[ابوالوليد المسلم]

Rulings Governing Criminal Actions (6/7)

Abu`l Hasan al-Mawardi


As for the right of retaliation for a part of the body which has been severed from the joint, an arm may be taken for an arm, a leg for a leg, a finger for a finger, the end of a finger for the end of a finger, a tooth for a similar tooth. but not a right for a left, nor an upper for a lower, and not a molar for another kind, nor a full tooth for a milk tooth, nor a healthy hand for a paralysed one, and not a tongue of someone who can speak for a tongue of a dumb person; however, the hand of someone who can write or make things may be taken in retaliation for the hand of someone who cannot write or make things; an eye is taken for an eye, be it a healthy eye, or one with a squint, or one that is night blind, although not for an unseeing fixed eyeball * or for a withered hand - unless it is like for like; the nose that can smell may be taken for one that cannot, and the ear that can hear for one that cannot, although Malik does not allow the right of retaliation for the latter The retaliation takes place between Arabs and non-Arabs, and between nobles and those of lower status.

If the right of retaliation is renounced in favour of the diyah for these parts of the body, then the full diyah is payable for both hands, and half the amount for one; for every finger a tenth of the diyah is payable, that is ten camels; for each of the lower fingers, three camels and a third, except for the end of the thumb for which five camels is due; the two feet are the same amount as the two hands, except that for each toe five camels are due; for both eyes the full diyah, and for one eye, a half, no extra being paid for the eye of a one-eyed person - although Malik, may Allah have mercy on him, considers that the full diyah must be paid in this case; for the four eyelids the full diyah, and for each a quarter; for the nose the full diyah; for both ears the full diyah, and for each a half; for the tongue the full diyah; for both lips a quarter; for each tooth, five camels, irrespective of whether they are molars, or incisors or wisdom teeth; for the loss of hearing the full diyah, and if both ears have been cut off and also loss of hearing, then two diyahs, just as when the nose has been cut off and there is loss of smell, two diyahs are due; for loss of speech a diyah, and if the tongue has been cut off and there is loss of speech, then still only one diyah; for the loss of intellect, one diyah; for the loss of the penis, a diyah, irrespective of whether he is a eunuch, or the per* son is impotent, or anything else - although Abu Hanifah says that for the eunuch and the impotent, there must be a judicial ruling; for both testicles the diyah, and for one, a half; for the loss of a woman's breasts her full diyah, and for one a half; for a man's breast a judicial ruling is made, although some have said that the full diyah is to be paid.
As for head wounds: if the skin has been broken there is no right of retaliation or diyah to be paid, but rather a ruling is made; if blood is drawn, there is a ruling; if the blood comes out like tears after the skin has been cut, there is a ruling; if the flesh has been cut, a ruling is made; if the flesh is penetrated, a ruling is made; if after the skin is completely cut, only a thin covering over the skull remains, a ruling is made. These rulings are increased in severity according to the degree of the head-wound. Thereafter, there is the wound known as the mudihah where the skin, the flesh and the covering membrane have been pierced and the skull has been exposed, in which case, retaliation is due; if a pardon is granted five camels are due; if the flesh is exposed and the skull has been splintered in the wound known as the hashimah, ten camels are due; there is no retaliation for this latter (wound), but for the mudihah there is; when the hashimah is particularly severe, an extra five are paid, although Malik says that it is subject to a judicial ruling; as for the wound known as the munaqqalah, where the skull is showing, has been fractured and is dislocated, so that it must be put back in place, fifteen camels are due; if retaliation of the mudihah is sought, ten camels are given for the Hashimah and munaqqalah wounds; the ma'munah, also known as the damighah, refers to a wound which penetrates to the core of the skull, and a third of the diyah is due.
As for wounds to other parts of the body, the diyah is not payable except if the stomach is pierced, in which case a third of the diyah is due; there is no right of retaliation for a body wound, except if the bone is exposed, in which case, it is subject to a judicial ruling. If various limbs have been severed and have formed scars, then the diyahs are due for each, even if it amounts to many more times the amount of the diyah for loss of life; if the person dies of these wounds before scars have formed, then the diyah for loss of life is due and the various diyahs for the (missing) limbs are not payable; if death follows the formation of scar tissue on some of the wounds, a full diyah is payable for what has not healed, together with the diyah for each of the limbs; if healing takes place in the case of a tongue which cannot produce speech, or a paralysed hand, or a useless finger, or an eye still in place but not functioning, then a judicial ruling is necessary. This ruling consists in the judge assessing the victim as if he were a slave without any wound; he then assesses the difference in value after the wounds, this difference in value being the amount of the diyah - and it is this amount which is in the judicial ruling.
If a woman's stomach is hit, resulting in a still birth, and if it would have been a free person, payment of a slave or a slave-girl must be made by the clan; if it would have itself been a slave, then a tenth of the value of its mother is payable, irrespective of whether it is male or female; if it gave out a cry at the time of birth, a full diyah is payable, and then a distinction is made between a male and a female. Whoever kills someone and must pay the diyah is also obliged to pay a kaffarah-expiation, irrespective of whether it was intentional or accidental; Abu Hanifah makes it an obligation in the case of accidental death, but not for one with intent. This kaffarah consists of freeing a believing slave who is free from any defect which would be detrimental to his capacity to work; if this is not possible, he must fast for two consecutive months, and if he is incapable of this, then he must feed sixty destitute persons, according to one of two opinions; according to another; then he is no longer liable.
If a people claims from another people that there has been a killing and this claim is vigorous, that is, they want to convince others of the truth of their claim, then such a claim is accepted, and they are made to swear to it on oath fifty times, and then the judge grants them the right to the diyah, but not to retaliation; if the litigants refuse to make the oath, or part of it, then the accused must swear and is thus acquitted.
If there is to be retaliation for someone's murder, or for the loss of a limb, the person entitled to it cannot exact it on his own initiative, but only with the permission of the Sultan; in the case of the loss of a limb, the Sultan cannot authorise a retaliation unless he has failed to find someone else to do it; the fee for this is born by the person being punished, and not the person exacting it although - Abu Hanifah says that it is the other way round. If the retribution is to take the murderer's life, the Sultan may allow the person who rep* resents the victim to exact vengeance himself if he is of strong character; otherwise the Sultan has it done for him by someone who is surer in his use of the sword.
If the person entitled to retaliate for a murder or the loss of a limb carries out the retaliation on his own initiative, without, however, going beyond the limits, then the Sultan imposes a discretionary punishment on him for having infringed the Sultan's own prerogative; however, he is not liable for any further penalty, as he only inflicted what he had a right to inflict.