The amount of the penalty for drinking khamr

This part belongs to the full section: All sections of this part.

The amount of the penalty for drinking khamr

The first: committing the disputed act is, here, an incitement to commit the act whose prohibition is unanimous; committing the other disputed acts, by contrast, diverts from their genus of what is unanimously prohibited.

The second: the Sunna from the Prophet (peace and blessings of Allah be upon him) has spread widely on the prohibition of this disputed act: no one is left with any excuse to believe in its permission, unlike the other questions of juristic reasoning. Ahmad ibn al-Qasim said: I heard Abu Abdallah say: on the prohibition of intoxicants there are 20 routes from the Prophet (peace and blessings of Allah be upon him); in some: « Every intoxicant is khamr », in others: « Every intoxicant is prohibited » (al-Mughni 9/136 and 137).

The amount of the penalty for drinking khamr: the jurists differed on the amount of the fixed penalty for drinking khamr: is it 40 lashes, or 80?

The Shafi'is, and the Hanbalis in one narration, hold that the penalty of the drinker of khamr is 40 lashes, which cannot be reduced; the excess up to 80 is ta'zir, dependent on the imam's judgment: he does not go beyond it and may reduce it. For Muslim reported from Hudhayn ibn al-Mundhir Abu Sasan:

« I was present when al-Walid was brought to Uthman ibn Affan, having led the dawn prayer in 2 rak'a and then said: "shall I add more for you?" Two men testified against him, one of them Humran, that he had drunk khamr, and another testified that he had seen him vomit. Uthman said: he did not vomit until he had drunk it. He said: O Ali, rise and flog him. Ali said: rise, O al-Hasan, and flog him. Al-Hasan said: let him who took upon himself the calm of the affair take upon himself its burning; as if he felt resentment against him. Uthman said: O Abdullah ibn Jafar, rise and flog him. He flogged him while Ali counted, until he reached 40; he then said: stop, and then said: the Prophet (peace and blessings of Allah be upon him) flogged 40, Abu Bakr 40, Umar 80: all of it is sunna, and this is what I prefer. »reported by Muslim 1707

This report proves that the Prophet (peace and blessings of Allah be upon him) flogged only 40, and likewise Abu Bakr and Ali; as for Umar's increase (may Allah be pleased with him), it was ta'zir. Now ta'zir belongs to the imam's judgment: if he wishes he applies it, and if he wishes he leaves it, according to the interest of doing or leaving it. Umar judged it preferable and applied it; the Prophet (peace and blessings of Allah be upon him), Abu Bakr and Ali did not judge it so and left it. This is what al-Shafi'i (may Allah be pleased with him) says: the increase belongs to the imam's judgment, while the 40 are the fixed amount that cannot be dispensed with. If the increase were a fixed penalty, the Prophet (peace and blessings of Allah be upon him) and Abu Bakr (may Allah be pleased with him) would not have left it, nor Ali (may Allah be pleased with him) after Umar had applied it. This is why Ali (may Allah be pleased with him) said: « all of it is sunna », meaning: keeping to the penalty of khamr is a sunna, and adding ta'zir to it is a sunna.

By analogy again: it is a cause that makes a fixed penalty obligatory; it was therefore bound to be marked by a number no other shares, like fornication and slander. If it is objected that it should then not have been fixed at 40, like fornication and slander, the answer is: the fixed penalties are laid down with varying amounts according to the variation of their causes; it is therefore permitted to compare them with one another in gradation, not in equality. The penalties are ordered according to the gravity of the crimes: to the gravest crime corresponds the heaviest penalty. Fornication, whose wrong is aggravated by the participation of both parties, had its penalty made heavier; slander, which harms another person, has a penalty lighter than fornication; and khamr, which is confined to the drinker without reaching others, was bound to be lighter than slander.

This applies to the free man; if he is a slave, the penalty required of him is 20 lashes, for it is a penalty that divides: it therefore bears upon the slave at half the rate of the free man, like the flogging for fornication...

Imam al-Imrani (may Allah have mercy on him) says: if the imam sees fit to flog the free man beyond 40, up to 80, the excess above 40 being ta'zir, or to flog the slave beyond 20, up to 40, the excess above 20 being ta'zir, this is permitted; according to what Abu Wara'a al-Kalbi reported:

« Khalid ibn al-Walid sent me to Umar; I came to him while he was with Uthman, Ali, Abd ar-Rahman ibn Awf, Talha and az-Zubayr, and I said: Khalid greets you and says: the people have plunged headlong into khamr and have held the penalty for it in contempt. Umar said: what do you see? Ali said: when he drinks, he becomes intoxicated; when he is intoxicated, he raves; when he raves, he slanders: he incurs the penalty of the slanderer. Umar said: convey to your companion what he said. Khalid then flogged 80, and Umar flogged 80. Umar (may Allah be pleased with him), when the man given over to drinking was brought to him, flogged him 80; and when the weak man whose lapse had been isolated was brought to him, he flogged him 40. »weak hadith: reported by al-Hakim in al-Mustadrak 8131, ad-Daraqutani 3321 and al-Bayhaqi in as-Sunan al-Kubra 17317

The words of Ali corroborate it: « The Messenger of Allah (peace and blessings of Allah be upon him) flogged 40, Abu Bakr 40, Umar 80: each of the 2 is sunna, and this is what I prefer »; their meaning: keeping to the penalty of khamr is a sunna, and adding ta'zir to it is a sunna.

If it is objected: but with you ta'zir does not reach 40? we answer: he is not allowed to reach 40 for a single lapse; but where there are several lapses, nothing prevents reaching 40; now here there are the lapses of raving and slander... (al-Bayan 12/524; see al-Hawi al-Kabir 13/412 and 413, Sharh Sahih Muslim 11/217, an-Najm al-Wahhaj 9/229 and 231, Mughni al-Muhtaj 5/510 and 511, Tuhfat al-Muhtaj 11/98 to 101, al-Mughni 9/137, al-Insaf 10/230, al-Fatawa al-Kubra 4/601).

The majority of jurists, the Hanafis, Malikis and Hanbalis according to the established position of the school, hold that the penalty of the free man who drinks khamr, knowingly, willingly, being a Muslim of age, is 80 lashes, and 40 for the slave: this is what the consensus of the Companions settled upon, the action of the Prophet (peace and blessings of Allah be upon him) not having the value of a fixing. From Anas ibn Malik:

« The Prophet of Allah (peace and blessings of Allah be upon him) had flogging inflicted for khamr with palm branches and sandals; then Abu Bakr flogged 40; when Umar came and the people drew near the farmlands and villages, he said: what do you see concerning the flogging for khamr? Abd ar-Rahman ibn Awf said: I think you should make it like the lightest of the fixed penalties: 80. Umar then flogged 80. »reported by Muslim 1706, Abu Dawud 4479 and at-Tirmidhi 1443

This took place in the presence of the Companions, who agreed upon it: it was a consensus.

And according to what Abu Wara'a al-Kalbi reported:

« Khalid ibn al-Walid sent me to Umar; I came to him while he was with Uthman, Ali, Abd ar-Rahman ibn Awf, Talha and az-Zubayr, and I said: Khalid greets you and says: the people have plunged headlong into khamr and have held the penalty for it in contempt. Umar said: what do you see? Ali said: when he drinks, he becomes intoxicated; when he is intoxicated, he raves; when he raves, he slanders: he incurs the penalty of the slanderer. Umar said: convey to your companion what he said. Khalid then flogged 80, and Umar flogged 80. Umar (may Allah be pleased with him), when the man given over to drinking was brought to him, flogged him 80; and when the weak man whose lapse had been isolated was brought to him, he flogged him 40. »weak hadith: reported by al-Hakim in al-Mustadrak 8131, ad-Daraqutani 3321 and al-Bayhaqi in as-Sunan al-Kubra 17317

All this establishes that the fixing of the penalty of khamr at 80 only took place in the time of Umar, with the formation of the consensus of the Companions upon it: it is not permitted to contradict them, for their consensus is protected, just as they agreed upon the mushaf of Uthman and barred every other: the consensus was formed upon it and its authority is binding.

By way of analogy: it is a penalty befalling the free man: it is therefore not fixed at 40, like slander; and the penalty of slander is lighter, while that of drinking is heavier, because of the inclination of souls toward it and the dominance of desire over them: if it may not be increased, all the more it may not be decreased. Moreover, if the excess above 40 were ta'zir, it would not be permitted to reach 40, for ta'zir cannot equal the fixed penalty (Bada'i' as-Sana'i' 5/113; Sharh Sahih al-Bukhari 8/394 and 396; al-Istidhkar 8/9; Sharh as-Sunna 10/333; adh-Dhakhira 12/204; Fath al-Bari 12/72; al-Mughni 9/137; al-Kafi 4/233; al-Insaf 10/230; al-Fatawa al-Kubra 4/601; Manar as-Sabil 3/322 and 323).

If death results from ta'zir: is compensation due or not?

And because it is a beating whose 2 bounds are not fixed, it is not bound to be obligatory, like the beating of the teacher and the husband...

If the holder of the right to ta'zir grants pardon, it remains permissible for the imam to administer ta'zir according to the more correct view, by virtue of the right of Allah the Most High, whereas he does not administer it, without prior pardon, before the claim of the holder of the right; for ta'zir is in origin attached to the imam's discretion: the waiver of another has no effect upon it. Ta'zir, moreover, is not bounded: it occurs through various means, beating, slapping, rebuke, imprisonment and the like, in small or large measure; its beneficiary is entitled to no determined species among the species of ta'zir nor to any determined amount: he is entitled to something indeterminate, and release from something indeterminate is void.

The second view, opposite to the more correct one: prohibition, for the holder of the right has dropped it (al-Hawi al-Kabir 7/435; al-Bayan 12/534 and 536; an-Najm al-Wahhaj 9/243 and 245; Mughni al-Muhtaj 5/518 and 519).

If death results from ta'zir, is compensation due or not? The jurists differed on the ruling for what perishes through ta'zir: is it compensable or not?

Those who say that ta'zir is obligatory, that is the majority, the Hanafis, Malikis and Hanbalis, say: the imam does not compensate what occurs through ta'zir, for the deterrent penalties of the imam are not upon his charge, like the fixed penalties.

Those who say that ta'zir is permitted and not obligatory, that is the Shafi'is, say: if death results from it, the imam is liable for it, according to what is reported:

« Umar (may Allah be pleased with him) sent an emissary to a woman concerning a report that had reached him about her, and she miscarried. He said to Uthman and Abd ar-Rahman: what do you say? They said: nothing is upon you: you are only an educator. He turned to Ali (may Allah be pleased with him) and said: what do you say? He said: if the 2 did not exert effort, they were remiss; if they exerted effort, they erred: the blood money is upon you. He said: I adjure you not to leave until you make her be borne by your people, meaning Quraysh, for they are her blood-avengers. »cited in al-Hawi al-Kabir 7/435

It is reported from Ali (may Allah be pleased with him) that he said:

« No one has had a fixed penalty carried out upon him and died from it but that I find something within myself over it: the truth killed him, except the drinker of khamr: that is an opinion we held after the Messenger of Allah (peace and blessings of Allah be upon him); whoever dies from it, his blood money is upon the kin-group of the imam, or he said: upon the public treasury »cited in al-Hawi al-Kabir 7/435 and 436

meaning for the excess above 40 which he saw fit to impose by choice; that excess is ta'zir.

And because it is a beating unbounded at both ends, inflicted for a past act, compensation was bound to attach to it in case of death, like the beating of the husband and the teacher; and one who repels a man attacking himself or his property is not included, for that is not for a past act. As for the obligatory fixed penalties, no compensation attaches to them, for they are due to be executed, and compensation would prevent undertaking them. Compensation being established for ta'zir, upon whom does the blood money fall? Two views: the first: upon the kin-group of the imam, in virtue of the report of Umar and his words to Ali: « I adjure you not to leave until you make her be borne by your people »; on this view the expiation is upon his property. The second: the blood money is upon the public treasury, for the imam is the deputy there of all the Muslims: the compensation arising from his action ought therefore to fall upon their treasury; on this view there are 2 aspects for the expiation: upon the public treasury likewise, or upon the property of the imam; and Umar's action, obtaining the blood money from his kin-group, is to be interpreted by the absence of funds in the public treasury, which brought the charge back upon the kin-group, just as one whose blood money falls upon his kin-group, if they lack means, is transferred to the public treasury.

Imam al-Nawawi (may Allah have mercy on him) says: the scholars agreed that whoever incurs a fixed penalty, which the imam or his flogger applies as the legal penalty, and who dies from it: no blood money and no expiation is due, neither upon the imam, nor upon his flogger, nor from the public treasury. As for one who dies from ta'zir, our school is the obligation of compensation, by blood money and expiation; on the place of the charge, 2 views of al-Shafi'i: the more correct: the blood money upon the kin-group of the imam, and the expiation upon the property of the imam. The second: the blood money upon the public treasury; and on the expiation in this hypothesis there are 2 aspects among our companions: upon the public treasury likewise, or upon the imam himself. This is our school. The majority of scholars said: no compensation at all, neither upon the imam, nor upon his kin-group, nor from the public treasury. And Allah knows best (Sharh Sahih Muslim 11/221; al-Bayan 12/536).

Imam Ibn Qudama (may Allah have mercy on him) says: if one dies from ta'zir, compensation is not obligatory; this is what Malik and Abu Hanifa said; al-Shafi'i said: it is owed, according to the words of Ali: « no one has had a fixed penalty carried out upon him and died from it but that I find something within myself over it: the truth killed him, except the penalty of khamr: the Messenger of Allah (peace and blessings of Allah be upon him) did not lay it down for us », and he advised Umar to compensate the woman whose unborn child was lost when he sent to her.

Our evidence: it is a sanction established by the Law for restraint and deterrence: one who perishes through it is not compensated, as with the fixed penalty. As for Ali's words on the blood money of one whom the penalty of khamr might kill, other Companions contradicted him: they required nothing on that account, and neither al-Shafi'i nor any other jurist acted upon it: how could it be cited when all left it? His words about the unborn child do not serve them either: the unborn child that perished committed no offense and is subject to no ta'zir: how could its compensation fall? If the imam inflicted the fixed penalty upon a pregnant woman and destroyed her unborn child, he would owe compensation, even though the fixed penalty is agreed upon among us, even though no compensation is due for the condemned who perishes through it.

No compensation is due from the husband for the wife who perishes from lawful discipline for rebelliousness, nor from the teacher who applies lawful discipline to a boy; this is what Malik said; al-Shafi'i and Abu Hanifa said: it is owed; the justification of the 2 schools is that set out in the preceding question.

Al-Khallal said: if the teacher strikes 3 blows, as the Successors and the jurists of the great cities said, and that remains within 3, he is not liable; and if he strikes the boy with a beating so violent that the like of it cannot be an education for the boy, he is liable, for he transgressed in the beating. The judge said: the same follows, by analogy with the school of our companions, if the father or grandfather strikes the boy to discipline him and he perishes, or the ruler, or his trustee, or the guardian, by way of discipline: no compensation is due from them, as with the teacher (al-Mughni 9/149 and 150).

Imam Badr al-Din al-Ayni (may Allah have mercy on him) says: they differed concerning one who dies from ta'zir. Al-Shafi'i said: his blood money is upon the kin-group of the imam, with the expiation upon him; it was said: upon the public treasury; and the majority of scholars: nothing is due from anyone (Umdat al-Qari 23/269; Manh al-Jalil 9/359).

The legitimacy of ta'zir

The legitimacy of ta'zir: the legitimacy of ta'zir and discipline is established by the Book, the Sunna and the consensus of the community.

The Book: the words of Allah the Most High:

« Those whose rebelliousness you fear: admonish them, forsake them in bed, and strike them. »

Surah an-Nisa, 34

He allowed the husband to strike his wife for rebelliousness, which is a sin: this shows that for every sin carrying no fixed penalty and no expiation, striking is permitted on its account (al-Bayan 12/532).

The Sunna: the hadith of Amr ibn Shuayb, from his father, from his grandfather:

« A man from Muzayna came to the Messenger of Allah (peace and blessings of Allah be upon him) and said: O Messenger of Allah, what is your view concerning livestock stolen from the mountain pasture? He said: it is due with its like, and the exemplary punishment; there is no amputation for any livestock except what the night enclosure sheltered and what reached the price of a shield: amputation is due for it; what does not reach the price of a shield: restitution of twice its value and exemplary lashes. He said: O Messenger of Allah, what is your view concerning hanging fruit? He said: it is due with its like, and the exemplary punishment; there is no amputation for any hanging fruit except what the threshing floor sheltered; what is taken from the threshing floor and reaches the price of a shield: amputation is due for it; what does not reach it: restitution of twice its value and exemplary lashes. » In one version: « whoever carries off any of it owes restitution of twice its value and the punishment. »good hadith (hasan): reported by Abu Dawud 1710, at-Tirmidhi 1289, an-Nasa'i 4959, Ibn Majah 2596 and Ahmad 6683

And the words of the Prophet (peace and blessings of Allah be upon him):

« Let no one be flogged beyond 10 lashes except in a fixed penalty laid down by Allah. »reported by al-Bukhari 6456

In another wording:

« No punishment beyond 10 blows except in a fixed penalty laid down by Allah. »reported by al-Bukhari 6457

This shows that it is permitted to inflict 10 lashes outside the fixed penalties.

The people of knowledge agreed on the legitimacy of ta'zir.

The shaykh al-islam Ibn Taymiyya (may Allah have mercy on him) says: the scholars agreed that ta'zir is legitimate for every sin carrying no fixed penalty and no expiation; sins are of 2 kinds: neglecting an obligation and committing a prohibition; whoever neglects to fulfil an obligation while able to fulfil it is a sinner deserving punishment and ta'zir (Majmu' al-Fatawa 30/39).

Ibn al-Qayyim (may Allah have mercy on him) says: the scholars agreed that ta'zir is legitimate for every sin carrying no fixed penalty; they are of 2 kinds: neglecting an obligation or committing a prohibition (at-Turuq al-Hukmiyya, p. 154).

Imam ad-Damiri (may Allah have mercy on him) says: ta'zir applies, by consensus, to every sin carrying no fixed penalty and no expiation, whether it is a right of Allah the Most High or of a human being, and whether it is a prelude to what carries a fixed penalty, like touching an unrelated woman without intercourse, stealing what entails no amputation, insulting and harming without slander, or is not, like false testimony, striking without right, fraud and the rest of the sins (an-Najm al-Wahhaj 9/236).

Who has the right to administer ta'zir?

Who has the right to administer ta'zir? The principle is that the ta'zir of anyone other than the wife, the children and the pupil belongs to the imam, according to the majority of jurists. It is permitted for the husband to administer ta'zir to his wife, for the father to his son, and for the teacher to discipline his pupil with lawful discipline: all this is agreed upon among the jurists.

The jurists nevertheless differed: may the holder of the right administer it himself, or not? The majority of the people of knowledge, the Hanafis according to the relied-upon view among them, the Malikis, Shafi'is and Hanbalis, hold that the one who administers ta'zir is the imam or his deputy, for the holder of the right may go to excess by mistake, unlike retaliation, which is determined (al-Sharh al-Kabir with the gloss of ad-Dasuqi 6/370; Rawdat at-Talibin 6/620 and 621; Hashiyat al-Bajirmi ala Minhaj at-Talab 4/309; Kashshaf al-Qina 6/155; Sharh Muntaha al-Iradat 6/225 and 226).

The Hanafis say: whatever is a right of Allah that a person is charged with, even if he is not a muhtasib, belongs to removing wrongdoing by the hand, and the Lawgiver invested everyone with that; but none other than the ruler administers it, except while the sin is actually occurring; after that, it belongs to the ruler alone.

Whatever constitutes a right of a human being, dependent on a claim, none administers it but the ruler or one whose judgment applies to it.

It was said: the holder of the right may administer it, like retaliation; and it was said: the imam, for the holder of the right may go to excess by mistake (al-Bahr ar-Ra'iq 5/45; Durar al-Hukkam 5/350; Hashiyat Ibn Abidin 4/65 and 66).

Is ta'zir obligatory or merely permitted?

Is ta'zir obligatory or merely permitted? The jurists differed on the case where a person commits a sin carrying no fixed penalty and no expiation: is ta'zir obligatory, or recommended?

The majority of jurists, the Hanafis, Malikis and Hanbalis, hold that ta'zir, in the cases where it is laid down, is obligatory.

The Hanafis say: ta'zir, in the cases where it is laid down, is obligatory once the imam sees it so; the cause of its obligation is the commission of an offense for which the Law has no determined penalty: whether the offense is against the right of Allah, like neglecting prayer, fasting and the like, or against the right of a human being, by wrongfully harming a Muslim, by deed or by a word that may be true or false, such as saying to him: O vile one, O reprobate, O thief, O debauched one, O disbeliever, O eater of usury, O drinker of khamr, and the like.

If he says to him: O dog, O pig, O donkey, O ox, and the like, ta'zir is not obligatory; for in the first kind ta'zir is due only because he attached disgrace to the person defamed, people being divided between believing and disbelieving: he is disciplined to repel disgrace from him; in the second kind, the insulter attached disgrace to himself by accusing another of what cannot be conceived: the disgrace of the falsehood falls back upon him, not upon the person defamed (Bada'i' as-Sana'i' 7/63; Durar al-Hukkam sharh Gharar al-Ahkam 2/74).

The Malikis say: the imam is bound to discipline whoever commits a sin. Sin is either purely for the right of Allah: every sin whose sanction no one may drop, such as eating during the day of Ramadan, delaying prayer, throwing an impurity onto the public road and the like; unless the offender comes in repentance: ta'zir then falls. Or it is for the right of a human being: every sin where the victim may drop the sanction, such as insult, assault and harm of any kind, even if it also contains a right of Allah, for there is no right of a human being in which Allah does not have a right, since it is of Allah's right upon every legally responsible person not to harm any of the protected persons; this is why the imam is bound to discipline him, and it falls only through the pardon of the holder of the right (at-Taj wa-l-Iklil 5/370 and 371; Sharh Mukhtasar Khalil 8/110; al-Sharh al-Kabir with the gloss of ad-Dasuqi 6/370; Tahbir al-Mukhtasar 5/403).

The Hanbalis say: ta'zir is obligatory for every sin carrying no fixed penalty and no expiation when the imam sees it so: enjoyment carrying no fixed penalty, like touching short of intercourse; theft not entailing amputation because the stolen item is below the threshold or was not safeguarded; an offense carrying no retaliation, like a slap and a shove; a woman having relations with a woman, slander concerning other than fornication and what resembles it, like sodomy; plunder, usurpation, embezzlement, insulting a Companion, and the rest of the prohibited acts carrying no fixed penalty and no expiation. Whoever neglects the obligations is disciplined for them obligatorily, for sin requires what prevents its commission; if no fixed penalty or expiation is due for it, ta'zir had to be laid down for it so that the preventive might be realized.

The legally non-responsible person is likewise punished: the boy who has reached discernment is punished for indecency with a severe ta'zir.

Administering ta'zir requires no prior claim, for it belongs to the rights of Allah the Most High; it is laid down for discipline: the imam administers it when he sees it so, and may leave it if the offender comes repentant and acknowledging, showing regret and desistance; according to what Ibn Masud (may Allah be pleased with him) reported:

« A man came to the Prophet (peace and blessings of Allah be upon him) and said: I met a woman and obtained from her everything short of penetrating her. He said: did you pray with us? He said: yes. He then recited to him: "Good deeds do away with misdeeds" (Surah Hud, 114). »reported by al-Bukhari 526 and Muslim 2763

(al-Mughni 9/149; al-Insaf 10/239; Kashshaf al-Qina 6/154 and 155; Sharh Muntaha al-Iradat 6/225; Manar as-Sabil 3/328).

The Shafi'is hold that ta'zir is not obligatory but permitted. The imam may leave it where it concerns a right of Allah to which no right of a human being is attached; if such a right is attached, it becomes obligatory. It was also said: he may leave it whether it concerns the right of Allah the Most High or of a human being.

The evidence that it is permitted and lawful without being obligatory: the Prophet (peace and blessings of Allah be upon him) waived the penalty for many who deserved it, while never waiving any obligation among the fixed penalties; asked about waiving a fixed penalty, he said: « May Allah not pardon me if I pardon. » Among his waivers of ta'zir: there was brought to him, while the misappropriated spoil was under restraint, a man who had misappropriated part of the spoils, and he did not discipline him. A man said to him while he was distributing the charities: « Be just, O Messenger of Allah! » His face changed color and he said: « May your mother lose you! If I am not just, who then will be just? » And he did not discipline him; concerning him Allah, exalted is He, sent down: « And among them are those who find fault with you concerning the charities » (Surah at-Tawba, 58).

And the words of the Prophet (peace and blessings of Allah be upon him):

« Overlook the lapses of those of good character, except in the fixed penalties. »authentic hadith: reported by Abu Dawud 4375 and Ahmad 25513

It is reported that az-Zubayr and a man of the Ansar brought their dispute before the Prophet (peace and blessings of Allah be upon him) concerning the irrigation channels of the harra (the harra: land covered with black stones; the channels: watercourses holding the water):

« The Prophet (peace and blessings of Allah be upon him) said: "Water your land, O Zubayr, then let the water go to your neighbor." The Ansari said: "Is it because he is the son of your paternal aunt, O Messenger of Allah?" The face of the Messenger of Allah (peace and blessings of Allah be upon him) flared, and he said: "O Zubayr, water your land, then hold back the water until it reaches the base of the wall." »reported by al-Bukhari 2231 and Muslim 2357

The proof lies there: the Ansari suspected the Prophet (peace and blessings of Allah be upon him) of having judged in favor of az-Zubayr because he was the son of his aunt; such a suspicion would deserve death, let alone ta'zir, and the Prophet (peace and blessings of Allah be upon him) left him undisciplined.

It was also said: the Prophet (peace and blessings of Allah be upon him) merely ordered az-Zubayr to water his land until the water reached the base of the wall, which exceeds what his land is entitled to: a ta'zir inflicted upon the Ansari for his words, and this was at the time when punishments bore upon property. The Ansari's words called for ta'zir; the Prophet (peace and blessings of Allah be upon him) left it, for what has been set out. And because it is a beating without a fixed amount, it is not bound to be obligatory, like the husband's beating of his wife, and like the case where the imam preponderantly believes that the beating, or something other than it, will reform him.

Whether it concerns the right of Allah or the right of a human being, they are dealt with in it according to their stations and according to their sins: some are imprisoned for a day, some for more than that, up to an unspecified limit, according to whatever diligent judgment arrives at and whatever interest he sees in it.

They also agree that the imam may combine flogging and imprisonment, for ta'zir rests with the judgment of the imam and its purpose is deterrence and restraint: if he sees that the offender is not deterred by flogging, he imprisons him as well. It is therefore permissible for him to imprison the disobedient one after flogging him, thus combining his imprisonment and his flogging, for it is valid as ta'zir, and the Law has come with it in general terms, to the point that it is permissible to content oneself with it, and it is therefore permissible to add to it. He may imprison him in his house or in prison, according to whatever the imam sees fit, not exceeding one year according to the Shafi'is (al-Bahr al-Ra'iq 5/52; al-Jawhara an-Nira 5/375; at-Taj wa al-Iklil 5/372; al-Sharh al-Kabir with the commentary of al-Dusuqi 6/370; Tahbir al-Mukhtasar 5/403; al-Hawi al-Kabir 13/425; Rawdat at-Talibin 6/621; an-Najm al-Wahhaj 9/238; Mughni al-Muhtaj 5/516; Nihayat al-Muhtaj 8/25; Kashshaf al-Qina' 6/158; Manar as-Sabil 3/329).