It is not in curred
by
calling a Mu/-
fulman an afs,
or a bog*
The degree
o f it is from
three ft ripes to
thirty-nine.
if any perfon accufe a Mujfulman of any other thing than whoredom,
(that is, abufehim, by calling him a reprobate, or a villain, or an infidel,
or a thief.,) chaflifergent is incurred, becaufe he injures a Mujful-
man, and defames him ; and punifhment \HidJ\ cannot be confidered
as due from analogy, fince analogy has no concern with the necef-
fity of punifhment: chaflifement therefore is to be inflicted. Where
the aggrieved party is a Jlave, or fo forth, the chaflifement mull: be
inflidted to the extremity of i t : but in the cafe of abide of a Mujful-
man, the meafore of the chaflifement is left to the difcretion of the
magiflrate, be it more or lefs; and whatever he fees proper let him
inflidt.
I f a perfon abufe a Mujfulman, by calling him an afs, or a hog, in
this cafe chaflifement is not incurred, becaufe thefe .expreflions are in
no refpedt defamatory of the perfon towards whom they are ufed, it
being evident that he is neither an afs nor a hog. Some allege that,
in oar times, chaflifement is inflidted, fince, in the modern acceptation,
calling a man an afs or a hog is held to be abufe.— Others -again
allege that it is efleemed fuch only where the perfon towards whom
fuch expreflions are ufed happens to be of dignified rank (fuch as a
prince, or a man o f letters,) in which cafe chaflifement muff be in-
flidled upon the abufer, as by fo fpeaking he expofes that perfon of
rank to contempt; but if he be only a common perfon, chaflifement is
notjncurred : and our author remarks that this.fs the mofl approved
dodlrine.
T h e greatefl number of flripes, in chaflifement, is thirty-nine;
and the fmallefi number is three. This is according to Haneefa and
Mohammed. Aboo Toofcf fays that the greatefl number of flripes, in
chaflifement, is feventy-five. The reflridlion to thirty-five flripes is
founded on a faying of the prophet, “ fh e man who fh a ll i'njuctfcourg-
“ ing to the amount o f punishment,' in a cafe where PUNISHMENT
is not ejlablifhed, Jhall be accounted an aggravator,” .(meaning, a
i wanton
wanton aggravator of punifhment,) from which faying it is to be inferred
that the inflidtion of a number o f flripes, in chafiifanent, to the
fame amount as \\\ punifhment, is unlawful; and this being admitted,
Haneefa and Mohammed, in order to determine the utmofl extent of
chaflifement, confider what is the fmallefi punifhment; and this is
punifhment for flander with refpedt to a flavn, which vs, fortyJlripes;
they therefore dedudt therefrom oneJlripe, and eflablifh thirty-nine as
the vreatefl number to be inflidted’ in chaflifement. Aboo Yoofaf, on
the other hand, has regard to the fmalleft punifhment with refpedt to
freemen, (as freedom is the original flate of man,) which is eighty
flripes; he therefore dedudts five, and eflablifhes feventy-five as the
created: number to be inflidted in chaflifement as aforefaid, becaufe the
fame is recorded of Alee, whofe example Aboo Y o o fif follows in this
inflance. It is in one place recorded of ylbdo Y oo fif that he dedudted
only one flripe, and declared the utmofl number of flripes:, in chaftife-
ment, to be feventy-nine. Such, alfo, is the opinion of Zijfer-, and
this.is agreeable to analogy*.------Mohammed, in his book -j-, has
determined the fmallefi number of flripes in chaflifement to three,
becaufe in fewer there is no chaflifement. Our modern dodtors affert
that the fmallefi degree of chaflifement mufl be left to the judgment
of the Imdm, or Kdzee, who is to inflidt whatever he may deem fuffi-
cient for chaflifement, which is different with refpedt to different
men. It is recorded of Aboo Yoofaf that he has alleged that the
degree thereof is in proportion to the degree of the offence ; and it is
alfo recorded from him that the chaflifement for petty offences
fhould be inflidted to a degree approaching to the punifhment allotted
for offences of a fimilar nature; thus the chaflifement for libidinous
adts, (fuch as kiffing and touchingf) is to be inflidted to a degree: approaching
to punifhment for whoredom; and the chaflifement for
abufive language, to a degree approaching to punifhment for flander.
* Becaufe, in all other eafes the deduction o f one from the whole number is fufficient
to reduce the thing froni an higher to a lower clafs.
. f Meaning the Mabfoot.
I f