The jurists also disagreed about what, exactly, is to be valued: is it the very animal that was hunted, or its counterpart from livestock once the valuation is converted into food?
• Those who say the object of valuation is the game itself argue that, when no counterpart can be found, the matter necessarily reverts to valuing that animal in food.
• Those who hold that the object of valuation is the livestock that must be offered reply that something is valued only when its like—its closest physical analogue—cannot be procured.
A second dispute concerns whether the verse grants a choice or lays down a fixed sequence.
• Those who see it as a choice fasten on the particle “or” (aw), whose normal force in Arabic is to offer alternatives.
• Those who stress the order of the expiations liken the verse to cases where sequencing is unanimously required, namely the expiation for ẓihār and for unintentional homicide.
They further differed over whether a new judgment must be rendered for a species of game about which a ruling by the Companions already exists. The crux here is whether that ruling is a purely legal prescription with no discernible rationale, or one whose rationale can be understood.
• Whoever deems it intelligible says: once the judgment is known, nothing is more comparable to the animal than itself—an ostrich, for instance, has no closer counterpart than a camel—so reiterating the ruling is pointless.
• Whoever views it as an act of worship insists that the ruling must be renewed; this is the position of Mālik.
A related disagreement concerns a group that jointly kills a single animal: does liability arise from each person’s individual transgression, or from transgression against the animal as a whole?
• If liability rests on individual transgression, every participant owes a separate compensation.
• If it rests on transgression against the single animal, one compensation suffices for all.
This problem resembles the law of retaliation with respect to the minimum amount in theft, and qisās for limbs and for lives; these topics will be discussed in their proper places later in this book, God willing.
Abū Ḥanīfah’s distinction between muḥrims and non-muḥrims who kill game inside the Sanctuary is intended as an added stringency against the muḥrim. Those who oblige a separate penalty on every member of a group aim to block the means to sin: were a collective penalty waived, anyone wishing to hunt in the Sanctuary could do so in company with impunity.
Moreover, if the compensation is treated as an expiation for sin, the sin of killing the game is not divisible among participants; correspondingly, the expiation should not be divisible, and each person must offer a full expiation.
Another debate concerns whether one of the two arbiters may be the very person who killed the game. The apparent text requires only uprightness, which would allow any upright person—even the killer—to serve. Yet the underlying legal principle is that no one may be judge in his own case.
They also disagreed about where the compensation—specifically the food—is to be distributed. Because the verse names no location, opinions diverged:
• Those who likened it to zakāh, seeing it as a right of the poor, said it may not be moved from its locale.
• Those who regarded the aim as helping Mecca’s poor said it may be given only to the poor of Mecca.
• Those who relied on the unrestricted wording said the offender may feed the poor wherever he chooses.
Finally, they differed over a person not in a state of consecration who kills game inside the Sanctuary: is an expiation due or not? The dispute hinges on whether analogy (qiyās) may be applied to expiations and, more broadly, on whether analogy is a legitimate source of law. The literalists reject any analogy between a non-muḥrim who kills game in the Sanctuary and a muḥrim who does so, because they deny the use of analogy in the Sharīʿah altogether.