بَابُ حَدِّ الْخَمْرِThe Punishment for Drinking Wine

¹ The statement: Umar ibn al-Khattab sought counsel, etc.: The imams unanimously agreed on the prohibition of wine and its impurity, that drinking a large or small amount warrants punishment, and that one who permits it is ruled a disbeliever. The punishment is not less than forty by consensus, and the disagreement is only regarding increasing beyond forty. Abu Hanifa and Malik said: Eighty, like the punishment for slander, except that the punishment for slander is established by the Qur’an, while the basis for the punishment for drinking is established by prophetic narrations, and its amount is established by the consensus of the Companions. Al-Shafi’i said: Forty, and anything beyond forty is discretionary, and the imam may increase the penalty if his judgment leads to it. I say: Al-Kharqi preferred eighty. Ibn Abd al-Barr said: The majority of scholars from the early and later generations hold that the punishment for drinking is eighty, and this is the view of al-Thawri, al-Awza’i, Ishaq, Ahmad, and one of al-Shafi’i’s two opinions. The Companions reached a consensus during Umar’s time on this, with no opposition, and a group of the Followers held this view. Disagreement on this is like an outlier opinion refuted by the majority. Ibn Mas’ud said: What Muslims see as good is good with Allah. The Prophet (ﷺ) said: Follow my Sunnah and the Sunnah of the rightly guided caliphs. This applies to a free person, but for a slave, it is half by consensus. They agreed that the punishment for drinking is carried out with a whip, except what is narrated from al-Shafi’i that it is carried out with hands, sandals, and the edge of clothing. I say: The truth is with the majority due to the Companions’ consensus on the whip. [Mercy of the Nation, Attainment of Desires, Foundation of Care, Exalted Commentary, selected from them.]

² The statement: A man brought his nephew, intoxicated, etc.: Know that this narration contains benefits, including: The punishment is not carried out except when sober, not when intoxicated, so he feels the pain of the punishment and deterrence is achieved, so the intoxicated is detained until he recovers. Also, intoxication warrants punishment only if the mind is completely lost, unable to distinguish the sky from the earth, which is the decisive limit for punishment, not for invalidating ablution. The prohibition of intoxicants other than wine requires raving, as precaution is necessary in punishments, taken from the narration: Avoid punishments with doubts, according to Abu Hanifa. According to the other two, raving applies absolutely for prohibition, and for the obligation of punishment, both apply, and their view is preferred for fatwa. According to al-Shafi’i, its effect must appear in his walk, movements, and limbs. Also, punishment is carried out only with a trimmed whip or stick, not with palm branches or sandals, as was done initially when wine was prohibited, then its abrogation and the abrogation of forty were established by the consensus during Umar’s caliphate for eighty. Also, he is lashed on bare skin, not over clothing. Also, the flogger raises his hand in lashing. Also, he does not raise it to expose his armpit or side. Also, the punishment for wine is eighty lashes with a stick, not forty. Also, the guardian must discipline the young, improve them, and correct their habits to prevent immorality and corruption. Also, a Muslim should be protected. Also, the imam’s compassion, gentleness, and concern for the punished, and sorrow for their punishment. Also, forgiveness and pardon are preferred before bringing them to the imam. Also, the imam cannot refrain from enforcing punishment once presented. [Taken from Systematization of Order, Explanation of Protection, Foundation of Care.]

¹ The statement: He had drunk wine for the fourth time, and he struck him but did not kill him: The Muslims unanimously agreed on the prohibition of drinking wine and the obligation of punishment for its drinker, whether he drank a little or much. They agreed that he is not killed for drinking it, even if he repeats it, as al-Tirmidhi reported this consensus. Al-Tahawi said: This is the view of Abu Hanifa, Abu Yusuf, and Muhammad, may Allah have mercy on them all. The judge reported from an outlier group that said: He is killed after being lashed four times based on the narration regarding that. This view is invalid, opposing the consensus of the Companions and those after them that he is not killed, even if he repeats it more than four times. The command to kill on the fourth time was in the early days of Islam, then abrogated. A group said: The consensus indicates its abrogation. Some said: It was abrogated by his (ﷺ) saying: The blood of a Muslim is not lawful except for one of three: a life for a life, the married adulterer, and the one who abandons his religion and separates from the community. It was said: It remains as a policy, and this is the sounder view. (Taken from al-Nawawi and al-Tahawi)

² The statement: He then said, after ordering the punishment for wine, reprove him: From rebuke, which is verbal reprimand and expression. It appears that this command is recommended, unlike the former, which is obligatory. (As in al-Mirqah)

² The statement: And he did not order anything regarding him: It is said in al-Maraqat: It is possible that he was not dealt with after entering al-Abbas’s house because the punishment was not established against him by his confession or the testimony of upright witnesses, but he was found staggering in the path, and intoxication was assumed, so the Messenger of Allah (ﷺ) did not investigate him and left him as is. It is also possible that he was not dealt with because he was staggering in the path, meaning the effect of intoxication appeared in his walk, movements, and limbs, which does not warrant punishment. If it were that he did not recognize anything, even the earth from the sky, he would not have been left as is, and the punishment would have been enforced. This is what Abu Hanifa held.

³ The statement: He has no blood money, etc.: Meaning, if he dies from a prescribed punishment or discretionary punishment, his blood is wasted, and nothing is obligated, neither on the imam nor the flogger, nor the one who disciplines by his order, without distinction between the punishment for drinking and others. This is our view, and that of Malik and Ahmad, contrary to al-Shafi’i, because the imam is commanded to enforce the punishment and discretionary discipline, and the action of the commanded is not conditioned on safety. Its details are in al-Fath and al-Tabyin. I say: The implication of the reasoning by the command is that this is not exclusive to the imam, as it was mentioned that every Muslim may enforce discretionary discipline during the commission of the sin, as he is commanded to remove evil, unless he can refer it to the imam, so enforcement is not required of him, unlike the imam, so reflect. Also, our evidence is these narrations. (Taken from Explanation of Protection, Foundation of Care, Attainment of Desires, and Refutation of the Perplexed)