This is the first post in the new series “Justice” based on the chapter Justice from the classical manual on Sharia called Reliance of the Traveller. The articles are posted one by one in the order they are given in the book.
01.0 WHO IS SUBJECT TO RETALIATION FOR INJURIOUS CRIMES
(0: Injurious crimes includes not only those committed with injurious weapons, but those inflicted otherwise as well, such as with sorcery
(def: xI36). Killing without right is. after unbelief, one of the very worst enormities, as Shafi’I explicitly states in (n: Muzani’s) The Epitome.
The Prophet (Allah bless him and give him peace)
“The blood of a Muslim man who testifies that there is no god but Allah and that I am the Messenger of Allah is not lawful to shed unless he be one of three: a married adulterer, someone killed in retaliation for killing another, or someone who abandons his religion and the Muslim community,”‘
and in another hadith,
”The killing of a believer is more heinous in Allah’s sight that doing away with all of this world.”
Allah Most High says:
…and not to slay the soul that Allah has forbidden, except with right” (Koran 6:151),
“Oh you who believe, retaliation is prescribed for you regarding the slain … ” (Koran 2: 178).)
01.1 Retaliation is obligatory (A: if the person entitled wishes to take it (dis: 03.8) against anyone who kills a human being purely intentionally and without right. (0: Intentionally is a first restriction and excludes killing someone through an honest mistake, while purely excludes a mistake made in a deliberate injury (def: 02.3), and without right excludes cases of justifiable homicide such as lawful retaliation.)
01.2 The following are not subject to retaliation:
(1) a child or insane person, under any circumstances (0: whether Muslim or non-Muslim).
The ruling for a person intermittently insane is that he is considered as a sane person when in his right mind, and as if someone continuously insane when in an interval of insanity. If someone against whom retaliation is obligatory subsequently becomes insane, the full penalty is nevertheless exacted. A homicide committed by someone who is drunk is (A: considered the same as that of a sane person,) like his pronouncing divorce (dis: n1.2));
(2) a Muslim for killing a non-Muslim;
(3) a Jewish or Christian subject of the Islamic state for killing an apostate from Islam (0: because a subject of the state is under its protection, while killing an apostate from Islam is without consequences);
(4) a father or mother (or their fathers or mothers) for killing their offspring, or offspring’s offspring;
(5) nor is retaliation permissible to a descendant for (A: his ancestor’s) killing someone whose death would otherwise entitle the descendant to retaliate, such as when his father kills his mother.