The answer to the first question is that the punishment of drinking was fixed at eighty stripes by Umar (rta) after he in his capacity of a caliph had consulted the members of his sh?r?. In the time of the Prophet (sws), this offence was punished by punching and kicking the offender, and by beating him with twisted sheets of cloth or with twisted pieces of date-palms. The caliph Ab? Bakr (rta) had decreed that this crime be punishable by forty stripes, and then the caliph Umar (rta) in his own times increased it to eighty stripes when he saw that people were not desisting from it. In the words of Ibn Rushd: ????? ??????? ????? ??? ???????? ??? ??? ?? ????? ??? ????? ?????? ??? ???? ??? ???? ???? ?????? ?????? ??? ?? ?????? ???? ??? ??? ??? ??? ???? ??? ??? ??? ??? ???? ??? ??? ???? ??? ????? The general opinion in this regard is based on the consultation of Umar (rta) with the members of his sh?r?. The session of this sh?r? took place during his period when people started indulging in this habit more frequently. Al? (rta) opined that, by analogy with the punishment of qadhf, its punishment should also be fixed at eighty stripes. It is said that while presenting his arguments, he had remarked: When he [ the criminal ] drinks, he will get intoxicated and once he gets intoxicated, he will utter nonsense; and once he starts uttering nonsense, he will falsely accuse other people. It is evident from this, that the punishment of drinking is not part of the shar?ah. It is only the prerogative of the Prophet (sws) to regard anything as part of the shar?ah, and if he has done so in a particular case, Ab? Bakr (rta) or Umar (rta) can in no way alter it. Had this punishment been part of the shar?ah, Ab? Bakr (rta) would never have replaced it with forty stripes, nor would Umar (rta) have increased it to eighty stripes. It is clear that if the Prophet (sws) punished such criminals by beating them, he did so not in the capacity of a law-giver but in the capacity of a Muslim ruler. His successors punished such criminals by whipping them with forty and eighty stripes respectively in their capacity as rulers. Consequently, it can be safely said that the punishment of drinking is not a h?add ; it is a taz?r, which the parliament of an Islamic State can adopt and if needed legislate afresh in this regard.
