Explanation of the Book of Inheritance, Fixed Punishments, and Blood Money-05a
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The reciter: Hafs ibn 'Umar narrated to us, Hisham narrated to us from Qatadah from Anas that the Prophet (peace and blessings be upon him) struck for intoxicants with palm branches and sandals, and Abu Bakr flogged forty lashes. Adam ibn Abi Iyas narrated to us, Shu'bah narrated to us, Qatadah narrated to us from Anas ibn Malik (may Allah be pleased with him): Mishkat al-Masabih 3614, 3615.
The Shaykh : In the name of Allah, the Most Gracious, the Most Merciful. The chapter on what has come regarding the flogging of the drinker of intoxicants.
It appears that al-Bukhari (may Allah have mercy on him) did not affirm that the punishment for the drinker of intoxicants is a fixed punishment (hadd), and the scholars have differed on this issue. Some of them said: The punishment for the drinker of intoxicants is a fixed punishment of forty lashes, with no increase.
And some of them said: Eighty lashes, with no decrease.
And some of them said: Between forty and eighty, it is up to the ijtihad (independent legal reasoning) of the imam, but it must not be less than forty nor more than eighty. These are three opinions.
Three opinions, what are they? Forty, eighty, and what is between them is referred to the imam, but it must not be less than forty nor more than eighty.
And some of them said: The punishment for the drinker of intoxicants is not a fixed punishment (hadd), but rather it is a punishment referred to the opinion of the imam, but it must not be less than forty, because this is the minimum by which the drinker of intoxicants can be deterred. This opinion is the correct one, that it is not a fixed punishment (hadd) but is referred to the opinion of the imam. The evidence for this is that the Prophet (peace and blessings be upon him) used to be brought the drinker and he would strike him with palm branches and sandals; this one would strike him with his garment, this one with his sandal, this one with his hand, and this one with his palm branch. Something like this cannot be regulated by a specific number.
Another piece of evidence is that when the drinking of intoxicants became widespread among the people in the era of the Commander of the Faithful, 'Umar ibn al-Khattab (may Allah be pleased with him), he gathered the people and consulted them. 'Abd al-Rahman ibn 'Awf said to him: "The lightest of the fixed punishments (hudud) is eighty", so 'Umar made it eighty. The statement "The lightest of the fixed punishments (hudud) is eighty" indicates that the punishment for intoxicants is not a fixed punishment (hadd), because the punishment for intoxicants, as al-Bukhari (may Allah have mercy on him) mentioned: "The Messenger (peace and blessings be upon him) struck for intoxicants with palm branches and sandals, and Abu Bakr flogged forty".
The third piece of evidence is that if the punishment for the drinker of intoxicants had been a fixed punishment (hadd), 'Umar would not have exceeded it, because if he had exceeded it, this would have been transgressing the limits of Allah. And Allah the Exalted said:[At-Talaq 65:1].
And we know that if zina (unlawful sexual intercourse) had become widespread among the people, it would not have been permissible for 'Umar or anyone else to increase beyond the one hundred lashes which is the fixed punishment (hadd) for the one who commits zina, as Allah the Exalted said:[An-Nur 24:2].
And this opinion, as you see from its evidence, is the stronger position. So if the one in authority sees that it should be made ninety or one hundred or more, he has that right.
the Prophet gave a beating with palm branches and sandals for drinking wine and that Abu Bakr gave forty lashes
أن النبي صلى الله عليه وسلم ضرب في الخمر بالجريد والنعال، وجلد أبو بكر أربعينThe Shaykh : In the name of Allah, the Most Gracious, the Most Merciful. The chapter on what has come regarding the flogging of the drinker of intoxicants.
It appears that al-Bukhari (may Allah have mercy on him) did not affirm that the punishment for the drinker of intoxicants is a fixed punishment (hadd), and the scholars have differed on this issue. Some of them said: The punishment for the drinker of intoxicants is a fixed punishment of forty lashes, with no increase.
And some of them said: Eighty lashes, with no decrease.
And some of them said: Between forty and eighty, it is up to the ijtihad (independent legal reasoning) of the imam, but it must not be less than forty nor more than eighty. These are three opinions.
Three opinions, what are they? Forty, eighty, and what is between them is referred to the imam, but it must not be less than forty nor more than eighty.
And some of them said: The punishment for the drinker of intoxicants is not a fixed punishment (hadd), but rather it is a punishment referred to the opinion of the imam, but it must not be less than forty, because this is the minimum by which the drinker of intoxicants can be deterred. This opinion is the correct one, that it is not a fixed punishment (hadd) but is referred to the opinion of the imam. The evidence for this is that the Prophet (peace and blessings be upon him) used to be brought the drinker and he would strike him with palm branches and sandals; this one would strike him with his garment, this one with his sandal, this one with his hand, and this one with his palm branch. Something like this cannot be regulated by a specific number.
Another piece of evidence is that when the drinking of intoxicants became widespread among the people in the era of the Commander of the Faithful, 'Umar ibn al-Khattab (may Allah be pleased with him), he gathered the people and consulted them. 'Abd al-Rahman ibn 'Awf said to him: "The lightest of the fixed punishments (hudud) is eighty", so 'Umar made it eighty. The statement "The lightest of the fixed punishments (hudud) is eighty" indicates that the punishment for intoxicants is not a fixed punishment (hadd), because the punishment for intoxicants, as al-Bukhari (may Allah have mercy on him) mentioned: "The Messenger (peace and blessings be upon him) struck for intoxicants with palm branches and sandals, and Abu Bakr flogged forty".
The third piece of evidence is that if the punishment for the drinker of intoxicants had been a fixed punishment (hadd), 'Umar would not have exceeded it, because if he had exceeded it, this would have been transgressing the limits of Allah. And Allah the Exalted said:
And whoever transgresses the limits of Allah has certainly wronged himself
ومن يتعد حدود الله فقد ظلم نفسهAnd we know that if zina (unlawful sexual intercourse) had become widespread among the people, it would not have been permissible for 'Umar or anyone else to increase beyond the one hundred lashes which is the fixed punishment (hadd) for the one who commits zina, as Allah the Exalted said:
The [unmarried] woman or [unmarried] man found guilty of sexual intercourse - lash each one of them with a hundred lashes
الزانية والزاني فاجلدوا كل واحد منهما مائة جلدةAnd this opinion, as you see from its evidence, is the stronger position. So if the one in authority sees that it should be made ninety or one hundred or more, he has that right.