Islamic Fiqh > Penalties (hudud) > Qisas and diyat: homicide and compensation > The father who kills his child
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Updated on 27 September 2026 at 3:52 AM
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The meaning of the Prophet's saying "a Muslim is not killed for a disbeliever" is the belligerent enemy: the term disbeliever customarily designates the belligerent enemy, thereby harmonizing the two hadiths. What makes lawful is the disbelief inciting to war: his does not incite to it and therefore makes nothing lawful. Equality in religion is not a condition: the dhimmi who kills a dhimmi then converts is put to death in retaliation without religious equality; retaliation is a trial to which creatures have been subjected: whoever is nearer to Allah's right and more grateful for His favors is the more subject to it, his excuse in the forbidden being smaller, his fidelity to Allah's covenant greater, His favors toward him more complete: his offence is graver.
Fourth case: the absence of fatherhood: does the parent who kills his child put him to death? The jurists differed over the parent, high in lineage, who kills his child intentionally: is he put to death? The majority of jurists, Hanafis, Shafi'is and Hanbalis, answer that the parent who kills his child is not put to death: the blood money falls upon his property; Amr ibn Shu'ayb reports that a man killed his son intentionally: the matter was brought to 'Umar ibn al-Khattab, who imposed on him one hundred camels, thirty hiqqa, thirty jadha'a and forty thaniyya, and said: the killer does not inherit; were it not that I heard the Messenger of Allah say "a parent is not put to death for his child," I would have killed you (reported by the imam Ahmad in al-Musnad (346)). This report is widespread and famous: 'Umar applied it before the Companions without a single one disowning it. It is understood from this hadith that the child cannot be a cause of the destruction of the one who is the cause of his existence: this extends to the mother, the forefathers and the grandmothers. Allah said: (surah al-Ahzab 14-15): He enjoined kind companionship with disbelieving parents and gratitude, gratitude toward them being linked to His own: killing is therefore excluded. His saying (surah al-Isra 23-24) conditioned nothing: the command is general and absolute; it is therefore impossible that the right of retaliation be established from the son against the father: his killing contradicts these divine commands in the treatment of parents.
The Prophet, moreover, forbade Hanzala ibn Abi Amir, the monk, to kill his father, a polytheist at war against Allah and His Messenger, fighting alongside Quraysh on the day of Uhud; had killing the father been permitted in any state whatsoever, it would first be the state of the one who fought the Prophet as a polytheist: none is more deserving of punishment, blame and execution; the Prophet having forbidden it in that state, we know that he never deserves death; likewise had he slandered him, he would not be punished; had he cut off his hand, no retaliation. The Prophet said: "you belong to your father, and your property is his": he attached his person to the father as his property: the generality of this attachment excludes retaliation, as the master is not retaliated against for his slave; the father, although not truly the owner of his son, does not thereby lose this argument: retaliation is averted by doubt, and the validity of this attachment is a doubt that averts it. Confirming it also: the Prophet said: "the best of what a man eats is the fruit of his labor, and his child is the fruit of his labor"; and: "your children are your earning: eat of the earning of your children": he named the child his earning, as his slave is his earning: it is a doubt that removes retaliation, which is averted by doubts; he is the cause of his existence: he must not use his cause to destroy him. The father differs from the rest of people: were they to kill him with the sword, retaliation would fall upon them; not the father.
The grandfather, in this matter, is like the father, paternal or maternal according to most of those who avert retaliation from the father: he is a parent and falls under the generality of the text; this ruling attaches to descent: the near and the far are equal in it, as in the prohibition of marriage and the manumission of the slave owned; the maternal grandfather equals the paternal, the daughter's son being called son: the Prophet said of al-Hasan: "this son of mine is a master." The mother therein is like the father according to the majority, Hanafis, Shafi'is and the correct view of the Hanbalis: the names of parent and child encompass every parent however high, and every child however low. It is reported from Ahmad what indicates that retaliation does not fall away from her, having no guardianship over him: she would be put to death like the brother. The correct view is the first: the Prophet said: a parent is not put to death for his child; she is one of the two parents: she resembles the father; she is more worthy of kindness: more worthy of the exclusion of retaliation; guardianship is not taken into account, retaliation being absent from the father killing an adult without guardianship, from the grandfather without guardianship, and from the father of a different religion or a slave. The grandmother therein is like the mother, paternal or maternal, as we said of the grandfather.
The Malikis, in the famous view, answer that if the man slaughters his son or acts upon him with an act leaving no doubt as to the intent to kill, outside discipline, he is retaliated against; if he struck him with the sword or a stick, he is not put to death for him; the grandfather likewise, by the generality of the Prophet's word: the Muslims are equal in their blood; retaliation being a right of human beings, it may attach to the son against the father, like the other rights. The imam Ibn al-'Arabi al-Maliki said: is the father put to death for his son despite the generality of the verses of retaliation? Malik said: he is put to death if his intent to kill is evident, by laying him down and slaughtering him; if he struck him with the weapon in discipline and anger, he is not put to death for him; the stranger is put to death in the like case; the other jurists opposed him saying he is not put to death. I heard our shaykh Fakhr al-Islam Abu Bakr ash-Shashi say: apparently the father is not put to death for his son, for he is the cause of his existence: how would he be the cause of his nonexistence? This collapses before adultery with his daughter: he is stoned, he the cause of her existence and she the cause of his nonexistence; and what jurisprudence is that? And why would he not be the cause of her nonexistence if he disobeyed Allah in it? It is reported from the Messenger of Allah that he said: a parent is not retaliated against for his child: it is a false hadith; their argument is that 'Umar ruled an aggravated blood money against the killer of his son, without any Companion disowning him: the other jurists therefore recorded the question saying the parent is not put to death for his child; Malik took it as detailed law saying that if he struck him with the sword, a situation compatible with the intent to kill or not, paternal mercy is an established doubt witnessing the absence of intent to kill and averting retaliation: in laying him down he unveiled his intent, which returned to its origin.
The imam Ibn Rushd said: they differed in this chapter between father and son: Malik said the father is not retaliated against except by laying him down for slaughter; if he struck him with the sword or a stick and killed him, he is not put to death; the grandfather, according to him, likewise with the grandson. Abu Hanifa, ash-Shafi'i and ath-Thawri say that the parent is not retaliated against for his child, nor the grandfather for his grandson, whatever the form of the intentional: it is the view of the majority of scholars. Their support is the hadith of Ibn 'Abbas reporting that the Prophet said: "the punishments are not applied in the mosques, and the parent is not retaliated against for the child" (reported by ad-Darimi in his Sunan (2357)). Malik's support is the generality of retaliation among Muslims. The cause of their disagreement is what they reported from Yahya ibn Sa'id, from Amr ibn Shu'ayb: a man of Banu Mudlij called Qatada struck his son with the sword, hitting him in the leg; the wound bled and he died; Surqa ibn Ju'shum came to 'Umar and told him; 'Umar said to him: count out at the water of Qudayd one hundred and twenty camels until I return; he took from those camels thirty hiqqa, thirty jadha'a and forty khalfa, then said: where is the brother of the victim? Take them: the Messenger of Allah said "the killer has nothing"; Malik carried this hadith to mean that it was not a pure intentional and established the quasi-intentional between son and father. The majority carried it to its apparent: it was intentional, their consensus establishing that whoever strikes another with the sword and kills him is an intentional killer. Malik, because of the father's power over his son's discipline and his love for him, carried the killing occurring in such situations to non-intention without suspecting him: it was not a treacherous killing; the author is carried to the status of intending killing only by strong presumption and the force of suspicion: intentions are known only to Allah; Malik did not suspect the father where he suspects the stranger, because of the strength of love between father and son. The majority explained the averting of punishment from the father by his right over the son. According to the principles of the literalists, he is retaliated against.
If the one thrown into the water swam an hour, then drowned and died, Abu Hanifa says: neither retaliation nor blood money; likewise the good swimmer thrown into the sea to save himself, who swims until exhausting and drowning: neither retaliation nor blood money; and if he is thrown into water such that it is unknown whether he dies of it or leaves it without trace, nothing falls upon him. If he throws someone into cold water on a winter day and he is numb and stiffened an hour after the throwing, the blood money falls; likewise if he stripped him and placed him on a roof on a day of intense cold until he died of cold; likewise if he bound him and placed him in the snow, according to az-Zahiriyya; if he bound him and placed him in the sun without his being able to escape until he died of the heat of the sun, the blood money falls, according to Khizanat al-Muftin.
Sixth case: burning him by fire: the jurists of the four schools agree that whoever burns another by fire until death undergoes retaliation. The Hanafis say: if he burned him by fire, retaliation falls upon him; Muhammad said in al-Jami' as-saghir: if he heated an oven and threw a man into it, or threw him into a fire from which he cannot get out, and the fire burned him, retaliation falls; the context of the question indicates that mere heating suffices even without fire. If he threw him into the fire then he was pulled out with a remnant of life, and he remained bedridden for days until dying, he is put to death; if he went and came and then died, he is not put to death, according to the Fatawa Qadi Khan. If he bound a man, him and his limbs, then heated water for him in an enormous pot until it resembled fire, and threw him in, and he was stripped of his skin an hour after the throwing and died, he is put to death; if the water was hot without boiling violently, and he was thrown in, remained an hour then died, his body blistering, or the water having cooked him, he is put to death; otherwise not; if he was pulled out of the pot in these states, flayed, dying instantly, the same day, or remaining days for whom death is feared, he is put to death; if he wasted away going and coming and then died of that, he is not put to death and the blood money falls: it is the analogy of Abu Hanifa's saying. The Shafi'is say: if he throws him into a fire in a pit from which he cannot get out until dying, retaliation falls, for he killed him by what usually kills; if the fire is in the open, if he cannot get out of it through the abundance of fire or the violence of the flame, or because he carried him on his back and threw him in, or he was too weak to get out: retaliation falls, for he killed him by what usually kills; if he could get out and did not come out until dying, knowing that if he says "I can get out and I do not get out," retaliation does not fall; does the blood money fall upon him? Two views: it falls, for he guaranteed him by throwing him into the fire: the guarantee does not fall away through his refusing to come out though able, like the one who wounds him with a treatable wound without treating it until he dies; or it does not fall, for life did not depart through the throwing into the fire but through remaining in the fire by his choice: he is as if he had left it and returned to it; it differs from abandoning care, care not having instituted the destructive event, unlike remaining in the fire which instituted that through which destruction occurred; rescue through the remedy is presumed: the blood money did not fall away through it; safety through leaving is certain: the guarantee fell away through his abandoning it. On this view, the one who throws owes the arsh of what the fire did from the moment he threw him into it until he could leave without leaving. The Hanbalis say: if he throws him into a fire from which he cannot escape, through the abundance of fire, or inability from illness or childhood, or because he is bound, or prevented from leaving, or into a pit whose wall he cannot climb and the like, and he dies of it knowing it: all of this is intentional, for it usually kills.
The Mudawwana al-kubra reports concerning the man who killed a man by treachery and with whom the wali of the victim settled for property. I said: if a man kills my kinsman by treachery and I settle for the blood money, is that permitted according to Malik? He answered: no: that belongs to the ruler, you have nothing here; return what you took from it, and the ruler applies to him the ruling of the unlawful combatant: the ruler kills him by striking his neck, or crucifies him alive if he wants him to die crucified. I asked: is this Malik's view? He answered: in the matter of killing he told me so, likewise for crucifixion; as for settlement, it is not permitted, and that is my view: Malik said that the holders of blood have no standing over blood as in the intentional: that belongs to the imam who judges by his opinion, killing him in the most hideous manner he sees.
The jurists of the four schools agree that if the victim has heirs demanding retaliation and one of them pardons, the whole retaliation falls and the matter transfers to the blood money: a condition of the obligation of retaliation is that all the heirs join in demanding it. The imam al-Sarakhsi said: no dispute: one of the two partners in blood, having pardoned, the other may demand the money. The imam Ibn Rushd said: they agreed that if the victim of intentional killing has adult sons and one of them pardons, retaliation has fallen and the blood money is due. They differed over the presence of daughters with the sons in pardon or retaliation, likewise the wife or husband and the sisters: Malik said that daughters and sisters have no word with the sons and brothers in retaliation or against it, their word not being counted with the men; the same applies to the wife and the husband; Abu Hanifa, ath-Thawri, Ahmad and ash-Shafi'i say that the word of every heir is counted for the fall of retaliation and the fall of his share of the blood money; in the taking, ash-Shafi'i says the absent, the present, the minor and the adult are equal. The support of the latter is the equation of blood and blood money; the support of the first group is that guardianship belongs to males only, not to females. He says: if the victim has minor and adult heirs, execution is deferred until the minors grow up and have the choice, especially if the minors exclude the adults, like the sons with the brothers. The qadi said: this question occurred in Cordoba in my grandfather's lifetime: the jurists of his time ruled by the famous narration, namely not waiting for the minor; he ruled for the waiting by analogy; the people of his time slandered him for it, so strong was their imitation, to the point that he had to compose an argument defending this madhhab, existing among the people. The imam Ibn Hubayra said: they agreed that if one of the male heirs pardons, retaliation falls and the matter transfers to the blood money. They differed when a woman among the heirs pardons: Abu Hanifa, ash-Shafi'i and Ahmad say that retaliation falls away. Malik, according to Abd al-Wahhab in al-Ma'una, has two narrations: do they have a role in blood? One: they have a role like the men if there is no asaba in their degree; the other: they have no role; if they have a role, in what? Two narrations: in retaliation without the pardon; or in the pardon without the retaliation. They agreed that if the heirs are present adults and demand, retaliation is not deferred, unless the killer is a pregnant woman: retaliation is deferred until delivery. They agreed that if the heirs are minors or absent, retaliation is deferred, except Abu Hanifa who says of minors: if they have a father, retaliation is executed without deferment. If among them are minors, absent or insane, all say retaliation is deferred for the absent one until he returns; they then differed over the minor and the insane: Abu Hanifa and Malik say retaliation is not deferred for them; ash-Shafi'i says it is deferred until the insane recovers and the minor grows up; Ahmad has two narrations: the more apparent is the waiting, the other the view of Abu Hanifa and Malik.
The imam Ibn Qudama said: if the victim has heirs demanding retaliation, one of the conditions of its obligation is their agreement to demand it: if one pardons, it falls away entirely; if some are absent or not legally responsible, the partners cannot retaliate until the absent one returns to choose retaliation or delegate, the child grows up and the insane recovers, and they choose. Ibn Qudama said likewise: retaliation is a right for all the heirs, of kinship and alliance, men and women, minors and adults: whoever among them pardons, his pardon is valid, retaliation falls away and no path remains toward it: it is the view of most of the people of knowledge, among them 'Ata, an-Nakha'i, al-Hakam, Hammad, ath-Thawri, Abu Hanifa and ash-Shafi'i; the meaning is reported from 'Umar, Tawus and ash-Sha'bi. Al-Hasan, Qatada, az-Zuhri, Ibn Shubruma, al-Layth and al-Awza'i say that women have no pardon; the famous position from Malik is that it is transmitted to the asaba alone; it is a way for the companions of ash-Shafi'i, retaliation being established to repel scandal: specified to the asaba like the guardianship of marriage; a third way for them: it belongs to the blood kindred, not to the spouses, according to the word of the Prophet: whoever has a slain person: his family chooses between two: to kill or to take the blood money; his family being his blood kindred. Some Medinans say that retaliation does not fall away through the pardon of some of the partners; it is said it is a narration from Malik: the right of another is not annulled, and a life is taken by a part of a life, according to the execution of the group for one. We answer: the generality of his saying: his family chooses between two: it encompasses all his family, and the woman is part of his family, according to the Prophet's word: who will shield me from a man who harms me within my family? I knew only good of my family; a man was mentioned of whom I knew only good, who entered my family only with me: he meant 'Aisha; and Usama said to him: O Messenger of Allah, your family, we know only good of them. Zayd ibn Wahb reported that a man who had killed was brought to 'Umar; the heirs of the victim came to kill him; the victim's wife, the killer's sister, said: I have pardoned my right; 'Umar said: Allah is greater! the slain man is freed; reported by Abu Dawud. In a narration of Zayd: a man entered upon his wife and found a man with her; he killed her; her brothers became claimants before 'Umar; one of the brothers said: I have given my share as charity; he ruled the blood money for the others. Qatada reported that a man who had killed was brought to 'Umar; the children of the victim came, some having pardoned; 'Umar asked Ibn Mas'ud his view; he answered: he is secured from killing; he struck his shoulder and said: you are filled with knowledge. The proof that retaliation belongs to all the heirs is what we mentioned in the question of retaliation between minor and adult; whoever inherits the blood money inherits retaliation, like the asaba; if some pardon, their pardon is valid like the pardon of their other rights; the end of the marital bond does not prevent the right to retaliation, as it did not prevent the blood money and the other inherited rights; the right being established as common among them, it falls through the renunciation of whoever is apt to renounce: his right is his own, his act takes effect; it falls entirely, for it is indivisible like divorce and manumission; retaliation is a common indivisible right, founded on aversion and renunciation: the renunciation of some transfers to the rest like manumission; the woman is among those entitled: she renounces like the man. Once one has pardoned, the others have their right to the blood money, whether he pardoned absolutely or up to the blood money: it is the view of Abu Hanifa and ash-Shafi'i, with no known objector among those who admit the fall of retaliation: his right in retaliation was lifted without his consent, the equivalent is therefore fixed for him, as if he had inherited part of the blood or the killer had died; and by the report of 'Umar already cited. Az-Zarkashi said: whoever of the heirs pardons retaliation, it falls: killing is the departure of the life through an instrument: it does not divide; the renunciation of some entitled ones to their right makes it fall, its execution becoming impossible. The jurists also argue by what Abu Dawud and others report from 'Aisha that the Messenger of Allah said:
The combatants are to hold back the first then the first, even if it is a woman.
reported by Abu Dawud (4538) and an-Nasa'i (4788), a weak hadith
Abu Dawud said: it has reached me that the pardon of women in killing is valid if they are among the heirs; and it has reached me from Abu 'Ubayd, concerning his saying "hold back," that it means renouncing retaliation. Abu 'Ubayd said: this holding back is the pardon of blood; this hadith contains the proof of the validity of the women's pardon of intentional blood like that of the men: all of this is the word of Abu 'Ubayd. And by what Abd ar-Razzaq reports from Ma'mar, from Qatada: a man who had killed was brought to 'Umar ibn al-Khattab; the heirs came, one of them having pardoned; 'Umar asked Ibn Mas'ud beside him his view; Ibn Mas'ud answered: I say he is secured from killing; he struck his shoulder then said: you are filled with knowledge (reported by Abd ar-Razzaq in his Musannaf (18187)).
The killer's use of his instrument makes the proof stand in place of the proven: proofs stand in place of their proven objects in the legal probable sciences. Retaliation falls even if the witnesses do not mention intent. The forms of intentional killing: some are agreed upon among the jurists, others disputed: is it an intentional killing entailing retaliation, or a mistake or quasi-intentional with blood money? First form: striking him with an edged weapon: two kinds: the first, without dispute among the scholars, retaliation is due: striking him with an edged weapon, that is, what cuts and enters the body: the sword, the knife, the spearhead and the like, wounding through iron, copper, lead, gold, silver, glass, stone, reed or wood: all of this, wounding with a great wound until death, is an intentional killing without dispute.
The forms of this type of killing in the view of the jurists who call it intentional: several forms included by the majority in the ruling of intentional killing. The first: striking him with a heavy blunt object that usually kills: the majority, Malikis, Shafi'is and Hanbalis, with Abu Yusuf and Muhammad, answer that if a man strikes another with a heavy blunt object that usually kills, of iron like the ingot, the anvil or the hammer, or a heavy stone or a large piece of wood, and he dies of it, retaliation applies: it is an intentional killing, according to the hadith of Anas on the Jew who killed the slave girl with a stone and whom the Prophet killed with two stones; because this usually kills: it resembles the edged weapon. Amr ibn Dinar reports the hadith of Hamal on the mistab, and Abu 'Ubayd explains that the mistab is a pole of the tent supports. It is an instrument with which killing is usually intended: retaliation may follow from it, its origin being the edged weapon; he intended the death of his equal unjustly: he resembles the one who burns him; allowing it to be excluded would be a pretext for hastening to kill. Al-Khiraqi, among the Hanbalis, defined the large piece of wood as what exceeds the tent pole: the poles the Bedouins raise for their houses, thin at the center; the tent poles themselves are large and usually kill: al-Khiraqi did not mean them; what entails retaliation is what exceeds the tent pole, for the Prophet, asked about the woman who struck her co-wife with the tent pole killing her and her fetus, ruled for the fetus a ghurra and the blood money upon the aqila, according to the hadith of al-Mughira ibn Shu'ba.
Ash-Sha'bi reports that 'Ubada ibn as-Samit said: I heard the Messenger of Allah say: "whoever is wounded in his body with a wound and gives it as charity, Allah expiates for him as much as he gave in charity" (reported by the imam Ahmad in al-Musnad (22844)). As for consensus: the imam Ibn Qudama said: the people of knowledge agreed on the validity of pardoning retaliation, which is preferable. Az-Zarkashi said: the pardon of retaliation: consensus, praise to Allah; it is even preferable. The heirs' pardon in treacherous killing: the majority of jurists, Hanafis, Shafi'is and Hanbalis, see no difference between treacherous killing and others in retaliation and pardon, it belonging to the wali and not to the ruler, by the generality of (surah al-Isra 33) and the word of the Prophet: "and whoever has a slain person has the better of the two who look: either he is paid, or he is avenged" (reported by al-Bukhari (112) and Muslim (1355)); the victim not being killed in a situation of war: his case belongs to his wali like the other victims. The imam Muhammad ibn al-Hasan ash-Shaybani reports that Abu Hanifa said: whoever kills a man intentionally, by treachery or not, the matter belongs to the heirs: if they will they kill, if they will they pardon; the people of Medina say: if he killed him by treachery, without uprising or enmity, he is put to death and the heirs cannot pardon him: it belongs to the ruler who puts the killer to death. Muhammad ibn al-Hasan said: the word of Allah is more truthful: (surah al-Isra 33) and (surah al-Baqarah 178) up to: whoever is granted something from his brother must follow the fair way: neither treacherous killing nor another is named there; whoever is killed, his wali is the wali of his blood, not the ruler: if he wills he kills, if he wills he pardons; the ruler has no part in it. The imam ash-Shafi'i said: whoever is killed in a situation of war, in the desert, in a town, in resistance, or killed by treachery for property or other, or killed in an uprising: retaliation and pardon belong to the heirs, and the ruler has no part in it, except discipline if the wali pardons. The imam Ibn Qudama said: treacherous killing and others are equal in retaliation and pardon: it belongs to the wali and not to the ruler; Abu Hanifa, ash-Shafi'i and Ibn al-Mundhir say it. Malik said: our position is that he is put to death for him and that the wali of blood cannot pardon him: it belongs to the ruler; treachery in his view is deceiving a man into entering a house or the like to kill him or take his property; he perhaps argues by 'Umar's word concerning the one killed by treachery: had the people of Sana'a cooperated over him, I would have finished them with him; and by analogy with the unlawful combatant. We answer: the generality of (surah al-Isra 33), the word of the Prophet: his family chooses between two, and the fact that the victim is not killed in a situation of war: his case belongs to his wali like the other victims; 'Umar's saying "I would have finished them with him" means: I would have given the wali the means to carry out retaliation against them. The Malikis answer that the wali of the victim has no pardon in treacherous killing: he is put to death for him, not in retaliation but for his corruption on earth. Treacherous killing is killing him to take his property, as the highwayman does, without intent to kill out of enmity: whether the killing is secret, deceiving him into being led to a place and killed there for the property, or open in a situation preventing rescue, the second being named unlawful war; he is not put to death in retaliation but for corruption: that is why Malik says: neither pardon nor settlement, the wali's settlement being returned, the ruling belonging to the imam.
The Hanbalis add, concerning the sorcerer: if his execution is obligatory, his killing is a punishment; it is said he is put to death in retaliation; the victim's blood money comes from the sorcerer's estate as if he had died or been killed without sorcery: he is killed as a punishment, not in retaliation, according to the correct view of the madhhab. The Hanafis answer that the sorcerer who kills by his sorcery without believing its validity: if he himself is the actor, he killed without iron; if it is repeated, he is put to death for his work of corruption on earth; otherwise the blood money falls upon him like the killer without iron; if the victim took it with his own hand, no retaliation falls upon the sane causer, like the one who hands over poison that is eaten.
The punishment of the caster of the evil eye who kills by his eye: the Malikis and the Hanbalis say that if the caster of the evil eye destroys something, he guarantees it; if he kills by his eye, retaliation or blood money falls if it repeats until becoming habit. Ad-Dasuqi said: the caster of the evil eye who kills intentionally by his eye is retaliated against if that is known of him and repeats. The imam al-Qurtubi said: if he destroys something, he guarantees it; if he kills, retaliation or blood money falls if it repeats until becoming habit: he is therein like the sorcerer in the view of the one who does not put him to death for disbelief. Al-Hafiz Ibn Hajar said: the strike of the evil eye can kill, and retaliation in this matter is disputed; then he cited al-Qurtubi's words. The Shafi'is did not treat retaliation in this matter, indeed rejected it: it does not usually kill and is not counted as destructive; an-Nawawi said in ar-Rawda: neither blood money nor expiation, the ruling attaching only to what is fixed in a general way, not to what is specific to some people in some situations without fixity; how so, when no act occurred at all? Its utmost is envy and the wish for the disappearance of a blessing; what results from the strike of the evil eye is a displeasure for the person, without the end of life being necessary: other displeasures may occur from the effect of the eye. Only the ruling of executing the sorcerer obstructs it, for it is in its meaning, the difference between the two being hard to establish; Ibn Battal reports from some scholars that the imam must prevent the caster of the evil eye known for it from mixing with people and confine him to his house: if he is poor, he is given sustenance, his harm being graver than that of the leper whom 'Umar ordered isolated, and graver than that of garlic whose eater is barred from the congregation by the Law; an-Nawawi says this view is correct and obligatory, no contrary statement being known. The imam al-Buhuti said: the mi'yan is the one who kills by his eye; Ibn Nasr Allah said in the glosses of al-Furu' that he must be annexed to the sorcerer who usually kills by his sorcery: if his eye can kill and he does so by his choice, retaliation falls, for he acted through what usually kills; if he did it without intending the offence, it is a mistake with what falls in involuntary killing; what he destroyed by his eye carries the guarantee, unless it occurs without intent: no guarantee. Ibn al-Qayyim said in the commentary of Manazil as-sa'irin that if it occurs without his choice, his passion prevailing over him, he is not retaliated against: the blood money falls upon him; if he did it deliberately, able to avert it, knowing it kills, the wali may kill him by that through which he killed, helping him if he wills as he helped the victim; killing him by the sword in retaliation, no: it does not resemble the offence. I asked our shaykh about killing by influence: does it entail retaliation? He said: it is for the wali to kill him by the influence through which he killed. Ibn al-Qayyim distinguished the caster of the evil eye from the sorcerer under two aspects: the eye is a look tinged with approval mixed with envy, coming from an evil nature, resulting in harm for the one looked at; some say it results from a poison reaching from the eye of the caster through the air to the body of the afflicted: like the menstruating woman whose hand in the milk vessel spoils it, without spoiling it after her purity; like the healthy one who looks at an eye afflicted with ophthalmia and inflames it, and the one who yawns in another's presence making him yawn: said by al-Hafiz in Fath al-Bari. The Shafi'is and the Hanafis answer that whoever afflicted another by the evil eye and confesses having killed him by his eye incurs no retaliation, even if the eye is real: it does not usually lead to killing nor counts as destructive; neither blood money nor expiation; it is recommended for the caster to invoke blessing upon the afflicted saying: O Allah, bless him and harm him not, and to say: what Allah willed has occurred: there is no power except through Allah. In the Sahih of Muslim, the Messenger of Allah said:
The evil eye is real; if you are asked to wash, wash.
reported by Muslim (2188)
The scholars say: to wash is to tell the caster of the evil eye: wash with water the inside of your waistcloth touching the skin, then pour it over the afflicted.
The disbeliever is put to death for the Muslim, the slave for the free man, the woman for the man, by (surah al-Ma'idah 45): consensus of the people of knowledge; if he is put to death for his equal, all the more for one above him. The execution of the man for the woman: the man is put to death for the woman according to the four schools and the view of most scholars, by (surah al-Baqarah 179) and (surah al-Ma'idah 45), general except what the proof specified; he is a person who killed his equal in religion: he deserves only retaliation, like two men. Ibn Battal said: the imams of the cities agreed that the man is put to death for the woman and the woman for the man in case of intentional killing, except al-Hasan al-Basri and 'Ata, and what is reported from 'Ali. Malik, ath-Thawri, ash-Shafi'i and most jurists place retaliation between men and women in wounds as in life. Abu Hanifa says there is no retaliation between men and women in wounds below life; his companions argue that equality is counted in life and not in limbs: the sound hand is not taken for the paralyzed hand, whereas the sound life is taken for the sick life; likewise the woman's hand is not cut for the man's hand, nor the free man's for the slave's, while retaliation takes place between them in life. Ibn al-Mundhir said: they agreed on a life for a life, which is the greatest of things, and differed over what is below: the disagreement reverts to the agreement, the little being permitted when the much is. The imam Ibn Rushd said: as for the execution of the man for the woman, Ibn al-Mundhir and other recorders of the disagreement report that it is a consensus, except what is reported from 'Ali, and from Uthman al-Batti who says that if the man is killed by the woman, the heirs of the latter owe half the blood money. The qadi Abu al-Walid al-Baji reports in al-Muntaqa from al-Hasan al-Basri that the man is not put to death for the woman; al-Khattabi reports it in Ma'alim as-sunan: it is an isolated view but its proof is strong, by (surah al-Baqarah 178), though opposed by the generality of (surah al-Ma'idah 45); that address concerns a law prior to ours, a disputed question: does the law of those before us bind us? The basis of executing the man for the woman is the general interest. The imam Ibn Qudama said: the man is put to death for the woman and the woman for the man: it is the view of most of the people of knowledge, among them an-Nakha'i, ash-Sha'bi, az-Zuhri, 'Umar ibn Abd al-Aziz, Malik, the Medinans, ash-Shafi'i, Ishaq, the companions of opinion and others. It is reported from 'Ali: the man is put to death for the woman and his heirs receive half the blood money, reported by Sa'id; the like is reported from Ahmad; it is related from al-Hasan and 'Ata, with the like of the group's view; the holder of the second view perhaps argues by 'Ali's word: her blood money is half of his: having been killed for her, a remainder remains, exacted from the one who killed him. We answer: (surah al-Ma'idah 45) and (surah al-Baqarah 178) with the generality of the other texts; it is established that the Prophet put to death a Jew who had crushed the head of a slave girl of the Ansar; Abu Bakr ibn Muhammad ibn Amr ibn Hazm reports from his father, from his grandfather, that the Messenger of Allah wrote to the people of Yemen a book containing the successions and the wounds, mentioning that the man is put to death for the woman: a famous book, accepted among the people of knowledge; both are persons liable to punishment each for the slander of the other: each is put to death for the other like two men; nothing accompanies retaliation, which is obligatory: nothing falls upon the claimant, as in every retaliation; the difference of equivalents is not counted there, the group being put to death for one, the Christian taken for the Magian despite the difference of religion, the slave for the slave despite the difference of value.
The jurists differed over the Muslim who kills a dhimmi of protected blood: is he put to death absolutely, never, or only if he killed him by treachery? Three views: the first: the Muslim who kills a protected disbeliever is not put to death for him: the school of the Shafi'is and the Hanbalis and of most scholars, according to the word of the Prophet: the Muslims are equal in their blood; a believer is not killed for a disbeliever, nor the ally during his covenant. Abu Juhayfa asked 'Ali: do you have anything that is not in the Quran? He answered: by the One who split the grain and created the soul, we have nothing except what is in the Quran, except the understanding given to a man in this Book, and what is in this scroll: what is in this scroll? The blood money, the freeing of the captive, and that a Muslim is not killed for a disbeliever (reported by al-Bukhari (6507)); he is diminished by disbelief: the Muslim is not put to death for him, like the one under temporary protection; he is diminished by disbelief like the belligerent enemy and the protected visitor; it is a punishment executed only upon demand: it is therefore not owed to the disbeliever against the Muslim, like the punishment of the slanderer. They agreed that the disbeliever is not retaliated against from the Muslim in wounds below life: life is more worthy of it. The second view: the imam Malik holds the same view as the Shafi'is and the Hanbalis: the Muslim who kills any disbeliever is not put to death for him, unless he killed the Muslim dhimmi by treachery: he is then put to death; treachery is killing him to take his property like the highwayman, without enmity: whether the killing is secret, deceiving him into being led to a place and killed there for his property, or open in a situation preventing rescue, the second being named unlawful war; he is not put to death in retaliation but for corruption: that is why Malik says: neither pardon nor settlement, the wali's settlement being returned, the ruling belonging to the imam. The third view, that of the Hanafis: the Muslim who kills a dhimmi paying the jizya and bound by the rulings of Islam is put to death in retaliation for him, by the generalities of retaliation in (surah al-Baqarah 178), (surah al-Ma'idah 45) and (surah al-Isra 33), without differentiation between victim and victim, life and life, wronged and wronged: whoever claims specification or restriction must bring the proof. His saying (surah al-Baqarah 179): life in retaliation: the meaning of life is stronger in the killing of the Muslim by the dhimmi than in the killing of the Muslim by the Muslim, religious enmity inciting to killing, especially in anger, and the duty of killing him for his guarantors being binding: the need for deterrence is more urgent, and the legislation of retaliation reaches the meaning of life more strongly there. Ibn 'Umar reports that the Messenger of Allah put a Muslim to death for a protected ally saying: I am the most generous in fulfilling the covenant (a weak hadith, reported by ad-Daruqutni (3259) and al-Bayhaqi in as-Sunan al-Kubra (15695)); equality in inviolability is established regarding responsibility and territory: what makes lawful is the disbelief of the combatant, not that of the ally; the jizya was imposed upon them so that their properties be like ours and their blood like ours, and for their equality in permanent inviolability; the absence of retaliation would repel them from the covenant of dhimma, with evident corruption; no disagreement: the Muslim who steals from a dhimmi has his hand cut: likewise if he kills him.
Because the child's love for his parent exists only through the benefits reaching him from his side, not from his person, the son may kill his parent to hasten access to his property, especially when no benefit reaches him from his person because of infirmities: this is rare on the father's side. The jurists differed over the manner of carrying out retaliation: is one retaliated with the like of the means of killing, burned by fire if he burned, drowned in water if he drowned? Or is there retaliation only by the sword? They all agreed that if the people of the victim killed him with the sword, that is permitted; and that if he killed him with the sword, he cannot be killed except by the sword; the disagreement concerns the case where he killed him with something else: is one retaliated with the like, or is the sword indispensable? The Hanafis and the Hanbalis of the madhhab answer that there is no retaliation except by the sword, whether he killed him with it, with another edged weapon or with fire, according to the word of the Prophet:
No retaliation except by the sword.
reported by Ibn Majah in his Sunan (2667 and 2668), a weak hadith
a text on the negation of the obligation and execution of retaliation without the sword; the sword designates the weapon: the meaning of the weapon in execution is the cutting iron like the dagger and the knife; the sword was named as an allusion to the weapon because, among weapons, the one prepared for combat in the proper sense is the sword: it is not intended for anything other than combat, while the other weapons serve other uses. Such is the meaning of his saying: "I was sent with the sword before the Hour": the weapon that is the instrument of combat. The merit of execution prevents its carrying out by other than the sword, like the apostate and the one who killed with the sword; lawful lives cannot be suppressed except by the edged weapon, like slaughtered animals, although human lives are more inviolable than the lives of animals. Retaliation is one of the equivalents of the life: the limb falls under the ruling of the whole, like the blood money: were the matter to end in blood money, only the diyah of the life would be due; the aim of retaliation for the life is total suspension and the destruction of the whole, possible by striking the neck: it is therefore not permitted to go as far as the destruction of the limbs, as the one who killed him with a chipped sword would not be killed by its like. If the wali wants to kill by other than the sword, he is not enabled: if he does, he is punished without guarantee, and he remains an executor whatever the manner in which he killed him, by the stick, the stone, by throwing him from the roof, into the well, or by riding a mount over him until death: killing is his right: having killed him, he exacted his right in whatever manner; he nevertheless sins in the execution, not by a lawful way, for having exceeded the limit of the Law. He may kill by his own person or by delegate, ordering another to kill, each not having the power to execute by himself through weakness of body or heart, or little skill: he needs a delegate, on condition of attending the execution.
The majority of jurists, Malikis, Shafi'is and Hanbalis according to a transmission chosen by the shaykh of Islam Ibn Taymiyya, answer that every killer is killed by that through which he killed: whoever burned another is burned by fire until dying; whoever killed him by poison is put to death by it; whoever killed him by striking him with a stone is put to death by it. They argue by the Book and the Sunna: the Book, by (surah al-Baqarah 194), (surah an-Nahl 126) and (surah ash-Shura 40); the Sunna, by what al-Bara ibn 'Azib reports of the Prophet:
Whoever burned, we burned him; whoever drowned, we drowned him.
reported by al-Bayhaqi in as-Sunan (15771), a weak hadith
retaliation is perfumed with equivalence: one must therefore act by its demand. Anas reports the hadith of the Jew who killed the slave girl with a stone and whom the Prophet killed with two stones. Every instrument through which a like killed allows the execution of retaliation by its like, like the sword; retaliation has equivalence as its locus, counted in life: all the more in the instrument of killing; killing is sometimes claimed by Allah, sometimes by human beings: variety occurring in Allah's right in two ways, by iron and by the blunt object in the stoning of the married adulterer, there must be variety in two ways in the rights of human beings, by the blunt object and other. Its attribution by analogy: it is one of the two kinds of killing: execution must vary in two ways, like killing in Allah's rights. The answer to his saying "no retaliation except by the sword," were it authentic, bears on killing by the sword or iron. The Malikis and the Shafi'is, and the Hanbalis here, state explicitly that he is killed by everything through which he killed, except three things: sorcery, sodomy and the pouring of wine: he is not killed by sorcery even if he killed by it, nor by sodomy even if he committed it, nor by the pouring of wine: one turns to killing him by the sword, for these acts are forbidden in themselves: they fell away and the killing remained. The shaykh of Islam Ibn Taymiyya said: many jurists say that if he killed him by burning, drowning, strangling or the like, one does to him what he did, so long as the act is not forbidden in itself like drinking wine and sodomy; some say no retaliation except by the sword: the first resembles the Book, the Sunna and justice more. Ibn al-Qayyim said: among this, equivalence in retaliation for the three offences: upon lives, properties and honors; three questions: the first: is the offender treated as the victim was treated? If the act is forbidden by Allah's right, like sodomy and the pouring of wine, one does not do to him what he did, by agreement; otherwise, like burning him with fire, throwing him into water, crushing his head with a stone, withholding food and drink from him until he dies: Malik, ash-Shafi'i and Ahmad according to a narration do to him what he did, without difference between the fatal wound and another; Abu Hanifa and Ahmad according to a narration say he is killed only by the sword at the neck; Ahmad, in a third narration, says that if the wound is fatal one does to him what he did, otherwise he is killed by the sword; in a fourth: if it is fatal or entails retaliation on its own, one does to him what he did; otherwise, he is killed by the sword. The Book and the Scale are with the first view, and the Sunna came with it: the Prophet crushed the head of the Jew between two stones as he had done for the slave girl; this is not an execution for breach of covenant, the covenant breaker being killed by the sword at the neck; a raised report says: whoever burned, we burned him; whoever drowned, we drowned him; as for the hadith "no retaliation except by the sword," the imam Ahmad said its chain is not good; what is established from the Companions is that one does to him what he did: the Book, the Sunna, analogy and the reports of the Companions agree on it, and the name of retaliation requires it, entailing equivalence.
Malik's word in the question of the man who kills his adulterous wife differed: Ibn Habib said that if the victim was married and the husband established proof, nothing falls upon him, otherwise he is put to death for her; Ibn al-Qasim says that if proof is established, the married and the unmarried are equal and her blood is profane, preferring blood money for the unmarried one. The obligations of intentional killing are six: first, the sin: the killer sins by consensus, according to:
Whoever kills a believer intentionally will have his recompense in Jahannam, abiding therein eternally; Allah is wrathful with him, has cursed him and prepared for him a tremendous punishment.
Surah an-Nisa, 93
Abdullah ibn 'Umar reports that the Messenger of Allah said:
The believer remains within the breadth of his religion as long as he has not shed forbidden blood.
reported by al-Bukhari (6469)
Second, retaliation by consensus, by (surah al-Baqarah 178), meaning the intentional: no retaliation outside it, neither in the quasi-intentional nor in the mistake by consensus. The imam Ibn Hazm said: no disagreement among anyone of the community: retaliation takes place only in the intentional alone. The imam Ibn Rushd said: the quality entailing retaliation is agreed upon: it is the intentional. The imam Ibn Hajar al-Haytami said: no retaliation except in the intentional, by consensus, unlike the mistake and the quasi-intentional. The imam Ibn Qudama said: the scholars agreed that retaliation falls only through intent, no disagreement being known among them on its obligation in intentional killing when its conditions are met. The verses and the reports, in their generality, prove retaliation in the intentional: (surah al-Isra 33), (surah al-Baqarah 178) and (surah al-Baqarah 179): the obligation of retaliation prevents whoever would kill from doing so out of fear for himself: life remains with the one meant to be killed; it is said: enmity arises between the killer and the tribe of the victim: he wants to kill them for fear of them, and they want to kill him and his tribe in retaliation: lawful retaliation cuts off the cause of destruction between the two tribes.
If retaliation is possible, it falls; otherwise the arsh falls. The Shafi'is say that the mistake of the intentional or the quasi-intentional is to aim at the act and the person through what does not usually kill, like striking him with a whip or a stick with a light blow, or throwing a small stone at him without continuing the blows, without the pain worsening, without extreme heat or cold, and without the one struck being weak or small: it is quasi-intentional; if one of these factors is present, it is intentional, for it usually kills in these situations. The Hanbalis say that the quasi-intentional is to aim at him with an offence that does not usually kill without wounding him, or to aim at striking him with what does not usually kill, by aggression or exceeding in discipline, like striking someone in a non-lethal place with a whip, a stick or a small stone, or pricking him with the hand and the like: if he kills him, it is quasi-intentional, the aim at the blow not being the aim at killing; likewise if he throws him into shallow water, or startles a sane adult who falls from a roof or the like and dies. Does quasi-intentional killing exist in the Law? The jurists differed: does it exist, or is there only the intentional and the mistake? The majority, Hanafis, Malikis in one view, Shafi'is and Hanbalis, answer that killing has types and that this defined section is a quasi-intentional to which the Sunna came, among it the word of the Prophet:
The victim of the mistake resembling intent, victim of the whip and the stick, is one hundred camels, forty of them pregnant.
reported by Abu Dawud (4547), an-Nasa'i (4794 and 4796), Ibn Majah (2627) and the imam Ahmad (23540)
he established the quasi-intentional; describing it thus indicates that he took a share of the intentional and a share of the mistake: it therefore does not have the ruling of either in pure form; its resemblance to the intentional is the killer's aiming at the blow through what does not usually kill; its resemblance to the mistake is not having intended the killing: it must therefore have a ruling distinct from both. Al-Mughira ibn Shu'ba reports the hadith of the woman who struck her co-wife with the tent pole (reported by Muslim (1682)). Amr ibn Shu'ayb, from his father, from his grandfather, reports that the Prophet said:
The blood money of the quasi-intentional is aggravated like the blood money of the intentional, and its author is not put to death.
reported by Abu Dawud (4565) and Ahmad (6718), a hadith judged good
it is a third section established by the Sunna, the intentional and the mistake being established by the Book; and because it is a killing that does not entail retaliation: its price falls upon the aqila like killing by mistake.
Second disputed case: killing him by a small wound or a needle prick: the jurists differed over the one who wounds a man with a small wound like the cupper's cut, or a prick of a needle, a thorn and every edged instrument: two situations. First: wounding him in a lethal place like the eye, the heart, the waist, the temple, the root of the ear or the testicles, and he dies: it is intentional according to the majority, the Hanafis of the madhhab, the Shafi'is and the Hanbalis: the strike in that lethal place equals the knife wound in a non-lethal place. A narration from Abu Hanifa says that if he strikes a man with a needle or the like intentionally and he dies, there is no retaliation; in the piercing instrument, retaliation: the needle is not intended for killing by habit, the piercing instrument is. In a narration: if he pricks the needle in a lethal place, he is killed; otherwise not. Second: wounding him outside a lethal place: disagreement and detail. The Hanafis of the madhhab say that if he wounds him elsewhere with a needle for example, there is no retaliation; in a narration, retaliation is due for it, without difference between lethal place or not. The Shafi'is say: if he pricks him with the needle outside a lethal place, one examines: if the effect of the prick appeared, the place swelling from deep insertion and penetration of the flesh, and he remains in pain until dying, retaliation falls according to the madhhab; if no effect appeared and he dies at once, three aspects: the most correct: no retaliation, but it is quasi-intentional and the blood money falls; the second: retaliation falls; the third: neither retaliation nor blood money, death being attributed to another cause. If death is delayed from the prick, no guarantee at all. This detail between lethal place and other applies to the moderate body: if he pricked the body of a child, a senile old man or a weak nature in any place, retaliation falls. If he pricked it in a painless place like the skin of the heel without excessive insertion and he dies, nothing falls upon the prick in any case, whether he dies at once or later: it is known he did not die of it, it is a coincidence of destiny, as if he threw a cloth at him or struck him with a pen and he died; if he forced the insertion, retaliation falls absolutely. The Hanbalis say: if he wounded him outside a lethal place, if he forced the insertion into the body, it is like the great wound: the pain intensifies until killing like the great one; if the prick is light, or he wounded him with the instrument with a light wound like the cupper's cut and what is below: if he remained in that state until dying, retaliation applies, the apparent being that he died of it; if he dies at once, two views: no retaliation, said Ibn Hamid, the apparent being that he did not die of it; or retaliation is due for it: for the edged weapon, the presumption of death is not counted, proof of it being the cutting of the earlobe or the thumbnail; the ruling not being able to be established nor fixed by presumption, it must be bound to its being edged: the appearance of the ruling is not counted in single cases of presumption, the possibility of wisdom sufficing: that is why the ruling is established when he lingers long, whereas the intentional does not differ through the unity of instrument and act according to the speed or slowness of the effect; the body contains hidden lethal places, with persistence and death: it resembles the great wound. Ibn Qudama said: this is the apparent meaning of al-Khiraqi's words, who did not distinguish the small and the great: it is the madhhab of Abu Hanifa; ash-Shafi'i has a path of detail close to ours. As for the Malikis, I have not come upon a view in this question.
These questions show that each category of killing has its own regime: retaliation is due only in intentional killing; the blood money, aggravated upon the aqila or taken from the killer's property, follows the concrete form of the offence; the child, the insane person and the drunkard without unlawful cause follow the regime of mistake; the pardon of a single heir makes the whole retaliation fall away and opens the blood money to the others; and the equivalence between victim and killer is assessed according to most of the schools. In a real dispute, these rules must be entrusted to a competent judge or scholar: this text presents the legal heritage of the schools and does not replace a consultation on specific circumstances.