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.
A free man’s offence against a slave:
The subject of this section is a debate between Imam al-Shafi’i and one of his opponents (apparently from the Hanafis) on the issue of a free man’s accidental offence against a slave: is it borne by the ‘aqilah (the offender’s paternal kinsmen who share liability), or is it paid from the offender’s own wealth? Imam al-Shafi’i explains the kinds of analogy (qiyas) used in the issue and how to weigh between them.
The main points Imam al-Shafi’i addressed in this debate:
- The position of the majority on a free man’s offence against a slave: Imam al-Shafi’i explains that the majority of scholars hold that the ‘aqilah does not bear a free man’s offence against a slave, whether it was intentional or accidental, or [liability arising from] a settlement or a confession.
- Imam al-Shafi’i’s position on a free man’s offence against a slave: Imam al-Shafi’i clarifies that he holds that the ‘aqilah bears a free man’s offence against a slave if it was accidental, by analogy with its bearing a free man’s accidental offence against a free man.
- The argument from the report of Ibn ‘Abbas: Imam al-Shafi’i explains that the opponents argue from a report from Ibn ‘Abbas, may Allah be pleased with them both, that he said: “The ‘aqilah does not bear [liability for] a slave, nor for an intentional [offence].” Imam al-Shafi’i responds to this argument that this report stops at Ibn ‘Abbas (mawquf) and is not traced back to the Prophet ﷺ (marfu’), and also that it admits another meaning, namely that the ‘aqilah does not bear a slave’s offence against others; rather, it attaches to his person (fi raqabatih), that is, the slave is sold and the debt is paid from [his price].
- The analogy with a free man’s offence against a free man: Imam al-Shafi’i explains that the sound analogy is to liken a free man’s offence against a slave to a free man’s offence against a free man: since the ‘aqilah bears a free man’s accidental offence against a free man, it likewise bears his accidental offence against a slave, because the slave is an inviolable soul and resembles the free person in many rulings.
- The disagreement over the amount due for an offence against a slave: Imam al-Shafi’i explains that there is disagreement over the amount due for an offence against a slave. Is it assessed by analogy with the blood money (diyah) of a free person, so that an offence against a slave’s eye is half the slave’s value, and an offence against a part of him such as a mudihah (a wound that exposes the bone) is half of a tenth of the slave’s value? Or is it assessed by analogy with the decrease that occurred in the slave’s value as a result of the offence? Imam al-Shafi’i holds the first view, namely assessing it by analogy with the blood money of a free person, because the slave resembles the free person in many rulings.
- Discussing the opponents’ arguments on the amount due for an offence against a slave: Imam al-Shafi’i discusses the arguments of the opponents who hold that an offence against a slave is assessed by analogy with the decrease in his value, and refutes them on the grounds that this analogy resembles the analogy of offences against animals and goods, which is not sound, because the slave is an inviolable soul and resembles the free person in many rulings, so likening him to the free person is more fitting.
- The analogy with the blood money of a woman: Imam al-Shafi’i explains that the blood money of a woman is half the blood money of a man, and yet the amount due for an offence against her is assessed on the basis of her blood money: an offence against her eye is half her blood money, and an offence against a part of her such as a mudihah is half of a tenth of her blood money. This supports assessing an offence against a slave by analogy with the blood money of a free person, while taking the difference in value into account.
- Weighing between the kinds of analogy: Imam al-Shafi’i explains that there are kinds of analogy used in this issue, among them likening the slave to the free person, and likening him to animals and goods, and that the sound analogy is likening him to the free person, because he resembles him in many rulings, so likening him to the free person is more fitting than likening him to animals and goods.
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.
Final summary:
In this debate Imam al-Shafi’i explains the issue of a free man’s offence against a slave, and favours the view that the ‘aqilah bears it if it was accidental, by analogy with a free man’s offence against a free man. He discusses the opponents’ arguments and refutes them, and he explains the kinds of analogy used in the issue and how to weigh between them, affirming that sound analogy is that which agrees with the legal proofs and takes their meanings into account. This section shows Imam al-Shafi’i’s skill in debate, in inference, and in weighing between proofs and opinions.
All parts of Summary of the Explanation of al-Shafi'i's al-Risala by Dr. Yasir Burhami