Third Issue
The jurists disagreed over the effect of dhakāh on an animal that has reached the brink of death because of severe illness, even though they agree that dhakāh is operative in one that is merely approaching death. The majority hold that dhakāh is valid in such a case; this is the well-known view reported from Mālik, although another report from him states that it is not effective.
The root of the dispute is a conflict between analogy and transmitted evidence.
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The transmitted evidence
It is the report that “a slave-girl belonging to Kaʿb ibn Mālik was pasturing sheep at Salʿ when one of them was injured. She caught up with it and performed dhakāh on it with a stone. The Messenger of Allah—peace and blessings be upon him—was asked about it, and he said: ‘Eat it.’” This ḥadīth is recorded by al-Bukhārī and Muslim. -
The analogy
Dhakāh is known to be performed only on a living creature, whereas such an animal is in the legal state of death. Even those who allow its slaughter agree that dhakāh is not operative unless there is some indication of life.
They then differed over what constitutes an acceptable sign of life. Some deemed any movement sufficient, while others did not. The first opinion is that of Abū Hurayrah; the second, that of Zayd ibn Thābit. Some required three specific movements—blinking, wagging the tail, and kicking with the leg; this is the view of Saʿīd ibn al-Musayyib and Zayd ibn Aslam and was chosen by Muḥammad ibn al-Mawwāz. Others added the condition of observable breathing along with those movements; this is the view of Ibn Ḥabīb.
Fourth Issue
They also disagreed over whether the mother’s dhakāh is effective for the foetus in her womb, or whether the foetus is carrion when it emerges after the mother has been slaughtered. The majority of scholars maintain that the mother’s dhakāh counts as dhakāh for her foetus; this is the position of Mālik and al-Shāfiʿī. Abū Ḥanīfah, however, said: if the foetus is born alive it must itself be slaughtered and then may be eaten, but if it is born dead it is carrion.
Those who regard the mother’s dhakāh as sufficient for the foetus differ further: some stipulate that the foetus’s form be complete and its hair grown—Mālik’s view—while others do not require this, which is al-Shāfiʿī’s opinion.
The reason for their disagreement is twofold: their assessment of the authenticity of the transmitted report on the matter, and its seeming conflict with established principles.
The report from Abū Saʿīd al-Khudrī states: “We asked the Messenger of Allah—peace and blessings be upon him—about a cow, camel, or sheep that one of us slaughters and then finds a foetus in its belly. Should we eat it or discard it? He replied, ‘Eat it if you wish, for the dhakāh of its mother is its dhakāh.’” A similar narration was recorded by al-Tirmidhī and Abū Dāwūd from Jābir. Scholars disputed its soundness: some judged it weak, others authentic; among those who authenticated it was al-Tirmidhī.
As for its conflict with principle, the foetus—if alive and then dying with its mother—dies by suffocation and thus falls under the category of the strangled animal which revelation explicitly prohibits. On this basis Abū Muḥammad Ibn Ḥazm declared it unlawful and rejected the ḥadīth’s chain of transmission.
Those who deem it lawful nevertheless disagreed over whether the growth of hair is a necessary condition; the reason for that difference is