as it might lead to the forfeiture of the hirer's right. Likewise, a mortgaged slave girl; two opinions are derived regarding it. The third condition is that the punishment must be established through evidence or confession. If it is established by confession, the master is entitled to carry it out, provided he is knowledgeable of the confession through which the punishment is established and its conditions. If it is established by evidence, it is considered necessary that it be established before the judge, because evidence requires investigation into integrity, and knowledge of the conditions of its reception and its wording, and no one performs this except the judge. Judge Ya'qub (38) said: If the master is proficient in hearing evidence and knows the conditions of integrity, it is permissible for him to hear it and carry out the punishment based upon it, just as he carries it out by confession. This is the apparent view of the text of al-Shafi'i; because it is one of the things by which the punishment is established, so it resembles confession. The master does not carry out the punishment based on his own knowledge. This is the view of Malik; because the Imam does not carry it out based on his own knowledge, so the master is more entitled [to be restricted], as the authority of the Imam over the punishment is stronger than the authority of the master, for it is agreed upon and established by consensus. If the punishment is not established in his (the Imam's) right by knowledge, then it is more so here. From Ahmad, there is another narration that he may carry it out based on his own knowledge; because it has been established for him, so he possesses the right to carry it out, just as if he had confessed to it. It differs from the judge because the judge is suspect and does not possess the place of execution (the slave's body), whereas this is different. The fourth condition is that the master must be adult, sane, and knowledgeable of the punishments and the manner of their execution; because the child and the insane person are not among those possessing authority, and one ignorant of the punishment cannot carry it out in the legal manner, so it is not delegated to him. Regarding the dissolute person (fasiq), there are two opinions: one is that he does not possess the right, because this is a form of authority, so immorality negates it, like the authority of marriage. The second is that he does possess it, because this is an authority obtained through ownership, so immorality does not negate it, like selling a slave. If he is a mukatab, there are two possibilities: one is that he does not possess it, because he is not among those with authority. The second is that he possesses it, because it is obtained through ownership, so it resembles his other transactions. Regarding the woman, there are also two possibilities: one is that she does not possess it, because she is not among those who hold authorities. The second is that she possesses it; because Fatima flogged a slave girl of hers, Aishah cut the hand of a slave girl of hers who had stolen, and Hafsa killed a slave girl of hers
(38) Ya'qub ibn Ibrahim ibn Sutur al-Barzini, Abu Ali the Judge. He entered Baghdad in the year four hundred and thirty-something, and was appointed to the judiciary at Bab al-Azj in the year four hundred and fifty-two. He had profound knowledge of judicial rulings and the enforcement of records. He died while still in office in the year four hundred and eighty-six. Tabaqat al-Hanabila 2/245-247. (39) In B and M: "obtained". (40) Omitted from the original.
