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The literalists have supposed that the position of Ibn Masʿūd, ʿUmar ibn ʿAbd al-ʿAzīz, and those who agree with them—that a male slave receives eighty lashes for a false accusation of adultery—rejects analogy and avoids drawing an analogy between a male and a female slave. Yet this is not a rejection of analogy; rather, it is analogy itself, in its purest and truest form, as we have explained.
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There is no disagreement that the prescribed punishment for an accusation of adultery is a right belonging to the person accused. Scholars differ only over whether a right belonging to Allah is also involved. There are three positions:
The first is that a right belonging to Allah Most High is involved, so the punishment cannot be waived, whether or not the matter has reached the ruler. This is the position of Abū Hanīfah, and it is also indicated by Ashhab’s report from Mālik in al-ʿUtbiyyah. By extension, this position entails that the ruler administers the prescribed punishment for an accusation of adultery whenever the matter reaches him, whether it is reported by the person concerned or by a third party.
The second is that no right belonging to Allah Most High is involved, and the person concerned may waive the punishment, whether or not the matter has reached the ruler. This is one of Mālik’s two opinions in the Book of Theft and Stoning in al-Mudawwanah.
The third is that it remains the right of the person concerned until the matter reaches the ruler. Once it reaches the ruler, it becomes a right belonging to Allah, and the person concerned may no longer waive it unless his purpose is to keep the matter concealed. This is one of Mālik’s two opinions and the position of al-Shāfiʿī.
Al-Mudawwanah states that if someone accuses an absent man of adultery in the ruler’s presence, the ruler administers the prescribed punishment to the accuser, provided witnesses are present. Muhammad ibn al-Mawwāz interpreted this as meaning that the person accused comes forward and claims his right, in accordance with one of Mālik’s two opinions. In al-Wādihah, Ibn Habīb reports from Ibn al-Qāsim and others that the ruler administers the punishment even if the person accused is absent. This accords with Mālik’s other opinion. Allah alone grants success.
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The prescribed punishment is incurred both by an explicit accusation of adultery and by a clear insinuation which the speaker is understood to have intended