The first—and best—view, held by some followers of al-Shāfi‘ī and Ahmad and others, is that discretionary punishment for any offence must fall short of the prescribed punishment for that offence, even if it exceeds the prescribed punishment for another offence. Thus, unlawful intimate contact and theft from a place other than secure keeping may be punished with a beating exceeding the prescribed punishment for falsely accusing someone of unchastity, but not with stoning or amputation.

The second view is that discretionary punishment must fall short of the lowest prescribed punishment: either forty or eighty lashes. This is the view of many followers of al-Shāfi‘ī, Ahmad and Abū Hanīfah.

The third view is that discretionary punishment must not exceed ten lashes. This is one of the positions within the school of Ahmad and others.

According to the first view, may discretionary punishment extend to execution, as in the execution of a Muslim spy? There are two views on this.

The first is that it may extend to execution. Thus, a Muslim spy may be executed if the aim is to serve the public interest. This is the view of Mālik and some followers of Ahmad, such as Ibn ‘Aqīl. Some followers of al-Shāfi‘ī and Ahmad have expressed a similar position concerning the execution of those who promote religious innovations and those whose corruption cannot be stopped except by execution. Likewise, Mālik’s school holds that those who promote religious innovations, such as the Qadariyyah and similar groups, are to be executed.

The second view is that the spy is not to be executed. This is the position of Abū Hanīfah, al-Shāfi‘ī and Judge Abū Ya‘lā among the followers of Ahmad.