In that period the jurists relied on the well-known narration, which held that the minor heir need not be awaited. My grandfather—may Allah have mercy on him—issued a legal opinion, based on analogical reasoning, that the execution must be postponed until the minor comes of age. The scholars of his day censured him harshly for this, being steeped in rigid imitation, until he was forced to compose a treatise vindicating that position. That work is still extant in people’s hands.
The discussion in this chapter is divided into two sections:
- Pardon (ʿafw)
- Retaliation (qiṣāṣ)
The study of pardon concerns two matters:
First: who among the blood-heirs has the right to pardon and who does not, the order of precedence among them, and whether he may pardon in exchange for blood-money (diyah) or not. We have already treated the question of pardoning for diyah.
Those who have the right to pardon, in general, are those who have legal standing with respect to the blood. According to Mālik and others, that standing belongs to the agnates (ʿaṣabah)—that is, every male heir—because there is unanimous agreement that if a person slain intentionally leaves behind adult sons, and one of them pardons, retaliation is nullified and the diyah becomes due.
The jurists disagreed, however, when daughters disagree with sons regarding pardon or retaliation, and likewise in the case of the wife (or husband) and the sisters. Mālik maintained that daughters and sisters have no voice alongside sons and brothers in choosing retaliation or its opposite, and their opinion is not taken into account when men are present; the same applies to the spouse. Abū Ḥanīfah, al-Thawrī, Aḥmad, and al-Shāfiʿī held that the statement of every heir is considered both in dropping retaliation and in relinquishing his share of the diyah. Concerning its collection, al-Shāfiʿī said: the absent and present, minor and adult, are all equal.
The evidence of these scholars is their treating blood and blood-money as equivalent, whereas the first group bases its view on the principle that authority (wilāyah) belongs exclusively to males.
The scholars also differed about a victim of intentional homicide who pardons his blood before dying: is that binding on the heirs? The same question applies to manslaughter if the victim waives the diyah. Some said that if the intentionally slain person pardons his blood, the pardon stands; this was the view of Mālik, Abū Ḥanīfah, al-Awzāʿī, and one of al-Shāfiʿī’s two opinions. Another group held that his pardon is not binding and that the heirs still have the choice of retaliation or pardon; this was the view of Abū Thawr and Dāwūd, and is the position reported from al-Shāfiʿī in Iraq.
Their proof is that Allah has given the heir three options: to pardon, to exact retaliation, or to accept the diyah, and this is general for every slain person, whether or not he pardoned before death. The majority respond that the right placed in the heir’s hand is, in fact, the victim’s right; the heir merely stands in his place. The victim therefore had greater claim to choose than the one who represents him after his death.
The scholars are unanimously agreed that Allah’s words,
“Whoever remits it as charity, that shall be an expiation for him” (al-Māʾidah 5:45),
refer here to the victim himself, who donates his own blood as charity.