The majority justified sparing the father from execution solely on account of the special right he holds over his child. Strictly following the Ẓāhirī school, however, would require that he be put to death. With this the discussion of the factor that incurs liability comes to an end.

Section Two
Examining What Is Due in Retaliation (Qiṣāṣ)

All jurists agree that the heir of the slain person has one of two options: either to demand retaliation or to pardon—whether for blood-money or without it.

They differed, however, about moving from retaliation to pardon on the condition of receiving blood-money. Is that a compulsory right belonging to the heir so that the murderer has no say in the matter, or does the blood-money become obligatory only with the mutual consent of both sides—the heir and the killer—so that, if the killer refuses to pay, the heir has nothing but unqualified retaliation or pardon?

Mālik held that the heir is entitled only to carry out retaliation or to pardon without compensation, unless the killer is willing to pay the blood-money. This is the view transmitted from him by Ibn al-Qāsim, and it is likewise the position of Abū Ḥanīfah, al-Thawrī, al-Awzāʿī, and a number of others.

Al-Shāfiʿī, Aḥmad, Abū Thawr, Dāwūd, and most of the Medinan jurists—including many of Mālik’s own students—maintained that the heir has the choice: if he wishes he may exact retaliation, and if he wishes he may take the blood-money, whether or not the killer consents. This opinion was also related from Mālik by Ashhab, though the more famous report from him is the first.

Mālik’s proof for the well-known narration is the ḥadīth of Anas ibn Mālik concerning the case of al-Rubayyiʿ’s broken tooth, in which the Messenger of Allah—peace and blessings be upon him—said:

“Allah’s Book stipulates retaliation.”

By the reasoning of implied meaning (dalīl al-khiṭāb), this indicates that the heir has nothing but retaliation.

The second group relies on the sound ḥadīth of Abū Hurayrah:

“Whoever has a slain relative is granted the better of two alternatives: to accept the blood-money or to pardon.”

Both reports are agreed upon as authentic. The first is weak in proving that only retaliation is allowed, whereas the second is explicit in establishing the heir’s choice. Reconciliation between them becomes possible once the inferred meaning of the first is set aside; and if harmonizing texts is both possible and obligatory, the second ḥadīth must be adopted.

The majority hold that reconciling texts, whenever feasible, is obligatory and preferable to favoring one over the other. Moreover, Allah—Mighty and Exalted—says,

“And do not kill yourselves” (al-Nisāʾ 4:29).

When a legally responsible person is given the chance to ransom his life with wealth, he is obliged to do so. The analogy is a starving person who finds food at its normal price and has the means to buy it: he is legally compelled to purchase it—how much more so when it is his very life that is at stake! On this narration, if the murdered person leaves both minor and adult heirs, the execution must be postponed until the minors reach majority so that they too may exercise their option—especially when the minors block the adults from inheriting, as in the case of sons together with brothers.

The Qāḍī said: This very issue arose in Córdoba during my grandfather’s lifetime—may Allah have mercy on him—and the scholars of