He said: Those who contend that a free man must be executed for killing a slave cite the Prophet—may Allah bless him and grant him peace—who declared:
“The blood of the Muslims is of equal worth; the lowliest of them may grant protection on behalf of them all, and they are one hand against everyone else.”
Hence the dispute turns on a clash between this all-embracing wording and the inference (dalīl al-khiṭāb) drawn from the verse; any attempt to draw a distinction between the two is weak.
There is no disagreement that a slave is put to death for killing a free person, and likewise that an inferior is executed for killing a superior.
Further proof for those who require the execution of the free man for the slave is the report related by al-Ḥasan from Samurah: the Prophet—peace and blessings be upon him—said,
“Whoever kills his slave, we shall kill him for him.”
They also reason that since killing a slave is just as forbidden as killing a free person, the law of retaliation must be the same in both cases.
As for executing a believer for killing a dhimmī unbeliever, the jurists hold three opinions:
- A believer is not executed for an unbeliever. This is the view of al-Shāfiʿī, al-Thawrī, Aḥmad, Dawūd, and others.
- He is executed for him. This is the position of Abū Ḥanīfah, his companions, and Ibn Abī Laylā.
- Mālik and al-Layth say he is not executed unless he kills the dhimmī by treachery (ghīlah)—that is, he lures him, lays him down, and slaughters him, especially for his property.
The first group relies chiefly on the tradition of ʿAlī. Qays ibn ʿUbādah and al-Ashtar asked him, “Did the Messenger of Allah—may Allah bless him and grant him peace—entrust you with something he did not entrust to the people?” He replied, “No, nothing but what is in this document of mine.” He then produced a parchment from the sheath of his sword, in which was written:
“The blood of the believers is of equal worth; the least of them may grant protection for them all, and they are one hand against anyone else. Behold: no believer is to be put to death for an unbeliever, nor a treaty-holder while his treaty stands. Whoever introduces an innovation or shelters an innovator, upon him is the curse of Allah, the angels, and all people.”
Abū Dāwūd recorded this.
It is likewise reported from ʿAmr ibn Shuʿayb, from his father, from his grandfather, that the Prophet—peace and blessings be upon him—said:
“A believer is not executed for an unbeliever.”
They further argue by consensus that no Muslim is executed for killing a hostile unbeliever who has been granted safe conduct.
The followers of Abū Ḥanīfah, on the other hand, rely on other reports, among them a ḥadīth transmitted by Rabīʿah ibn Abī ʿAbd al-Raḥmān from ʿAbd al-Raḥmān al-Silmanī: “The Messenger of Allah—may Allah bless him and grant him peace—executed a Muslim for killing a man under the dhimmah …”