The jurists differ over the applicability of qasāmah in the case of a slain slave. Some uphold it—among them Abū Ḥanīfah—drawing an analogy with the free person; others reject it, likening the slave to an animal, and this is Mālik’s position. In their view the diyah, if due, is paid from the killer’s own estate.

According to Mālik, not fewer than fifty men may swear fifty oaths; in deliberate homicide he accepts no fewer than two heirs to take the oaths, whereas a single heir may swear in cases of accidental killing. If any heir entitled to blood-vengeance refuses to swear, retaliation (qiṣāṣ) is void, yet the diyah remains valid for those who did swear—that is, for their respective shares.

Al-Zuhrī, however, holds that if even one of them refuses, the diyah is nullified for all of them. The subsidiary questions in this chapter are many.

The Qāḍī says: Discussion of qasāmah properly belongs to the section on the proofs by which liability for blood is established; in reality it forms part of the Book of Judgments. We have nevertheless mentioned it here in accordance with their customary arrangement: whenever a ruling pertains to one specific category of juridical matters, they prefer to record it under that category. As for rulings that apply to more than one category, they are placed in the Book of Judgments. You will sometimes find them doing both, just as Mālik did in the Muwaṭṭaʾ, where he inserted judicial rulings in every book.

Book on the Rulings of Illicit Intercourse (Zinā)
Chapter One: The Prescribed Punishment for Zinā

This book addresses the legal rulings concerning zinā. Its foundational topics are: the fixed penalty (ḥadd) for zinā, the categories of those who commit it, the punishment allotted to each category, and the evidentiary means by which this flagrant offense is established.

Chapter One
On the prescribed punishment for zinā. Zinā is any act of sexual intercourse that occurs without a valid marriage, a doubtful marriage, or ownership by right hand. On this definition the scholars of Islam are generally agreed, though they differ over what counts as a doubtful marriage sufficient to avert the ḥadd. Several issues arise, of which we shall cite the most well-known.

One is the case of a female slave in whom a man owns a share and with whom he has intercourse. Mālik says the ḥadd is averted; if she bears a child, the child is attributed to him and she is assessed in value against his share. Abū Ḥanīfah agrees. Others hold that he is to receive a discretionary punishment (taʿzīr).

Abū Thawr maintains that the full ḥadd is incumbent if the man was aware of the prohibition. The majority’s evidence is the Prophet’s statement, peace and blessings be upon him: “Ward off the prescribed penalties in cases of doubt.” Those who avert the ḥadd debate whether the man must pay a mahr equivalent to the portion he does not own. The disagreement turns on whether the ruling that applies to the portion he owns—permissibility—overrides that of the portion he does not own, or vice versa, for ownership confers licitness, whereas lack of ownership entails prohibition.

Another issue: a soldier has intercourse with a slave-girl taken from the spoils. Some say he incurs the ḥadd; others excuse him, and the latter view is the stronger. The underlying cause in this case and the previous one is identical—Allah knows best.

Another: a man allows another man to have intercourse with his own female servant. Mālik says the ḥadd is averted; others impose discretionary punishment; some maintain that this is in fact a valid gift, the slave’s person following the transfer of the private part.

Another: a man has intercourse with the slave-girl of his son or of his daughter. The majority rule that no ḥadd applies, citing the Prophet’s words to a certain man: “You and your wealth belong to your father,” and his saying, peace and blessings be upon him: “No