In the name of Allah, the Most Gracious, the Most Merciful. All praise is due to Allah. I bear witness that there is no god but Allah, alone, without partner, and I bear witness that Muhammad is His servant and Messenger ﷺ.
The blood money for accidental killing and its being borne by the ‘aqilah:
In this section Imam al-Shafi’i explains the issue of the blood money (diyah) for accidental killing and its being borne by the ‘aqilah (the offender’s paternal kinsmen who share liability). He discusses the arguments of the opponents who set a particular amount for what the ‘aqilah bears, and he refutes them by explaining how sound analogy indicates the ruling on this issue.
The main points Imam al-Shafi’i addressed in this section:
- The consensus of the people of knowledge that the ‘aqilah bears the blood money for accidental killing: Imam al-Shafi’i explains that there is a general consensus among the people of knowledge that the ‘aqilah (the offender’s relatives on his father’s side) bears the blood money for accidental killing, in order to lighten the burden on the offender and to console the family of the victim.
- The consensus of the people of knowledge that the blood money for accidental killing is paid over three years: Imam al-Shafi’i also explains that there is consensus among the people of knowledge that the blood money for accidental killing is paid over three years, a third of it each year, and this too is to make things easy for the ‘aqilah.
- The disagreement over how much of injury offences the ‘aqilah bears: Imam al-Shafi’i explains that the disagreement among the scholars concerns how much the ‘aqilah bears of offences involving wounds that are less than the full blood money.
- The Hanafi position on how much the ‘aqilah bears: Imam al-Shafi’i clarifies that some of his companions (namely the Hanafis) hold that the ‘aqilah bears injury offences that reach a third of the blood money or more, and does not bear what is less than a third; that is paid from the offender’s own wealth. Some of them hold that the ‘aqilah bears the mudihah (a wound that exposes the bone), which is half of a tenth [of the blood money] (five camels), and above, and does not bear what is less than that.
- Imam al-Shafi’i’s discussion of the Hanafi arguments: Imam al-Shafi’i discusses the Hanafi arguments for setting the amount that the ‘aqilah bears, and refutes them with two lines of analogy:
- The first line: The basic principle is that the offender bears [the consequences of] his own offence, except that the Lawgiver made an exception of the blood money for accidental killing of a person and placed it upon the ‘aqilah, in following the text. So the analogy is that what is less than the full blood money reverts to the basic principle, which is that the offender bears his own offence. He likens this to wiping over leather socks (khuffs): it was granted as a concession by the report, and nothing else is analogised to it.
- The second line: If the ‘aqilah bears the greater amount (the full blood money), then it is all the more fitting that it should bear the lesser amount of an accidental offence.
- Refuting the argument from the practice of the people of Madinah: Imam al-Shafi’i also refutes those who argue from the practice of the people of Madinah (‘amal ahl al-Madinah) in setting the amount that the ‘aqilah bears, explaining that the practice of the people of Madinah is not a proof if it contradicts the texts or if it is not agreed upon by all the scholars of Madinah and the scholars of the other regions.
- Refuting the argument that there is no judgment for what is less than the mudihah: Imam al-Shafi’i refutes those who say that there is no judgment for what is less than the mudihah because the Messenger ﷺ did not give any judgment concerning it, explaining that his not giving a judgment on it does not mean that it goes uncompensated; rather, it is referred to ijtihad and to hukumah (the judge’s assessment).
- The correct view on how much the ‘aqilah bears: Imam al-Shafi’i explains that the correct view on this issue is that the ‘aqilah bears all accidental offences, even if they amount to a single dirham, by analogy with its bearing the full blood money.
- Explaining how analogy indicates the ruling on this issue: Imam al-Shafi’i clarifies that the way analogy indicates the ruling on this issue is that if the ‘aqilah bears the greater amount (the full blood money), then it is all the more fitting that it should bear the lesser amount, and there is nothing that requires distinguishing between the two.
Additional clarifications:
- The ‘aqilah: the offender’s relatives on his father’s side, who bear the blood money for accidental killing on his behalf.
- The diyah (blood money): the wealth paid to make good the harm resulting from killing or wounding.
- Al-khata’ (accident): killing or wounding that occurs without intent.
- The mudihah: a wound that exposes the bone.
- Al-hukumah: the judge’s assessment of the value of the offence.
- The practice of the people of Madinah: what was practised in Madinah in the time of the Companions and the Successors.
Final summary:
In this section Imam al-Shafi’i explains the issue of the blood money for accidental killing and its being borne by the ‘aqilah. He discusses the arguments of the opponents who set a particular amount for what the ‘aqilah bears, and refutes them by explaining how sound analogy indicates the ruling on this issue: namely, that the ‘aqilah bears all accidental offences, even small ones, by analogy with its bearing the full blood money. He affirms that sound analogy is that which agrees with the legal proofs and takes their meanings into account, and that juristic preference (istihsan) which does not rest on a legal proof carries no weight.
All parts of Summary of the Explanation of al-Shafi'i's al-Risala by Dr. Yasir Burhami