The punishment for the drinker of intoxicants: is it a hadd or ta'zir?
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The questioner : The punishment for the drinker of intoxicants: is it said to be a hadd by the Shari'ah, or is it a matter of ta'zir?
The Shaykh : The truth is that I see that terminological matters must not change anything of the rulings of the Shari'ah; so is there a difference between it being a hadd or a ta'zir?
The questioner: Yes.
The Shaykh : Yes, so I say in advance that if the evidence of the Shari'ah indicates that it is a ta'zir and not a hadd, we say it is a ta'zir, and perhaps that is the case, if we recall the authentic hadith in which it says: along with the fact that the Prophet (peace and blessings be upon him) did not kill [the drinker] on the fourth offense; therefore, we see that the matter returns to the wisdom and ijtihad of the judge. If he sees that it is in the religious interest to kill the drinker on the fourth offense, he kills him, and if he does not see that, he establishes the known hadd upon him; so it is the same whether we call it a hadd or a ta'zir.
The questioner : I mean regarding the flogging in our courts: if it is established that he drank intoxicants, the judge says: "He is to be flogged eighty lashes as a hadd for drinking intoxicants."
The Shaykh : Yes, this is a leniency in expression, O ijtihad, O opinion.
The questioner : I mean, did the Prophet (peace and blessings be upon him) not establish a hadd?
The Shaykh : Yes, it is ijtihad, O opinion, O leniency in expression. You are not contradicting him regarding the permissibility of flogging eighty lashes, but you are contradicting him in the expression.
The questioner : Yes, exactly.
The Shaykh : I told you about the expression.
The questioner : They add more than eighty, increasing it from the perspective of ta'zir if he has prior offenses.
The Shaykh : More than eighty?
The questioner : Yes, they add.
The Shaykh : Strange; but where did they get this increase from?
The questioner : By his ijtihad, because the judge has knowledge...
The Shaykh : No, ijtihad, as you know, has limits. So what is his basis for that? Relying on mere ta'zir does not give him absolute discretion in ta'zir. For example, the authentic hadith says—and I think it is like this, and you may be smarter than me: Do you know if this is a hadith about flogging or not, or about ta'zir or not?
Al-Halabi : I think it is not flogging, and Allah knows best.
The Shaykh : Not flogging; do you not remember anything about this?
The questioner : I remember it.
The Shaykh : Do you remember its text, what it is?
The questioner : No, by Allah.
The Shaykh : But it has ten, in the limitation of ten.
The questioner : Yes, in the limitation of ten.
Al-Halabi :Sunan Ibn Majah 2602Da'if (Darussalam) .
The Shaykh : That is it.
The questioner : But what if one who repeated his breach of it and did it several times and expanded upon it, for example?
The Shaykh : We have presented the hadith.
Al-Halabi: Oh, wonderful.
The Shaykh : We have presented the hadith in contradicting them.
The questioner : And if they consider it weak?
The Shaykh : I seek refuge in Allah.
Al-Halabi : The hadith is agreed upon by al-Bukhari and Muslim from Abu Burdah ibn Niyar:Bulugh al-Maram 10:52 O my Shaykh, this is a good addition.
The Shaykh : How?
Al-Halabi : No one is to be flogged more than ten lashes except in a hadd from the hudud of Allah.
The Shaykh : Yes, let the professor...
The questioner : I thought you were in the case of killing.
The Shaykh : How killing? Our discussion was about drinking.
The questioner : I mentioned the ten lashes, and then my mind went to killing.
The Shaykh : No harm, let us return to what the mind should have stopped at, so we return to it.
Al-Halabi : O my Shaykh, does not this hadith clarify what the brother is saying?
The Shaykh : How?
Al-Halabi : No one is to be flogged more than ten lashes except in a hadd from the hudud of Allah? And the text...?
The Shaykh : This is a refutation of him.
Al-Halabi : Except the text that came regarding the hadd, yes, yes, may Allah reward you with good, O Shaykh.
The Shaykh : And to you, bring the book.
The Shaykh : The truth is that I see that terminological matters must not change anything of the rulings of the Shari'ah; so is there a difference between it being a hadd or a ta'zir?
The questioner: Yes.
The Shaykh : Yes, so I say in advance that if the evidence of the Shari'ah indicates that it is a ta'zir and not a hadd, we say it is a ta'zir, and perhaps that is the case, if we recall the authentic hadith in which it says:
Whoever drinks intoxicants, flog him; and if he drinks it for the fourth time, kill him.
من شرب الخمر فاجلدوه فإذا شربها في الرابعة فاقتلوهThe questioner : I mean regarding the flogging in our courts: if it is established that he drank intoxicants, the judge says: "He is to be flogged eighty lashes as a hadd for drinking intoxicants."
The Shaykh : Yes, this is a leniency in expression, O ijtihad, O opinion.
The questioner : I mean, did the Prophet (peace and blessings be upon him) not establish a hadd?
The Shaykh : Yes, it is ijtihad, O opinion, O leniency in expression. You are not contradicting him regarding the permissibility of flogging eighty lashes, but you are contradicting him in the expression.
The questioner : Yes, exactly.
The Shaykh : I told you about the expression.
The questioner : They add more than eighty, increasing it from the perspective of ta'zir if he has prior offenses.
The Shaykh : More than eighty?
The questioner : Yes, they add.
The Shaykh : Strange; but where did they get this increase from?
The questioner : By his ijtihad, because the judge has knowledge...
The Shaykh : No, ijtihad, as you know, has limits. So what is his basis for that? Relying on mere ta'zir does not give him absolute discretion in ta'zir. For example, the authentic hadith says—and I think it is like this, and you may be smarter than me:
There is no ta'zir above ten lashes.
لا تعزير فوق عشر جلداتAl-Halabi : I think it is not flogging, and Allah knows best.
The Shaykh : Not flogging; do you not remember anything about this?
The questioner : I remember it.
The Shaykh : Do you remember its text, what it is?
The questioner : No, by Allah.
The Shaykh : But it has ten, in the limitation of ten.
The questioner : Yes, in the limitation of ten.
Al-Halabi :
Do not punish with more than ten whips
لا تعزروا فوق عشرة أسواطThe Shaykh : That is it.
The questioner : But what if one who repeated his breach of it and did it several times and expanded upon it, for example?
The Shaykh : We have presented the hadith.
Al-Halabi: Oh, wonderful.
The Shaykh : We have presented the hadith in contradicting them.
The questioner : And if they consider it weak?
The Shaykh : I seek refuge in Allah.
Al-Halabi : The hadith is agreed upon by al-Bukhari and Muslim from Abu Burdah ibn Niyar:
No more than ten lashes are to be given except when inflicting one of the Hudud (prescribed punishments) of Allah.
لا يجلد فوق عشرة أسواط إلا في حد من حدود اللهThe Shaykh : How?
Al-Halabi : No one is to be flogged more than ten lashes except in a hadd from the hudud of Allah.
The Shaykh : Yes, let the professor...
The questioner : I thought you were in the case of killing.
The Shaykh : How killing? Our discussion was about drinking.
The questioner : I mentioned the ten lashes, and then my mind went to killing.
The Shaykh : No harm, let us return to what the mind should have stopped at, so we return to it.
Al-Halabi : O my Shaykh, does not this hadith clarify what the brother is saying?
The Shaykh : How?
Al-Halabi : No one is to be flogged more than ten lashes except in a hadd from the hudud of Allah? And the text...?
The Shaykh : This is a refutation of him.
Al-Halabi : Except the text that came regarding the hadd, yes, yes, may Allah reward you with good, O Shaykh.
The Shaykh : And to you, bring the book.
Source
www.al-albany.com
The Arabic text is copied verbatim from the original source, without any edits.