Divisions of Punishment (2)

1)            It is recorded that the ruler of a country may inflict chastisement by means of property that is by the exaction of a sum of money in the manner of a fine, proportioned to the offence.

2)            Chastisement, which is incurred purely as the right of God, may be inflicted by any person what ever. Even though there be no magistrate present; the reason of this is that the chastisement in question is of the class of the removal of evil with the hand. The Prophet has authorized every Muslim to remove evil with the hand, if possible, as he has said; “Whoever among you see the evil, let him remedy it with his own hands; but if he be unable so to do, let him forbid it by his tongue.” Chastisement, therefore, is evidently species other than punishment, since authority to inflict the latter does not appertain to any but a magistrate or a judge. This species of chastisement is also different from the chastisement which is incurred on account of the right of the individual [such as in cases of slander and so forth], since that depends upon the complaint of the injured party, whence no person can inflict it but the magistrate, even under a private arbitration where the plaintiff and defendant may have referred the decision of the matter to any third person.

3)            Chastisement in any instance in which it is authorised by the law, is to be inflicted, where the imam, the legal ruler, sees it advisable.

4)            If a person accuses of whoredom a male or female slave or an infidel, he is to be chastised, because this accusation is offensive, and punishment for slander is not incurred by it, as the condition of Ihsan [i.e. marriage of a free Muslim or woman in the sense which induces permittance for slander] is not attached to the accused; chastisement, therefore, is to be inflicted. And in the same manner, if any person accuses a Muslim of anything other than whoredom [i.e. abuses him by calling him a reprobate, a villain, an infidel, or a thief], chastisement is incurred, because he injures a Muslim and defames him; and punishment cannot be considered as due from analogy, since analogy has no concern with the necessity of punishment; chastisement, therefore, is to be inflicted. In the case of abusing a Muslim, the measure of the chastisement is left to the discretion of the magistrate, be it more or less, and whatever he sees proper, let him inflict it.

5)            If a person abuses his brother-Muslim by calling him an ass or a hog, in this case chastisement is not incurred, because these expressions are in no respect defamatory of the person towards whom they are used, it being evident that he is neither an ass nor a hog. Some jurists assert that even in such occasions, in our time, chastisement may be inflicted, since in the modern acceptation, calling a man an ass or a hog is held to be abuse. Others, again, allege that it is esteemed as such, only where the person towards whom such expressions are used happens to be of dignified rank [such as a noble man or a man of letters], in which case chastisement must be inflicted upon the abuser, as by so speaking he exposes that person of rank to contempt; but if he be only a common person, chastisement is not necessarily incurred, but the case is, however, left to the discretion of the Qadi and this is the most approved doctrine.

6)            The greatest number of stripes in chastisement is thirty-nine, and the smallest number is three. This restriction is founded on a saying of the Prophet: “The man who shall inflict scourging to the amount of punishment, in a case where punishment is not established, shall be counted an aggravator” [meaning a wanton aggravator of punishment], from which saying it is to be inferred that the infliction of a number of stripes in chastisement equal to the same number as in punishment is unlawful. This being admitted, the Muslim jurists, in order to determinate the utmost extent of chastisement, consider what is the smallest punishment – and this is the punishment for slander with respect to a slave, which is forty stripes–and establish thirty-nine as the greatest number to be inflicted in chastisement. Abu Yusif, the eminent jurist and authority, on the other hand, considering the smallest punishment with respect to free men [as freedom is the original state of man], which is eighty stripes, he deducts five and establishes seventy-five as the greatest number to be inflicted in chastisement as aforesaid. This is because the same is recorded of Imam ‘Ali, the fourth Khalifa, whose example Abu Yusuf follows in this instance. The more modern scholars of divinity assert that the smallest degree of chastisement must be left to the judgment of the Imam or Qadi, who is to inflict whatever he may deem sufficient for chastisement, which is different with respect to different men. It is agreed that the degree thereof is in proportion to the degree of the offence; and it is also established that the chastisement for petty offences should be inflicted to a degree approaching to the punishment allotted for offences of a similar nature; thus the chastisement for libidinous acts [such as kissing and touching] is to be inflicted to a degree approaching to the punishment for whoredom, and the chastisement for abusive language to a degree approaching to the punishment for slander.

7)            If the Qadi [judge] deems it fit in chastisement to unite imprisonment with scourging, as in cases of most vicious offences [such as committing sodomy], it is lawful for him to do both, since imprisonment is of itself capable of constituting chastisement, and had been so employed, for the Prophet once imprisoned a person by way of chastising him. However, imprisonment is not lawful before the offence be proved, merely upon suspicion: contrary to offences which induce punishment, for there the accused may be lawfully imprisoned upon suspicion. It is also agreed that the Qadi, according to his discretion, may unite imprisonment with blows in offences deserving the same.

8)            The severest blows or stripes may be used in chastisement, because levity is not to be regarded with respect to the nature of them, for otherwise the design would be defeated; and hence levity is not shown in chastisement by inflicting the blows or stripes upon different parts of the body. And next to chastisement, the severest blows or stripes are to be inflicted in punish. Whoredom, moreover, is a deadly sin, in so much that lapidation for it has been ordained by the law. And next to punishment for whoredom, the severest blows or stripes are to be inflicted in punishment for wine-drinking, as the occasion of punishment is there fully certified, and next to punishment for wine-drinking the severity of the blows or stripes is to be attended to in punishment for slander, because there is a doubt in respect to the occasion of the punishment [namely the accusation], as an accusation may be either false or true. And also because severity is here observed in disqualifying the slanderer from appearing as an evidence; wherefore severity is not also to be observed in the nature of the blows or the stripes.

9)            If the magistrate inflicts either punishment or chastisement upon a person, and the sufferer should die in consequence of such punishment or chastisement, his blood is Hadar, that is to say nothing whatever is due an act which is decreed is not restricted to the condition what he does is done by decree of the law; and an act which is decreed is not restricted to the condition of safety. This is analogous to a case of phlebotomy; that is to say if any person desires to be bled, and consequently dies, the operator is in no respect responsible for his death; and so here also. It is different, however, in the case of the a husband inflicting chastisement upon his wife, for his act is restricted to safety, as it is only allowed to a husband to chastise his wife. In the case of the fine of blood according to Shaf’i School of Jurisprudence, this is due from the public treasury [bait-el-mal]. Because although [where chastisement or punishment proves destructive] it is homicide by misadventure [as the intention is not the destruction, but the amendment of the sufferer], a fine is due from the public treasury, since the advantage of the act of the magistrate extends to the public at large, wherefore the atonement is due from their property, namely from the public treasury. On the other hand, according to the Hanafi School of Theology, whenever the magistrate inflicts a punishment ordained by God upon any person, and that person dies, it is the same as if he had died by the visitation of God, without any visible cause, wherefore there is no responsibility. In any case, the matter is left to the ruler to decide according to his discretion.