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Yahya said that Malik said, "The generally agreed on way of doing
things in our community is that retaliation is taken from someone who
breaks someone's hand or foot intentionally and not blood-money."
Malik said, "Retaliation is not inflicted on anyone until the
wound of the injured party has healed. Then retaliation is inflicted
on him. If the wound of the person on whom the retaliation has been
inflicted is like the first person's wound when it heals, it is
retaliation. If the wound of the one on whom the retaliation has been
inflicted becomes worse or he dies, there is nothing held against the
one who has taken retaliation. If the wound of the person on whom the
retaliation has been inflicted heals and the injured party is
paralysed or his injury has healed but he has a scar, defect, or
blemish, the person on whom the retaliation has been inflicted does
not have his hand broken again and further retaliation is not taken
for his injury."
He said, "But there is blood-money from him
according to what he has impaired or maimed of the hand of the injured
party. The bodily injury is also like that."
Malik said,
"When a man intentionally goes to his wife and gouges out her eye or
breaks her hand or cuts off her finger or such like, and does it
intentionally, retaliation is inflicted on him. As for a man who
strikes his wife with a rope or a whip and hits what he did not mean
to hit or does what he did not intend to do, he pays blood-money for
what he has struck according to this principle, and retaliation is not
inflicted on him."
Yahya related to me from Malik that he
had heard that Abu Bakr ibn Muhammd ibn Amr ibn Hazm took retaliation
for the breaking of a leg.
Yahya related to me from Malik
that Ibn Shihab, Sulayman ibn Yasar, and Rabia ibn Abi Abd ar-Rahman
said, "The blood-money of manslaughter is twenty yearlings, twenty
two-year-olds, twenty male two-year-olds, twenty four-year-olds, and
twenty five-year-olds."
Malik said, "The generally agreed on
way with us is that there is no retaliation against children. Their
intention is accidental. The hudud are not obliged for them if they
have not yet reached puberty. If a child kills someone it is only
accidentally. Had a child and an adult killed a free man accidentally,
each of them pays half the full blood-money."
Malik said, "A
person who kills someone accidentally pays blood-money with his
property and there is no retaliation against him. That money is like
anything else from the dead man's property and his debt is paid with
it and he is allowed to make a bequest from it. If he has a total
property of which the blood-money is a third and then the blood-money
is relinquished, that is permitted to him. If all the property he has
is his blood-money, he is permitted to relinquish a third of it and to
make that a bequest."
Yahya related to me from Malik that
Rabia ibn Abi Abd ar-Rahman said, "The slave of fair complexion and
excellence is estimated at fifty dinars or six hundred dirhams. The
blood-money of a free muslim woman is five hundred dinars or six
thousand dirhams."
Malik said, "The blood-money of the foetus
of a free woman is a tenth of her blood-money. The tenth is fifty
dinars or six hundred dirhams."
Malik said, "I have not heard
anyone dispute that there is no slave in compensation for the foetus
until it leaves its mother's womb and falls still-born from her womb .
"
Malik said, "I heard that if the foetus comes out of its
mother's womb alive and then dies, the full blood-money is due for
it."
Malik said, "The foetus is not alive unless it cries at
birth. If it comes out of its mother's womb and cries out and then
dies, the complete blood-money is due for it. We think that the slave-
girl's foetus has a tenth of the price of the slave-girl."
Malik said, "When a woman murders a man or woman, and the murderess is
pregnant, retaliation is not taken against her until she has given
birth. If a woman who is pregnant is killed intentionally or
unintentionally, the one who killed her is not obliged to pay anything
for her foetus. If she is murdered, then the one who killed her is
killed and there is no blood-money for her foetus. If she is killed
accidentally, the tribe obliged to pay on behalf of her killer pays
her blood-money, and there is no blood-money for the foetus."
Yahya related to me, "Malik was asked about the foetus of the
christian or jewish woman which was aborted. He said, 'I think that
there is a tenth of the blood-money of the mother for it.' "
Yahya related to me from Malik that he had heard that Marwan ibn
al-Hakam wrote to Muawiya ibn Abi Sufyan to mention to him that a
drunkard was brought to him who had killed a man. Muawiya wrote to him
to kill him in retaliation for the dead man.
Yahya said that
Malik said, "The best of what I have heard on the interpretation of
this ayat, the word of Allah, the Blessed, the Exalted, 'The free man
for the free man and the slave for the slave - these are men and the
woman for the woman,' (Sura 2 ayat 178) is that retaliation is between
women as it is between men. The free woman is killed for the free
woman as the free man is killed for the free man. The slave-girl is
slain for the slave-girl as the slave is slain for the slave.
Retaliation is between women as it is between men. That is because
Allah, the Blessed, the Exalted, said in His Book, 'We have written
for them in it that it is a life for a life and an eye for an eye, a
nose for a nose, and an ear for an ear, and a tooth for a tooth, and
for wounds there is retaliation.' (Sura 5 ayat 48) Allah, the Blessed,
the Exalted, mentioned that it is a life for a life. It is the life of
a free woman for the life of a free man, and her injury for his
injury."
Malik said about a man who held a man fast for
another man to hit, and he died on the spot, "If he held him and he
thought that he meant to kill him, the two of them are both killed for
him. If he held him and he thought that he meant to beat him as people
sometimes do, and he did not think that he meant to kill him, the
murderer is slain and the one who held him is punished with a very
severe punishment and jailed for a year. There is no killing against
him."
Malik said about a man who murdered a man intentionally
or gouged out his eye intentionally, and then was slain or had his eye
gouged out himself before retaliation was inflicted on him, "There is
no blood-money nor retaliation against him. The right of the one who
was killed or had his eye gouged out goes when the thing which he is
claiming as retaliation goes. It is the same with a man who murders
another man intentionally and then the murderer dies. When the
murderer dies, the one seeking blood-revenge has nothing of blood-
money or anything else. That is by the word of Allah, the Blessed the
Exalted, 'Retaliation is written for you in killing. The free man for
the free man and the slave for the slave.' "
Malik said, "He
only has retaliation against the one who killed him. If the man who
murdered him dies, he has no retaliation or blood-money."
Malik said, "There is no retaliation held against a free man by a
slave for any injury. The slave is killed for the free man when he
intentionally murders him. The free man is not slain for the slave,
even if he murders him intentionally. It is the best of what I have
heard."
Malik related to me from Yahya ibn Said from Amr ibn Shuayb that
a man of the Banu Mudlij called Qatada threw a sword at his son and it
struck his thigh. The wound bled profusely and he died. Suraqa ibn
Jusham came to Umar ibn al-Khattab and mentioned that to him Umar said
to him, "At the watering place of Qudayd count one hundred and twenty
camels and wait until I come to you." When Umar ibn al-Khattab came to
him, he took thirty four-year-old camels, thirty five-year-old camels,
and forty pregnant camels from them. Then he said, "Where is the
brother of the slain man?" He said, "Here." He said, "Take them. The
Messenger of Allah, may Allah bless him and grant him peace, said,
'The killer gets nothing.' "
Yahya related to me from Malik from Ibn Shihab from Said ibn al-
Musayyab and Abu Salama ibn Abd ar-Rahman from Abu Hurayra that the
Messenger of Allah, may Allah bless him and grant him peace, said,
"The wound of an animal is of no account and no compensation is due
for it. The well is of no account and no compensation is due for it.
The mine is of no account and no compensation is due for it and a
fifth is due for buried treasures." (Al-kanz:
see Book 17).
Malik said, "Everyone leading an animal by the halter, driving it, and
riding it is responsible for what the animal strikes unless the animal
kicks out without anything being done to it to make it kick out. Umar
ibn al-Khattab imposed the blood-money on a person who was exercising
his horse."
Malik said, "It is more fitting that a person
leading an animal by the halter, driving it, or riding it incur a loss
than a person who is exercising his horse." (See hadith 4 of this
book).
Malik said, "What is done in our community about a
person who digs a well on a road or ties up an animal or does the like
of that on a road used by muslims, is that since what he has done is
included in that which he is not permitted to do in such a place, he
is liable for whatever injury or other thing arises from that action.
The blood-money of that which is less than a third of the full blood-
money is owed from his own personal property. Whatever reaches a third
or more, is owed by his tribe. Any such things that he does which he
is permitted to do on the muslims' road are something for which he has
no liability or loss. Part of that is a hole which a man digs to
collect rain, and the beast from which the man alights for some need
and leaves standing on the road. There is no penalty against anyone
for this."
Malik spoke about a man who went down a well, and
another man followed behind him, and the lower one pulled the higher
one and they fell into the well and both died He said, "The tribe of
the one who pulled him in is responsible for the blood-money."
Malik spoke about a child whom a man ordered to go down into a
well or to climb a palm tree and he died as a result. He said, "The
one who ordered him is liable for whatever befalls him, be it death or
something else."
Malik said, "The way of doing things in our
community about which there is no dispute is that women and children
are not obliged to pay blood-money together with the tribe in the
blood-moneys which the tribe must pay. The blood-money is only
obligatory for a man who has reached puberty."
Malik said
that the tribe could bind themselves to the blood-money of mawali if
they wished. If they refused, they were people of the diwan or were
cut off from their people. In the time of the Messenger of Allah, may
Allah bless him and grant him peace, people paid the blood-money to
each other as well as in the time of Abu Bakr as-Siddiq before there
was a diwan. The diwan was in the time of Umar ibn al-Khattab. No one
other than one's people and the ones holding the wala' paid blood-
money for one because the wala' was not transferable and because the
Prophet, may Allah bless him and grant him peace, said, "The wala'
belongs to the one who sets free."
Malik said, "The wala' is
an established relationship."
Malik said, "What is done in
our community about animals that are injured is that the person who
causes the injury pays whatever of their value has been diminished."
Malik said about a man condemned to death and one of the
other hudud befell him, "He is not punished for it. That is because
the killing overrides all of that, except for slander. The slander
remains hanging over the one to whom it was said because it will be
said to him, 'Why do you not flog the one who slandered you?' I think
that the condemned man is flogged with the hadd before he is killed,
and then he is killed. I do not think that any retaliation is
inflicted on him for any injury except killing because killing
overrides all of that."
Malik said, "What is done in our
community is that when a murdered person is found among the main body
of a people in a village or other place, the house or place of the
nearest people to him is not responsible. That is because the murdered
person can be slain and then cast at the door of some people to shame
them by it. No one is responsible for the like of that."
Malik said about a group of people who fight with each other and when
the fight is broken up, a man is found dead or wounded, and it is not
known who did it, "The best of what is heard about that is that there
is blood-money for him, and the blood-money is against the people who
argued with him. If the injured or slain person is not from either of
the two parties, his blood-money is against both of the two parties
together."
Malik said that Ibn Shihab said, "The precedent of the sunna in
the intentional murder is that when the relatives of the murdered
person relinquish retaliation, the blood-money is owed by the murderer
from his own property unless the tribe helps him with it willingly."
Malik said, "What is done in our community is that the blood-
money is not obliged against the tribe until it has reached a third of
the full amount and upwards. Whatever reaches a third is against the
tribe, and whatever is below a third, is against the property of the
one who did the injury."
Malik said, "The way of doing things
about which there is no dispute among us, in the case of someone who
has the blood-money accepted from him in intentional murder or in any
injury in which there is retaliation, is that that blood-money is not
due from the tribe unless they wish it. The blood-money for that is
from the property of the murderer or the injurer if he has property.
If he does not have any property, it is a debt against him, and none
of it is owed by the tribe unless they wish."
Malik said,
"The tribe does not pay blood-money to anyone who injures himself,
intentionally or accidentally. This is the opinion of the people of
fiqh in our community. I have not heard that anyone has made the tribe
liable for any blood-money incurred by intentional acts. Part of what
is well-known of that is that Allah, the Blessed, and the Exalted,
said in His Book, 'Whoever has something pardoned him by his brother,
should follow it with what is accepted and pay it with good will'
(Sura 2 ayat 178) The commentary on that - in our view - and Allah
knows best, is that whoever gives his brother something of the blood-
money, should follow it with what is accepted and pay him with good
will."
Malik spoke about a child who had no property and a
woman who had no property. He said, "When one of them causes an injury
below a third of the blood-money, it is taken on behalf of the child
and woman from their personal property, if they have property from
which it may be taken. If not, the injury which each of them has
caused is a debt against them. The tribe does not have to pay any of
it and the father of a child is not liable for the blood-money of an
injury caused by the child and he is not responsible for it."
Malik said, "The way of doing things in our community about which
there is no dispute, is that when a slave is killed, the value for him
is that of the day on which he was killed. The tribe of the murderer
is not liable for any of the value of the slave, great or small. That
is the responsibility of the one who struck him from his own personal
property as far as it covers. If the value of the slave is the blood-
money or more, that is against him in his property. That is because
the slave is a certain type of goods."
Malik related to me that the generally agreed on way of doing
things amongst the community about an accident is that there is no
blood-money until the victim is better. If a man's bone, either a
hand, or a foot, or another part of his body, is broken accidentally
and it heals and becomes sound and returns to its form, there is no
blood-money for it. If the limb is impaired or there is a scar on it,
there is blood-money for it according to the extent that it is
impaired.
Malik said, "If that part of the body has a
specific blood-money mentioned by the Prophet, may Allah bless him and
grant him peace, it is according to what the Prophet, may Allah bless
him and grant him peace, specified. If it is part of what does not
have a specific blood-money for it mentioned by the Prophet, may Allah
bless him and grant him peace, and if there is no previous sunna about
it or specific blood-money, one uses ijtihad about it."
Malik
said, "There is no blood-money for an accidental bodily injury when
the wound heals and returns to its form. If there is any scar or mark
in that, ijtihad is used about it except for the belly-wound. There is
a third of the blood-money of a life for it. "
Malik said,
"There is no blood-money for the wound which splinters a bone in the
body, and it is like the wound to the body which lays bare the bone."
Malik said, "The generally agreed on way of doing things in
our community is that when the doctor performs a circumcision and cuts
off the glans, he must pay the full blood-money. That is because it is
an accident which the tribe is responsible for, and the full blood
money is payable for all that in which a doctor errs or exceeds, when
it is not intentional."
Yahya related to me from Malik that Yahya ibn Said heard Sulayman
ibn Yasar mention that a face wound in which the bone was bared was
like a head wound in which the bone was bared, unless the face was
scarred by the wound. Then the blood-money is increased by one half of
the blood-money of the head wound in which the skin was bared so that
seventy five dinars are payable for it.
Malik said, "What is
done in our community is that the head wound with splinters has
fifteen camels." He explained, "The head wound with splinters is that
from which pieces of bone fly off and which does not reach the brain.
It can be in the head or the face."
Malik said, "The
generally agreed on way of doing things in our community, is that
there is no retaliation for a wound to the brain or a belly wound, and
Ibn Shihab has said, 'There is no retaliation for a wound to the
brain.' "
Malik explained, "The wound to the brain is what
pierces the bones to the brain. This type of wound only occurs in the
head. It is that which reaches the brain when the bones are pierced."
Malik said, "What is done in our community is that there is
no blood-money paid on any head wound less than one which lays bare
the skull. Blood-money is payable only for the head wound that bares
the bone and what is worse than that. That is because the Messenger of
Allah, may Allah bless him and grant him peace, stopped at the head
wound which bared the bone in his letter to Amr ibn Hazm. He made it
five camels. The imams, past and present, have not made any blood-
money payable for injuries less than the head wound which bares the
bone."
Yahya related to me from Malik
that he asked Ibn Shihab about the one-eyed man who gouged out the eye
of a healthy person. Ibn Shihab said, "If the healthy person wants to
take retaliation from him, he can have his retaliation. If he prefers,
he has blood-money of one thousand dinars, twelve thousand dirhams."
Yahya related to me from Malik that he heard that full blood-
money was payable for both of a pair of anything in a man that
occurred in pairs, and the tongue had full blood-money. The ears, when
their hearing departed, had full blood-money, whether or not they were
cut off, and a man's penis had full blood-money and the testicles had
full blood-money.
Yahya related to me from Malik that he
heard that the breasts of a woman had full blood-money.
Malik
said, "The least of that are the eyebrows and a man's breasts."
Malik said, "What is done in our community when a man is injured
in his extremities to an extent that obliges payment of more than the
amount of his full blood-money, is that it is his right. If his hands,
feet, and eyes are all injured, he has three full blood-moneys."
Malik said about the sound eye of a one-eyed man when it is
accidentally gouged out, "The full blood-money is payable for it."
Yahya related to me from Malik from Abdullah ibn Abi Bakr ibn
Muhammad ibn Amr ibn Hazm from his father that in a letter which the
Messenger of Allah, may Allah bless him and grant him peace, sent to
Amr ibn Hazm about blood-money he wrote that it was one hundred camels
for a life, one hundred camels for a nose if completely removed, a
third of the blood-money for a wound in the brain, the same as that
for a belly wound, fifty for an eye, fifty for a hand, fifty for a
foot, ten camels for each finger, and five for teeth, and five for a
head wound which laid bare the bone.
ibn Abi Abd ar-Rahman said, "I asked Said ibn al Musayyab, 'How
much for the finger of a woman?' He said, 'Ten camels' I said, 'How
much for two fingers?' He said, 'Twenty camels.' I said, 'How much for
three?' He said, 'Thirty camels.' I said, 'How much for four?' He
said, 'Twenty camels.' I said, 'When her wound is greater and her
affliction stronger, is her blood-money then less?' He said, 'Are you
an Iraqi?' I said, 'Rather, I am a scholar who seeks to verify things,
or an ignorant man who seeks to learn.' Said said, 'It is the sunna,
my nephew.' "
Malik said, "What is done in our community
about all the fingers of the hand being cut off is that its blood-
money is complete. That is because when five fingers are cut, their
blood-money is the blood-money of the hand:
fifty camels. Each finger
has ten camels."
Malik said, "The reckoning of the fingers is
thirty-three dinars for each fingertip, and that is three and a third
shares of camels."
Yahya
related to me from Malik that he heard Ibn Shihab say, "The precedent
of the sunna when a man injures a woman is that he must pay the blood-
money for that injury and there is no retaliation against him."
Malik said, "That is an accidental injury, when a man strikes a
woman and hits with a blow what he did not intend, for instance, if he
struck her with a whip and cut her eye open and the like of that."
Malik said about a woman who has a husband and children who
are not from her paternal relatives or her people, that since he is
from another tribe, there is no blood-money against her husband for
her criminal action, nor any against her children if they are not from
her people, nor any against her maternal brothers when they are not
from her paternal relations or her people. These are entitled to her
inheritance but only the paternal relations have paid blood-money from
since the time of the Messenger of Allah, may Allah bless him and
grant him peace. Until today it is like that with the mawla of a
woman. The inheritance they leave goes to the children of the woman
even if they are not from her tribe, but the blood-money of the
criminal act of the mawla is only against her tribe."
