Rulings Governing Criminal Actions (7/7)

F. Concerning discretionary punishments:  these are imposed for wrong actions, but are not defined as hadd-punishments by the law. These vary according to different circumstances and the situation of the person who imposes them.  In one respect, they do resemble  the hadd-punishments, in that they are a reprimand which  seeks  to reform  the behaviour  of the person  in question,  and to deter others;  they vary in accordance  with the different kinds of crime.  They differ from the hadd-punishments in three ways:

First: the correction  inflicted  on respectable  persons  of the noble class is lighter  than that inflicted  on the meaner  and lower classes  based  on the saying of the Prophet,  may the peace  and blessings  of Allah be upon him: "Pardon the faults  of those  who command  respect."  Thus people  are treated  according  to their station, even though  they are treated  equally  with respect to the hadd-punishments: thus the discretionary  punishment  inflicted on a prominent person  might  consist  in merely  turning  away  from him,  and  for a less significant  person,  in speaking  roughly  to him, and for another, in reproaching  him  in humiliating   terms,  while  not,  however,  slandering   or  insulting him; for persons  of a lower class, it consists  in imprisonment   for a length  of time corresponding   to their wrongdoing,   so that for some  it is a day, and for others,  a longer  indeterminate   period. Abu 'Abdallah az-Zubayri,   one of the followers  of ash-Shafi'i, fixes the maximum  for detention  at a month  in or­ der  to clarify  and  investigate   the  affair,  and  at six  months  as  a means  of correction   and  setting  aright.  For others, it consists in banishment   if their crimes have involved others and caused them harm. There  is a difference  of opinion  as to the  maximum  term of banishment;   the clear  meaning  of ash­ Shafi'i's  madhhab  is that it should  be less than a year, even  by one day, so that it is not as long as that inflicted  as a punishment  for fornication;  the clear ruling  in the madhhab  of Malik is that it is permitted  to impose  more than  a year depending   on the reasons  for the punishment. For others beatings are inflicted in accordance with the nature of the crime, and the degree or quality of the persons in question.  There  is a difference  of opinion  as to the  maxi­ mum amount ofbeating  that may be inflicted; the clear teaching  of ash-Shafi’i is that for the free person,  it should  not exceed  thirty-nine  lashes,  so as to be below  the minimum  number  for the hadd of drinking  wine: thus for the free person  it should  not be as much  as forty, and for the slave,  not as much  as twenty; Abu Hanifah  says that the maximum  inflicted  is thirty-nine  for a free person  and  a slave  alike,  while Abu Yusuf says  that  it is seventy-five,   and Malik,  that there is no upper limit and it may be more than that of the hadd­punishments.  Abu 'Abdallah  az-Zubayri  says that the discretionary   punishment for any wrong action  is deduced  from the hadd-punishment associated with it, and that the maximum  is seventy-five,  that is, five less than the hadd for slander;  if the discretionary punishment is for a crime  associated   with fornication, then  account  is taken  of the circumstances:   if the  two are surprised before he has penetrated  her vagina, they are both given the maximum discretionary punishment,  that is seventy-five lashes;  if they  are found  beneath a sheet, with nothing between them, embracing  each other but not committing  fornication,  then  they are given  Sixty lashes;  if they  are found  thus but  not embracing, then  forty; if they  are  found  together  in  a house  both clothed,  then  thirty;  if found  in the  road  and  they  are  speaking   with  each other, then twenty; if discovered  making signs to each other but without speaking, then ten; and if he is discovered   following  her but nothing  else  is seen, then a few light strokes.

The same is true for the discretionary punishment for theft  when  no amputation  is necessary:  if someone  steals  something  whose  value is the value for which a limb is amputated, but which was not in a place of safekeeping, then the maximum number is given, that is, seventy-five lashes; if the person has stolen less than the legal minimum from a place of safekeeping, he is given sixty; if less than the legal minimum from other than a place of safe­ keeping, then fifty; if he had started to gather up property from a place of safekeeping, but then returned it before taking it away, then forty; if he has broken into and entered into the place of safekeeping, but has not taken any­ thing, then thirty; if he has broken in, but not entered it, then twenty; if he had begun to broken in or open a door, but did not complete the action, then ten; if he is found with a sharp instrument waiting to steal the property, he is given a few light lashes. Crimes other than these are treated in a similar fashion. Although this method appears to be of benefit, there are no proofs as to the validity of the method. The above discussion concerns one of the ways in which the discretionary punishment differs from the hadd.

Second: although no pardon or intercession is allowed with respect to the hadd, pardon is permitted regarding the discretionary punishment, and intercession is also allowed; if the discretionary punishment is solely to do with the government, and for the purpose of setting straight a misdemeanour, and if it is not connected with the private claim of an individual, then the person in authority may examine whether it is best to grant a pardon or to impose the discretionary punishment, just as it is permitted to intercede on behalf of someone who asks for pardon. It is narrated of the Prophet, may the peace and blessings of Allah be upon him, that he said: "Intercede before me, and Allah will decide on the tongue of His Prophet what He wishes." If the right of an individual is involved, such as the discretionary punishment for an insult or an assault, then the person insulted or the person attacked both have a right in the matter, and the right of the government is to set the affair straight, and to take corrective measures concerning the persons involved: thus the person in authority may not annul this right of those who have suffered insult or aggression by granting a pardon, but rather he must ensure that this right is fulfilled, by imposing the discretionary punishment on the person who made the insults or committed the assault. If the persons who suffered the aggression or the insults grant a pardon, then the person in authority may still choose either to impose the punishment as a corrective measure, or to spare and pardon them. If the two parties have pardoned each other the insults or the aggression before bringing the matter to him, then the discretionary punishment with respect to an individual's right is annulled. There is a difference of opinion in two respects as to whether the right of the government to take corrective   measures  is also annulled:  the first,  and  it is the opinion  of Abu 'Abdallah az-Zubayri, is that it is annulled,  and the person  in authority  may not impose a discretionary punishment - the hadd for slander  is more severe, but is annulled  if a pardon  is granted  and there is even less justification   for a discretionary   punishment made on behalf  of  the  government;   the  second, and  this  is more  plausible, is that the person in authority may impose the discretionary   punishment  even if a pardon  has been granted  before  the matter is submitted  to him, just  as he may impose  it when  the  pardon  is made after  it has been  submitted to him  -  as opposed to the pardon  granted  for slander  in both cases  -  since imposing  corrective measures  are a necessary part of the public  interest.

If there  are mutual  insults  or acts of aggression  between  father  and son, the discretionary   punishment   is not  imposed  on the  father  with  respect  to what he has done to the son, but it is imposed  on the son with respect  to what he has done to his father - just  as the father is not killed for the murder  of his son, but the son is put to death  for the murder of his father;  the discretionary punishment which can be imposed on the father is a right solely of the government  for the purpose  of taking correctional  measures,  and the son has no right  in the  matter,  and  the  person  in authority  may  personally   grant  him pardon;  the discretionary   punishment   which  can be imposed  on the son is a shared  right,  both  of the  father  and of the government:   thus  the  person  in authority may not grant  pardon  on his own  initiative  if the father  demands that this punishment be carried out. This then is the second way in which discretionary   punishments differ from the hadd-punishments.

Third:  if anything perishes because of the application of the hadd, then there is no liability, whereas there is liability for loss caused by the imposition of a discretionary punishment. 'Umar ibn al-Khattab intimidated a woman with the result that she aborted and had a stillborn baby; he then consulled 'Ali, may Allah ennoble his face, and the latter advised him to pay the diyah of the foetus. There is a difference of opinion as to who pays the diyah of the discretionary  punishment: according to some, it is payable by the clan of the person  responsible  for the matter, and according  to others, by the bait al-mal; as for the kaffarah-expiation, it is paid from the wealth  of the person responsible, according  to the first opinion;  according  to the second opinion,  it is said that it is taken from his wealth  or, according  to others,  from the bait al-mal.

Likewise, if a teacher inflicts a blow in the customary manner as a corrective measure and this causes the person to perish, then his clan becomes liable for his diyah, and the kaffarah is from his wealth. The husband may hit his wife if she acts in a refractory way towards her husband; if she dies from his blow, her diyah is the liability of his clan as long as he did not mean to kill her - in which case the right of retaliation is exercised against him.

As for the nature of the blows used in the imposition of the discretionary punishment, it is permitted that they be made using a stick or a whip without any knots, as in the case of the hadd-punishrnent. There is a difference of opinion  as to whether it is permitted to use a whip which has not been unknotted: az-Zubayri considers that it is permitted, even if this represents a more severe beating than the normal hadd-punishment, and that it is still permitted if blood is drawn; the majority of the followers of ash-Shafi'i, may Allah be pleased with him, are of the opinion that it is prohibited, as this would be an aggravated and more severe form of the hadd, and this is forbid­ den - thus there is all the more reason why it should be prohibited in the case of a discretionary punishment; moreover, it is not permitted for blood to be spilt in the case of discretionary punishments.

Blows inflicted for the hadd-punishment must be distributed over the whole of the body after the parts susceptible to fatal injury are covered - so that each member receives its portion of the hadd; the beating may not be made just on one part of the body. There is a difference of opinion regarding the beating for a discretionary punishment: the majority of the followers of ash-Shafi'i consider that it should also be distributed over the whole of the body, and that it is prohibited to inflict it solely on one place; az-Zubayri differs in that he permits it to be done on one single place, arguing that if it is permitted to leave off completely from the whole body, it must be permitted to leave out some of the body - as opposed to what is practised in the case of the hadd.

The live-crucifixion of a person may be imposed as a discretionary punishment: the Prophet, may the peace and blessings of Allah be upon him, had a man crucified on the mountain known as Abu Na'b; if a person is crucified he is not prevented from eating or drinking or making the ablutions for the prayer; he should pray by making indications, and should repeat them when he is taken down; he is not to be crucified for longer than three days. It is permitted, by way of discretionary punishment, to have him stripped of his clothes, except for those which cover his private parts, and for him to be paraded in public while a herald proclaims his wrongdoings, if he repeats them and does not turn in tawbah. It is permitted to shave his head but not his beard. There is a difference of opinion as to whether it is permitted to blacken his face - most permit it, while a few prohibit it.