In Islamic law, punishments are classified under three main groups, being qisas (equitable retribution), hadd (punishment), ta’zeer (discretionary punishment). The jurisprudential term expressing the penal sanctions other than qisas and diyyah (fine for unintentional murder) prescribed in Quran and by authentic Sunnah is called the “hadd”. Ta’zeer in Islamic law is a term specifying the punishments other than hadd and qisas, prescribed by ijtihad (judicial opinion).
According to Quran, following are the hadd punishments:
1 – 100 whips (jalda) for the adulterer
2- 80 whips for the one who slanders adultery to a chaste woman, with his/her testimony being denied thereafter
3-Amputating the hand of the thief,
4- Killing, hanging, amputating the hands and feet crosswise of, or exiling those who commit such crimes as armed extortion, latrocination and brigandage
”Whereas drinking spirits and drunkenness are explicitly prohibited in Quran and by Sunnah, the facts that whipping punishments in different quantities and characteristics and additional penalties are imposed in the period of the Prophet (PBUH) to wine drinkers (al-Bukhari, Kitab al-Hudud, 35 -36; Shawqani, VII, 156 – 157), that the Caliph Abu Baqr applied 40 whips and Caliph Omar applied 80 whips upon consulting the Sahaba (Companions of the Prophet) (Abu Davud, Kitab al-Hudud, 37; Shawqani, VII, 156 – 157) brought together the debates on the extent to which this punishment may be considered as a hadd punishment.
According to Hanafi, Maliki and Hanbali fuqaha (lawmen), all of the eighty whips to be hit to the drinker of wine (drunken) is considered as hadd, whereas the first forty whips are considered as hadd and the second as ta’zeer according to Shafi’, Zahiri and Zaydi scholars.
Although both parties assert that the Sahaba has a consensus (ijma) on the imposition of forty or eighty whips to the drinker, taking into account the narratives mentioning diverse applications in the periods of the Prophet (PBUH) and the Khulafa al-Rashideen, the possibility arises that even the practices of the Prophet (PBUH) could be considered in the group of ta’zeer.” (Ali Bardakoğlu, “Had”, Diyanet İslâm Ansiklopedisi, İstanbul, 1996, v: 14, p: 548.)