not free, there is no hadd upon him, but only ta'zir. Why? Because he is not included in the "muhshan" in the first place, and we do not demand evidence for his non-inclusion. Rather, the one who excludes something that has been established as included in the general meaning is the one who is required to provide evidence. As for what has not been established as included in the general meaning, it was not included in the first place, so it does not require evidence for its exclusion.
The questioner : ... ؟
The Shaykh : Yes?
The questioner : If it were...?
The Shaykh : How are they equal?
The questioner : I mean a slave with a slave.
The Shaykh : Yes, he is only subject to ta'zir.
The Shaykh : There is no doubt that this is forbidden, but the condition of chastity (ihsan) that Allah the Exalted has stipulated for the hadd does not apply to a slave; it applies only to a free person. A hadith has been reported, but Allah knows best regarding its authenticity, and it appears to be weak, stating that if a person falsely accuses his slave, the hadd will be applied to him on the Day of Resurrection. Allah knows best about its authenticity; its meaning is that the hadd is not applied in this world.
The questioner : ... ؟
The Shaykh : There is no difference, as long as we have stated that... there is no difference.
The questioner : ... ؟
The Shaykh : I told you that one is not considered chaste (muhshan) unless he is free. As long as the Shari'ah stipulates the condition of freedom for ihsan, we must say that the hadd is negated if the person is a slave.
Do not confuse your minds. As long as it is known in the Arabic language that the term "muhshan" (chaste) is applied only to free people, the matter is concluded and the difficulty is resolved. And Allah, Glorified and Exalted is He, has made the hadd obligatory upon one who falsely accuses a chaste person
And those who accuse chaste women and then do not produce four witnesses
والذين يرمون المحصنات ثم لم يأتوا بأربعة شهداءThe questioner : ... ؟
The Shaykh : This is what is in the Arabic language:
chaste women from among the believers and chaste women from among those who were given the Scripture
والمحصنات من المؤمنات والمحصنات من الذين أوتوا الكتابAnd whoever among you cannot [find] the means to marry free, believing women
ومن لم يستطع منكم طولا أن ينكح المحصنات المؤمناتThe questioner : ... ؟
The Shaykh : We say that the slave was not included in the first place; the slave was not included in ihsan in the first place. And this hadith is one of the instances of slaves for whom a person is not flogged. If a man falsely accuses his slave, the hadd is applied to him on the Day of Resurrection. And if he falsely accuses another person's slave, he is subjected to ta'zir, because by doing so, he lowers his value and people's desire for him, so he is subjected to ta'zir to deprive his master of this benefit.
So, O brothers, pay attention to the fact that if a person falsely accuses someone who is not free, there is no hadd upon him, but only ta'zir. Why? Because he is not included in the "muhshan" in the first place, and we do not demand evidence for his non-inclusion. Rather, the one who excludes something that has been established as included in the general meaning is the one who is required to provide evidence. As for what has not been established as included in the general meaning, it was not included in the first place, so it does not require evidence for its exclusion.
The questioner : ... ؟
The Shaykh : Yes?
The questioner : If it were...?
The Shaykh : How are they equal?
The questioner : I mean a slave with a slave.
The Shaykh : Yes, he is only subject to ta'zir.