Book of Retribution (Kitāb al-Qiṣāṣ)
Section One
Examining the Grounds That Make Retribution Obligatory
This book is divided into two principal sections:
- An inquiry into retribution for lives.
- An inquiry into retribution for limbs.
We shall begin with retribution for lives.
The Book of Retribution for Lives
Our discussion here breaks down into two parts: (a) an examination of the cause that renders retribution (qiṣāṣ) due, and (b) an examination of the retribution itself—together with any possible substitute, should a substitute be allowed. Let us start with the first: the cause.
Investigating the cause involves studying the attributes of the killing, the killer, and the slain, for only when all three meet certain criteria does qiṣāṣ become obligatory. Retaliation is not exacted from just any killer for just any killing or for just any victim; rather, the killer and the slain must both fall within defined limits, for the aim of this chapter is none other than justice. We therefore begin with the killer, then the act of killing, and finally the victim.
Statement of the Conditions
The jurists agree that a killer from whom retaliation is taken must, by consensus, be sane, of legal age, acting by choice, and personally carrying out the homicide, with no partner sharing in the deed. They disagree, however, about the one who coerces and the one who is coerced—that is, the commander and the direct perpetrator.
Mālik, al-Shāfiʿī, al-Thawrī, Aḥmad, Abū Thawr, and a number of others hold that liability for the killing rests on the direct perpetrator alone; the one who issued the order is punished but not executed.
Another group maintains that both are to be put to death—provided there was neither coercion nor authority on the part of the commander over the subordinate.
If, however, the commander does possess authority over the subordinate (i.e., the direct killer), the scholars split into three opinions:
- Some say the commander is executed and the subordinate punished. This is the position of Dāwūd, Abū Ḥanīfah, and one of the two reported views of al-Shāfiʿī.
- Others say the subordinate is executed, not the commander; this is the second view reported from al-Shāfiʿī.
- Still others say both are executed; this is the opinion of Mālik.
Those who impose no ḥadd-penalty on the subordinate regard coercion as effective in lifting many legal obligations, since the coerced person resembles someone who lacks volition. Those who deem him liable to execution give priority to the ruling of free choice, for the coerced, in one respect, resembles the voluntary agent,