Do penalties change?

The Details of the Question

1) Our Prophet said that if you exceed the hadd punishment in any issue, you will have oppressed people. Why did Umar (ra) order 80 lashes to be given instead of 40 when the number of drinkers increased?
2) Can tazir punishments not determined by Shariah be more than hadd penalties? For example, giving the death penalty politically or as a tazir punishment.

The Answer

Dear Brother / Sister,

Answer 1:

Drinking alcohol is strictly prohibited by verse 90 of the chapter of al-Maida. However, its punishment is based on the Sunnah and practice of the Prophet (pbuh), not the verse. The Prophet (pbuh) and Abu Bakr (ra) gave 40 lashes to the drinker. When the number of drinkers increased during the caliphate of Umar (ra), he consulted with his friends. They decided to give 80 lashes, which is the minimum amount of hadd. (see Darimi, Hudud, 10; A. b. Hanbal, IV, 389; see also W. Zuhayli, al-Fiqhul-Islami; 7/5489)

Although there are some scholars who say that there was consensus on this practice of Umar (ra), it is not true because this issue was controversial among the Companions before and after Umar (ra) too. (see Naylul-Awtar, 7/142)

Answer 2:

The principle that tazir punishments cannot exceed the amount of hadd punishment is based on the following hadith:

“If a person gives a tazir punishment that reaches hadd punishment in an issue that does not necessitate hadd punishment, he will have committed oppression.” (Zaylai, Nasbur- Raya, III, 354; al-Haythami, Majmauz-Zawaid, VI, 281)

However, Zaylai states that this hadith narrated by Bayhaqi and others is mursal. (see Zaylai, 3/354)

There is a disagreement among scholars about whether to act upon mursal hadiths. Therefore, acting upon this hadith, some scholars say that tazir punishment should not reach the amount of hadd punishment while others state that it is permissible.

For example, according to Malikis, the Islamic state can impose tazir punishment above or below this punishment equal to hadd punishment. Man b. Zaida incident is proof of it. During the caliphate of Umar (ra), this person imitated the seal of baytulmal and took goods from the treasury. When the Caliph was informed about it, he was first sentenced to one hundred lashes and imprisonment, then another hundred lashes were given; and in the third, he was sentenced to lashes and exile again. (Ibn Qudama, al-Mughni, VIII, 325)

It is seen that Man b. Zaida committed the crimes of “imitating a seal”, “taking goods from baytulmal unjustly” and “opening the door of cheating to others”. This view of Malikis is supported by the following practice reported from Ali (ra):

Ali (ra) applied the punishment of one hundred lashes as 98 lashes on a person who was in a relationship with a foreign woman without committing fornication. (Zuhayli, al-Fiqhul-Islami, 206, 207).

Again, according to Hanafis and Malikis, the Islamic state can impose the death penalty on those who commit certain crimes such as repetition of crimes, habit of committing crimes or homosexuality. It is called “political killing”. A judge’s decision is necessary for it. For example, if a Muslim curses Allah, one of the angels or one of the prophets, he is killed based on the following verse:

“Those who annoy Allah and His Messenger - Allah has cursed them in this World and in the Hereafter, and has prepared for them a humiliating Punishment.” (al-Ahzab, 33/57)

To sum up, a person whose evil deeds cannot be prevented unless he is killed is politically killed, like a person who has a habit of stealing and is an atheist who tries to inculcate his corrupt beliefs in others. According to most Islamic scholars, the same thing holds true for the one who applies magic. (Ibn Abidin, Raddul-Muhtar, III, 196; az-Zuhayli, ibid, VI, 200)

According to Malikis and Hanbalis, a Muslim spy who spies on behalf of the enemy against Muslims is killed. Abu Hanifa and Imam Shafii hold the opposite view. On the other hand, a group of Shafiis and Ahmad b. Hanbal consider it permissible to kill anyone who invites people to bid’ahs that are contrary to the Book and the Sunnah. (Ibn Taymiyya, as-Siyasatush -Shar’iyya, p. 114, al-Hisba, p. 48; ash-Shirazi, al-Muhadhdhab, II, 242)

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