Rulings Governing Criminal Actions

[ابوالوليد المسلم]

Rulings Governing Criminal Actions (1/7)

Abu`l Hasan al-Mawardi


Criminal actions refer to those prohibited by the shari'ah which Allah punishes with a hadd or discretionary punishment; in the case of mere suspicion of such an act, immunity is required by the dictates of the deen; when the occurrence of a criminal act has been properly established, then the full consequences, necessitated by rulings of the shari'ah ensue.
When there is suspicion, but before the act has been firmly established, then one must take account of the person who is investigating: if it is a judge, before whom a person has been brought accused of stealing or fornication, then this accusation is of no effect for him: he may not imprison him, be it to investigate, or to await his being proved innocent, and he may not proceed after compelling him to confess. Any claim against him is only entertained, in the case of theft, if it issues from a litigant entitled to the thing stolen, and one must take into account what issues from an avowal of the accusation or its denial. If he has been accused of fornication, the claim against him is not heard until he (the person making the accusation) has named the woman with whom he has fornicated, and has described what he did with her; as fornication carries the hadd-punishment: if he confesses, then he is given the hadd-punishment in accordance with his confession; if he denies it, and there are witnesses, then these are given a hearing; if there are no witnesses, then he is made to swear an oath - for the sake of man's rights but not for the sake of Allah's rights - if the litigant demands this.
If the investigator before whom the accused person is brought is an amir or his deputy and assistant, he has access to means of investigation and examination which are not available to the qadhis and judges. There are nine points of difference between the two:
First: it is not permitted for the amir to hear about the crime of the accused from the assistants of the amirate without checking the claim and without considering their statements regarding the circumstances of the accused: that is, whether he is of suspicious character, or whether he is known to have committed similar deeds. If he is innocent of similar acts, then the accusation against him carries less weight, and he is released as soon as possible and is not subjected to any rough treatment; if they affirm that he has committed similar crimes and they identify him with the like, then the accusation is strengthened, and an investigation is instigated in the manner we shall de* scribe below. Qadhis may not act in this way.
Second: the amir must take account of the circumstances of the case and the character of the accused - both of which are important as regards the strength or weakness of the case. Thus if the accusation is of fornication and the accused is susceptible to women, full of jest and charm, then the accusation is strengthened, and if the opposite of these is true, then it is weakened. If the accusation is regarding theft, and the accused is a scoundrel, or there are signs of blows on his body, or he was found with a sharp instrument at the time, then the accusation is strengthened; if, however, the opposite is true, then it is weakened. Qadhis may not proceed in this manner either.
Third: the amir may imprison the accused for the purposes of an investi* gation and enquiry. There is a difference of opinion as to how long he may be imprisoned. Abu 'Abdallah az-Zubayri, from amongst the followers of ash*Shafi'i, says, that his confinement for an enquiry or investigation should be for one month and no longer, while others say that it is not for a specific time, but rather depends on the judgement of the Imam and his ijtihad - and this is a more likely approach, Qadhis, however, may not imprison anyone, except for a specific legal cause.
Fourth: if the grounds for the accusation are sufficiently strong, the amir may have the accused beaten as a discretionary measure, not as a hadd-punishment, in order to compel him to be truthful regarding his situation and the crime of which he has been accused; if he confesses during the beating, then account must be taken of the reason for the beating: if he has been beaten to compel him to confess, this confession has no legal status; if, however; it was to extract the truth about his situation, and he confesses during the beating, then the beating is stopped and he is-asked to confess again; if he confesses, then he is judged according to this second confession, and not 'the first; if he restricts himself to the first confession, and a second is not asked of him, then he is not put under any more pressure, because one proceeds according to the first confession - although we dislike this.
Fifth: the amir may keep someone in prison until he dies if he repeatedly commits crimes, if he is not deterred by the application of the hadd-punishments, and if the people are being harmed by his crimes - that is, after he has arranged for his sustenance and clothing to be paid for by the bait aI-mal; this he may do in order to remove this harm from the people, although qadhis do not have this power.
Sixth: the amir may compel the accused to swear an oath, in order to clarify his situation, and to exert pressure on him during the course of the investigation of his affair, be he accused of infringing one of Allah's rights, or one of man's rights; he does not, however, make him swear upon his own divorce, or on the setting free of a slave, or on the giving away of property in sadaqah - as might be the case when swearing, in the Name of Allah, an oath of allegiance to the Sultan Qadhis may not compel anyone to make an oath which has a specific legal consequence, and may not go so far as to make someone swear upon their divorce or freeing a slave.
Seventh: the amir can compel criminals to make tawbah, and may make threats so that they turn in tawbah of their own accord; he may not. however; go so far as to threaten them with death in a matter which does not carry the death sentence, as this threat is made to intimidate and, as such, is not considered a lie but rather a part of discretionary and correctional measures. He may not carry out his death-threat and have him killed for a matter which does not carry the death-sentence.
Eighth: the amir may hear the testimonies of people of other religions, if they are numerous, whereas the qadhi may not.
Ninth: it is up to the amir to investigate incidents of assault, even if there is no fine or hadd-punishment prescribed. If none of them has any marks on him, he should hear the one who made the charge first; if one of them does have marks on him, some of the jurists consider that he should hear this person first, and not consider the person who was the first to lay the charge: most of the fuqaha, however, consider that he should hear the one who first made the charge. The one who began the attack is the most to blame, and is the one who suffers the more severe discretionary punishment. It is permitted to impose a different punishment on each, for two reasons: the first, because of the difference between their crimes and the degree of outrage; and the second, because of the difference of respect and self-esteem between the two of them: thus if he considers there is a benefit in making public and proclaiming the crimes of some low and mean persons, then he may do this.
These, then, are the differences between the ways amirs and qadhis may deal with the investigation of crimes, before, that is, it is established that any hadd-punishment (is necessitated): these differences arise because of the amir's concern with administration, and the qadhi's concern with the laws.
If it is established that a crime has been committed, then amirs and qadhis are alike in their execution of the hadd-punishments. Establishing that a crime has been committed is done in two ways, either by a confession or by proof and each is governed by a specific ruling, which will be discussed in the appropriate place.
The hadd-punishments are restraints imposed by Allah ta'ala, to prevent people committing what He has forbidden, or from abandoning what He has commanded them to do: this is because of what is contained in man's nature, which allows him to be dominated by pleasurable desires, and to forget the Next World for the sake of immediate gratification; thus Allah ta'ala has imposed these restraints to protect the ignorant from the torment, punishment and shame attached to such crimes, so that he is prevented from engaging in what He has forbidden, and so that what He has ordered is obeyed: from this ensues a benefit of the greatest significance which ensures that each carries out his responsibilities in the most complete manner. Allah ta'ala has said, "I have not sent you but as a mercy to all the worlds" (Qur’an, Surah Al-Anbiya’, 21: 107), that is, in order to save them from ignorance, and to guide them away from error, and to prevent them from acts of disobedience, and to urge them to obedience.
This being so, then these restraints are of two kinds: the hadd and the discretionary punishments. The hadd-punishments are also of two kinds: those regarding the rights of Allah, and those regarding the rights of man. As for the former they are also of two kinds: the first, those punishments resulting from abandoning obligations; and the second, those resulting from committing something which is forbidden.

(Continued)

[ابوالوليد المسلم]

Rulings Governing Criminal Actions (2/7)

Abu`l Hasan al-Mawardi


1. As for those resulting from abandoning obligations, these are:
i. not performing the Obligatory prayer until after its time, in which case the person in question is asked why he has not done it: if he replies that he had forgotten to do it, then he is ordered to make it up at the very moment that he has been reminded, and that he should not wait until the corresponding time (the next day). The Messenger of Allah, may the peace and blessings of Allah be upon him, said: "Whoever sleeps through the prayer; or forgets it, then he should pray it as soon as he remembers it, and then this counts as its (true) time, and there is nothing else to be made up apart from this." If the person has not done it because of illness then he should pray it as he is able, sitting or reclining: Allah ta'ala says: "Allah only burdens some* one according to his capacity" (Qur’an, Surah Al-Baqarah, 2: 286). If the person abandons it, claiming that it is not an obligation, then he is a non-believer; and the same ruling as that governing the renegade applies - that is, he is killed for his denial, unless he turns for forgiveness. If he has not done it because he claims it is too difficult to do, but while acknowledging its obligation, then the fuqaha differ as to the ruling: Abu Hanifah considers that he should be beaten at the time of every prayer, but that he is not killed; Ahmad ibn Hanbal and a group of his later followers say that he becomes a kafir by his abandoning it, and is killed for this denial; ash-Shafi'i considers that he does not become a kafir by not doing it, that he is not killed as a hadd-punishment and that he is not considered a heretic; he is not put to death until he has been asked to turn in tawbah: if he does turn in tawbah and does it then he is left alone, but while ordering him to do it; if he says, "I will do it in my house," then he is trusted in his promise, and he is not compelled to do it in front of people. If he refuses to make tawbah, and does not accept to do the prayer; then he is killed for abandoning it - immediately, according to some, after three days, according to others. He is killed in cold blood by the sword, although Abu'l-Abbas ibn Surayj says that he is beaten with a wooden stick until he dies - since the irrevocability of the sword is avoided by this method, and thus more time is allowed in which the person may make tawbah.
The followers of ash-Shafi'i differ as to the obligation to kill him if he refuses to make up the prayers he has missed: some consider that he should be killed for missing them as for any of the other prayers at their time while others that he should not as the prayers missed still remain his responsibility.
Prayers are said over him after he has been put to death and he is buried in the Muslim cemetery as he is still counted as a Muslim and his wealth still belongs to those who inherit from him.
ii. As for the person who does not fast, he is not put to death according to the consensus of the fuqaha, but rather he is prevented from eating or drinking during the period of the fast in the month of Ramadan, and he is given a discretionary punishment to teach him a lesson; if he accepts the (necessity to) fast, he is left alone and is entrusted to do it; if he is then seen eating, he is given a discretionary punishment, but he is not killed;
iii. As for the person who does not pay the zakah, he is not put to death, but rather some of his wealth is taken by force; he is given a discretionary punishment if he keeps it hidden without a reason; if it is difficult to collect because he prevents this, he is attacked for it, even if getting it from him leads to his death, just as Abu Bakr as-Siddiq fought those who refused the zakah;
iv. As for the Hajj, it is an obligation, according to ash-Shafi'i, at any time a person is able, right up to his death: it is thus not conceivable, according to his madhhab, that someone can delay it beyond its time; according to Abu Hanifah, however, it is to be performed as soon as possible, and so it is conceivable, according to his madhhab, that someone might delay it beyond its stipulated time, but he is not put to death for it, and he is not given a discretionary punishment, as his doing it after the time is counted as performing it properly - and not just as making up something missed. If someone dies before carrying it out, then someone should do the Hajj for him using money from his capital.
As for someone who refuses to fulfil one of the claims of man (as opposed to a claim of Allah), such as a debt or something else, then it is exacted from him by force if the person is able to pay; he is imprisoned if it is difficult unless he has no means, in which case one waits for his financial state to become easier.
These then are the rulings concerning those who abandon what is obligatory.
2. As for someone who commits something which is forbidden this is one of two kinds: the first concerns the rights of Allah, and they are four in number: the hadd for fornication, the hadd for drinking wine, the hadd for theft and the hadd for brigandage; the second involves the rights of man, and they are two in number: the hadd-punishment for false accusation of fornication, and the blood-money necessary for harm caused to someone. We shall describe each separately:
A. The hadd-punishment for fornication. This refers to the act in which the head of the penis of the sane adult penetrates one of the two orifices, at the front or the back, of a person with whom he has no protecting tie, and without valid reason; Abu Hanifah considers that it refers only to the front orifice and not the back. The hadd-punishment for the male and female fornicator is the same; each will either be a virgin, or a muhsan-married person:
The virgin is the person who has not had intercourse with a spouse in marriage. The hadd-punishment, if he is a free person, is a hundred strokes applied all over his body - other than his face and those parts which would result in death - such that each member receives its due, and this is done with a whip which is not so new as to kill him, nor so worn as to cause no pain; the fuqaha differ as to whether he should be banished as well as being whipped; Abu Hanifah forbids this, confining it to a whipping; Malik says that a man is exiled, but not a woman; ash-Shafi'i says that she must be banished for a year from her land, that is, at least to a distance of a day's and night's travel away, basing his judgement on the saying of the Prophet, may the peace and blessings of Allah be upon him, ''Take this from me -Allah has made a way for them: a virgin with a virgin, a hundred strokes and banishment for a year, a married person with a married person, a hundred strokes and stoning." The hadd of whipping and banishment is the same for the kafir as for the Muslim according to ash-Shafi'i.
As for the slave and those considered still to be slaves amongst the mudabbar slaves (who are to be freed after their master's death), the mukatab slaves (who are buying their freedom), and the umm walad (who have given birth to children of their masters), then the hadd for them is fifty lashes for fornication - that is, a half of the hadd for a free person, because of their lower status, i.e. of servitude. There is a difference of opinion as to whether slaves should be banished: some say that they are not, because of the harm it would cause their masters, and this is the opinion of Malik, while others say that they are banished for a year, like free persons, and this is the opinion of Dawud; the literal teaching of ash-Shafi'i is that he is banished for half a year, just as the lashes are half in number.
The muhsan is the man who has had intercourse with his wife in a valid marriage: his hadd is stoning with stones, or something similar; until death, and it is not necessary to protect the parts of the body likely to cause this fatality - unlike in the case of lashes - as the purpose of this stoning is death. Lashes are not given as well as the stoning, although Dawud says that a hundred lashes are given and then the stoning. But the lashes have been abrogated in the case of the muhsan: The Prophet, may the peace and blessings of Allah be upon him, had Ma’iz stoned but did not have him lashed. Being a muhsan is not conditional upon being a Muslim: thus both the kafir and the Muslim are stoned, although Abu Hanifah says that the situation is such that if a kafir commits fornication, he is whipped but not stoned, and that the Prophet, may the peace and blessings of Allah be upon him, had two Jews whipped for fornication. And only the muhsan is stoned. The state of being free is a precondition of being a muhsan: thus if the slave fornicates, he is not stoned, and if he has a wife, then he still receives fifty lashes, although Dawud says that he is stoned, like the free person. As for sodomites and those fornicating with animals, then the virgin is whipped and the muhsan is stoned, although it is also said that both are to be put to death. Abu Hanifah says that there is no hadd applicable to them - although the Prophet, may the peace and blessings of Allah be upon him, said: "Kill the animal and the person who has fornicated with it."
If a virgin male fornicates with a muhsan female, or a muhsan male with a virgin female, then the virgin is whipped and the muhsan is stoned; if they repeat fornication after the hadd-punishment, then the hadd is imposed again. If someone has fornicated several times before the hadd is imposed, then only one hadd-punishment is imposed for all of them.

(Continued)

[ابوالوليد المسلم]

Rulings Governing Criminal Actions (3/7)

Abu`l Hasan al-Mawardi


Fornication is established in one of two ways: either by confession or by proof:
i. as for confession, if the person is adult and of sane mind, and confesses once of his own accord, then the hadd is imposed - although Abu Hanifah says that he is not punished until he has confessed four times; if the hadd-punishment becomes obligatory by his confession, and then he withdraws it before the whipping, the hadd is annulled - although Abu Hanifah says that the hadd is not annulled by his withdrawing it.
ii. as for proof, this is that four just men bear witness to his having committed fornication, there being no women amongst them, and they declare that they saw his penis entering the vagina, just as the bodkin enters the eye-black bottle; if they have not seen this according to this description then it is not treated as a testimony; if they do bear testimony in this manner, be it at the same time as each other or separately, then their testimony is accepted. Abu Hanifah and Malik, however, both say that: "I do not accept it if it is made separately, and then I treat them as slanderers." If they bear witness to fornication after a year or more, their testimony is heard - although Abu Hanifah says: "I do not listen to it after a year, and then I treat them as slanderers." If there are less than four witnesses, then they are treated as slanderers, according to one opinion, and are given the hadd-punishment, although according to a second, they are not. If people have witnessed his confession to fornication, then it is permissible to accept only two witnesses according to one of two opinions" although according to another, it is not permitted to accept less than four.
If a person's fornication has been proved, then a hole is dug so that when he is put in, it comes up half way and prevents rum from escaping; if he does escape, he is pursued and stoned until he dies; if he is stoned on his own confession, a hole is not dug for him and if he then escapes, he is not pursued.
The Imam or the governor who has made the decision to stone the person is permitted to attend the stoning; they may also not attend; Abu Hanifah, however, says that it is not permitted to stone someone unless the person who pronounced the sentence of stoning attends. The Prophet, may the peace and blessings of Allah be upon rum, said: "O Unays, bring the woman to me tomorrow morning, and if she confesses, then stone her." It is permitted for the witnesses not to attend the stoning, although Abu Hanifah says that they must attend, and that they must be the first to start the stoning. The pregnant person is not given the hadd-punishment until after she has given birth, and then only after there is someone to suckle her child.
If the accused offers a reasonable excuse for the fornication, such as that it was a legally imperfect marriage, or that he had mistakenly thought her to be his own wife, or that he was unaware that fornication was forbidden as he had only recently entered Islam, then he is spared the hadd. The Prophet, may the peace and blessings of Allah be upon him, said: "Spare the imposition of the hadd-punishments if there are likely excuses." Abu Hanifah says that if he mistakenly took the other woman for his wife, this is not a likely excuse, and the person responsible is given the hadd. If he marries someone of his close family, with whom marriage is forbidden, and has intercourse with her, then the hadd is also applied, because this type of marriage - given that it has been forbidden expressly in a (Qur'anic) text - does not represent an excuse sufficient to ward off the hadd; Abu Hanifah does, however, con* sider that it is sufficient excuse, and that the hadd-punishment is not to be applied. If the fornicator turns in tawbah after he has been apprehended, the hadd is not annulled, whereas if he turns in tawbah before he is apprehended, the hadd is annulled according to the clearest of two opinions: Allah ta'ala says: "So surely your Lord is Merciful and Forgiving towards those who do evil whilst ignorant and then turn in tawbah after that and then perform good actions" (Qur'an, Surah An-Nahl, 16: 119). There are two interpretations of "whilst ignorant", the first, that they were ignorant of the evil, and the second, that they were overwhelmed by lust, although aware that it was evil, and tills is the more obvious of the two interpretations: since anyone who is unaware that it is evil has not committed a crime.
It is not permitted for anyone to mediate in order to have the hadd annulled for a fornicator or any other - just as it is not permitted for the person for whom mediation is made to intercede on ills own behalf: Allah ta'ala says: "Whoever intercedes with a good intercession, then he will have a portion of it, and whoever intercedes with an evil intercession, then he will have the *****alent of it" (Qur'an, Surah An-Nisa’, 4: 85). There are three interpretations of "good" and "evil": the first, is to ask for good for the person for whom one is interceding, or to ask for evil for him, and tills is the opinion of al-Hasan and al-Mujahid; the second, is that the "good" is a prayer for the men and women believers, and the "evil" is a supplication against them; the third, and this is likely, is that the "good" is to deliver them from injustice, and the "evil" is to exempt them from the law. As for "*****alent", there are two interpretations: the first, is that it will be *****alent to the crime, according to al-Hasan; and the second, is that it will be a portion (of the evil) and this is the opinion of as-Suddi.
B. Concerning cutting off the hand for theft: if an adult, sane person steals an article of property kept in a safe place, whose value is of a specific minimum amount, and there is no doubt concerning tills article or concerning the place of safekeeping, then his right hand is cut off at the wrist; if he steals again after having had ills hand cut off, be it the same article from its place of safekeeping, or another article, then his left foot is amputated at the ankle; if he steals again, then according to Abu Hanifah, there is no further amputation, while according to ash-Shafi'i, the left hand is cut off, and if he commits it a fourth time, then the right foot; if he steals a fifth time, he is given a discretionary punishment, but is not put to death. If he steals several times before any amputation, then this entails only one amputation.
The fuqaha differ as to the minimum value of the article stolen which would lead to amputation of the hand: ash-Shafi'i is of the opinion that its value should amount to at least a quarter of a dinar of the good type mostly in circulation; Abu Hanifah says that the amount is ten dirhams or a dinar and no amputation is made if it is less than this; Ibrahim an-Nakha'i sets the amount at forty dirhams or four dinars, while Ibn Abi Layla sets it at five dirhams, and Malik at three dirhams; Dawud, however, says that amputation ensues, be the amount large or small.
The fuqaha differ as to the kind of property which, if stolen, results in amputation: ash-Shafi'i considers that amputation ensues regarding any property which it is forbidden to steal; Abu Hanifah says that there is no amputation if the thing in question is essentially common to all, like game, wood, and grass; according to ash-Shafi'i, however, there is amputation when these things have become the property of someone; Abu Hanifah says that there is no amputation with respect to fresh food, while according to ash-Shafi'i there is; Abu Hanifah says that there is no amputation when someone steals a copy of the Qur'an, while for ash-Shafi'i there is; Abu Hanifah says that there is no amputation for someone who steals the candles from a mosque, or the covering of the Ka'bah, while for ash-Shafi'i there is; if a slave who is underage and who has not attained to full intellect, or a non-Arab who does not understand, is stolen, then amputation ensues, but for Abu Hanifah it does not; if a young child is stolen, there is no amputation, but for Malik there is.
There is a difference among the fuqaha regarding what constitutes safekeeping. Dawud is at odds with the rest in that he does not take the place of safekeeping into account, and says that amputation ensues irrespective of whether the ****** was in a place of safekeeping or not; the majority, however, do consider that amputation can only ensue if the thing was in a safe place, and that there is no amputation if it was not in such a place: it has been narrated of the Prophet, may the peace and blessings of Allah be upon him, that he said: "There is no amputation for taking horses unless they were safe in their corrals." Likewise, there is no amputation if someone borrows some* thing and then denies having borrowed it; Ahmad ibn Hanbal, however, says that amputation ensues.
Those who stipulate this condition of safekeeping differ as to its nature: Abu Hanifah considers that safekeeping is the same for all Objects, and treats the safekeeping of minor objects in the same way as major ones; for ash*Shafi'i, however, it varies in accordance with the various kinds of property and the customary practice regarding them: he thus deems the place of safe* keeping of little significance with regard to things of little value, like wood and kindling, but he is strict with regard to things of great value, like gold and silver: thus he does not consider the place of safekeeping for kindling to be on a par with that of gold and silver - so he would amputate the hand of someone stealing wood from such a place, but not if someone stole gold and silver from the same place. Someone who violates graves and steals the shrouds of the dead suffers amputation, as graves are customarily a place of safekeeping for these things, although not for other property; Abu Hanifah says that someone who violates graves does not suffer amputation, as nothing is kept in them other than these shrouds. If a man secures his baggage on a moving animal in the customary manner, and then someone steals some* thing from it whose value amounts to at least a quarter of a dinar; then his hand is amputated, because he has stolen from a place of safekeeping; if however, he steals both the animal and what is on it, then he does not suffer amputation, as he has stolen both the place of safekeeping and that which is being kept safe. If a person steals a beaker made of silver or gold, he suffers amputation - even though use of such a container is forbidden - as this article belongs to someone; this is irrespective of whether there is foodstuff in it or not, although Abu Hanifah says that if there is food or drink or water in the stolen container, then he does not suffer amputation; if however, he empties it of the food or drink and then steals it, his hand is amputated.
If two persons participate in violating a place of safekeeping, but just one of them takes some article of property, then only the one who took the thing suffers amputation, and not the other who participated in the violation of the place of safekeeping; if two persons act together, and one of them breaks into a place of safekeeping but does not take anything, and the other person does, but has not broken into the place, then neither of them suffers amputation; it is concerning circumstances such as these that ash-Shafi'i said: "The clever thief does not suffer amputation."
If someone enters a place of safekeeping and destroys the property, he is held liable but does not suffer amputation. If a thief suffers amputation and the article in question still exists, then it is returned to its owner; if the thief then returns after having had his hand amputated and steals it again after it has been put in a place of safekeeping, he suffers further amputation - although Abu Hanifah says that there is no further amputation for a theft of the same thing twice.
If the thief destroys what he has stolen, then suffers amputation, he is held liable for it; Abu Hanifah says that if he suffers amputation, then he does not have to pay back its value, and that if he does pay, then he does not suffer amputation. Even if the thing stolen is (subsequently) given to him, he still suffers amputation - although Abu Hanifah says that he does not.
If the owner of the property pardons the thief, the amputation is not annulled: when Safwan ibn Umayyah pardoned the person who had stolen his cloak, the Messenger of Allah said, may the peace and blessings of Allah be upon him, "Allah would not pardon me if I were to pardon," and he ordered his hand to be amputated. It is narrated that Mu'awiyyah had thieves brought to him and he had their hands amputated one by one, until only one of them was left, and as he was about to suffer amputation, he said: “My right hand, O Amir of the Believers, I seek refuge for it by your pardon from this punishment which will cut if oft: my hand will be Beauty itself if its covering is whole, so do not bring imperfection to this Beauty and so deform it: there would be no good left in this world, and it would be ugly if the right hand was parted from the left.”
Then Mu'awiyyah said: "What should I do with you, seeing as I have cut off the hands of your companions?" Then the mother of the thief said: "Make what you are doing (by pardoning my son) just one of the wrong actions for which you will turn to Allah in tawbah", so he let him go, this being the first time that the hadd-punishment had been abandoned in Islam.
Men, women, the free and slaves, Muslims and non-Muslims are all subject to amputation, but not children or anyone who steals when he has lost his senses; nor is the slave who steals from his master subject to amputation nor a father who steals from the property of his son, although Dawud says that both suffer amputation.
(Continued)

[ابوالوليد المسلم]

Rulings Governing Criminal Actions (4/7)

Abu`l Hasan al-Mawardi



C. Concerning the hadd for drinking wine: any kind of wine or nabidh (date wine), be it a small or a large amount, which causes intoxication, is prohibited, and the person who drinks them is given the hadd-punishment, irrespective of whether he becomes drunk or not, although Abu Hanifah says that the hadd is imposed on anyone who drinks wine even if he does not get drunk, but not on someone who drinks nabidh unless he gets intoxicated from it.
The hadd is that the person is beaten forty times with the hand and the ends of cloth, and he is severely rebuked with words of reprimand, as this has been narrated in a hadith; it has also been said that he is whipped with the lash, as with the other hadd-punishments. It is permitted to go beyond forty, up to as many as eighty, if the person does not learn his lesson: 'Umar, may Allah be pleased with him, used to give the hadd of forty to someone who had drunk wine until he saw how people were beginning to drink in larger numbers, and so he consulted the Companions about it, saying: "I see how more and more people are taking to drinking wine - what is your opinion?" 'Ali then replied, may Allah ennoble his face: "I think that you should give them a hadd-punishment of eighty lashes, for if someone drinks wine he becomes drunk, and if he becomes drunk, he talks irrationally, and if he talks irrationally, he slanders - so give him the hadd-punishment of eighty for slander." 'Umar for the rest of his life, and the imams who followed him, imposed this number. 'Ali later said: "I have not reproached myself for imposing the hadd-punishment on anyone who has died as a result - except the wine-drinker, for we have set the punishment after the Messenger of Allah, may the peace and blessings of Allah be upon him: thus if the wine-drinker is given the hadd of forty and he dies as a result, then his blood has been shed with impunity, but if he is given the hadd of eighty and he dies, then there is liability for him." There are two opinions as to what this liability amounts to: the first, is that the full blood* money is to be paid as the text referring to the hadd-punishment has been exceeded; the second, is that half is to be paid, as a half of the hadd-punishment is contained in the text, and the other half has been added.
There is no hadd against anyone who is forced to drink wine, or who drinks it unaware that it is forbidden; if someone drinks it to quench his thirst, he suffers the hadd, as wine will not quench thirst; if he drinks it for some illness, he does not suffer the hadd, as sometimes he may be cured by it; if a person believes that nabidh is permitted and drinks it, he is given the hadd although he is still treated as a just person. The intoxicated person is not given the hadd until he confesses to having drunk intoxicating wine, or two witnesses testify that he drank it of his own free will, knowing that it was intoxicating. Abu ‘Abdallah az-Zubayri says that he is given the hadd for being intoxicated - but this is a mistake, as he might have been forced to drink something intoxicating.
The ruling governing an intoxicated person who is convicted of acts of disobedience while drunk is the same as that governing a sober person; however, he is excluded from responsibility for an act of disobedience if he was forced to drink wine, or if he drank it unaware that it was intoxicating like someone who temporarily loses his senses.
There is a difference of opinion as to the definition of intoxication: Abu Hanifah considers that it refers to a person who no longer has his intellect, such that he cannot distinguish between the earth and the sky, and he cannot tell the difference between his slave-girl and his wife; ash-Shafi'i defines it as that which causes a person to talk disjointedly and unintelligibly, to move without coordination and to sway while walking - thus if his speech is affected both if he understands and communicates, and in the way his movement is affected in the way he walks and stands then he may be described as being intoxicated, and the worse his state is, the worse his degree of intoxication.
D. Concerning the hadd for slander, and mutual cursing: the hadd for slander alleging fornication is eighty lashes, there being a specific text sup* porting this; there is a consensus about it, such that this number is not to be decreased or increased; it is one of the rights of man, and is applied in response to a demand, and is annulled if the person is pardoned. If five conditions are fulfilled regarding the person accused of fornication, and three regarding the accuser, then the imposition of the hadd becomes obligatory: thus the accused must be adult, of sane mind, Muslim, a free person and of moral character; if he is below age, or mad, or a slave, or a non-Muslim or someone whose moral character has been tainted by a previous hadd-conviction, then no hadd is imposed on the accuser, although he is given a discretionary punishment because of the harm he has caused and the looseness of his tongue. As for the accuser, he must be of age, of sane mind and free; if he is under age, or mad, then the hadd is not imposed and he is not given a discretionary punishment; if he is a slave, he is given the hadd-punishment of forty, half of that for a free man, because he is enslaved; the non-Muslim is given the hadd like the Muslim, and a woman is given the hadd like a man. The accuser's legal status is thus impaired and his testimony is not accepted thereafter; if he turns in tawbah, then his status is no longer impaired and his testimony is accepted, both before the imposition of the hadd and after it - although Abu Hanifah says that his testimony is accepted if he makes tawbah before the hadd, but not vice versa.
The person, who falsely accuses someone of sodomy, or of fornication with animals, is punished in the same manner as the one who accuses another of fornication; there is no hadd for someone who accuses another of kufr or stealing, but he is given a discretionary punishment because of the harm done. False accusation of fornication occurs when there is a clear statement to that effect such as someone saying, "O fornicator," or, "You have committed fornication," or, "I say you commit fornication;" if, however, he only says, "O dissolute one," or, "O corrupt one," or, "O Luti, (i.e. describing him with an adjective derived from the name of the Prophet Lut, peace be upon him. as he was the Prophet first to be confronted with sodomites),' then this is ****phorical by its ambiguity, and the hadd is not obligatory unless he meant to slander; if the person says, "0 whore," then this is ****phorical according to some of the followers of ash-Shafi'i because of its ambiguity, while for others it is a clear statement, because of the saying of the Prophet, may the peace and blessings of Allah be upon him: "The child is attributed to the bed (where it was conceived), and the stoning is for the whore." Malik, may Allah have mercy on him, considers that an allusion is to be treated as a clear statement with regard to the obligation of the hadd. An allusion may be made in a state of anger or dispute when the person says, "I have not committed fornication," thereby implying that. "You have committed fornication;" according to ash-Shafi'i and Abu Hanifah, may Allah have mercy on them, there is no hadd for allusion unless he confesses that he meant to slander thereby; if he says, "O son of fornicators," this is treated as slander of his parents. not of him, and he is given the hadd on their behalf if they demand it, or if one of them demands it - unless they are dead, in which case the hadd may be demanded by their inheritors, although Abu Hanifah says that it is not transferred to the inheritors; if the slandered person wants to come to be paid compensation for dropping the hadd of the slanderer, this is not permitted; if a man slanders his father, he is given the hadd, but if he slanders his son, he is not; if the slanderer has not yet received the hadd-punishment, and the slandered person then commits fornication, the hadd-punishment for his previous false accusation is not annulled; Abu Hanifah, however, says that it is annulled; if a man slanders his wife with fornication, he is given the hadd-punishment, unless he pronounces the mutual curse (li'an). The li'an is that he says in the Friday Mosque on the minbar, or next to it, in the presence of the governor and at least four witnesses: "I bear witness by Allah that I am among the truthful when I accuse this, my wife, of fornication with such and such a person, and that this child is by fornication and not from me," - these last words if he wishes to deny that the child is his - and the former he repeats four times; the fifth time he says. "May Allah's curse be on me if I am among the liars when I accuse her of fornication with such and such a person (that is if he mentions the name of the person who fornicated with her) and that this child is from fornication and not from me." So if he says this, he has completed the li'an-cursing and the hadd for slander is not applicable to him, and the hadd for fornication must be imposed on his wife. unless she makes a counter- curse saying: "I bear witness by Allah that this husband of mine is one of the liars by accusing me of fornication with such and such a person, and that this child is from him and not from fornication," and she repeats this four times and on the fifth occasion, "and may the anger of Allah be on me if this my husband is of the truthful in accusing me of fornication with such and such;" if she completes this, the hadd is not applicable to her, and the child is banished from the husband, and there is a separation between them, and the woman becomes prohibited to her husband forever. The fuqaha differ as to the way the separation is effected: ash-Shafi'i considers that this separation occurs by the li'an of the husband alone, while Malik says that it occurs by their both declaring the Wan; Abu Hanifah says that the mutual li'an does not bring about separation until they are separated by the governor.
If a woman slanders her husband, she suffers the hadd and she does not make the declaration of Ii'an. If the husband retracts his statement after making the li'an, the child is recognised as his, and he is given the hadd-punishment for slander; his wife is no longer permitted for him according to ash*Shafi'i, while Abu Hanifah says that she is.

(Continued)

[ابوالوليد المسلم]

Rulings Governing Criminal Actions (5/7)

Abu`l Hasan al-Mawardi




E. Concerning the retaliation and blood money for bodily harm: there are three kinds of bodily harm, intentional, accidental and an intentional bodily harm which resembles the accidental.
As for the purely intentional, it is when a person intends to kill someone with a sharp instrument, such as an iron blade or anything which could cut into flesh like a blade, or something that would usually kill by its weight like a stone or wood, in which case this is treated as intentional killing and the hadd is obligatory. Abu Hanifah says that injury caused with intent which obligates the retaliation is that in which the killing is done with a sharp instrument of iron or anything else which penetrates the flesh, but that a killing or pain caused by something heavy made of stone or wood is not treated as intentional and does not obligate retaliation. The ruling regarding the intentional act, according to ash-Shafi'i, is that the person who represents the person killed is free to exact either retaliation or the blood money, as long as there exists equality of status between the killer and killed. Abu Hanifah says that the person who represents the victim is only entitled to retaliation, but not to the blood money, unless the killer agrees.
The wali - the person who represents the victim - is the person who inherits his or her property, be they male or female, either by the normal right of inheritance, or by tribal link; Malik, however, says that this right applies only to males who inherit, but not females. There is no right of retaliation unless they all are in accord to exact it; if one of them accords a pardon, then the right of retaliation is annulled, and the diyah blood-money becomes due; Malik, however, says that it is not annulled. If there is a person who is underage, or a mad person, then the right to retaliation is not solely exercised by the adult of sane mind.
Equality of status between the killer and the killed, according to ash-Shafi'i, is that the former should not be superior to the latter by his being free and a Muslim: if he is superior to him by one of these qualities, for example, if a free person kills a slave, or a Muslim a non-Muslim, then there is no retaliation - although Abu Hanifah says that this equality of status is not taken into account, and that a free person may be put to death for a slave, or a Muslim for a non-Muslim, just as a slave is put to death for a free person, and a kafir for a Muslim. However, as people take care not to do tills, or refuse even to do it, those who are of this opinion do not put it into practice. It is narrated that a Muslim who had killed a non-Muslim was referred to the Qadhi Abu Yusuf, who pronounced the right of retaliation against him, and then a man came to him with a note which he threw to him on which was written:
O killer of a Muslim for a kafir; you have done wrong, for the just person is not the same as the unjust person. O whoever is among the 'ulama and poets of Baghdad and its surroundings, remind yourselves of the return to your Lord, and lament for your deen, and be patient, for the reward is with the patient; Abu Yusuf has committed a wrong regarding the deen by killing a believer for a kafir.
Abu Yusuf then went to ar-Rashid, and told him what had happened, and read out the note. Ar-Rashid replied: "Deal discreetly with the affair, so as to avoid any discord;" then Abu Yusuf left and demanded of those who had the right of retaliation evidence of the liability which had been duly established; they did not provide it, and so he annulled the right of retaliation. Recourse to such action is permitted if there is benefit to be seen in it.
A slave is killed for killing a slave, even if the value of the killer is greater than that of the killed, although Abu Hanifah says that there is no retaliation against the killer if he is worth more than the value of the person killed. If there is a difference of religions amongst the non-Muslims involved, the right of retaliation is still established amongst them: a man may be entitled to the right of retaliation for a woman, and a woman for a man, an adult person for a person who is underage, and a person of sane mind for a mad person; there is no right of retaliation, however, against a child or a mad person, nor against a father who kills his son, but there is against the son who kills his father; or against a brother who kills his brother.
As for a purely accidental killing, where someone causes the death of another without intention, there is no right of retaliation against the killer - such as when a man throws something down (from on high) and kills some* one, or when someone digs a well and someone falls in it. or if he starts the construction of an overhang and this falls on someone, or if he mounts an animal which bolts and tramples someone, or if he lays down a stone over which someone trips - if this or anything like it causes someone's death, purely accidentally, then the blood-money but not retaliation is required.
This blood-money is owed by the clan of the killer, and it is not a fine on his own wealth, and it is to be paid within three years of the killing of the person, although Abu Hanifah says that it is from the time the judge pronounces the blood-money; this clan comprises his tribe - other than his father or sons - such that neither the father nor any other ascendant is liable for it, nor any sons and their descendants - although Abu Hanifah and Malik include the fathers and the sons in the clan. The killer is not liable for paying this blood-money along with the clan, although Abu Hanifah and Malik con* sider that the killer is treated as one of the clan. For the person of ample means, he should pay half a dinar each year, or its value in camels; for the person of average means, a quarter of a dinar, or its value in camels; the poor do not have to pay anything of it; whoever acquires ample means after being poor must contribute, and whoever becomes poverty-stricken after enjoying ample means does not have to contribute.
The blood money for a free Muslim, if assessed in gold, is a thousand dinars of the most common gold coins of good quality; if assessed in silver; then it is twelve thousand dirhams; Abu Hanifah says it is a thousand dirhams; if it is in camels, then a hundred camels divided into fifths - that is, twenty two-year olds, twenty female three-year olds, twenty male three-year olds, twenty four-year olds and twenty five-year olds. The blood money is based on payment in camels, and any other form of payment is by way of substitution. The blood money for a woman is half that of a man, both regarding her life and her limbs. There is a difference of opinion concerning the blood money for a Jew and a Christian. Abu Hanifah considers that it is the same as that of a Muslim; Malik says that it is half the blood money of Muslim, and according to ash-Shafi'i, a third, As for a Majusi (Zoroastrian), it is three tenths, that is, eight hundred dirhams; as for a slave, it is *****alent to his value, whatever it is, even if it is many times more than that of a free man, according to ash-Shafi'i; Abu Hanifah, however, said: "I do not consider that it attains the value of the blood money of a free person, even if it amounts to more than this, but rather I would reduce it by ten dirhams."
As for a killing which resembles the accidental, this refers to an act done intentionally but not with the aim of killing, as for example, when a man hits another with a piece of wood of throws a stone at him, from which he might escape death or perish. but it does cause his death, or when a teacher hits a pupil in the customary manner or the Sultan inflicts a discretionary punishment on a man for a crime, and they perish - then there is no right of retaliation, but rather an extra payment of blood money is due from the clan, that is, an increase of a third in gold or silver; or in the case of camels, they are paid in thirds, that is, a third of four-year olds, a third of five year olds and a third pregnant with young. It is reported of the Prophet, may the peace and blessings of Allah be upon him, that he said: "The clan does not have to contribute for a slave, nor for an intentional murder, nor as terms of an agreement, nor for a confession." The diyah (blood money) for a purely accidental killing in the Haram sanctuary, and in the sacred months of Muharram, Rajab, Dhu'l*Qa'dah and Dhu'I-Hijjah, and for a related person, is of the increased amount. The diyah for killing with intent, when there is a pardon instead of retaliation, is also of the increased amount and may be taken immediately from the wealth of the murderer.
If a group of persons took part in the killing of someone, then the right of retaliation is against all of them, but they only have to pay one diyah, even if there are many of them; the person who represents the person killed may pardon whom he wishes of them and may have the rest killed; if he pardons all of them, only one diyah is to be paid, and its payment exonerates all of them; if one of them was the person who actually did the killing, another wounded the victim, and another only inflicted some (minor) injury, then the right to take life in retaliation is only against the person who killed, while those who wounded or injured are subject to the ruling governing injury and not the taking of a life. If one person kills a group of persons, he is put to death for killing the first, and the diyah for the rest is to be paid from his wealth - although Abu Hanifah says that his being put to death is for all of them, and no diyah is to be paid. If he kills them all at the same time, then lots are drawn between them, and the right of retaliation is for the person who draws the lot, unless the persons who represent the killed persons agree amongst themselves to give the right of retaliation to one of them, in which case, the diyah is to be paid for each of the others from the wealth of the killer, If a person in authority orders a man to kill someone, then the right of retaliation is against the person who gave the order and the person who carried it out; if the person giving the order is not a superior (officer) obeyed by subordinates, then the right of retaliation is against the person who carries out the order, and not the one who gave it; if a person is forced to kill, the right of retaliation must be against the person who forced him; there are two opinions as to whether it must also be against the person who was forced.
(Continued)

[ابوالوليد المسلم]

Rulings Governing Criminal Actions (6/7)

Abu`l Hasan al-Mawardi


As for the right of retaliation for a part of the body which has been severed from the joint, an arm may be taken for an arm, a leg for a leg, a finger for a finger, the end of a finger for the end of a finger, a tooth for a similar tooth. but not a right for a left, nor an upper for a lower, and not a molar for another kind, nor a full tooth for a milk tooth, nor a healthy hand for a paralysed one, and not a tongue of someone who can speak for a tongue of a dumb person; however, the hand of someone who can write or make things may be taken in retaliation for the hand of someone who cannot write or make things; an eye is taken for an eye, be it a healthy eye, or one with a squint, or one that is night blind, although not for an unseeing fixed eyeball * or for a withered hand - unless it is like for like; the nose that can smell may be taken for one that cannot, and the ear that can hear for one that cannot, although Malik does not allow the right of retaliation for the latter The retaliation takes place between Arabs and non-Arabs, and between nobles and those of lower status.

If the right of retaliation is renounced in favour of the diyah for these parts of the body, then the full diyah is payable for both hands, and half the amount for one; for every finger a tenth of the diyah is payable, that is ten camels; for each of the lower fingers, three camels and a third, except for the end of the thumb for which five camels is due; the two feet are the same amount as the two hands, except that for each toe five camels are due; for both eyes the full diyah, and for one eye, a half, no extra being paid for the eye of a one-eyed person - although Malik, may Allah have mercy on him, considers that the full diyah must be paid in this case; for the four eyelids the full diyah, and for each a quarter; for the nose the full diyah; for both ears the full diyah, and for each a half; for the tongue the full diyah; for both lips a quarter; for each tooth, five camels, irrespective of whether they are molars, or incisors or wisdom teeth; for the loss of hearing the full diyah, and if both ears have been cut off and also loss of hearing, then two diyahs, just as when the nose has been cut off and there is loss of smell, two diyahs are due; for loss of speech a diyah, and if the tongue has been cut off and there is loss of speech, then still only one diyah; for the loss of intellect, one diyah; for the loss of the penis, a diyah, irrespective of whether he is a eunuch, or the per* son is impotent, or anything else - although Abu Hanifah says that for the eunuch and the impotent, there must be a judicial ruling; for both testicles the diyah, and for one, a half; for the loss of a woman's breasts her full diyah, and for one a half; for a man's breast a judicial ruling is made, although some have said that the full diyah is to be paid.
As for head wounds: if the skin has been broken there is no right of retaliation or diyah to be paid, but rather a ruling is made; if blood is drawn, there is a ruling; if the blood comes out like tears after the skin has been cut, there is a ruling; if the flesh has been cut, a ruling is made; if the flesh is penetrated, a ruling is made; if after the skin is completely cut, only a thin covering over the skull remains, a ruling is made. These rulings are increased in severity according to the degree of the head-wound. Thereafter, there is the wound known as the mudihah where the skin, the flesh and the covering membrane have been pierced and the skull has been exposed, in which case, retaliation is due; if a pardon is granted five camels are due; if the flesh is exposed and the skull has been splintered in the wound known as the hashimah, ten camels are due; there is no retaliation for this latter (wound), but for the mudihah there is; when the hashimah is particularly severe, an extra five are paid, although Malik says that it is subject to a judicial ruling; as for the wound known as the munaqqalah, where the skull is showing, has been fractured and is dislocated, so that it must be put back in place, fifteen camels are due; if retaliation of the mudihah is sought, ten camels are given for the Hashimah and munaqqalah wounds; the ma'munah, also known as the damighah, refers to a wound which penetrates to the core of the skull, and a third of the diyah is due.
As for wounds to other parts of the body, the diyah is not payable except if the stomach is pierced, in which case a third of the diyah is due; there is no right of retaliation for a body wound, except if the bone is exposed, in which case, it is subject to a judicial ruling. If various limbs have been severed and have formed scars, then the diyahs are due for each, even if it amounts to many more times the amount of the diyah for loss of life; if the person dies of these wounds before scars have formed, then the diyah for loss of life is due and the various diyahs for the (missing) limbs are not payable; if death follows the formation of scar tissue on some of the wounds, a full diyah is payable for what has not healed, together with the diyah for each of the limbs; if healing takes place in the case of a tongue which cannot produce speech, or a paralysed hand, or a useless finger, or an eye still in place but not functioning, then a judicial ruling is necessary. This ruling consists in the judge assessing the victim as if he were a slave without any wound; he then assesses the difference in value after the wounds, this difference in value being the amount of the diyah - and it is this amount which is in the judicial ruling.
If a woman's stomach is hit, resulting in a still birth, and if it would have been a free person, payment of a slave or a slave-girl must be made by the clan; if it would have itself been a slave, then a tenth of the value of its mother is payable, irrespective of whether it is male or female; if it gave out a cry at the time of birth, a full diyah is payable, and then a distinction is made between a male and a female. Whoever kills someone and must pay the diyah is also obliged to pay a kaffarah-expiation, irrespective of whether it was intentional or accidental; Abu Hanifah makes it an obligation in the case of accidental death, but not for one with intent. This kaffarah consists of freeing a believing slave who is free from any defect which would be detrimental to his capacity to work; if this is not possible, he must fast for two consecutive months, and if he is incapable of this, then he must feed sixty destitute persons, according to one of two opinions; according to another; then he is no longer liable.
If a people claims from another people that there has been a killing and this claim is vigorous, that is, they want to convince others of the truth of their claim, then such a claim is accepted, and they are made to swear to it on oath fifty times, and then the judge grants them the right to the diyah, but not to retaliation; if the litigants refuse to make the oath, or part of it, then the accused must swear and is thus acquitted.
If there is to be retaliation for someone's murder, or for the loss of a limb, the person entitled to it cannot exact it on his own initiative, but only with the permission of the Sultan; in the case of the loss of a limb, the Sultan cannot authorise a retaliation unless he has failed to find someone else to do it; the fee for this is born by the person being punished, and not the person exacting it although - Abu Hanifah says that it is the other way round. If the retribution is to take the murderer's life, the Sultan may allow the person who rep* resents the victim to exact vengeance himself if he is of strong character; otherwise the Sultan has it done for him by someone who is surer in his use of the sword.
If the person entitled to retaliate for a murder or the loss of a limb carries out the retaliation on his own initiative, without, however, going beyond the limits, then the Sultan imposes a discretionary punishment on him for having infringed the Sultan's own prerogative; however, he is not liable for any further penalty, as he only inflicted what he had a right to inflict.

[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.