a woman. I touched her in a manner short of intercourse," so he said, "Did you pray with us?" He said, "Yes." He then recited to him: {Indeed, good deeds eliminate evil deeds} (20). And he said regarding the Ansar: "Accept from their benevolent ones and overlook the faults of their wrongdoers" (21). A man said to the Prophet (may the peace and blessings of Allah be upon him) regarding a judgment he gave in favor of al-Zubayr: "It is because he is the son of your paternal aunt." The Prophet (may the peace and blessings of Allah be upon him) became angry and did not discipline him for his statement (22). Another man said to him: "This is a distribution by which the Countenance of Allah was not intended," and he did not discipline him (23). As for us, [we argue] that when a tazir is explicitly prescribed, such as for having intercourse with one's wife's slave-girl or a co-owned slave-girl, then the command regarding it must be complied with. What is not explicitly prescribed, if the Imam deems there is a benefit in it, or knows that the person will not be deterred except by it, then it becomes obligatory; because it is a prescribed deterrent for the sake of the right of Allah Almighty, therefore it becomes obligatory, like the hadd.

Section: If a person dies as a result of a tazir, there is no liability (daman) for it. Malik and Abu Hanifa held this view. Al-Shafi'i said: 'He is liable,' because of the statement of Ali: 'There is no one upon whom a hadd is carried out, and then he dies, that I would feel any remorse in my soul that the Truth killed him, except for the hadd of drinking wine, for the Messenger of Allah (may the peace and blessings of Allah be upon him) did not establish it for us (24).' And he advised Umar regarding liability for the woman who aborted her fetus when he sent for her (25). As for us, it is a punishment legislated for deterrence and admonition, so one who perishes by it is not subject to liability, just like the hadd. As for the statement of Ali regarding the blood money for one killed by the hadd for drinking wine, he was contradicted by others among the Companions, as they did not make anything obligatory because of it, and neither al-Shafi'i nor other jurists acted upon it. How then could it be used as a proof while everyone has abandoned it? Regarding his statement concerning the fetus, they have no proof in it, for the fetus that perished committed no crime and was subject to no tazir, so how could its liability be waived? If the Imam were to carry out a hadd upon a pregnant woman and it destroyed her fetus, he would be liable for it, even though the hadd is something we all agree upon (26) that there is no liability for the one upon whom the hadd is carried out if he perishes by it.