Khamr and intoxicating drinks: the prohibition

This section is part of the full chapter: All sections of this chapter.

Second type: the other intoxicating beverages

The Hanafis expressly stated that the prohibited beverages are only four types, everything else being permitted:

The first is khamr: the juice of raw grapes once it has fermented, gained strength and thrown up its foam, without having been cooked. For Allah the Most High says:

« Indeed, khamr, games of chance, erected stones and divining arrows are an abomination, of the work of Satan, so turn away from them that you may prosper. »

Surah al-Ma'ida, 90

This question has already been discussed above.

The second is cooked grape juice: the juice of grapes cooked until less than two thirds of it have evaporated; it is called at-tila and al-badhak.

The third is sakar: the infusion of raw dates once it has gained strength and fermented.

The fourth is the infusion of raw raisins once it has fermented, gained strength and thrown up its foam, according to the difference between Abu Yusuf and Muhammad on one side and Abu Hanifa on the other.

The nabidh of dates and raisins, when each of the two has undergone minimal cooking, that is, until fully cooked, is lawful even if it has gained strength, provided one drinks a quantity one preponderantly believes will not intoxicate, without play or amusement. This applies when one drinks it to gain strength for obedience, to help digest food or for medical treatment; otherwise it is prohibited by consensus.

Likewise, grape juice cooked until two thirds have evaporated is lawful, even if it has gained strength, if it is drunk to gain strength; if it is drunk for entertainment, it is prohibited.

The prohibition of these beverages is of a lesser degree than that of khamr: the prohibition of khamr is established with certainty, while this one rests on juristic reasoning.

The drinker only incurs the fixed penalty once he becomes intoxicated, and one who deems these beverages lawful does not become a disbeliever.

The nabidh of honey, called al-bit, of figs and wheat, called al-mizr, of barley and corn, is lawful to drink even without cooking, provided it is drunk without play or amusement, and only to gain strength and help digest food. For the Prophet (peace and blessings of Allah be upon him) said:

« Khamr comes from these two trees: the palm and the vine. »reported by Muslim 1985

The purpose is to state the legal ruling; moreover, a small quantity of these beverages does not call for a large quantity.

There is disagreement on whether one who becomes intoxicated from them incurs the fixed penalty or not.

Imam Muhammad ibn al-Hasan holds that he incurs the fixed penalty if he becomes intoxicated, and that the divorce he pronounces in that state takes effect according to him; it has been said that this is the sound position of the school, for in some lands the depraved gather around this beverage just as they gather around khamr, and even more.

According to Abu Hanifa and Abu Yusuf, one who drinks the nabidh of grains and sweets according to its lawful condition commits nothing unlawful: no fixed penalty falls upon one intoxicated from it, and the divorce he pronounces does not take effect (Bada'i' as-Sana'i' 5/114 and 117; al-Hidaya 4/111; al-Ikhtiyar 4/119 and 121; Tabyin al-Haqa'iq 6/45 and 46; al-Jawhara an-Nayyira 5/425 and 432; al-Lubab 2/339 and 342).

The majority of jurists, the Malikis, Shafi'is and Hanbalis, hold that any beverage whose large quantity intoxicates has its small quantity prohibited, and that it follows the ruling of khamr in prohibition, impurity and fixed penalty, whether raw or cooked; this is the position of most of the Companions.

They support it with several evidences:

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

« Every intoxicant is khamr, and every intoxicant is prohibited. »reported by Muslim 2003

Second, what Ibn Umar (may Allah be pleased with them both) reported:

« The prohibition of khamr was revealed while there were, in Medina at that time, five beverages among which grape drink was not to be found. »reported by al-Bukhari 4340

Third, what ash-Sha'bi reported from Ibn Umar (may Allah be pleased with them both): I heard Umar (may Allah be pleased with him) say on the pulpit of the Prophet (peace and blessings of Allah be upon him):

« To proceed: O people, the prohibition of khamr was revealed while khamr comes from five things: grapes, dates, honey, wheat and barley; and khamr is whatever clouds the intellect. »reported by al-Bukhari 4343 and Muslim 3032

Fourth, Aisha (may Allah be pleased with her) reported: the Messenger of Allah (peace and blessings of Allah be upon him) was asked about bit, and he said:

« Every drink that intoxicates is prohibited. »reported by al-Bukhari 5263 and Muslim 2001

Bit is the nabidh of honey.

Fifth, Abu Musa (may Allah be pleased with him) reported: the Prophet (peace and blessings of Allah be upon him) sent me and Muadh ibn Jabal to Yemen. I said: O Messenger of Allah, a drink is made in our land called mizr, from barley, and a drink called bit, from honey. He said:

« Every intoxicant is prohibited. »reported by Muslim 1733

Sixth, Aisha (may Allah be pleased with her) reported: the Messenger of Allah (peace and blessings of Allah be upon him) said:

« Every intoxicant is prohibited; whatever a farq of it intoxicates from, a palmful of it is prohibited. »authentic hadith: reported by Abu Dawud 3687, at-Tirmidhi 866, Ahmad 24468 and Ibn Hibban 5383

Al-Mawardi (may Allah have mercy on him) explains: the farq is one of the measures of the Arabs, sixteen ratl; they had four: the mudd, one ratl and a third; the qist, twice the mudd, two ratl and two thirds; the sa, twice the qist, five ratl and a third; and the farq, three times the sa, sixteen ratl. This establishes the prohibition of both the small and the large quantity (al-Hawi al-Kabir 13/393).

Seventh, Mirthad ibn Abdullah al-Yazani reported from Daylam al-Himyari that he said:

« O Messenger of Allah, we are in a cold land where we undertake hard work, and we make a drink from this wheat to strengthen us in our work and against the cold of our land. He said: "Does it intoxicate?" I said: "Yes." He said: "Then abstain from it." Then I came back before him and said the same to him. He said: "Does it intoxicate?" I said: "Yes." He said: "Then abstain from it." I said: "The people will not abandon it." He said: "If they do not abandon it, kill them." »authentic hadith: reported by Abu Dawud 3683 and Ahmad 18064

Ibn Taymiyya (may Allah have mercy on him) comments: this is because the corrupter is like the assailant; if the assailant can only be repelled by killing, he is killed (Majmu' al-Fatawa 28/347).

And many other established and authentic hadiths show that whatever large quantity intoxicates has its small quantity prohibited.

Imam al-Nawawi (may Allah have mercy on him) says: these hadiths reported by Muslim explicitly declare the prohibition of all intoxicating nabidhs, all of them called khamr, without distinction: fadikh, nabidh of dates, fresh or unripe dates, raisins, barley, corn, honey and others; all of this is prohibited and is called khamr. This is our school; Malik, Ahmad and the mass of the early and later generations said the same (Sharh Sahih Muslim 13/148 and 149).

A group among the people of Basra said: only grape juice and the infusion of raw raisins are prohibited; as for those two once cooked, and the raw and cooked of everything else, it is lawful as long as it is not drunk to intoxication.

Abu Hanifa said: only the juice of the fruits of the palm and the vine is prohibited. The grape must (sulafa), he said, is prohibited in small and large quantity alike, unless it is cooked until two thirds of it have dissipated. As for the infusion of dates and raisins, he said: their cooking is lawful as soon as the fire touches them even a little, without considering a threshold as with grape must; the raw, he said, is prohibited, but its drinker incurs no fixed penalty; all this as long as it is not drunk to intoxication; if it intoxicates, it is prohibited by consensus of the Muslims.

The majority argue from the Quran and the Sunna. From the Quran: Allah the Most High indicated that the cause of the prohibition of khamr is that it turns away from the remembrance of Allah and from prayer; now this cause exists in all intoxicants: the ruling was bound to extend to all of them.

If it is objected that this meaning only occurs in intoxication, which is unanimously prohibited, we answer: it is agreed that grape juice is prohibited even without intoxicating, and Allah, exalted is He, motivated its prohibition as stated; what is of the same meaning was therefore bound to follow the same ruling: the prohibition strikes the intoxicating genus, motivated by what habitually results from that genus.

Al-Mazini said: this argument is the strongest of all that is put forward on this question. We have, he said, another route of argument: if someone drinks grape must at the time of pressing, while it is sweet and does not intoxicate, it is lawful by consensus; if it gains strength and intoxicates, it is prohibited by consensus; if it turns into vinegar by itself, without human intervention, it becomes lawful again. We observe these rulings succeeding one another upon the same substrate as the attributes renew and change: this indicates the tie between these rulings and that attribute, and stands in place of an explicit verbal statement; all of them were therefore bound to be placed on the same footing in the ruling, and intoxication is the cause of the prohibition. Such is the first of the two routes of argument for the school of the majority.

The second route: the many authentic hadiths reported by Muslim and others, such as his words (peace and blessings of Allah be upon him): « Every intoxicant is prohibited », and: « He prohibited every intoxicant »; the hadith: « Every intoxicant is khamr »; the hadith of Ibn Umar (may Allah be pleased with them both) cited by Muslim here, at the end of the Book of Beverages: the Messenger of Allah (peace and blessings of Allah be upon him) said: « Every intoxicant is khamr, and every intoxicant is prohibited », and in one version: « Every intoxicant is khamr, and all khamr is prohibited »; and the hadith prohibiting every intoxicant that turns away from prayer. And Allah knows best (Sharh Sahih Muslim 13/148 and 149).

Imam Ibn Qudama (may Allah have mercy on him) says: every intoxicant is prohibited, its small and its large quantity alike; it is a khamr subject to the ruling of grape juice in prohibition and in the obligation of the fixed penalty upon its drinker. This prohibition is reported from Umar, Ali, Ibn Masud, Ibn Umar, Abu Hurayra, Sa'd ibn Abi Waqqas, Ubayy ibn Ka'b, Anas and Aisha (may Allah be pleased with them); and Ata, Tawus, Mujahid, al-Qasim, Qatada, Umar ibn Abd al-Aziz, Malik, al-Shafi'i, Abu Thawr, Abu Ubayd and Ishaq said the same (al-Mughni 9/136; see Sharh Sahih al-Bukhari 6/39 and 40, at-Tamhid 1/248 and 256, al-Istidhkar 8/24 and 25, al-Hawi al-Kabir 13/387 and 394).

Imam al-Imrani (may Allah have mercy on him) says: as for intoxicating beverages other than khamr, such as cooked grape juice and the nabidh of dates, raisins, corn, barley and others, their small and large quantity is prohibited, and the fixed penalty is obligatory for drinking them. Those who said so are Umar, Ali, Ibn Abbas, Ibn Umar, Abu Hurayra, Sa'd ibn Abi Waqqas, Ibn Masud and Aisha (may Allah be pleased with them), and among the jurists: Malik, al-Awza'i, Ahmad and Ishaq.

Abu Hanifa said: beverages fall into four categories. The first: khamr, which is grape juice once it gains strength and throws up its foam; its small and large quantity is prohibited and its drinker incurs the fixed penalty; Abu Yusuf and Muhammad did not set the throwing up of foam as a condition: according to them, once it gains strength and ferments, it is khamr. The second: cooked grape juice; if less than two thirds have evaporated, it is prohibited, with no fixed penalty upon its drinker unless he becomes intoxicated; if two thirds have evaporated, it is lawful, apart from the amount that intoxicates; and if he cooked whole grapes, there are two reports: one ranges it under the ruling of its juice, and the best known: it is lawful even if two thirds have not evaporated.

The third: the infusion of dates and raisins; cooked with fire, it is permitted, with no fixed penalty upon its drinker unless it intoxicates: the amount that intoxicates is then prohibited and carries the penalty; if fire has not touched it, it is prohibited, with no fixed penalty upon its drinker unless he becomes intoxicated. The fourth: the nabidh of wheat, corn, barley, rice, honey and the like: it is lawful, raw or cooked, except that its intoxicating portion is prohibited, with no fixed penalty upon its drinker, whether he became intoxicated or not.

Our evidence: what an-Nu'man ibn Bashir reported: the Prophet (peace and blessings of Allah be upon him) said:

« There is khamr from grapes, khamr from dates, khamr from honey, khamr from wheat, and khamr from barley. »authentic hadith: reported by Abu Dawud 3676, at-Tirmidhi 1872 and Ibn Majah 3379

Abu Hurayra reported that the Prophet (peace and blessings of Allah be upon him) said:

« Khamr comes from these two trees: the palm and the vine. »reported by Muslim 1985

Ibn Umar reported that the Prophet (peace and blessings of Allah be upon him) said:

« Every intoxicant is khamr, and all khamr is prohibited. »reported by Muslim 2003

It is reported that the Prophet (peace and blessings of Allah be upon him) said:

« Khamr itself was prohibited, and the intoxicant drawn from every drink. »authentic, as a suspended report (mawquf) from Ibn Abbas: reported by an-Nasa'i 5684

It is reported that the Prophet (peace and blessings of Allah be upon him) said:

« Whatever large quantity of it intoxicates, its small quantity is prohibited. »authentic hadith: reported by Abu Dawud 3681, at-Tirmidhi 1865, an-Nasa'i 5607 and Ibn Majah 3393 and 3394

Aisha (may Allah be pleased with her) reported that the Prophet (peace and blessings of Allah be upon him) said:

« Whatever a farq of it intoxicates from, a palmful of it is prohibited. »authentic hadith: reported by Abu Dawud 3687, at-Tirmidhi 1866, Ahmad 24468 and Ibn Hibban in his Sahih 5383

The farq, with a sukun on the r, is a measure holding one hundred and twenty ratl; with the r vowelled, it holds sixteen; the report is transmitted with the r vowelled.

And because Allah the Most High prohibited khamr and pointed to the meaning for which He prohibited it: Satan casts enmity and hatred among men through it, and turns them away through it from the remembrance of Allah and from prayer; now these meanings exist in these beverages: their ruling was bound to be that of khamr, in prohibition and fixed penalty.

This being established, our companions differed on whether the name of khamr applies to these beverages. Some said the name of khamr does apply to them, because of his words (peace and blessings of Allah be upon him): « There is khamr from dates, khamr from honey, khamr from barley, khamr from wheat », and it is reported from Umar and Abu Musa al-Ash'ari (may Allah be pleased with them both) that they said: « Khamr is whatever clouds the intellect. » On this view, the verse is the evidence for the prohibition of these beverages.

Most of our companions said the name of khamr does not apply to them, because of his words (peace and blessings of Allah be upon him): « Khamr itself was prohibited, and the intoxicant drawn from every drink »; if the name of khamr applied to these intoxicants, it would have been enough to say: « itself ». On this view, only the Sunna and analogy demonstrate the prohibition of these beverages (al-Bayan 12/519 and 521).

Imam Ibn al-Qayyim (may Allah have mercy on him) says: whoever deems the intoxicating drink lawful, claiming that it is not khamr, while knowing that its meaning is the meaning of khamr, that its purpose is its purpose and its effect its effect, holds the most corrupt of interpretations; for khamr is the name of every intoxicating drink, as the authentic and explicit texts establish. This hadith reached us from the Prophet, may Allah the Most High send blessings upon him and upon his family and grant them peace, through other routes.

Among them, what an-Nasa'i reported from him (peace and blessings of Allah be upon him): « Some people of my community will drink khamr, calling it by another name », with an authentic chain. Among them, what Ibn Majah reported from Ubadat ibn as-Samit, raising it to the Prophet: « Some people of my community will drink khamr, calling it by another name », also reported by Imam Ahmad in these words: « A group of my community will surely deem khamr lawful. » Among them, what Ibn Majah also reported from Abu Umama: the Messenger of Allah (peace and blessings of Allah be upon him) said: « Nights and days will not pass before a group of my community drinks khamr, calling it by another name. »

These people only drank khamr deeming it lawful because they thought that the prohibited is merely what the wording covers, and that this wording does not cover what they deemed lawful (Ighathat al-Lahfan 1/351).

The fixed penalty of the drinker of khamr

Imam al-Nawawi (may Allah have mercy on him) says: the Muslims agreed on the prohibition of drinking khamr (Sharh Sahih Muslim 11/217).

Imam Ibn Qudama (may Allah have mercy on him) says: the prohibition of khamr is established from the Prophet (peace and blessings of Allah be upon him) through reports which, taken together, reach the rank of consecutive transmission, and the community agreed on its prohibition (al-Mughni 9/135).

The fixed penalty of the drinker of khamr: the people of knowledge agreed that whoever drinks khamr, being a Muslim, of sound mind, of age and acting of his own will, incurs the fixed penalty, whether he drinks little or much, whether he becomes intoxicated or not. For the Prophet (peace and blessings of Allah be upon him) said:

« Whoever drinks khamr, flog him; then if he drinks, flog him; then if he drinks, flog him; then if he drinks, kill him. »authentic hadith: reported by Abu Dawud 4484, at-Tirmidhi 1444 and an-Nasa'i 5661

Imam al-Nawawi (may Allah have mercy on him) says: the Muslims agreed on the prohibition of khamr and on the obligation of the fixed penalty upon its drinker, whether he drinks little or much, and they agreed that he is not to be killed for drinking it, even if repeated. This is how at-Tirmidhi and a multitude transmitted the consensus. Al-Qadi Iyad (may Allah have mercy on him) related from a marginal group that they said: he is killed after four floggings, in virtue of the hadith reported on the subject. This position is void: it contradicts the consensus of the Companions and those after them that he is not killed even after more than four repetitions; and this hadith is abrogated. Some said: the consensus proves its abrogation; others said: it is abrogated by his words (peace and blessings of Allah be upon him):

« It is not lawful to shed the blood of a Muslim except in one of three cases: a life for a life, the married fornicator, and the one who abandons his religion and separates from the community. »cited by al-Nawawi in Sharh Sahih Muslim 11/217

Imam Ibn Hubayra (may Allah have mercy on him) says: they agreed that khamr is prohibited, its small and its large quantity, and that it carries the fixed penalty (al-Ifsah 2/291 and 292).

Imam al-Imrani (may Allah have mercy on him) says: whoever drinks it, being a Muslim, of sound mind, of age and acting of his own will, incurs the fixed penalty, whether he drinks little or much, whether he becomes intoxicated or not; according to what Abu Hurayra reported: the Prophet (peace and blessings of Allah be upon him) said: « Whoever drinks khamr, flog him; if he does it again, flog him; if he does it again, flog him; then if he does it again, kill him »; and the killing at the fourth is abrogated, according to what Qabisa ibn Dhu'ayb reported:

« A man who had drunk khamr was brought to the Prophet (peace and blessings of Allah be upon him), and he flogged him. He was brought back a second time after drinking, and he flogged him. He was brought a third time after drinking, and he flogged him. He was brought a fourth time after drinking, and he flogged him and did not kill him. »weak, mursal report: reported by Abu Dawud 4485

The community also agreed on this (al-Bayan 12/518).

Imam Ibn Abd al-Barr (may Allah have mercy on him) says: it is agreed that a small amount of grape khamr carries as much fixed penalty as a large amount, with no consideration of intoxication (al-Istidhkar 8/3).

Imam al-Kasani (may Allah have mercy on him) says: the penalty befalls the drinker, whether he drinks little or much, according to the consensus of the Companions (may Allah be pleased with them) (Bada'i' as-Sana'i' 5/113).

Imam Ibn Qudama (may Allah have mercy on him) says: the fixed penalty is obligatory upon whoever drinks a small or a large amount of an intoxicant; we know of no disagreement among them on this for uncooked grape juice; they differed on the rest. Our imam equated grape juice with every intoxicant; this is the position of al-Hasan, Umar ibn Abd al-Aziz, Qatada, al-Awza'i, Malik and al-Shafi'i. A group said: no fixed penalty without intoxication: among them Abu Wa'il, an-Nakha'i, many people of Kufa and the partisans of personal opinion. Abu Thawr said: whoever drinks it believing in its prohibition is flogged; whoever drinks it on the basis of an interpretation incurs no penalty, for the question is disputed: it then resembles marriage without a guardian.

Our evidence: what is reported from the Prophet (peace and blessings of Allah be upon him): « Whoever drinks khamr, flog him », reported by Abu Dawud and others; now it is established that every intoxicant is khamr: the hadith therefore covers its small and its large quantity. And it is a drink endowed with a strength that intoxicates and exhilarates: the penalty was therefore bound to follow its small amount, as with khamr; and disagreement over it does not prevent the obligation of the penalty, as shown by the case of one who believes in its prohibition; by this it differs from marriage without a guardian and similar questions. Umar moreover flogged Qudama ibn Maz'un and his companions while they believed lawful what they had drunk.

The difference between this question and the other disputed questions lies in two points:

The punishment of the drinker of khamr

The punishment of the drinker of khamr: khamr is prohibited by the Book, the Sunna and the consensus.

The Book: the words of Allah the Most High:

« They ask you about khamr and games of chance. Say: in both is great sin and benefit for people, but their sin is greater than their benefit. »

Surah al-Baqara, 219

He informed that in both there is benefit and sin, and that the sin is greater than the benefit: this indicates prohibition.

And His words:

« O you who believe, khamr, games of chance, erected stones and divining arrows are an abomination, of the work of Satan, so turn away from them that you may prosper. Satan only wants to cast enmity and hatred between you through khamr and games of chance, and to turn you away from the remembrance of Allah and from prayer. So will you then desist? »

Surah al-Ma'ida, 90-91

These two verses contain seven evidences:

The first: Allah the Most High joined khamr to games of chance, erected stones and divining arrows, and placed it before them; now all these things are prohibited: this demonstrates the prohibition of khamr.

The second: Allah the Most High named it an abomination, and abomination is the name of the impure thing; and every impure thing is prohibited.

The third: His words: « an abomination, of the work of Satan »: whatever belongs to the work of Satan is prohibited.

The fourth: His words: « so turn away from them »: He commands turning away only from what is prohibited.

The fifth: His words: « that you may prosper »: the opposite of prosperity is ruin.

The sixth: His words: « and to turn you away from the remembrance of Allah and from prayer »: whatever turns away from that is prohibited.

The seventh: His words: « so will you then desist? »: this is the most forceful word of restraint from a thing.

From the Book, His words also demonstrate its prohibition:

« Say: my Lord has only forbidden indecencies, outward and inward, sin, aggression without right, associating with Allah that for which He has sent down no authority, and saying about Allah what you do not know. »

Surah al-A'raf, 33

Now « sin » is khamr; the poet said: « I drank sin until my reason went astray: thus sin carries away reason. » (al-Bayan 12/514 and 515)

As for the Sunna, it contains much, among which:

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

« Every intoxicant is khamr, and every intoxicant is prohibited. »reported by Muslim 2003

Second, Aisha (may Allah be pleased with her) reported: the Messenger of Allah (peace and blessings of Allah be upon him) said:

« Every intoxicant is prohibited; whatever a farq of it intoxicates from, a palmful of it is prohibited. »authentic hadith: reported by Abu Dawud 3687, at-Tirmidhi 866, Ahmad 24468 and Ibn Hibban 5383

Third, Mirthad ibn Abdullah al-Yazani reported from Daylam al-Himyari that he said:

« O Messenger of Allah, we are in a cold land where we undertake hard work, and we make a drink from this wheat to strengthen us in our work and against the cold of our land. He said: "Does it intoxicate?" I said: "Yes." He said: "Then abstain from it." Then I came back before him and said the same to him. He said: "Does it intoxicate?" I said: "Yes." He said: "Then abstain from it." I said: "The people will not abandon it." He said: "If they do not abandon it, kill them." »reported by Ahmad 18064

Ibn Taymiyya (may Allah have mercy on him) comments: this is because the corrupter is like the assailant; if the assailant can only be repelled by killing, he is killed (Majmu' al-Fatawa 28/347).

Fourth, Ibn Umar (may Allah be pleased with them both) reported that the Messenger of Allah (peace and blessings of Allah be upon him) said:

« Whoever drinks khamr in this world and does not repent of it will be deprived of it in the hereafter. »reported by al-Bukhari 5253 and Muslim 2003

Fifth, Abdullah ibn Umar (may Allah be pleased with them both) reported: the Messenger of Allah (peace and blessings of Allah be upon him) said:

« Allah cursed khamr, the one who drinks it, the one who serves it, the one who sells it, the one who buys it, the one who presses it, the one for whom it is pressed, the one who carries it, the one to whom it is carried, and the one who consumes its price. »authentic hadith: reported by Abu Dawud 3674, Ibn Majah 3380 and Ahmad 4787 and 5716

Sixth, Abdullah ibn Amr (may Allah be pleased with them both) reported: the Messenger of Allah (peace and blessings of Allah be upon him) said:

« Khamr is the mother of abominations. »good hadith (hasan): reported by ad-Daraqutani 4613

Seventh, Anas (may Allah be pleased with him) reported:

« I was the one serving drinks to the company in the house of Abu Talha, and their drink at that time was fadikh. The Messenger of Allah (peace and blessings of Allah be upon him) ordered a herald to proclaim: bear in mind that khamr has been prohibited. Abu Talha said to me: go out and pour it away. I went out and poured it away, and it flowed through the lanes of Medina. Someone said: men have been killed while it was still in their bellies, and Allah then sent down: "There is no blame on those who believe and do righteous deeds for what they tasted" to the end of the verse. »reported by al-Bukhari 2332 and Muslim 1980

Eighth, Abu Hurayra (may Allah be pleased with him) reported: the Messenger of Allah (peace and blessings of Allah be upon him) said:

« The habitual drinker of khamr is like the worshipper of an idol. »good hadith (hasan): reported by Ibn Majah 3375

Ninth, Abdullah ibn Umar (may Allah be pleased with them both) reported: the Messenger of Allah (peace and blessings of Allah be upon him) said:

« Whoever drinks khamr, Allah accepts no prayer from him for forty mornings; if he repents, Allah accepts his repentance; if he does it again, Allah accepts no prayer from him for forty mornings; if he repents, Allah accepts his repentance; if he does it again, Allah accepts no prayer from him for forty mornings; if he repents, Allah accepts his repentance; if he does it again a fourth time, Allah accepts no prayer from him for forty mornings; if he then repents, Allah will not accept his repentance, and He will give him to drink from the river of khabal. It was said: O Abu Abd ar-Rahman, what is the river of khabal? He said: a river of the pus of the people of the Fire. »authentic hadith: reported by at-Tirmidhi 1862, Ibn Majah 3377 and Ahmad 21541

The verse mentioned is: « There is no blame on those who believe and do righteous deeds for what they tasted » (Surah al-Ma'ida, 93).

And many other hadiths besides.

As for the consensus: the community is unanimous on the prohibition of khamr, and a great number of scholars transmitted this consensus.

Imam Ibn al-Mundhir (may Allah have mercy on him) says: they agreed on the prohibition of khamr (al-Ijma 626).

Imam Ibn Hazm (may Allah have mercy on him) says: the consensus covers the prohibition of khamr, its small and its large quantity (al-Muhalla 7/478).

Ibn Abd al-Barr (may Allah have mercy on him) says: the verse carries the prohibition of khamr, the one agreed upon (al-Istidhkar 5/290).

Imam Ibn al-Arabi (may Allah have mercy on him) says: the prohibition of khamr is established by the agreement of the imams (Ahkam al-Quran 3/134).

Imam Ibn Hubayra (may Allah have mercy on him) says: they agreed that khamr is prohibited, its small and its large quantity, and that it carries the fixed penalty... and they agreed that whoever deems it lawful is judged a disbeliever (al-Ifsah 2/291 and 292).

Imam Ibn Juzayy al-Gharnati (may Allah have mercy on him) says: khamr is prohibited, its small and its large quantity, by consensus; I mean grape juice when it intoxicates; if it does not intoxicate, it is lawful by consensus. As for the other intoxicating beverages, made from raisins, dates, honey, wheat, barley and others, they are like khamr according to the two imams and Ibn Hanbal (al-Qawanin al-fiqhiyya, p. 117).

Imam al-Imrani (may Allah have mercy on him) says: the Companions and the Muslims after them agreed on its prohibition (al-Bayan 12/517).

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 twenty 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 forty lashes, or eighty?

The Shafi'is, and the Hanbalis in one narration, hold that the penalty of the drinker of khamr is forty lashes, which cannot be reduced; the excess up to eighty 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 two 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 forty; he then said: stop, and then said: the Prophet (peace and blessings of Allah be upon him) flogged forty, Abu Bakr forty, Umar eighty: 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 forty, 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 forty 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 forty, 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 twenty 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 forty, up to eighty, the excess above forty being ta'zir, or to flog the slave beyond twenty, up to forty, the excess above twenty 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 eighty, and Umar flogged eighty. Umar (may Allah be pleased with him), when the man given over to drinking was brought to him, flogged him eighty; and when the weak man whose lapse had been isolated was brought to him, he flogged him forty. »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 forty, Abu Bakr forty, Umar eighty: each of the two 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 forty? we answer: he is not allowed to reach forty for a single lapse; but where there are several lapses, nothing prevents reaching forty; 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 eighty lashes, and forty 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 forty; 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: eighty. Umar then flogged eighty. »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 eighty, and Umar flogged eighty. Umar (may Allah be pleased with him), when the man given over to drinking was brought to him, flogged him eighty; and when the weak man whose lapse had been isolated was brought to him, he flogged him forty. »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 eighty 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 forty, 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 forty were ta'zir, it would not be permitted to reach forty, 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 two 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 two 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 forty 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 two 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, two 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 two 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 two schools is that set out in the preceding question.

Al-Khallal said: if the teacher strikes three blows, as the Successors and the jurists of the great cities said, and that remains within three, 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 ten lashes except in a fixed penalty laid down by Allah. »reported by al-Bukhari 6456

In another wording:

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

This shows that it is permitted to inflict ten 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 two 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 two 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).