Continuation of the explanation of the author's statement: "So the hadd upon him is eighty lashes if he is free, and forty if he is a slave"
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The Shaykh : 'Umar consulted them regarding increasing the number beyond forty. 'Abd al-Rahman ibn 'Awf said, "The lightest of the hadd punishments is eighty." So is the punishment for intoxicants a hadd or not? No, it is not a hadd. The implication of this wording is not that the authentic or weak [narration] implies it; rather, the implication of this wording is that the lightest of the hadd punishments is eighty. So make it eighty. 'Umar made it eighty. Their statement that "the lightest of the hadd punishments is eighty," while it did not exceed forty in the time of Abu Bakr and the time of 'Umar, means that it is not a hadd. If it were a hadd, it would mean that the lightest of the hadd punishments is forty. Then we say: if it were a hadd, 'Umar or anyone else would not have been able to exceed it. For this reason, if fornication were to increase among the people, would we increase beyond one hundred lashes? We would not increase it. No one can increase a hadd, just as the midday prayer is not increased beyond four units, the sunset prayer is not increased beyond three, and the dawn prayer is not increased beyond two. The hadd punishments that Allah or His Messenger has determined are not increased. Accordingly, the stronger position is that its punishment is a discretionary punishment (ta'zir), but it should not be less than forty, because this is the minimum that was reported in the time of the Messenger of Allah (peace and blessings be upon him). A man who had drunk was brought, and they began to beat him; some hit him with their sandals, some with their hands, and some with their garments and palm branches. If this were a hadd, would its discipline be like this?
The questioner : No.
The Shaykh : Its discipline would not be like this; rather, it is determined and fixed so that no one increases it and no one decreases it.
And the author's statement "eighty lashes if he is free, and forty if he is a slave": the eighty lashes is based on the ruling of 'Umar (may Allah be pleased with him), where he raised the number to eighty lashes. 'Umar has a precedent to be followed. This is analogous to the scholars' adoption of 'Umar's opinion that the triple divorce is a final divorce, even though in the time of the Prophet (peace and blessings be upon him), the time of Abu Bakr, and the first two years of 'Umar's caliphate, the triple divorce was considered one divorce. This is similar to that: they adopted the later action of 'Umar (may Allah be pleased with him), which was that he would lash the drinker of intoxicants eighty lashes. Many of the scholars chose that the number between forty and eighty is left to the judgment of the ruler; if he sees in the public interest that it should reach eighty, he does so, otherwise it is forty.
He said, "and forty if he is a slave", based on the principle that has passed, which is that the punishment for a slave is half the punishment for a free person. This concludes the chapter on the hadd for intoxicants.
The questioner : No.
The Shaykh : Its discipline would not be like this; rather, it is determined and fixed so that no one increases it and no one decreases it.
And the author's statement "eighty lashes if he is free, and forty if he is a slave": the eighty lashes is based on the ruling of 'Umar (may Allah be pleased with him), where he raised the number to eighty lashes. 'Umar has a precedent to be followed. This is analogous to the scholars' adoption of 'Umar's opinion that the triple divorce is a final divorce, even though in the time of the Prophet (peace and blessings be upon him), the time of Abu Bakr, and the first two years of 'Umar's caliphate, the triple divorce was considered one divorce. This is similar to that: they adopted the later action of 'Umar (may Allah be pleased with him), which was that he would lash the drinker of intoxicants eighty lashes. Many of the scholars chose that the number between forty and eighty is left to the judgment of the ruler; if he sees in the public interest that it should reach eighty, he does so, otherwise it is forty.
He said, "and forty if he is a slave", based on the principle that has passed, which is that the punishment for a slave is half the punishment for a free person. This concludes the chapter on the hadd for intoxicants.