then fasting for two consecutive months, then feeding sixty poor persons. The same applies to the expiation for accidental killing. But the expiation for an oath is one of choice, because it begins with the least burdensome option: “Feeding ten poor persons with the average of what you feed your own families, or clothing them, or freeing a slave.” [al-Ma'idah: 89]
Consider also the compensation for harm when a person is in the state of ihram and needs to shave his head, so he shaves it: “Then a ransom: fasting, charity, or sacrifice.” [al-Baqarah: 196] Sacrifice is the most demanding, then charity, then fasting. Thus, they say that “or” in the verse indicates classification, and that the punishment corresponds to the crime. For our established understanding of the Quran is that, when a matter is sequential, it begins with the most severe option; and when it is left to choice, it begins with the least burdensome. Thus, in their view, the evidence consists of both textual tradition and rational consideration.
Imam Malik, may Allah have mercy on him, held that “or” in the verse indicates choice, and that the ruler has discretion: if he wishes, he may execute and crucify; if he wishes, he may execute without crucifying; if he wishes, he may amputate; and if he wishes, he may banish. However, according to Imam Malik’s school, the ruler must consider what best serves the public interest. Thus, if execution and crucifixion are in the public interest, he executes and crucifies; if execution alone is in the public interest, he executes only; and if amputation is in the public interest, he amputates. For example, if people violate the sanctity of others’ rights and become unconcerned about highway robbery, then the public interest lies in execution and crucifixion. But if crucifying a particular man would lead to civil strife—for instance, if he were the chief of his people, and we feared that crucifying him would cause the tribe to rise up, resulting in bloodshed and other evils—we would limit it to execution.
However, in our estimation, the first view is the stronger one: there is no discretion, especially in our present time. For if we were to open the door of discretion to rulers, they would manipulate it: one person would be executed and crucified in their view, while another would be banished from