His statement, “Then discretionary flogging”: that is, flogging as a discretionary punishment. How many lashes does discretionary flogging involve?
According to the established position of the school, it is not to exceed ten lashes, except in certain cases that will be mentioned, if Allah wills, in the chapter on discretionary punishments. On this view, discretionary flogging is ten lashes or fewer. Thus, if we found a man who had spent the entire night alone with a woman—kissing and embracing her, and engaging in intercourse short of penetration, enjoying her to the fullest, yet without actually having intercourse—and we found them in the morning and they both confessed to this, we would give them ten lashes. What an exceedingly light flogging! However, it will be explained that this view is very weak indeed, and that neither people’s welfare can be secured nor harm averted by such a view.
Thus, the severity of flogging corresponds to its number, because the manner of its administration follows its quantity. The most severe flogging is that for fornication, then that for slanderous accusation, then that for drinking, then discretionary flogging.
His statement, “Whoever dies as a result of a prescribed punishment has been killed by right”: “whoever” is a conditional particle, and the apodosis is, “has been killed by right.” This expression is one transmitted from earlier times: it was stated in the past, and later people followed their predecessors in using it. Its meaning is that he was killed lawfully, and whoever is killed lawfully entails no liability.
We have previously mentioned, in the chapter on offences against the person, a beneficial principle relevant here: whatever results from an authorized act entails no liability.
His statement, “Whoever dies in the course of a prescribed punishment”: the word “in” denotes circumstance; thus, it must occur within the prescribed punishment itself. If a person exceeds the prescribed punishment, whether in quantity or in manner, he is liable. Thus, if he flogs someone with a hard, strong, new whip, without exceeding the prescribed number, and the person flogged dies, he is liable, because this was not within the limits of the prescribed punishment but rather an excess. Likewise, if he gives him one hundred and one lashes, he is liable, because he has exceeded the limit,