Section: The most severe striking in a legal punishment is the striking of the adulterer, then the punishment for false accusation (qadhf), then the punishment for drinking intoxicants, then the discretionary punishment (ta'zir). Malik said: They are all one, because Allah the Almighty commanded the flogging of the adulterer and the one who makes a false accusation with a single command, and the intent of all of them is one, which is deterrence; thus, they must be equal in nature. It is narrated from Abu Hanifah: The ta'zir is the most severe, then the punishment for the adulterer, then the punishment for drinking, then the punishment for false accusation. Our argument is that Allah the Almighty singled out the adulterer for greater emphasis in His saying, the Almighty: {And let not pity for them withhold you in the religion of Allah} [Surah al-Nur 2]. This necessitates a greater emphasis upon it, and this cannot be in the number of lashes, so it must necessarily be in the nature of the striking. Furthermore, what is beneath it is lighter in number; thus, it is not permitted to exceed it in its pain and suffering, because that leads to equivalence between them or the lesser having more pain than the greater.

1603 - Issue: He said: (The male slave and female slave are to be lashed forty lashes, with a whip other than that of the free person.)

[This is according to the narration which states that the punishment of a free person for drinking is eighty lashes. Therefore, the punishment for the male and female slave is half of that, forty lashes (1). According to the other narration, their punishment is twenty, half the punishment of the free person, with a whip other than that of the free person] (2); because when the number of lashes was reduced for them, the nature of the whip was also reduced, just like the case of ta'zir in comparison to the hadd punishment. It is also possible that their whip is like the whip of the free person, because the halving is only truly realized when the whip is the same as the whip [of the free person]. But if it is half in number and lighter in its whip, it would be less than half, whereas Allah the Almighty has obligated the half, by His saying, the Almighty: {Then upon them is half of what is upon the chaste women of the punishment} [Surah al-Nisa 25].

Section: Legal punishments are not to be carried out in mosques. 'Ikrimah, al-Sha'bi, Abu Hanifah, Malik, al-Shafi'i, and Ishaq held this view. Ibn Abi Layla used to hold the opinion of carrying them out in the mosque. Our argument is what...