As for the maximum discretionary punishment, there are three opinions within the school of Ahmad and elsewhere. The first sets it at ten lashes. The second sets it below the lowest prescribed punishment: either thirty-nine or seventy-nine lashes. This is the view of many followers of Abū Hanīfah, al-Shāfi‘ī, and Ahmad.
The third holds that it is not restricted to these limits. This is the view of Mālik’s followers and some followers of al-Shāfi‘ī and Ahmad, and it is one of the two positions reported from Ahmad. However, where discretionary punishment concerns an offense for which a fixed punishment is prescribed, it must fall short of that punishment. Thus, discretionary punishment for theft below the minimum value requiring amputation must not extend to amputation; punishment for rinsing the mouth with wine must fall short of the prescribed punishment for drinking it; and punishment for slanderous accusations other than accusations of unlawful sexual intercourse must fall short of the prescribed punishment for the latter.
This is the most equitable of these opinions, supported by the Sunnah of Allah’s Messenger, may Allah bless him and grant him peace, and the practice of his rightly guided caliphs:
“The Prophet, may Allah bless him and grant him peace, ordered that a man whose wife had given him permission to have intercourse with her slave woman be given one hundred lashes, but averted the prescribed punishment on grounds of doubt.”
Abū Bakr and Umar ordered that a man and a woman found together under one cover be given one hundred lashes each. He also ordered one hundred lashes for the man who had made an engraving on his signet ring and taken money from the public treasury. He then had him given another hundred lashes on the second day and another hundred on the third. He also gave Sabīgh ibn Isl a severe beating, which he did not repeat, because of the religious innovation he observed in him.
Anyone whose corruption in the land cannot be stopped except by execution is to be executed, such as one who divides