Blood Money

Al-Muwatta' of Imam Malik

by Imam Malik ibn Anas
Translated by: Ustadha Aisha Bewley

43.0 Blood Money

 

43.1 Mention of Blood-Money

1 Yahya related to me from Malik from 'Abdullah ibn Abi Bakr ibn Muhammad ibn 'Amr ibn Hazm from his father that in a letter which the Messenger of Allah, may Allah bless him and grant him peace, sent to 'Amr ibn Hazm about blood-money, he wrote that it was one hundred camels for a life, one hundred camels for a nose if completely removed, a third of the blood-money for a wound in the brain, the same as that for a belly wound, fifty for an eye, fifty for a hand, fifty for a foot, ten camels for each finger, and five for teeth, and five for a head wound which laid the bone bare.

 

43.2 Procedure in Blood-Money

2 Malik related to me that he had heard that 'Umar ibn al-Khattab estimated the full blood-money for the people of urban areas. For those who had gold, he made it one thousand dinars, and for those who had silver, he made it ten thousand dirhams.

Malik said, "The people of gold are the people of Syria and the people of Egypt. The people of silver are the people of Iraq."

Yahya related to me from Malik that he heard that the blood-money was divided into instalments over three or four years.

Malik said, "Three is the most preferable to me of what I have heard on that."

Malik said, "The generally agreed on way of doing things in our community is that camels are not accepted from the people of cities for blood-money nor is gold or silver accepted from desert people. Silver is not accepted from the people of gold and gold is not accepted from the people of silver."

 

43.3 The Blood-Money for Murder When Accepted, and the Criminal Act of the Insane

Yahya related to me from Malik that Ibn Shihab said, "The full blood-money for murder when it is accepted is twenty-five yearlings, twenty-five two year olds, twenty-five four year olds, and twenty-five five year olds."

3 Yahya related to me from Malik from Yahya ibn Sa'id that Marwan ibn al-Hakam wrote to Mu'awiya ibn Abi Sufyan that a madman was brought to him who had killed a man. Mu'awiya wrote to him, "Tie him up and do not inflict any retaliation on him. There is no retaliation against a madman."

Malik said about an adult and a child when they murder a man together, "The adult is killed and the child pays half the full blood-money."

Malik said, "It is like that with a free man and a slave when they murder a slave. The slave is killed and the free man pays half of his value."

 

43.4 The Blood-Money for Manslaughter

4 Yahya related to me from Malik from Ibn Shihab from 'Irak ibn Malik and Sulayman ibn Yasar that a man of the Banu Sa'd ibn Layth was running a horse and it trod on the finger of a man from the Juhayna tribe. It bled profusely and he died. 'Umar ibn al-Khattab said to those against whom the claim was made, "Do you swear by Allah with fifty oaths that he did not die of it?" They refused and refrained from doing it. He said to the others, "Will you take an oath?" They refused, so 'Umar ibn al-Khattab gave a judgement that the Banu Sa'd had to pay half the full blood-money.

Malik said, "One does not act on this."

Yahya related to me from Malik that Ibn Shihab, Sulayman ibn Yasar, and Rabi'a ibn Abi 'Abd ar-Rahman said, "The blood money for manslaughter is twenty yearlings, twenty two-year olds, twenty male two-year olds, twenty four-year olds and twenty five-year olds."

Malik said, "The generally agreed on way with us is that there is no retaliation against children. Their intention is accidental. The hudud are not obliged for them if they have not yet reached puberty. If a child kills someone it is only accidentally. Had a child and an adult killed a free man accidentally, each of them would pay half the blood-money."

Malik said, "A person who kills someone accidentally pays blood-money with his property and there is no retaliation again him. That money is like anything else from the dead man's property and his debt is paid with it and he is allowed to make a bequest from it. If he has a total property of which the blood-money is a third and then the blood-money is relinquished, that is permitted to him. If all the property he has is his blood-money, he is permitted to relinquish a third of it and to make that a bequest."

 

43.5 The Blood-Money for Accidental Injury

Malik related to me that the generally agreed on way of doing things amongst the community in the event of an accident is that there is no blood-money until the victim is better. If a man's bone, either a hand, or a foot, or another part of his body, is broken accidentally and it heals and becomes sound and returns to its proper form, there is no blood-money for it. If the limb is impaired or there is a scar on it, there is blood-money for it according to the extent that it is impaired.

Malik said, "If that part of the body has a amount of specific blood-money mentioned by the Prophet, may Allah bless him and grant him peace, it is according to what the Prophet, may Allah bless him and grant him peace, specified. If it is something that does not have a specific blood-money mentioned by the Prophet, may Allah bless him and grant him peace, and there is no previous sunna about it or specific blood-money, one uses ijtihad about it."

Malik said, "There is no blood-money for an accidental bodily injury when the wound heals and it returns to its proper form. If there is any scar or mark, ijtihad is used about it except for the belly-wound. There is a third of the blood-money of a life for it."

Malik said, "There is no blood-money for the wound which splinters bone in the body, which is like the wound to the body which lays bare the bone."

Malik said, "The generally agreed on way of doing things in our community is that when the doctor performs a circumcision and cuts off the glans, he must pay the blood-money. That is because it is an accident which the tribe is responsible for, and the full blood-money is payable for everything in which a doctor errs or exceeds, when it is not intentional."

 

43.6 The Blood-Money of Women

Yahya related to me from Malik from Yahya ibn Sa'id that Sa'id ibn al-Musayyab said, "The blood-money for a woman is the same as for a man up to one-third of the blood-money. Her finger is like his finger, her tooth is like his tooth, her injury which lays the bone is like his, and her head wound which splinters the bone is like his."

Yahya related to me from Malik that Ibn Shihab and also 'Urwa ibn az-Zubayr said the same as Sa'id ibn al-Musayyab said about a woman. Her blood-money from a man is the same up to a third of the blood-money of a man. If what she is owed exceeds a third of the blood-money of the man, she is given up to half of the blood-money of a man.

Malik said, "The explanation of that is that she has blood-money for a head wound that lays bare the bone and for a that splinters the bone and for what is less than the brain wound and the belly wound anound that lays bare the bone and for anything that splinters the bone and for what is less than the brain wound and the belly wound and any such wounds which obliges a third of the blood-money or more. If the amount owed her exceeds that, her blood-money for that is half of the full blood-money of a man."

Yahya related to me from Malik that he heard Ibn Shihab say, "The precedent of the sunna when a man injures a woman is that he must pay the blood-money for that injury and there is no retaliation against him."

Malik said, "That is accidental injury, as when a man strikes a woman and the blow lands where he did not intend - for instance, if he struck her with a whip and cut her eye open and things like that."

Malik, speaking about a woman who has a husband and children who are not from her paternal relatives or her people, said that since he is from another tribe there is no blood-money against her husband for her criminal action, nor against any of her children if they are not from her people, nor against her maternal brothers when they are not from her paternal relations or her people. These are entitled to her inheritance but only the paternal relations have paid blood-money from since the time of the Messenger of Allah, may Allah bless him and grant him peace. Until today it is like that with the mawla of a woman. The inheritance they leave goes to the children of the woman even if they are not from her tribe, but the blood-money of the criminal act of the mawla is only against her tribe."

 

43.7 The Blood-Money for the Foetus

5 Yahya related to me from Malik from Ibn Shihab from Abu Salama ibn 'Abd ar-Rahman ibn 'Awf from Abu Hurayra that a woman of the Hudhayl tribe threw a stone at a woman from the same tribe who then had a miscarriage. The Messenger of Allah, may Allah bless him and grant him peace, gave a judgement that a slave or a slave-girl of fair complexion and excellence should be given to her.

[In Bukhari and Muslim]

6 Yahya related to me from Malik from Ibn Shihab from Sa'id ibn al-Musayyab that the Messenger of Allah, may Allah bless him and grant him peace, gave a judgement that the compensation for a foetus killed in its mother's womb was a slave or a slave-girl of fair complexion and excellence. The one against whom the judgement was given said, "Why should I pay damages for that which did not drink or eat or speak or make any cry? The like of that is nothing." The Messenger of Allah, may Allah bless him and grant him peace, said, "This is only one of the brothers of the diviners."

[He disapproved of the rhyming speech of the man's declaration.]

[In Bukhari and Muslim]

Yahya related to me from Malik that Rabi'a ibn Abi 'Abd ar-Rahman said, "The slave of fair complexion and excelllence is estimated at fifty dinars or six hundred dirhams. The blood-money of a free Muslim woman is five hundred dinars or six thousand dirhams."

Malik said, "The blood-money of the foetus of a free woman is a tenth of her blood-money. The tenth is fifty dinars or six hundred dirhams."

Malik said, "I have not heard anyone dispute that there is no slave in compensation for the foetus until it leaves its mother's womb and falls stillborn from her womb."

Malik said, "I heard that if the foetus comes out of its mother's womb alive and then dies, the full blood-money is due for it."

Malik said, "The foetus is not alive unless it cries at birth. If it comes out of its mother's womb and cries out and then dies, the complete blood-money is due for it. We think that the slave-girl's foetus has a tenth of the price of the slave-girl."

Malik said, "When a woman murders a man or woman, and the murderess is pregnant, retaliation is not taken against her until she has given birth. If a woman who is pregnant is killed intentionally or unintentionally, the one who killed her is not obliged to pay anything for her foetus. If she is murdered, then the one who killed her is killed and there is no blood-money for her foetus. If she is killed accidentally, the tribe obliged to pay on behalf of her killer pays her blood-money, and there is no blood-money for the foetus."

Yahya related to me, "Malik was asked about the foetus of the Christian or Jewish woman which was aborted. He said, "I think that there is a tenth of the blood-money of the mother for it."

 

43.8 Injuries for which There is Full Blood-money

Yahya related to me from Malik from Ibn Shihab that Sa'id ibn al-Musayyab used to say, "The full blood-money is payable for cutting off both lips, but when the lower one only is cut off, two-thirds of the blood-money is due for it."

Yahya related to me from Malik that he asked Ibn Shihab what happened if a one-eyed man gouged out the eye of a healthy person. Ibn Shihab said, "If the healthy person wants to take retaliation from him, he can have his retaliation. If he prefers, he has blood-money of one thousand dinars, twelve thousand dirhams."

Yahya related to me from Malik that he heard that full blood-money is payable for both of a pair of any parts of a man that occur n pairs, and the tongue incurs full blood-money. The ears, when their hearing has departed, incur full blood-money, whether or not they have been cut off, and a man's penis incurs full blood-money as do testicles.

Yahya related from Malik that he heard that the breasts of a woman incurred full blood-money.

Malik said, "The least of that are the eyebrows and a man's breasts."

Malik said, "What is done in our community when a man is injured in his extremities to an extent that obliges payment of more than the amount of his full blood-money, is that he has a right to it. If his hands, feet and eyes are all injured, he has three full blood-moneys."

Malik said about the sound eye of a one-eyed man when it is accientally gouged out, "The full blood-money is payable for it."

 

43.9 The Blood-Money for an Eye Whose Sight is Lost

Yahya related to me from Malik from Yahya ibn Sa'id from Sulayman ibn Yasar that Zayd ibn Thabit used to say, "When the eye remains but the sight is lost, one hundred dinars are payable for it."

Yahya said, "Malik was asked about cutting off the lower lid of the eye and the bone around the eye. He said, 'There is only ijtihad about that unless the vision of the eye is impaired. He is entitled to an amount that is compatible to the extent the vision of the eye has been impaired."

Yahya said that Malik said, "What is done in our community about removing the bad eye of a one-eyed man when it has already been blinded and still remains there in its place and the paralyzed hand when it is cut off is that ijtihad in that must be used. There is no prescribed blood-money."

 

43.10 The Blood-Money for Head Wounds

Yahya related to me from Malik that Yahya ibn Sa'id heard Sulayman ibn Yasar mention that a face wound in which the bone was bared was like a head wound in which the bone was bared unless the face was scarred by the wound. Then the blood-money was increased by one half of the blood-money of a head wound in which the skin was bared so that seventy-five dinars are payable for it.

Malik said, "What is done in our community is that a head wound with splinters gets fifteen camels."

He explained, "The head wound with splinters is a wound from which pieces of bone fly off but which does not reach the brain. It can be in the head or the face."

Malik said, "The generally agreed on way of doing things in our community is that there is no retaliation for a wound to the brain or a belly wound, and Ibn Shihab has said, 'There is no retaliation for a wound to the brain.' "

Malik explained, "The wound to the brain is a wound which pierces the skull through to the brain. This type of wound only occurs in the head. It is one that reaches the brain when the skull is pierced."

Malik said, "What is done in our community is that there is no blood-money paid on any head wound less than one which lays bare the skull. Blood-money is payable only for a head wound that bares the bone and anything more severe than that. That is because the Messenger of Allah, may Allah bless him and grant him peace, stopped at the head wound which bared the bone in his letter to 'Amr ibn Hazm. He made the blood-money for it five camels. The Imams, past and present, have not made any blood-money payable for injuries less than the head wound which bares the bone."

Yahya related to me from Malik from Yahya ibn Sa'id that Sa'id ibn al-Musayyab said, "For every piercing wound in any of the organs or limbs of the body, one third of the blood-money of that limb is payable."

Malik related to me, "Ibn Shihab did not think, and nor do I, that there is a generally agreed on way of doing things regarding a piercing wound in any of the organs or limbs of the body, but I think that ijtihad should be used in each case. The imam uses ijtihad about it, and there is no generally agreed on way of doing things in our community in this case."

Malik said, "What is done in our community about a brain wound and a wound which splinters the bone and the wound that bares the bone is that they apply to the head and face. If such a wound occurs in the body it is subject to ijtihad."

Malik said, "I do not think the lower jaw or the nose are part of the head in regard to injury because they are separate bones, and apart from them the head is made up of a single bone."

Yahya related to me from Malik from Rabi'a ibn Abi 'Abd ar-Rahman that 'Abdullah ibn az-Zubayr allowed retaliation for a head wound which splintered the bone.

 

43.11 The Blood-Money for Fingers

Yahya related to me from Malik that Rabi'a ibn Abi 'Abd ar-Rahman said, "I asked Sa'id ibn al-Musayyab, 'How much is it for the finger of a woman?' He replied, 'Ten camels.' I said, 'How much for two fingers?' He said, 'Twenty camels.' I asked, 'How much for three?' He said, 'Thirty camels.' I said, 'How much for four?' He said, 'Twenty camels.' I said, 'When her wound is greater and her affliction stronger is her blood-money then less?' He asked, 'Are you an Iraqi then?' I said, 'Rather I am a scholar who seeks to verify things, or an ignorant man who seeks to learn.' Sa'id said, 'It is the sunna, my nephew.'"

Malik said, "What is done in our community about all the fingers of the hand being cut off is that complete blood-money is given. That is because when five fingers are cut, their blood-money is the blood-money of the hand: fifty camels. Each finger has ten camels."

Malik said, "The reckoning of the fingers is thirty-three dinars for each fingertip, and that is three and a third shares of camels."

 

43.12 General Section on the Blood-Money for Teeth

7 Yahya related to me from Malik from Zayd ibn Aslam from Muslim ibn Jundub from Aslam, the mawla of 'Umar ibn al-Khattab, that 'Umar ibn al-Khattab decided that there was a camel for a molar, a camel for a collar-bone, and a camel for a rib.

Yahya related to me from Malik that Yahya ibn Sa'id heard Sa'id ibn al-Musayyab say, "'Umar ibn al-Khattab decided on a camel for each molar, and Mu'awiya ibn Abi Sufyan decided on five camels for each molar."

Sa'id ibn al-Musayyab said, "The blood-money is less in the judgement of 'Umar ibn al-Khattab and more in the judgement of Mu'awiya. If it had been me, I would have made it two camels for each molar. That is the fair blood-money, and everyone who strives with ijtihad is rewarded."

Yahya related to me from Malik from Yahya ibn Sa'id that Sa'id ibn al-Musayyab used to say, "When a tooth is struck and becomes black, there is complete blood-money for it. If it falls out after it becomes black, there is also the complete blood-money for it."

 

43.13 Procedure in the Blood-Money for Teeth

8 Yahya related to me from Malik from Da'ud ibn al-Husayn that Abu Ghatafan ibn Tarif al-Murri informed him that Marwan ibn al-Hakam sent him to 'Abdullah ibn 'Abbas to ask him what there was for the molar. 'Abdullah ibn 'Abbas said, "There are five camels for it." He said, "Marwan sent me back again to 'Abdullah ibn 'Abbas." He said, "Do you consider all teeth as molars?" 'Abdullah ibn 'Abbas said, "It is enough that you take the fingers as the example for that, their blood-money being all the same."

Yahya related to me from Malik from Hisham ibn 'Urwa that his father made all the teeth the same in the blood-money and did not prefer any kind over others.

Malik said, "What is done in our community is that the front teeth, molars, and eye-teeth have the same blood-money. That is because the Messenger of Allah, may Allah bless him and grant him peace, said, 'The tooth has five camels.' The molar is one of the teeth and he did not prefer any kind over the others."

 

43.14 The Blood-Money for Injuries to Slaves

Yahya related to me from Malik that he had heard that Sa'id ibn al-Musayyab and Sulayman ibn Yasar said, "The head wound of a slave in which the bone is bared is a twentieth of his price.

Malik related to me that he had heard that Marwan ibn al-Hakam gave a decision that when a slave was injured, the person who injured him had to pay the amount that the value of the slave had diminished due to the injury.

Malik said, "What is done in our community is that for the head wound of a slave that bares the bone there is a twentieth of his price. The head wound which splinters the bone incurs three-twentieths of his price. Both the wound to the brain and the belly-wound incur a third of his price. Besides these four, any other types of injury that decrease the value of the slave are considered after the slave is better and well, and one sees what the value of the slave is after his injury and what his value whole was before he received the injury. Then the one who injured him pays the difference between the two values."

 

43.15 The Blood-Money of the People of Protection (Dhimma)

Yahya related to me from Malik that he heard that 'Umar ibn 'Abd al-'Aziz gave a decision that when a Jew or Christian was killed, his blood-money was half the blood-money of a free Muslim.

Malik said, "What is done in our community is that a Muslim is not killed in retaliation for the death of an unbeliever unless the Muslim killed him by treachery. In such a case he is killed for it."

Yahya related to me from Malik from Yahya ibn Sa'id that Sulayman ibn Yasar said, "The blood-money of a Magian is eight hundred dirhams."

Malik said, "This is what is done in our community."

Malik said, "The blood money for injuries suffered by Jews, Christians and Magians is the same as for injuries to the Muslims. The head wound incurs a twentieth of the full blood-money. The wound that opens the head incurs a third. The belly-wound also incurs a third of his blood-money. All their injuries are assessed in this way."

 

43.16 Blood-Money that Has to be Paid on an Individual Basis

Yahya related to me from Malik from Hisham ibn 'Urwa that his father said, "The tribe is not obliged to pay blood-money for intentional murder. They only pay blood-money for accidental killing."

Yahya related to me from Malik that Ibn Shihab said, "The precedent in the sunna is that the tribe are not liable for any blood-money of an intentional killing unless they wish to do so."

Yahya related the same as that to me from Malik from Yahya ibn Sa'id.

Malik said that Ibn Shihab said, "The precedent in the sunna in the case of intentional murder is that when the relatives of the murdered person relinquish their right of retaliation, the blood-money is owed by the murderer from his own property unless the tribe helps him with it willingly."

Malik said, "What is done in our community is that the blood-money is not taken from the tribe until it has reached a third of the full amount and upwards. If it reaches a third is it is owed by the tribe, and if it is below a third it is taken from the property of the one who inflicted the injury."

Malik said, "The way of doing things about which there is no dispute among us in the case of someone who has the blood-money accepted from him in intentional murder, or in any injury in which there is retaliation, is that the blood-money is not due from the tribe unless they wish it. The blood-money for it comes from the property of the murderer or the injurer if he has property. If he does not have any property it is a debt against him, and none of it is owed by the tribe unless they wish it to be."

Malik said, "The tribe does not pay blood-money to anyone who injures himself, intentionally or accidentally. This is the opinion of the people of fiqh in our community. I have not heard that anyone has made the tribe liable for blood-money incurred by intentional actions. Well-known evidence for that is that Allah, the Blessed, the Exalted, said in His Book, 'But if someone is absolved by his brother, blood-money should be claimed with correctness and paid with good will.' (2:178). The commentary on that, in our view, and Allah knows best, is that whoever gives his brother something of the blood-money should follow it with what is accepted and pay him with good will."

Malik spoke about a child who had no property and a woman who had no property. He said, "When one of them causes an injury incurring below a third of the total blood-money, it is taken on behalf of the child and woman from their personal property if they have property from which it may be taken. If not, the injury which each of them has caused is a debt against them. Their tribe does not have to pay any of it, and the father of a child is not liable for the blood-money for an injury caused by his child and he is not responsible for it."

Malik said, "The way of doing things in our community about which there is no dispute is that when a slave is killed, his value is the same as it was on the day on which he was killed. The tribe of the murderer is not liable for any of the slave's value, great or small. It is the responsibility of the one who killed him and must be paid from his own personal property as far as it covers it. If the value of the slave is the same as the blood-money or even more, that must be paid from his property. That is because the slaves are a category of goods."

 

43.17 Inheritance of Blood-Money and Making it More Severe

9 Yahya related to me from Malik from Ibn Shihab that 'Umar ibn al-Khattab demanded of the people at Mina, "If anyone has knowledge of blood-money, let him tell me." Ad-Dahhak ibn Sufyan al-Kilabi stood up and said, "The Messenger of Allah, may Allah bless him and grant him peace, wrote to me that the wife of Ashyam ad-Dibabi inherited from the blood-money of her husband. "'Umar ibn al-Khattab said to him, "Go into the tent until I come to you." When 'Umar ibn al-Khattab came in, ad-Dahhak told him about it and 'Umar ibn al-Khattab gave a decision based on that.

Ibn Shihab added, "The killing of Ashyam was accidental."

10 Malik related to me from Yahya ibn Sa'id from 'Amr ibn Shu'ayb that a man of the Banu Mudlij called Qatada threw a sword at his son and it struck his thigh. The wound bled profusely and he died. Suraqa ibn Ju'shum came to 'Umar ibn al-Khattab and mentioned that to him. 'Umar told him, "At the watering-place of Qudayd count one hundred and twenty camels and wait until I come to you." When 'Umar ibn al-Khattab came to him, he took thirty four-year old camels, thirty five-year old camels and forty pregnant camels from them. Then he said, "Where is the brother of the slain man?" He said, "Here." He said, "Take them. The Messenger of Allah, may Allah bless him and grant him peace, said, 'The killer gets nothing.' "

Malik said that he had heard that Sa'id ibn al-Musayyab and Sulayman ibn Yasar were asked, "Does one make the blood-money more severe in the sacred month?" They replied, "No. But it is increased because of violating the month." Sa'id was asked, "Does one impose an increase for a wound just as one increases for a life?" He replied, "Yes."

Malik added, "I think that they meant the same as 'Umar ibn al-Khattab did with respect to the blood-money of the Mudliji when he struck his son (i.e. giving one hundred and twenty camels instead of a hundred.)"

11 Malik related to me from Yahya ibn Sa'id from 'Urwa ibn az-Zubayr that a man of the Ansar called Uhayha ibn al-Julah had a young paternal uncle who was younger than him and who was living with his maternal uncles. Uhayha seized him and killed him. His maternal uncles said, "We brought him up from from a baby to a youth till he stood firm on his feet, and we have had the right of a man taken from us by his paternal uncle." 'Urwa said, "For that reason a killer does not inherit from the one he killed."

Malik said, "The way of doing things about which there is no dispute is that the intentional murderer does not inherit any of the blood-money of the person he has murdered nor any of his property. He does not stop anyone who has a share of inheritance from inheriting. The one who kills accidentally does not inherit any of the blood-money and there is dispute as to whether or not he inherits from the dead person's property because there is no suspicion that he killed him for his inheritance and in order to take his property. I prefer that he inherit from the dead person's property and not inherit from the blood-money."

 

43.18 General Section on Blood-Money

12 Yahya related to me from Malik from Ibn Shihab from Sa'id ibn al-Musayyab and Abu Salama ibn 'Abd ar-Rahman from Abu Hurayra that the Messenger of Allah, may Allah bless him and grant him peace, said, "The wound of an animal is of no account and no compensation is due for it. The mine is of no account and no compensation is due for it and a fifth is due for buried treasure." (Al-Kanz: see Book 17)

[cf Bukhari 1428; also in Muslim]

Malik said, "Everyone leading an animal by the halter, driving it or riding it is responsible if the animal kicks out without anything being done to make it kick out. 'Umar ibn al-Khattab imposed the blood-money on a person who was exercising his horse."

Malik commented, "It is yet more fitting that a person who is leading an animal by the halter, driving it or riding it incur a loss than a person who is exercising his horse." (See hadith 4 of this book.)

Malik said, "What is done in our community about a person who digs a well on a road or ties up an animal or does something similar on a road used by Muslims is that since what he has done is included among the things which he is not permitted to do in such a place, he is liable for whatever injury or other thing arises from that action. The blood-money for anything less than a third of the full blood-money is owed from his personal property. Whatever reaches a third or more is owed by his tribe. Anything that he does which he is permitted to do on the Muslims' roads is something for which he has no liability or loss. Such things include a hole which a man digs to collect rain, and a beast from which the man alights for some need and leaves standing on the road. There is no penalty against anyone for such as this."

Malik spoke about a man who went down a well with another man following behind him. The lower one pulled the higher one, and they both fell into the well and died. He said, "The tribe of the one who pulled the other in is responsible for the blood-money."

Malik spoke about a child whom a man ordered to go down a well or to climb a palm tree and he died as a result. He said, "The one who ordered him is liable for whatever befalls him, be it death or anything else."

Malik said, "The way of doing things in our community about which there is no dispute is that women and children are not obliged to pay blood-money together with the tribe in any blood-money which the tribe must pay. The blood-money is only obligatory for men who have reached puberty."

Malik said that the tribe could bind themselves to the blood-money of mawali if they wished. If they refused, they were people of the diwan or were cut off from their people. In the time of the Messenger of Allah, may Allah bless him and grant him peace, people paid the blood-money to each other, as well as in the time of Abu Bakr as-Siddiq, before there was a diwan. The diwan came about in the time of 'Umar ibn al-Khattab. No one other than one's people and the ones holding the wala' paid blood-money for someone because the wala' was not transferable and because the Prophet, may Allah bless him and grant him peace, said, "The wala' belongs to the one who sets free."

Malik commented, "The wala' is an established relationship."

Malik said, "What is done in our community about animals that are injured is that the person who causes the injury pays the amount that their value has been diminished."

Malik said about a man condemned to death who become liable to one of the other hudud as well, "He is not punished for it. That is because killing overrides everything, except for slander. Slander remains hanging over the one to whom it was said because it will be said to him, 'Why do you not flog the one who slandered you?' I think that a condemned man is flogged with the hadd before he is killed, and then he is killed. I do not think that any retaliation is inflicted on him for any injury except killing because killing overrides everything else."

Malik said, "What is done in our community is that when a murdered person is found among the main body of a people in a village or other place, the people of the nearest house or place to him are not held responsible. That is because the murdered person can be slain and then cast at the door of some people to shame them by it. No one is responsible for something like that."

Malik said about a group of people who fight with each other and when the fight is broken up, a man is found dead or wounded, and it is not known who did it, "The best of what is heard about that is that there is blood-money for him, and the blood-money is against the people who argued with him. If the injured or slain person is not from either of the two parties, his blood-money is against both of the two parties together."

 

43.19 Killing Secretly by Trickery and Sorcery

13 Yahya related to me from Malik from Yahya ibn Sa'id from Sa'id ibn al-Musayyab that 'Umar ibn al-Khattab killed five or seven people for one man whom they had killed secretly by trickery. 'Umar said, "Had all the people of San'a joined forces against him, I would have counted them all together."

14 Yahya related to me from Malik from Muhammad ibn 'Abd ar-Rahman ibn Sa'd ibn Zurara that he had heard that Hafsa, the wife of the Prophet, may Allah bless him and grant him peace, killed one of her slave-girls who had used sorcery against her. The girl was a mudabbara. Hafsa gave the order and she was killed.

Malik commented, "The sorcerer is the one who uses sorcery on his own account, not someone who has it done for him. It is like the one about whom Allah, the Blessed, the Exalted, said in His s own account, not someone who has it done for him. It is like the one about whom Allah, the Blessed, the Exalted, said in His Book, 'They know that any who deal in it will have no share in the Next World.' (2:102) I think that if someone practises it, he should be killed."

 

43.20 What is Obligatory for Intentional Injury

15 Yahya related to me from Malik from 'Umar ibn Husayn, the mawla of 'A'isha bint Qudama, that 'Abd al-Malik ibn Marwan imposed retaliation against a man who killed a mawla with a stick - and so the mawla's patron killed the man with a stick.

Malik said, "The generally agreed on way of doing things in our community about which there is no dispute is that when a man strikes another man with a stick or hits him with a rock or intentionally strikes him causing his death, that is an intentional injury and there is retaliation for it."

Malik said, "Intentional murder in our opinion is that a man intentionally goes to a man and strikes him until his life departs. Part of intentional injury also is that a man strikes a man in a quarrel between them. He leaves him while he is alive and then he bleeds to death and so dies. There is retaliation for that."

Malik said, "What is done in our community is that a group of free men are killed for the intentional murder of one free man, and a group of women for one woman, and a group of slaves for one slave."

 

43.21 Retaliation in Killing

Yahya related to me from Malik that he had heard that Marwan ibn al-Hakam wrote to Mu'awiya ibn Abi Sufyan to mention to him that a drunkard had been brought to him who had killed a man. Mu'awiya wrote to him to kill him in retaliation for the dead man.

Yahya said that Malik said, "The best of what I have heard about the interpretation of this ayat, the words of Allah, the Blessed, the Exalted, 'The free man for the free man and the slave for the slave' - these are men - 'and the female for the female' (2:178), is that retaliation is between women as it is between men. The free woman is killed for the free woman as the free man is killed for the free man. Slave-girls are slain for slave-girls as the slave is slain for the slave. Retaliation is between women as it is between men. That is because Allah, the Blessed, the Exalted, says in His Book, 'We prescribed for them in it: is a life for a life, an eye for an eye, a nose for a nose, and an ear for an ear, and a tooth for a tooth, and retaliation for wounds.' (5:48). Allah, the Blessed, the Exalted, mentioned that it is a life for a life. It is the life of a free woman for the life of a free man, and her injury for his injury."

Malik said about a man who held a man fast so that another man could hit him, and he died on the spot, "If he held him and he thought that he meant to kill him, the two of them are both killed for him. If he held him thinking that he meant to hit him as people sometimes do, and he did not think that he meant to kill him, the murderer is slain and the one who held the victim is punished severely and jailed for a year. There is no right to kill him."

Malik said about a man who murdered a man intentionally or gouged out his eye intentionally, and then was slain or had his eye gouged out himself before retaliation was inflicted on him, "There is no blood-money nor retaliation against him. The right of the one who was killed or had his eye gouged out goes when the thing which he is claiming as retaliation goes. It is the same with a man who murders another man intentionally and then the murderer dies. When the murderer dies, the one seeking blood revenge has no blood-money or anything else. That is by the word of Allah, the Blessed, the Exalted, 'Retaliation is prescribed for you in the case of people killed: free man for free man and slave for slave.' (2:178)"

Malik said, "He only has retaliation against the one who killed him. If the man who murdered him dies, he has no right to retaliation or blood-money."

Malik said, "There is no retaliation against a free man by a slave for any injury. The slave is killed for the free man but the free man is not slain for the slave, even if he murders him intentionally. This is the best of what I have heard."

 

43.22 Pardoning Murder

Yahya related to me from Malik that those he was satisfied with among the people of knowledge said about a man who willed that his murderer be pardoned when he had murdered him intentionally, "That is permitted for him. He is more entitled to the man's blood than any of his relatives after him."

Malik said about a man who pardoned murder after having previously claimed his right and it was obliged for him to be paid, "There is no blood-money against the murderer unless the one who pardons him actually stipulates that when he pardons him."

Malik said about a murderer when he was pardoned, "He given flogged one hundred lashes and jailed for a year."

Malik said, "When a man murders intentionally and there is a clear proof of that, and the murdered man has sons and daughters and the sons pardon and the daughters refuse to pardon, the pardon of the sons is permitted in opposition to the daughters and the daughters have no authority over the sons in demanding blood and pardoning."

 

43.23 Retaliation in Injury

Yahya said that Malik said, "The generally agreed on way of doing things in our community is that retaliation is taken from someone who breaks someone's hand or foot intentionally and not blood-money."

Malik said, "Retaliation is not inflicted on anyone until the wound of the injured party has healed. Then retaliation is inflicted on him. If the wound of the person on whom the retaliation has been inflicted is like the first person's wound when it heals, it is retaliation. If the wound of the one on whom the retaliation has been inflicted becomes worse or he dies, there is nothing held against the one who has taken retaliation. If the wound of the person on whom the retaliation has been inflicted heals and the injured party is paralysed or his injury has healed but he has a scar, defect or blemish, the person on whom the retaliation has been inflicted does not have his hand broken again and further retaliation is not taken for his injury."

He also said, "But there is blood-money from him according to what he has impaired or maimed of the hand of the injured party. The bodily injury is also like that."

Malik said, "When a man intentionally goes to his wife and gouges out her eye or breaks her hand or cuts off her finger or such like, and does it intentionally, retaliation is inflicted on him. As for a man who strikes his wife with a rope or a whip and hits what he did not mean to hit or does what he did not intend to do, he pays blood-money for what he has struck according to this principle, and retaliation is not inflicted on him."

Yahya related to me from Malik that he had heard that Abu Bakr ibn Muhammad ibn 'Amr ibn Hazm took retaliation for the breaking of a leg.

 

43.24 The Blood-Money and Crime of the Slave Set Free and from whom his Former Master Does not Inherit

Yahya related to me from Malik from Abu'z-Zinad from Sulayman ibn Yasar that a slave was set free by one of the people on hajj and his master abandoned the right to inherit from him. The ex-slave then killed a man from the Banu 'A'idh tribe. An 'A'idhi, the father of the slain man, came to 'Umar ibn al-Khattab seeking the blood-money of his son. 'Umar said, "He has no blood-money." The 'A'idhi said, "What would you think if it had been my son who killed him?" 'Umar said, "Then you would pay his blood-money." He said, "He is then like the black and white Arqam snake. If it is left, it devours, and if it is killed, it takes revenge."