2 – During the Prophet’s lifetime the fixed penalty was roughly forty lashes, and Abu Bakr continued to apply that number.
3 – ʿUmar, after consulting the Companions, set it at eighty.
4 – Engaging in ijtihād (independent juristic reasoning) on legal questions and seeking the counsel of scholars is the constant practice of those who pursue the truth and right guidance. Autocratic decision-making, by contrast, is the behavior of the self-admiring and arrogant who care little for facts.
5 – Anyone who vomits wine is thereby proven to have drunk it, so the ḥadd (fixed penalty) for drinking is carried out on him.
Disagreement among the scholars
The jurists have differed over the ḥadd for wine: Is it eighty lashes, forty lashes, or is anything between forty and eighty to be treated as taʿzīr (discretionary punishment) such that the ruler may increase it if he sees fit, and if not, restrict it to forty?
The imams Aḥmad, Abū Ḥanīfah, al-Thawrī, and many who followed them held that the ḥadd is eighty, basing this on the consensus of the Companions when ʿUmar consulted them. ʿAbd al-Raḥmān ibn ʿAwf said, “Make it the lightest of the prescribed penalties—eighty,” and ʿUmar adopted that view.
Al-Shāfiʿī maintained that the ḥadd is forty, and this is also one of the two reports from Imām Aḥmad, preferred by several Hanbalī scholars such as Abū Bakr, Shaykh al-Islām Ibn Taymiyyah, Ibn al-Qayyim, and our teacher ʿAbd al-Raḥmān al-Saʿdī—may Allah have mercy on them all.
Shaykh al-Islām Ibn Taymiyyah, as cited in al-Ikhtiyārāt, said:
“The sound opinion regarding the ḥadd for wine—one of the two narrations, and the one that accords with the view of al-Shāfiʿī and others—is that adding to forty up to eighty is not absolutely obligatory; rather, it is left to the discretion of the ruler, just as we allow him discretion in the manner of the blows.”
And he said in al-Mughnī: “Consensus cannot be claimed for anything that contradicts the practice of the Prophet ﷺ and of Abu Bakr; therefore, ʿUmar’s increase is to be regarded as taʿzīr, which is permissible…"