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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.

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