Is a master permitted to implement the legal punishment (Hadd) by flogging upon his male or female slave?
General Chapter
Al-Mughni
Book of Ḥudūd (Prescribed Penalties)
Primary text
The majority of scholars permit the master to implement the flogging punishment (Hadd) upon his slave. This view is narrated from Ali, Ibn Mas'ud, Ibn Umar, Abu Humaid, Abu Usayd Al-Sa'idi, Fatimah the daughter of the Prophet (peace be upon him), 'Alqamah, Al-Aswad, Al-Zuhri, Hubeirah ibn Maryam, Abu Maysarah, Malik, Al-Thawri, Al-Shafi'i, Abu Thawr, and Ibn al-Mundhir. Evidence for this is found in the Prophet's saying to the effect: "If the female slave of one of you commits fornication and her guilt is confirmed, let him flog her without reprimanding her; if she does it again, let him flog her without reprimand; if she does it a third time, let him flog her without reprimand; and if she does it a fourth time, let him flog her and sell her, even for a clump of hair (Dhifir)." Furthermore, there is the narration from the Prophet (peace be upon him) that he said: "And establish the prescribed punishments upon those whom your right hands possess." This is supported by the principle that since the master has the authority to discipline and marry off his female slave, he also possesses the authority to implement the Hadd upon her, analogous to the Sultan, which distinguishes him from a minor.
Supporting text
The scholars of the People of Opinion (Ahl al-Ra'y, implying the Hanafi school) maintain that the master does not have this right. They argue that the implementation of Hadd belongs to the Sultan. Furthermore, one who cannot implement Hadd upon a free person cannot implement it upon a slave, similar to a minor. Hadd requires established proof (bayyinah) or confession (iqrar), involving conditions such as the justice of witnesses, their unified appearance, specific testimony regarding the act of fornication, and other requirements necessitating a jurist. These matters should therefore be delegated to the Imam or his deputy, just as with the Hadd for free persons, because Hadd is a right of Allah (Haqq min Huquq Allah), which is delegated to the Imam.