Deliberate homicide is, for the most part, determined by the instrument with which the killing is carried out and by the circumstances that occasioned the blow.

Abū Ḥanīfah said: “Every implement other than iron—such as clubs—or fire and what resembles them, falls under quasi-intentional homicide (shibh al-ʿamd).”

Abū Yūsuf and Muḥammad held that quasi-intentional applies to any instrument that does not ordinarily kill.

Al-Shāfiʿī defined quasi-intentional as “an act that is deliberate with respect to the blow but accidental with respect to the killing”—that is, a blow delivered without intending death from which death nonetheless ensues. Accidental homicide is accidental in both respects, while intentional homicide is intentional in both; this classification is sound.

Those who deny an intermediate category argue that there is no middle ground between error and intent—between intending the killing and not intending it. Those who affirm it reply that intentions are known only to Allah, Blessed and Exalted is He, and that legal judgment is based solely on what is outwardly manifest.

Thus, whoever intentionally strikes another with an instrument that does not normally kill is judged according to the prevailing rule—that is, as one who intended to kill and did so, without dispute. But if he means to strike a particular person with such a non-lethal instrument, the ruling vacillates between intentional and accidental homicide; this is our legal assessment, not the individual’s standing before Allah, Exalted is He. It resembles intentional homicide because he meant to strike, and it resembles accidental homicide because he used something not ordinarily intended to kill.

A hadith traced to the Prophet—may Allah bless him and grant him peace—states: “Behold, accidental killing that resembles intentional killing, when done with a whip, a staff, or a stone, carries an aggravated blood-money of one hundred camels, forty of them pregnant.” Yet the hadith scholars deem this report internally inconsistent, and its chain of transmission unsound, as Abū ʿUmar ibn ʿAbd al-Barr noted—even though Abū Dāwūd and others recorded it. Those who do not accept the hadith hold that such homicide requires retaliatory execution (qiṣāṣ), whereas those who accept it impose the diya.

Within the Mālikī school there is no disagreement that when the beating is delivered in anger and fury, retaliation is obligatory. Jurists do differ, however, about a blow struck deliberately in jest or as discipline by one who is permitted to discipline.

The condition that renders retaliation obligatory regarding the victim is that his blood be equivalent to that of the killer. Persons differ in this respect on the basis of Islam versus unbelief, freedom versus slavery, maleness versus femaleness, and whether the parties are a single individual or a group. All agree that when the victim is the killer’s equal in these four matters, retaliation is required; they disagree when equality is absent.

As for a free man who intentionally kills a slave, the scholars are divided. Mālik, al-Shāfiʿī, al-Layth, Aḥmad, and Abū Thawr held that the free man is not put to death for killing a slave. Abū Ḥanīfah and his associates maintained that the free man is executed for killing a slave except when the slave is his own. Others ruled that he is executed in any case, whether the slave belongs to him or to another; this was the view of al-Nakhaʿī.

Those who hold that a free man is not executed for killing a slave cite, as an argument drawn from the wording’s implication, the Almighty’s saying: “Prescribed for you is retaliation in cases of murder: the free for the free, the slave for the slave” (Q 2:178). And whoever