Laws of Religion

Laws of Islam Concerning Women and Men

 

Trials and Punishments of Men and Women

 

Punishment for Murder

 

From Islamic Jurisprudence (fiqh/sharia§):  The Distinguished Jurist’s Primer of Ibn Rushd, the Risala of al-Shafi‛i and Reliance of the Traveller

 

 

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Punishment for murder (jurisprudence/fiqh/sharia). A person who intentionally murders another is liable to retaliation (execution). Reliance of the Traveller (Shafiʽi school) explains that it is not permitted to retaliate against another for death or injury of a family member without approval by the caliph (leader of the Muslim community) or his representative. If retaliation does occur without such approval, it is considered valid but the person who did this is subject to punishment at the discretion of the caliph. Also, a person inflicting retaliation for death or injury of a family member must be physically capable of performing this act or else it is to be delegated to someone else.[1]

 

Reliance of the Traveller (Shafiʽi school) says that any killing of a person who it is unlawful to kill, whether done intentionally or accidentally, requires expiation to God.[2] This expiation consists of either freeing a slave or, if this is not possible, fasting for two consecutive months.[3] While al-Shafiʽi says that expiation for the murder of a free man is required, Malik says it is not.[4]

 

The scholars* generally agree that retaliation (execution) is averted if the heirs of the victim agree to pardon the murderer.  If the heirs do pardon the murderer, they may demand blood money (diya) from him. Al-Shafiʽi says that the heirs alone make the decision concerning execution or payment of blood money; the concurrence of the murderer is not required. Malik and Abu Hanifa say that the murderer must agree to pay the blood-money before the victim’s heirs can pardon him.[5]

 

For the Shafiʽi school, diya for intentional murder is 30 three-year-old female camels, 30 four-year-old female camels and 40 pregnant camels.[6] Malik says that diya for intentional murder is 25 one-year-old camels, 25 two-year-old camels, 25 three-year-old female camels and 25 two-year-old goats. In contrast, Abu Hanifa holds that compensation for intentional murder is determined by settlement rather than being a fixed diya.[7]

 

The scholars agree that if some of the victim’s sons pardon the murderer, he is not liable to execution.[8] However, they disagree concerning the role of female heirs and minors in pardoning a murderer. Malik says that the views of female heirs have no weight against the views of the male heirs concerning pardoning of murderer, just as a wife’s views generally do not negate her husband’s decision when they disagree. In Abu Hanifa’s view, male and female heirs have equal say in pardoning a murderer from execution and in relinquishing right to blood money.[9]  Al-Shafiʽi and the Shafiʽi school hold that male and female heirs and even minors have equal say in pardoning murderer from execution and in relinquishing right to blood money[10] and that if even one of those entitled to retaliation decides to forego it, then there is no retaliation (execution) and all those entitled share in the blood money (diya).[11]

 

It is agreed that retaliation (execution) may result from murder of a person of equal or higher status with regard to being a Muslim or non-Muslim, free person or slave, male or female. Also, most jurists agree that a man who murders a woman is liable for execution.[12] Reliance of the Traveller (Shafiʽi school) explains that females are entitled to retaliate against males for death or injury to a family member, just as a child may retaliate against and adult or a poor person against a rich one.[13] Both al-Shafiʽi and Malik say that there is no retaliation (execution) for a free man who murders a slave, but Abu Hanifa says that there is retaliation (execution) in such cases if the murderer was not the owner of the slave.[14] Malik says that there is retaliation (execution) for a Muslim who murders a dhimmi**; al-Shafiʽi says there is none; while Abu Hanifa says retaliation is called for in such cases only if the murder was accomplished by treachery.[15] It is generally agreed that a man is not liable for execution if he murders his son or grandson, though Malik says that such a murderer may be executed if the murder was carried out suddenly.[16]

 

It is agreed that a pregnant woman is not to be executed until her baby is born.[17] Reliance of the Traveller adds that the baby must be capable of surviving on someone else’s milk before its mother can be executed. [18]

 

 

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*Islamic scholars disagree on certain points of law based on different methodologies used in deriving the law from the Qur’an and the traditions (sunna) concerning the life of Muhammad and his closest companions, particularly as expressed in the compiled hadiths. There are four major schools of jurisprudence in Sunni Islam: the Maliki, the Hanafi, the Shafi‛i and the Hanbali. These names are derived from the individual scholars considered to have been the founders of each school: Malik, Abu Hanifa, al-Shafi‛i and Ahmad ibn Hanbal, respectively. The source texts we have used to prepare our summaries of Islamic jurisprudence contain the legal views of these different founders and schools, as described at Source Texts Used for Laws of Islam.

 

**A dhimmi is non-Muslim who agrees to follow certain rules of behavior,[19] wears distinctive clothing that Muslims do not wear,[20] pays a poll tax (jizya),[21] and is protected by the Muslim rulers.[22] For al-Shafi‛i[23]  and the Shafi‛i school[24] only Jews, Christians, and Zoroastrians (or Magians) may be dhimmis but Malik[25] and the Hanifi[26] say that even polytheists may be dhimmis.

 

§The specific derived laws of fiqh summarized here are often referred to by the more general term sharia law.

 

 

Laws of Religion is a project of the Religion Research Society.

 

Updated October 12, 2016

 

 

Abbreviations used in footnotes:

DJP:  The Distinguished Jurist’s Primer, by Ibn Rushd, translated by Imran Ahsan Khan Nyazee, published by Garnet Publishing Ltd, Reading, UK. Volume 1, 1994. Volume 2, 1996. Limited preview is available here (Volume 1) and here (Volume 2). Full text online and download for Volume 1 is here and here and for Volume 2 is here and here.

RT:    Reliance of the Traveller: A Classic Manual of Islamic Sacred Law by Ahmad ibn Naqib al-Misri, translated by Nuh Ha Mim Keller, revised edition 1994, published by Amana Publications, Beltsville, Maryland, USA. It can be downloaded as a pdf file from various websites such as this one.

SR:    al-Shafi‛i’s Risala: Treatise on the Foundations of Islamic Jurisprudence, translated by Majid Khadduri, Second Edition, published by The Islamic Texts Society. It can be downloaded here.

●  The sources cited are described on the page Source Texts Used for Laws of Islam.



[1] RT o3.4 (page 586)

[2] RT o5.1 (page 593)

[3] RT o5.2 (page 593)

[4] DJP 56.3 (Vol 2, pages 495-505)

[5] DJP 56.1.1.2 (Vol 2, pages 486-489)

[6] RT o4.3 (pages 588-589)

[7] DJP 56.3 (Vol 2, pages 495-505)

[8] DJP 56.1.1.2 (Vol 2, pages 486-489), RT o3.8 (pages 586-587)

[9] DJP 56.1.1.2 (Vol 2, pages 486-489)

[10] DJP 56.1.1.2 (Vol 2, pages 486-489), RT o3.8 (pages 586-587)

[11] RT o3.8 (pages 586-587)

[12] DJP 56.1.1.1 (Vol 2, pages 479-486)

[13] RT 03.3 (page 586)

[14] DJP 56.1.1.1 (Vol 2, pages 479-486)

[15] DJP 56.1.1.1 (Vol 2, pages 479-486)

[16] DJP 56.1.1.1 (Vol 2, pages 479-486)

[17] DJP 56.1.1.3 (Vol 2, pages 489-490)

[18] RT o3.6 (page 586)

[19] RT o11.3 (page 607), RT o11.5 (page 608), RT o11.6 (page 608), RT o11.9 (page 609),

[20] RT o11.5 (page 608)

[21] DJP 10.1.7 (Volume 1, pages 464-466), DJP 10.2.7.1 (Volume 1, page 483), RT o11.3 (page 607), RT o11.4 (page 608), RT o11.9 (page 609)

[22] RT o11.8 (page 609)

[23] DJP 10.1.7 (Volume 1, pages 464-466)

[24] RT o9.8 (pages 602-603), o11.1-o11.2 (page 607)

[25] DJP 10.1.7 (Volume 1, pages 464-466)

[26] translator’s note in RT o9l9 (page 603)