[ابوالوليد المسلم]

Rulings Governing Criminal Actions (7/7)

Abu`l Hasan al-Mawardi




F. Concerning discretionary punishments: these are imposed for wrong actions, but are not defined as hadd-punishments by the law. These vary according to different circumstances and the situation of the person who imposes them. In one respect, they do resemble the hadd-punishments, in that they are a reprimand which seeks to reform the behaviour of the person in question, and to deter others; they vary in accordance with the different kinds of crime. They differ from the hadd-punishments in three ways:
First: the correction inflicted on respectable persons of the noble class is lighter than that inflicted on the meaner and lower classes based on the saying of the Prophet, may the peace and blessings of Allah be upon him: "Pardon the faults of those who command respect." Thus people are treated according to their station, even though they are treated equally with respect to the hadd-punishments: thus the discretionary punishment inflicted on a prominent person might consist in merely turning away from him, and for a less significant person, in speaking roughly to him, and for another, in reproaching him in humiliating terms, while not, however, slandering or insulting him; for persons of a lower class, it consists in imprisonment for a length of time corresponding to their wrongdoing, so that for some it is a day, and for others, a longer indeterminate period. Abu 'Abdallah az-Zubayri, one of the followers of ash-Shafi'i, fixes the maximum for detention at a month in or* der to clarify and investigate the affair, and at six months as a means of correction and setting aright. For others, it consists in banishment if their crimes have involved others and caused them harm. There is a difference of opinion as to the maximum term of banishment; the clear meaning of ash* Shafi'i's madhhab is that it should be less than a year, even by one day, so that it is not as long as that inflicted as a punishment for fornication; the clear ruling in the madhhab of Malik is that it is permitted to impose more than a year depending on the reasons for the punishment. For others beatings are inflicted in accordance with the nature of the crime, and the degree or quality of the persons in question. There is a difference of opinion as to the maxi* mum amount ofbeating that may be inflicted; the clear teaching of ash-Shafi’i is that for the free person, it should not exceed thirty-nine lashes, so as to be below the minimum number for the hadd of drinking wine: thus for the free person it should not be as much as forty, and for the slave, not as much as twenty; Abu Hanifah says that the maximum inflicted is thirty-nine for a free person and a slave alike, while Abu Yusuf says that it is seventy-five, and Malik, that there is no upper limit and it may be more than that of the hadd*punishments. Abu 'Abdallah az-Zubayri says that the discretionary punishment for any wrong action is deduced from the hadd-punishment associated with it, and that the maximum is seventy-five, that is, five less than the hadd for slander; if the discretionary punishment is for a crime associated with fornication, then account is taken of the circumstances: if the two are surprised before he has penetrated her vagina, they are both given the maximum discretionary punishment, that is seventy-five lashes; if they are found beneath a sheet, with nothing between them, embracing each other but not committing fornication, then they are given Sixty lashes; if they are found thus but not embracing, then forty; if they are found together in a house both clothed, then thirty; if found in the road and they are speaking with each other, then twenty; if discovered making signs to each other but without speaking, then ten; and if he is discovered following her but nothing else is seen, then a few light strokes.
The same is true for the discretionary punishment for theft when no amputation is necessary: if someone steals something whose value is the value for which a limb is amputated, but which was not in a place of safekeeping, then the maximum number is given, that is, seventy-five lashes; if the person has stolen less than the legal minimum from a place of safekeeping, he is given sixty; if less than the legal minimum from other than a place of safe* keeping, then fifty; if he had started to gather up property from a place of safekeeping, but then returned it before taking it away, then forty; if he has broken into and entered into the place of safekeeping, but has not taken any* thing, then thirty; if he has broken in, but not entered it, then twenty; if he had begun to broken in or open a door, but did not complete the action, then ten; if he is found with a sharp instrument waiting to steal the property, he is given a few light lashes. Crimes other than these are treated in a similar fashion. Although this method appears to be of benefit, there are no proofs as to the validity of the method. The above discussion concerns one of the ways in which the discretionary punishment differs from the hadd.
Second: although no pardon or intercession is allowed with respect to the hadd, pardon is permitted regarding the discretionary punishment, and intercession is also allowed; if the discretionary punishment is solely to do with the government, and for the purpose of setting straight a misdemeanour, and if it is not connected with the private claim of an individual, then the person in authority may examine whether it is best to grant a pardon or to impose the discretionary punishment, just as it is permitted to intercede on behalf of someone who asks for pardon. It is narrated of the Prophet, may the peace and blessings of Allah be upon him, that he said: "Intercede before me, and Allah will decide on the tongue of His Prophet what He wishes." If the right of an individual is involved, such as the discretionary punishment for an insult or an assault, then the person insulted or the person attacked both have a right in the matter, and the right of the government is to set the affair straight, and to take corrective measures concerning the persons involved: thus the person in authority may not annul this right of those who have suffered insult or aggression by granting a pardon, but rather he must ensure that this right is fulfilled, by imposing the discretionary punishment on the person who made the insults or committed the assault. If the persons who suffered the aggression or the insults grant a pardon, then the person in authority may still choose either to impose the punishment as a corrective measure, or to spare and pardon them. If the two parties have pardoned each other the insults or the aggression before bringing the matter to him, then the discretionary punishment with respect to an individual's right is annulled. There is a difference of opinion in two respects as to whether the right of the government to take corrective measures is also annulled: the first, and it is the opinion of Abu 'Abdallah az-Zubayri, is that it is annulled, and the person in authority may not impose a discretionary punishment - the hadd for slander is more severe, but is annulled if a pardon is granted and there is even less justification for a discretionary punishment made on behalf of the government; the second, and this is more plausible, is that the person in authority may impose the discretionary punishment even if a pardon has been granted before the matter is submitted to him, just as he may impose it when the pardon is made after it has been submitted to him - as opposed to the pardon granted for slander in both cases - since imposing corrective measures are a necessary part of the public interest.
If there are mutual insults or acts of aggression between father and son, the discretionary punishment is not imposed on the father with respect to what he has done to the son, but it is imposed on the son with respect to what he has done to his father - just as the father is not killed for the murder of his son, but the son is put to death for the murder of his father; the discretionary punishment which can be imposed on the father is a right solely of the government for the purpose of taking correctional measures, and the son has no right in the matter, and the person in authority may personally grant him pardon; the discretionary punishment which can be imposed on the son is a shared right, both of the father and of the government: thus the person in authority may not grant pardon on his own initiative if the father demands that this punishment be carried out. This then is the second way in which discretionary punishments differ from the hadd-punishments.
Third: if anything perishes because of the application of the hadd, then there is no liability, whereas there is liability for loss caused by the imposition of a discretionary punishment. 'Umar ibn al-Khattab intimidated a woman with the result that she aborted and had a stillborn baby; he then consulled 'Ali, may Allah ennoble his face, and the latter advised him to pay the diyah of the foetus. There is a difference of opinion as to who pays the diyah of the discretionary punishment: according to some, it is payable by the clan of the person responsible for the matter, and according to others, by the bait al-mal; as for the kaffarah-expiation, it is paid from the wealth of the person responsible, according to the first opinion; according to the second opinion, it is said that it is taken from his wealth or, according to others, from the bait al-mal.
Likewise, if a teacher inflicts a blow in the customary manner as a corrective measure and this causes the person to perish, then his clan becomes liable for his diyah, and the kaffarah is from his wealth. The husband may hit his wife if she acts in a refractory way towards her husband; if she dies from his blow, her diyah is the liability of his clan as long as he did not mean to kill her - in which case the right of retaliation is exercised against him.
As for the nature of the blows used in the imposition of the discretionary punishment, it is permitted that they be made using a stick or a whip without any knots, as in the case of the hadd-punishrnent. There is a difference of opinion as to whether it is permitted to use a whip which has not been unknotted: az-Zubayri considers that it is permitted, even if this represents a more severe beating than the normal hadd-punishment, and that it is still permitted if blood is drawn; the majority of the followers of ash-Shafi'i, may Allah be pleased with him, are of the opinion that it is prohibited, as this would be an aggravated and more severe form of the hadd, and this is forbid* den - thus there is all the more reason why it should be prohibited in the case of a discretionary punishment; moreover, it is not permitted for blood to be spilt in the case of discretionary punishments.
Blows inflicted for the hadd-punishment must be distributed over the whole of the body after the parts susceptible to fatal injury are covered - so that each member receives its portion of the hadd; the beating may not be made just on one part of the body. There is a difference of opinion regarding the beating for a discretionary punishment: the majority of the followers of ash-Shafi'i consider that it should also be distributed over the whole of the body, and that it is prohibited to inflict it solely on one place; az-Zubayri differs in that he permits it to be done on one single place, arguing that if it is permitted to leave off completely from the whole body, it must be permitted to leave out some of the body - as opposed to what is practised in the case of the hadd.
The live-crucifixion of a person may be imposed as a discretionary punishment: the Prophet, may the peace and blessings of Allah be upon him, had a man crucified on the mountain known as Abu Na'b; if a person is crucified he is not prevented from eating or drinking or making the ablutions for the prayer; he should pray by making indications, and should repeat them when he is taken down; he is not to be crucified for longer than three days. It is permitted, by way of discretionary punishment, to have him stripped of his clothes, except for those which cover his private parts, and for him to be paraded in public while a herald proclaims his wrongdoings, if he repeats them and does not turn in tawbah. It is permitted to shave his head but not his beard. There is a difference of opinion as to whether it is permitted to blacken his face - most permit it, while a few prohibit it.