all (33) of the scholars, except for Abu Thawr, who said: A slave and a slave woman are both Muhsan (married/sexually mature persons); they are both stoned if they commit adultery, unless there is a consensus that contradicts that. It was narrated from Al-Awza'i regarding a slave who is married to a free woman: He is Muhsan and is stoned if he commits adultery; however, if he is married to a slave woman, he is not stoned. These are opinions that contradict the textual evidence (nass) and consensus (ijma'); for Allah Almighty said: {But if they should commit adultery, then upon them is half the punishment for free [unmarried] women} (34). Stoning cannot be halved, and mandating it in its entirety contradicts the text along with the established consensus reached before it, unless it occurs if they are emancipated after the act of intercourse; there is a difference of opinion regarding this which we shall mention, if Allah Almighty wills. Al-Awza'i agreed that if a slave has intercourse with a slave woman, then they are both emancipated, they do not become Muhsan, which is the opinion of the majority. He went further and said regarding two slaves who, while married, are emancipated, and then the husband has intercourse with her: They do not become Muhsan by that act of intercourse. This is also an anomalous (shadh) opinion, which he opposed the scholars with; for the intercourse occurred between them while they were in a state of completeness, so it rendered them Muhsan, like two minors who reach puberty. The fifth and sixth conditions are puberty and sanity; so if one has intercourse while being a minor or insane, then reaches puberty or attains sanity, he is not considered Muhsan. This is the opinion of most scholars and the school of Al-Shafi'i. Some of his companions said: He becomes Muhsan. Similarly, the slave, if he has intercourse while in slavery, then is emancipated, he becomes Muhsan; because this is an act of intercourse that results in the lawfulness (for remarriage) of a woman thrice-divorced, so Ihsan is attained by it, like the act occurring while in a state of completeness. Our argument is his (peace be upon him) saying: "The previously married for the previously married: a hundred lashes and stoning." He specifically considered the state of being previously married (thuyuba). If it were attained before that, the stoning would have been obligatory upon him before his puberty and sanity, and that is contrary to consensus. Ihsan differs from the lawfulness (of remarriage); for the consideration of intercourse in the case of the one who issues a triple divorce is likely intended as a punishment for him by making her prohibited to him until someone else has intercourse with her, and because this is something that human nature finds repugnant and souls find burdensome, the Lawgiver considered it as a deterrent against divorcing three times, and this applies equally to both the sane and the insane. This is contrary to Ihsan, for it was considered for the perfection of the blessing [in his case] (35); for the one for whom the blessing is complete, his crime is more heinous and more deserving of an increase in punishment, and the blessing in the sane, pubescent person is more complete. And Allah knows best. The seventh condition is that completeness be found in both of them at the time of the intercourse; so a sane, free man has intercourse with a sane, free woman. This is the opinion of Abu Hanifa and his companions, and similar to it is the opinion of 'Ata', Al-Hasan, Ibn Sirin, Al-Nakha'i, Qatadah, Al-Thawri, and Ishaq. They said this (36) regarding slaves. Malik said: If one of them is complete, he becomes Muhsan, except for a minor if he has intercourse with an adult woman, he does not render her Muhsan, and something similar is narrated from Al-Awza'i. There is a difference of opinion regarding Al-Shafi'i; it is said he has two opinions: one is the same as our opinion, and the second is that the complete person becomes Muhsan. This is the opinion of Ibn al-Mundhir, because he is a free, pubescent, sane person who had intercourse in a valid marriage, so he becomes Muhsan, as if the other were like him. Some of them said: The two opinions only concern the minor, not the slave, for he becomes Muhsan, by a single opinion, if he is complete. Our argument is that it is an act of intercourse by which neither of the two participants is rendered Muhsan, so the other is not rendered Muhsan either, like concubinage. And because whenever one of them is incomplete, the intercourse is not complete, so Ihsan is not attained by it, just as if they were both incomplete, and by this it differs from what they drew an analogy to.

A chapter: Islam is not a condition for Ihsan. This is the opinion of Al-Zuhri and Al-Shafi'i. According to this, two Dhimmis (protected non-Muslims) are Muhsan, and if a Muslim marries a Dhimmi woman and has intercourse with her, they both (38) become Muhsan. There is another narration from Ahmad regarding the Dhimmi woman: She does not render a Muslim Muhsan. 'Ata', Al-Nakha'i, Al-Sha'bi, Mujahid, and Al-Thawri said: It is a condition for Ihsan. So a disbeliever is not Muhsan, and a Dhimmi woman does not render a Muslim Muhsan; because Ibn 'Umar narrated that the Prophet (may Allah bless him and grant him peace) said: "Whoever associates partners with Allah is not Muhsan" (40). And because it is a type of Ihsan for which freedom is a condition, so Islam is a condition for it, like the Ihsan of Qadhf (false accusation of adultery). Malik held the same opinion as them, except that a Dhimmi woman does render a Muslim Muhsan, based on his fundamental principle.