[ابوالوليد المسلم]

Rulings Governing Criminal Actions (5/7)

Abu`l Hasan al-Mawardi




E. Concerning the retaliation and blood money for bodily harm: there are three kinds of bodily harm, intentional, accidental and an intentional bodily harm which resembles the accidental.
As for the purely intentional, it is when a person intends to kill someone with a sharp instrument, such as an iron blade or anything which could cut into flesh like a blade, or something that would usually kill by its weight like a stone or wood, in which case this is treated as intentional killing and the hadd is obligatory. Abu Hanifah says that injury caused with intent which obligates the retaliation is that in which the killing is done with a sharp instrument of iron or anything else which penetrates the flesh, but that a killing or pain caused by something heavy made of stone or wood is not treated as intentional and does not obligate retaliation. The ruling regarding the intentional act, according to ash-Shafi'i, is that the person who represents the person killed is free to exact either retaliation or the blood money, as long as there exists equality of status between the killer and killed. Abu Hanifah says that the person who represents the victim is only entitled to retaliation, but not to the blood money, unless the killer agrees.
The wali - the person who represents the victim - is the person who inherits his or her property, be they male or female, either by the normal right of inheritance, or by tribal link; Malik, however, says that this right applies only to males who inherit, but not females. There is no right of retaliation unless they all are in accord to exact it; if one of them accords a pardon, then the right of retaliation is annulled, and the diyah blood-money becomes due; Malik, however, says that it is not annulled. If there is a person who is underage, or a mad person, then the right to retaliation is not solely exercised by the adult of sane mind.
Equality of status between the killer and the killed, according to ash-Shafi'i, is that the former should not be superior to the latter by his being free and a Muslim: if he is superior to him by one of these qualities, for example, if a free person kills a slave, or a Muslim a non-Muslim, then there is no retaliation - although Abu Hanifah says that this equality of status is not taken into account, and that a free person may be put to death for a slave, or a Muslim for a non-Muslim, just as a slave is put to death for a free person, and a kafir for a Muslim. However, as people take care not to do tills, or refuse even to do it, those who are of this opinion do not put it into practice. It is narrated that a Muslim who had killed a non-Muslim was referred to the Qadhi Abu Yusuf, who pronounced the right of retaliation against him, and then a man came to him with a note which he threw to him on which was written:
O killer of a Muslim for a kafir; you have done wrong, for the just person is not the same as the unjust person. O whoever is among the 'ulama and poets of Baghdad and its surroundings, remind yourselves of the return to your Lord, and lament for your deen, and be patient, for the reward is with the patient; Abu Yusuf has committed a wrong regarding the deen by killing a believer for a kafir.
Abu Yusuf then went to ar-Rashid, and told him what had happened, and read out the note. Ar-Rashid replied: "Deal discreetly with the affair, so as to avoid any discord;" then Abu Yusuf left and demanded of those who had the right of retaliation evidence of the liability which had been duly established; they did not provide it, and so he annulled the right of retaliation. Recourse to such action is permitted if there is benefit to be seen in it.
A slave is killed for killing a slave, even if the value of the killer is greater than that of the killed, although Abu Hanifah says that there is no retaliation against the killer if he is worth more than the value of the person killed. If there is a difference of religions amongst the non-Muslims involved, the right of retaliation is still established amongst them: a man may be entitled to the right of retaliation for a woman, and a woman for a man, an adult person for a person who is underage, and a person of sane mind for a mad person; there is no right of retaliation, however, against a child or a mad person, nor against a father who kills his son, but there is against the son who kills his father; or against a brother who kills his brother.
As for a purely accidental killing, where someone causes the death of another without intention, there is no right of retaliation against the killer - such as when a man throws something down (from on high) and kills some* one, or when someone digs a well and someone falls in it. or if he starts the construction of an overhang and this falls on someone, or if he mounts an animal which bolts and tramples someone, or if he lays down a stone over which someone trips - if this or anything like it causes someone's death, purely accidentally, then the blood-money but not retaliation is required.
This blood-money is owed by the clan of the killer, and it is not a fine on his own wealth, and it is to be paid within three years of the killing of the person, although Abu Hanifah says that it is from the time the judge pronounces the blood-money; this clan comprises his tribe - other than his father or sons - such that neither the father nor any other ascendant is liable for it, nor any sons and their descendants - although Abu Hanifah and Malik include the fathers and the sons in the clan. The killer is not liable for paying this blood-money along with the clan, although Abu Hanifah and Malik con* sider that the killer is treated as one of the clan. For the person of ample means, he should pay half a dinar each year, or its value in camels; for the person of average means, a quarter of a dinar, or its value in camels; the poor do not have to pay anything of it; whoever acquires ample means after being poor must contribute, and whoever becomes poverty-stricken after enjoying ample means does not have to contribute.
The blood money for a free Muslim, if assessed in gold, is a thousand dinars of the most common gold coins of good quality; if assessed in silver; then it is twelve thousand dirhams; Abu Hanifah says it is a thousand dirhams; if it is in camels, then a hundred camels divided into fifths - that is, twenty two-year olds, twenty female three-year olds, twenty male three-year olds, twenty four-year olds and twenty five-year olds. The blood money is based on payment in camels, and any other form of payment is by way of substitution. The blood money for a woman is half that of a man, both regarding her life and her limbs. There is a difference of opinion concerning the blood money for a Jew and a Christian. Abu Hanifah considers that it is the same as that of a Muslim; Malik says that it is half the blood money of Muslim, and according to ash-Shafi'i, a third, As for a Majusi (Zoroastrian), it is three tenths, that is, eight hundred dirhams; as for a slave, it is *****alent to his value, whatever it is, even if it is many times more than that of a free man, according to ash-Shafi'i; Abu Hanifah, however, said: "I do not consider that it attains the value of the blood money of a free person, even if it amounts to more than this, but rather I would reduce it by ten dirhams."
As for a killing which resembles the accidental, this refers to an act done intentionally but not with the aim of killing, as for example, when a man hits another with a piece of wood of throws a stone at him, from which he might escape death or perish. but it does cause his death, or when a teacher hits a pupil in the customary manner or the Sultan inflicts a discretionary punishment on a man for a crime, and they perish - then there is no right of retaliation, but rather an extra payment of blood money is due from the clan, that is, an increase of a third in gold or silver; or in the case of camels, they are paid in thirds, that is, a third of four-year olds, a third of five year olds and a third pregnant with young. It is reported of the Prophet, may the peace and blessings of Allah be upon him, that he said: "The clan does not have to contribute for a slave, nor for an intentional murder, nor as terms of an agreement, nor for a confession." The diyah (blood money) for a purely accidental killing in the Haram sanctuary, and in the sacred months of Muharram, Rajab, Dhu'l*Qa'dah and Dhu'I-Hijjah, and for a related person, is of the increased amount. The diyah for killing with intent, when there is a pardon instead of retaliation, is also of the increased amount and may be taken immediately from the wealth of the murderer.
If a group of persons took part in the killing of someone, then the right of retaliation is against all of them, but they only have to pay one diyah, even if there are many of them; the person who represents the person killed may pardon whom he wishes of them and may have the rest killed; if he pardons all of them, only one diyah is to be paid, and its payment exonerates all of them; if one of them was the person who actually did the killing, another wounded the victim, and another only inflicted some (minor) injury, then the right to take life in retaliation is only against the person who killed, while those who wounded or injured are subject to the ruling governing injury and not the taking of a life. If one person kills a group of persons, he is put to death for killing the first, and the diyah for the rest is to be paid from his wealth - although Abu Hanifah says that his being put to death is for all of them, and no diyah is to be paid. If he kills them all at the same time, then lots are drawn between them, and the right of retaliation is for the person who draws the lot, unless the persons who represent the killed persons agree amongst themselves to give the right of retaliation to one of them, in which case, the diyah is to be paid for each of the others from the wealth of the killer, If a person in authority orders a man to kill someone, then the right of retaliation is against the person who gave the order and the person who carried it out; if the person giving the order is not a superior (officer) obeyed by subordinates, then the right of retaliation is against the person who carries out the order, and not the one who gave it; if a person is forced to kill, the right of retaliation must be against the person who forced him; there are two opinions as to whether it must also be against the person who was forced.
(Continued)