No Companion or jurist ever held this view with respect to forty lashes or fewer, and Ali’s words should not be construed in a manner that conflicts with the consensus. The jurists(1) differed only over the case in which more than forty lashes were administered and the person died as a result: would liability be incurred? They held two views.

The majority held that no liability would be incurred in this case either. This is the position of Mālik, Abū Hanīfah, Ahmad, and others.

Al-Shāfiʿī held that liability would be incurred: either half the blood money would be payable, according to one of his two views, on the grounds that the person died through acts, some of which entailed liability and others of which did not(2); or the blood money would be apportioned across all the lashes, with the portion of the blood money(3) corresponding to the lashes beyond forty becoming payable, according to his other view.

Al-Shāfiʿī based this upon the premise that the lashes beyond forty constitute a discretionary punishment whose amount is not fixed. One of his principles is that liability is incurred when a person dies as a result of a punishment whose amount is not fixed, because the death reveals that the person administering the discretionary punishment exceeded the proper bounds—just as when a man strikes his wife, a tutor strikes a child, or a trainer strikes an animal.

As for the majority, some disagree with him on both principles, while others disagree with him on one of them. Abū Hanīfah and Mālik hold that eighty lashes constitute a mandatory prescribed punishment. This is also Ahmad’s position according to one report. According to the other, he holds(4) that whenever a person dies as a result of a legally permitted punishment, his death is attributable to the lawful punishment itself, whether the punishment was mandatory or merely permissible, and whether its amount was fixed or not, provided that the person administering it did not exceed the proper bounds. Accordingly, in his view, no liability is incurred if retaliation for an injury to a limb ultimately causes death, even when that retaliation was not obligatory. The leading jurists agree that if a person dies under a punishment