two-thirds of the blood-money. The case was then brought before the Prophet—peace and blessings be upon him—who found it pleasing and laughed until his molar teeth could be seen. In this report we find a ratification of judgments based on physiognomy and the attribution of a child by casting lots.
Inheritance of the Killer
The jurists differed concerning whether a killer may inherit from the one he has slain, adopting four opinions:
- Some held that the killer never inherits at all from his victim.
- Others—though they are few—maintained that the killer does inherit.
- A third group distinguished between accidental and intentional homicide, saying: in deliberate killing he inherits nothing, while in accidental killing he inherits only from the blood-money; this is the position of Mālik and his associates.
- A fourth group distinguished, within intentional homicide, between killing carried out under a lawful mandate and killing without such a mandate—such as when the slayer is the official charged with enforcing prescribed punishments—and, more generally, between a person who is open to suspicion and one who is not.
The root of the disagreement lies in the tension between a foundational principle of the Sacred Law and considerations of public welfare. Welfare-based reasoning dictates that the killer should not inherit, lest people use inheritance as a pretext for murder while merely following outward appearances. Pure devotion to the revealed texts, however, requires that such considerations be set aside, for had this been an objective the Lawgiver would have addressed it—
“and your Lord is never forgetful” (Maryam 19:64)—
as the Ẓāhirīs argue.
They also disagreed about a non-Muslim heir who embraces Islam after the death of his Muslim relative but before the estate has been divided (and likewise when the deceased was not Muslim):
• The majority say that the decisive moment is the time of death. If, on the day the Muslim died, the heir was not Muslim, he inherits nothing, whether he converts before or after the distribution of the estate. Conversely, if the deceased was non-Muslim and the heir was also non-Muslim on the day of death, he necessarily inherits, regardless of whether his conversion to Islam occurs before or after division.
• A group that includes al-Ḥasan, Qatādah, and others holds that what counts is the day of division; this view is also related from ʿUmar ibn al-Khaṭṭāb.
Both sides appeal to the Prophet’s—peace and blessings be upon him—saying: “Any house or land that was divided in the pre-Islamic era remains upon that division; and any house or land that came under Islam before being divided is to be divided according to what Islam prescribes.”
Hence, whoever considers the moment of division rules that the property at that time falls under the rulings of Islam, whereas whoever considers the obligation of division rules that the property is governed by Islamic law at the moment of death.
A report from ʿAṭāʾ states: “A man accepted Islam over an inheritance during the lifetime of the Messenger of Allah—peace and blessings be upon him—before it had been divided, so the Messenger of Allah—peace and blessings be upon him—gave him his share.”
The same judgment, in their view, applies to an heir who is emancipated from slavery after the death of the decedent but before the estate is divided.
These, then, are the well-known issues connected to this chapter.
The Qāḍī said: Since inheritance is established by one of three causes—kinship, marriage, or walāʾ—and we have already dealt with what is based on kinship and marriage, we must now discuss walāʾ: for whom it is established, for whom it is not, and what its rulings are.