Killing the criminal by discretionary punishment if he is not deterred by the fixed punishments
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Question:
Honorable Shaykh Abu Hakim, may Allah reward you, is it permissible for the judge to kill a person who has committed crimes many times, when the fixed punishment has not been carried out against him, by way of discretionary punishment?
Answer:
No, the majority hold that he is not killed, but rather the hudud (fixed Qur'anic punishments) are carried out against him. No, Shaykh al-Islam Ibn Taymiyyah (may Allah have mercy on him) chooses the position that if the criminal is not deterred by the hudud, he is killed to repel his harm, because he has become a violent aggressor, and a violent aggressor is repelled; if he cannot be repelled except by killing, then he is killed. Also, because he becomes one of those who cause corruption on earth, and Allah the Exalted says:[Al-Ma'idah 5:33]. His saying, the Exalted, [Al-Ma'idah 5:32] indicates that the one who causes corruption on earth is killed to repel his harm. So if his zina (unlawful sexual intercourse), drinking of khamr (intoxicants), and theft increase and are not stopped by the hudud, then he is killed to repel his harm. Yes, this is the stronger position in terms of reasoning. Yes, and there are also hadiths (reports of the Prophet's words or deeds) As-Sunan al-Kubra lil-Nasa'i 29:28 up to where it says, "In the fourth [instance], if he drinks, kill him." Yes.
Honorable Shaykh Abu Hakim, may Allah reward you, is it permissible for the judge to kill a person who has committed crimes many times, when the fixed punishment has not been carried out against him, by way of discretionary punishment?
Answer:
No, the majority hold that he is not killed, but rather the hudud (fixed Qur'anic punishments) are carried out against him. No, Shaykh al-Islam Ibn Taymiyyah (may Allah have mercy on him) chooses the position that if the criminal is not deterred by the hudud, he is killed to repel his harm, because he has become a violent aggressor, and a violent aggressor is repelled; if he cannot be repelled except by killing, then he is killed. Also, because he becomes one of those who cause corruption on earth, and Allah the Exalted says:
Indeed, the penalty for those who wage war against Allah and His Messenger and strive upon earth [to cause] corruption is none but that they be killed or crucified or that their hands
إِنَّمَا جَزَاءُ الَّذِينَ يُحَارِبُونَ اللَّهَ وَرَسُولَهُ وَيَسْعَوْنَ فِي الْأَرْضِ فَسَادًا أَن يُقَتَّلُوا أَوْ يُصَلَّبُوا أَوْ تُقَطَّعَ أَيْدِيهِمْBecause of that, We decreed upon the Children of Israel that whoever kills a soul unless for a soul or for corruption [done] in the land
مِنْ أَجْلِ ذَٰلِكَ كَتَبْنَا عَلَىٰ بَنِي إِسْرَائِيلَ أَنَّهُ مَن قَتَلَ نَفْسًا بِغَيْرِ نَفْسٍ أَوْ فَسَادٍ فِي الْأَرْضِIf he drinks, flog him; then if he drinks, flog him; then if he drinks
إذا شرب فاجلدوه، ثم إذا شرب فاجلدوه، ثم إذا شرب
Source
قناة «العلامة الدكتور صالح الفوزان»، 81 من 89|شرح العدة في شرح العمدة|كتاب الحدود|فصل فيما يشترط في السوط يقام به الحد|صالح الفوزان|الفقه — youtube.com (1:04:11)
The Arabic text is a machine transcription of the audio recording.