Offending heaven and Earth: Sin and expiation in Islamic homicide law

Islamic Law and Society

Volumn 14, Issue 1, 2007, Pages 42-80

  Powers, Paul R ^a  

^a LEWIS AND CLARK COLLEGE   (United States)

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EID: 34547683660     PISSN: 09289380     EISSN: 15685195     Source Type: Journal    
DOI: 10.1163/156851907780323825     Document Type: Article

References (157)

1. Such a description is commonplace, especially in scholarly works intended for a general audience. See, e.g., Frederick Mathewson Denny, An Introduction to Islam, 3d ed. (Upper Saddle River, N.J.: Pearson Prentice Hall, 2006), 196-7;
2. Abdulaziz Sachedina, "Woman, Half-the-Man? Crisis of Male Epistemology in Islamic Jurisprudence," in Perspectives on Islamic Law, Justice and Society, ed. R. S. Kliare (Lanham, Md.: Rowman & Littlefield, 1999), 145;
3. David Waines, An Introduction to Islam, 2d ed, (Cambridge: Cambridge University Press, 2003), 89, 93;
4. John Alden Williams, ed., The Word of Islam (Austin: University of Texas Press, 1994), 67, 87.
5. Bernard Weiss, "Law in Islam and in the West: Some Comparative Observations," in Islamic Studies Presented to Charles J. Adams, ed. Wael B. Hallaq and Donald P. Little (Leiden: Brill, 1991), 243.
6. I will briefly consider some other cases, such as that of a non-Muslim offender or victim. However, I do not purport to present a comprehensive treatment of all possible types of homicide considered in the sources, many of which invite further scholarly exploration.
7. As noted below, some Hanafis avoid the term kaffāra and use instead tahrīr, "emancipation [of a slave]."
8. For a general overview of Islamic homicide law and penal law more broadly, see Rudolph Peters, Crime and Punishment in Islamic Law: Theory and Practice from, the Sixteenth to the Twenty-first Century (Cambridge: Cambridge University Press, 2005), especially 6-68 (ch. 2);
9. Joseph Schacht An Introduction to Islamic Law (Oxford: Clarendon, 1964), 181-7;
10. and J. N. D. Anderson, "Homicide in Islamic Law," Bulletin of the School of Oriental and African Studies, University of London 13, 4 (1951): 811-28.
11. Cf. Qur'ān 17:31-3: "Do not kill your children for fear of want.... Nor kill the person whom God has made sacrosanct unless for a just cause. And if anyone is killed unjustly, We have given next of kin (walī) authority [to enact retaliation], but let him not exceed the bounds of moderation in the killing; indeed he is protected [by the law]"; cf. Qur'ān 6:151, which is similar.
12. Joseph Schacht observes of this passage that "here killing and unbelief are considered together so that the question, what happens to a believer who kills unlawfully, is left quite out of the question" (Encyclopaedia of Islam, new ed. Leiden: Brill, 1960- [hereafter EI(2)], s.v. "Katl").
13. For a fuller discussion of the Qur'ānic treatment of homicide, see ibid.
14. Classically, the compensation for a male homicide victim is 100 camels, for a female victim, fifty camels. "Heavy" and "light" diya are matters of the types of camels, such as sex, age, and so forth. For non-fatal injuries jurists assign a financial value to various body parts; diya is payable for head and facial injuries and lost limbs. According to Ibn Rushd, the compensation for a whole nose, tongue, or penis is 100 camels, fifty for an eye or hand, ten per finger (though thumbs raised disagreement), and five per tooth (Malik awarded a single loadbearing camel per molar, but agreed on five for front teeth). Partial injury or loss was subject to hukūma, or estimated damages, often covering medical expenses (Muhammad b. Ahmad Ibn Rushd [al-Hafīd], Bidāyat al-mujtahid wa nihāyat al-muqtasid [Beirut: Dar al-Kutub al-'Ilmiyya, 1988], 2:419-27;
15. this is available in English translation as The Distinguished Jurist's Primer: A Translation of "Bidāyat al-Mujtahid, " trans, by Imran Ahsan Khan Nyazee [Reading: Garnet, 1994]; in this see 2:506-14); and see n. 21 below.
16. Most Hanafīs (but few non-Hanafīs) add "that which can be assimilated to accident." (mā ujriya mujrā al-khata), which Mūsilī notes "is like a sleeping person rolling over and killing another person" ('Abd Allāh b. Mahmūd b. Mawdūd al-Mūsilī, al-Ikhtiyād;r li-ta'līl al-mukhtār, ed. Malmiūd Abū Daqīqa [Beirut: Dār al-Kutub al-'Ilmiyya, n.d,], 5:26);
17. cf. Burhān al-Dīn 'Alī b. Abī Bakr alMarghīnānī, al-Hidāya, sharh bidāyat al-mubtadī (Beirut: Dār al- Kutub al-'Ilmiyya, 2000), 4:501;
18. see also Muwaffaq al-Dīn 'Abd Allāh b. Ahmad Ibn Qudāma, al-Mughnī, ed. 'Abd Allāh b. 'Abd al-Muḩsin al-Turkl and 'Abd al-Fatāh Muhammad al-Hilū (Cairo: Hajir, 1992), 11:445;
19. and Anderson, "Homicide," 818-19. While this category is similar to purely accidental homicide, a sleeping person has no capacity for agency. This helps clarify the nature of "accidental" acts, highlighting the fact that, in an accident, an intended act of an agent, goes awry; in the category of "assimilated" acts, diere is no intention to act at all. The penalty is identical to that of purely accidental injurious action: there is no retaliation (or sin), but there is compensation and expiation.
20. Anderson, "Homicide," 819.
21. Peters concurs: "Since the juristsfelt that it is impossible to establish a person's state of mind, such as the intent to kill, they adopted an external, objective criterion for determining whether or not a killing or wounding was intended: the weapon or means that were employed" (Crime and Punishment, 43).
22. th Century Egyptian Shari'a Courts," Die Welt Des Islams 30 (1990), 103.
23. On the approach to intent and other subjective states taken in Muslim courts, see Lawrence Rosen, The Anthropology of Justice: Law as Culture in Islamic Society (Cambridge: Cambridge University Press, 1989);
24. Brinkley Messick, "Written Identities: Legal Subjects in an Islamic State," History of Religions 38, 1 (August 1998): 25-51;
25. and idem, "Indexing the Self: Intent and Expression in Islamic Legal Acts," Islamic Law and Society 8, 2 (2001): 151-78. On Islamic legal treatments of intent more generally,
26. see my Intent in Islamic Law: Motive and Meaning in Medieval Sunni Fiqh (Leiden: Brill, 2006).
27. On categories of justified homicide, see Peters, Crime and Punishment, 38; examples include legally sanctioned execution or the killing of a person lacking legal protection, such as an apostate or a non-Muslim residing outside of Islamic territory and without treaty protection.
28. Mūsilī, Ikhtiyār, 5:22-3.
29. Ibn Qudāma, Mughnī, 11:447; rather than shibh 'amd, this hadīth uses a term generally treated as equivalent, 'amd al-khafa'.
30. See Peters, "Murder on the Nile," 103.
31. Ibn Qudāma, Mughnī, 11:447.
32. According to one opinion attributed to Shāfi 'i,̄, he holds that "eating [the poison] is voluntary, and this is like one person holding up a knife and the other person stabbing himself with it" (Ibn Qudāma, Mughnī, 11:453); on the treatment of poisoning, especially in Hanafī law,
33. see Colin Imber, "Why You Should Poison Your Husband: A Note on Liability in Hanafī Law in the Ottoman Period," Islamic Law and Society 1, 2 (1994): 206-16;
34. cf. Anderson, "Homicide," 821-2. Drowning brings up concerns about agency and intent similar to those raised by poisoning: Ibn Qudāma asserts, "If a person is thrown into shallow water which he is able to get out of, and he chooses to delay and then dies from this, there is no retaliation or compensation assessed, because the actions [of the person who did the throwing] did not. cause death" (Mughnī, 11:450-1; note that there is no mention here of whether the initial throwing was done with the intention of killing).
35. Ibn Qudāma, Mughnī, 11:462-3, emphasis added.
36. See also Peters, "Murder on the Nile," 104.
37. See, e.g., Abū Bakr b. Mas'ūd al-Kāsānī, Badā'i'al-sanāie; fī tarīb al-sharā'i' (Beirut: Dār al-Kutub al-'Ilmiyya, 1997), 10:299. According to Peters, the fact that this category is distinguished from accidental homicide only in terms of the "weight" (or, as per Peters, "height") of the diya, and that this is measured in terms of camels, "made the category of shibh 'amd very theoretical" (see "Murder on the Nile," 104-05; quote is in n. 18).
38. See,e.g.,Mūsili;ilī, Ikhtiyār, 5:25;
39. see also Marghīnānī, Hidāya, 4:502;
40. Wahba al-Zuhaylī, al-Fiqh al-islāmī wa adillatuhu (Beirut: Dār al-Fikr, 2002), 7:5734. Schacht observes that "In the case of khata', one distinguishes whether it resides in the purpose fil-ķaşd), e.g. if someone shoots at a man because he takes him for an animal, or in the act (fil-fil), e.g. if someone shoots at a target and accidentally hits a man, or whether the act can be assimilated to mistake (mā ujriya majra l-khaţa), e.g. when a person turns over in his sleep and suffocates another. The concept of negligence is unknown to Islamic law" (Introduction, 182);
41. see, e.g., Ibn Qudāma, Mughnī, 11:465 in particular, and 11:465-73 more generally;
42. see also Marghīnānī, Hidāya, 4:502.
43. Mūşilī, Ikhāyār, 5:26;
44. see also Ibn Qudāma, Mughnī, 11:445;
45. Marghīnānī, Hidāya, 4:503;
46. Mukyī al-Dīn Sharaf al-Dīn al-Nawawī, Kitāb al-majmū, sharh al-muhadhdhab li'1- Shīrāz̄i (Cairo: Dār Iḩyā' al-Turāth al-'Arabī, 1995), 21:18, 22. Schacht, notes that "indirect causation (tasbīb) creates liability only if the act in question was unauthorized," and that "the sphere of authorized acts is very extensive": for example, if the act occurs on one's own property, or with the permission of the property owner, or on land of which the actor is a joint owner (including some public land), there is no liability (Introduction, 182-3).
47. Indirect homicide is the one case in which most jurists allow the offender to inherit from the victim; as Mūsilī remarks, "In all of these cases [of homicide] except, al-qatl bi-sabab there is no inheritance" that is, for the injuring party, if he or she stands to inherit otherwise (Ikhtiyār, 5:26). However, inheritance in the context of homicide sparked considerable disagreement, as recounted by Ibn Rushd, Bidāyat al-mujtahid, 2:360-1;
48. in the translation of this text, Distinguished Jurist's Primer, see 2:436-7.
49. Farhatj. Ziadeh, Oxford Encyclopedia of the Modem Islamic World, ed. John L. Esposito (New York and Oxford: Oxford University Press, 1995), s.v. "Criminal Law."
50. Matthew Lippman, Sean McConville, and Mordechai Yerushalmi, Islamic Criminal Law and Procedure (New York: Praeger, 1988), 78.
51. See Peters, Crime and Punishment, 40;
52. Anderson, "Homicide," 811-12. Both scholars treat this claim as historically sound.
53. Peters, "Murder on the Nile," 108.
54. Weiss helps clarify the nature of the Islamic approach to homicide by considering it in the pre-modern sociological context of the patriarchal family and kinship ties that were so central to the worldview informing Islamic law: "Homicide does not belong within the domain of criminal law, strictly speaking; it is not an offense against society as such calling for public prosecution. Rather, it belongs under the rubric of a lex talionis in which the family unit - or, more precisely, the 'āqua, which comprises certain male agnates - is the primary actor; it. is an offense against the family, and the family must decide how to deal with it.... Within the setting of patriarchal family life as envisioned by the Muslim jurists, the talio operates as a highly effective deterrent to homicide and as a means of preserving life. Every individual, including the one inclined to take the life of another, is part of a tightly knit extended family unit. The murderer therefore does not. act. alone but rather represents his family in an act inimical to another family, for the victim too represents a family. All human life is embedded in the web of kinship.... When one kills without cause, one therefore is as much accountable to one's own family, which incurs responsibility for appropriate action, as to the family of the victim. Therein lies the deterrent force of the talio within a society founded on ties of kinship" (The Spirit of Islamic Law [Athens and London: University of Georgia Press, 1998], 152-3). Thus Islamic homicide law both deters and spreads the cost of harmful actions, doubly serving to strengthen and preserve the pervasive "web of kinship." On the definition and liability of the 'āqila,
55. see Peters, Crime and Punishment, 49-50.
56. See Anderson, "Homicide," 818;
57. see also Peters, Crime and Punishment, 31, where he asserts that "rehabilitation of the offender, i.e. trying to deter a culprit from repeating his crimes and bringing him back to the straight path, is the main justification of discretionary punishment."
58. See J. Chelhod, EI(2), s.v. "Kaffāra";
59. Gerald R. Hawting, Encyclopaedia of the Qur'ān, ed. Jane Dammen McAuliffe (Leiden: Brill, 2001-06), s.v. "Atonement."
60. The other uses of kaffāra in the Qur'ān are: 5:89, in connection with oaths (and cf. 58:3-4, which addresses closely related issues though it does not use die term kaffāra); 5:95, in connection with violations of the rules of hunting while in ihrām for the hajj- The term fidya, widi the meaning of "exchange" or "ransom," appears in Qur'ān 2:184, in connection with the rules of fasting; 2:196, for shortcomings in the context of the hajj; and 57:15, regarding the vain efforts of "hypocrites" to avoid punishment by offering a ransom. Hawting also notes that in Qur'ān 2:54 Moses tells his people to "kill yourselves" to atone for the sin of worshipping the golden calf: "In commentaries we are frequently told that the Israelites' subsequent fighting and killing one another was an atonement (kaffāra)" ("Atonement").
61. See Ibn Manzūr, Lisān al-'arab (Beirut: Dār al-Sādir, 2000), s.v. "k-f-r."
62. See also J. Chelhod, "Kqffāra," who notes that in the Qur'an "fault and expiation are regarded in a material sense [i.e., fault as a thing to be covered over by expiation], the moral content developing rather later."
63. See also Mongia Arfa Mensia, "L'Acte Expiatoire en Islam. 'Al Kaffāra,'" in Rituals and Ethics: Patterns of Repentance - Judaism, Christianity, Islam, ed. Adriana Destro and Mauro Pesce (Paris and Louvain: Peeters, 2004), 127-28;
64. Muhammad Rawwās Qal'ajī, Mawsū 'at fiqh Zayd b. Thābit wa Abī Hurayra (Beirut: Dār al-Nafā'is, 1993), 1:167 and 2:219-21;
65. and Rafīq al-'Ajm, Mawsū'at musfalahāt usūl al-fiqh 'inda al-muslimīn (Beirut: Maktabat Lubnān Nashirūn, 1998), 2:1229, who notes that niyya is one of the requirements for a valid kaffāra, and that the term carries connotations of 'ibāda, and "the 'ibādāt remove sins"; further, he observes that, like the hudūd, acts of kaffāra are decreed by God, and are not amenable to rational explanations.
66. See, e.g., Ibn Qudāma, Mughnī, 12:227.
67. See, e.g.Kāsānī, Badā'i, al- şanā'i, 10:299.
68. See, e.g., ibid.
69. On the various forms of expiatory acts, especially blood sacrifice, see Mensia, "L'Acte Expiatoire en Islam," 133-7.
70. Nawawl discusses both possible positions, calling the rejection of feeding the needy "more correct" (al-aşahh) (Majmū, 21:23-4);
71. cf. Ibn Qudāma, Mughni, 12:228.
72. A comprehensive examination of fiqh treatments of kaffāra is beyond the scope of the present article. However, I hope that a richer understanding of kaffāra in the limited context of some types of homicide might contribute to a broader scholarly appreciation of the range of meanings and treatments of kaffāra throughout fiqh materials.
73. Muhammad b. 'Alī al-Shawkānī (d. 1250/1834) reportedly specified that the kaffāra is considered fulfilled if the offended party enacts retaliatory killing; note that this is not the lifting of the obligation but rather its fulfillment (Zuhaylī, al-Fiqh al-islāmī, 7:5699-700). In support of this position Zuhaylī cites a hadīth that "killing [as retaliatory execution] is expiation" (al-qatl kqffāra).
74. Cf. Abū Hāmid al-Ghazālī (d. 505/1111), al-Wasīt fī al-madhhab, ed. Abu 'Amr al-Husaynī b. 'Umar b. 'Abd al-Rahīm (Beirut: Dār al-Kutub al-'Ilmiyya, 2001), 4:101.
75. Ibn Qudāma, Mughnī, 12:226.
76. Cf. 'Abd al-Qā dir 'Awda, al-Tashrī al-jinā'ī alrislāmī (Beirut: Mu'assasat al-risāla, 1994), 2:172. On the term "widespread" (mashhūr),
77. see Wael B. Hallaq, "Can the Shari'a be Restored?" in Islamic Law and the Challenges of Modernity, ed, Yvonne Yazbeck Haddad and Barbara Freyer Stowasser (Walnut Creek, Calif: Altamira Press, 2004), 32, 35.
78. Zuljaylī's al-Fiqh al-islāmī wa adillatuhu is a partial exception, but even he overlooks several important factors, such as the Hanafī consideration of "thanking the benefactor" (see 7:5698-701, 7:5733). Likewise, 'Abd al-Qādir 'Awda's al-Tashrī al-jināī al-islāmī explores disagreements among jurists and madhhabs, but overlooks the Hanafī consideration of "thanking the benefactor" (see 2:172-75). Mensia's "L'Acte Expiatoire en Islam" is also a partial corrective, but remains on a fairly general level, avoiding many important technicalities and disagreements among jurists (including the idiosyncrasies of the Hanafīs) while emphasizing the sacrificial aspects of expiatory acts.
79. Bernard Weiss, Spirit of Islamic Law, 38.
80. See ibid., 52-65.
81. Ibid., 145.
82. According to Weiss, for example, "That the Ash'ari jurists should have embraced the textualist point of view is quite understandable, given their extreme voluntarism and refusal to grant reason a role in the discernment of the law. If the divine will is not accessible through rational means, then the texts stand as the sole point of contact between humans and the Lawgiver" (ibid., 38, emphasis in original).
83. Abu Ishāq Ibrāhīm b. 'Alī al- Shīrāzī's text in Nawawī, Majmū, 21:18. Shīrāzīs text is also available separately under the tide al-Muhadhdhab fī fiqh al-imām al-Shāfi'̄, ed. Muhammad al-Zuljaylī (Damascus: Dār al-Qalam, 1996). The Hanafī Kāsānī confirms this understanding of the Shāfi'īs: "As for kaffāra, we [Hanafīs] do not require it [in the case of intentional homicide]. According to Shāfi'ī... it [kaffāra] is required; his opinion indicates that kaffara lifts sin (aldhanb) and erases sin (al-ithm); therefore it is required for accidental homicide, for the sin in intentional homicide is greater, so the need for pushing aside [sin] is stronger" (Badā'i al-şanā'i, 10:297-9).
84. Cf. Ghazālī, Wasīt, 4:101.
85. On the term "widespread" (mashhūr), see n. 41 above.
86. The Prophet reportedly addressedthe issue of homicide, saying, "Emancipate a slave, and God Almighty will emancipate from Hell a limb for each of [the slave's] limbs" (Ibn Qudāma, Mughni, 12:226-7).
87. This hadīth is included in the collection of Abū Dāwud, in his Kïtāb al-'itq under the Bāb thawāb al-'itq; and also in Ahmad Ibn Hanbal's Musnad (Ibn Qudāma, Mughnī, 12:227 n. 13);
88. see also n. 64 below.
89. Ibn Qudāma, Mughnī, 12:226-7.
90. Ibid., 12:227.
91. Ibn Rushd, Bidāyat al-mujtahid, 2:418;
92. see also, more generally, 2:416-18;
93. in the translation of this text, Distinguished Jurist's Primer, see 2:503-05.
94. Kāsānī, Badā'i al-sanāi, 10:299.
95. See, e.g., Mūşlī, Ikhtiyār, 5:22-5, who affirms that Hanafls do not assign kaffāra for intentional killing, but do so for quasi-intentional and accidental killing;
96. Mūsilī, however, says nothing about shukr al-mun'im. Cf. Marghīnānī, Hidāya, 4:501-03, who also omits reference to shukr al-mun'im.
97. See Muhammad b. Ahmad Abū Sahl al-Sarakhs̄, Kitāb al-mabsūt, ed. Abu 'Abd Allāh Muhammad Hasan Muhammad Hasan Ismāīlī (Beirut: Dār al-Kutub al-'Ilmiyya, 2001), 26:76-7, which is discussed below.
98. On repentance, see Mensia, "L'Acte Expiatoire en Islam," 138-9.
99. A. Kevin Reinhart, "Thanking the Benefactor," in Spoken and Unspoken Thanks: Some Comparative Soundings, ed, John B. Carman and Frederick J. Streng (Cambridge, Mass.: Harvard University Press, and Dallas: Center for World Thanksgiving, 1989), 118. See also Reinhart, EI(2), s.v. "Shukr."
100. Reinhart, "Thanking the Benefactor," 118-19.
101. Ibid,, 120.
102. Ibid., 124.
103. Ibid. According to Reinhart, the Qur'ānic treatment of thanking the benefactor displays a transactional quality in which the ni'ma is a freely given benefit, to humans, and shukr is the proper transactional response. Al-Hasan al-Basrī (d. 110/728), for example, viewed the relationship between God and humans in terms of generalized exchange, so that what God demands as the appropriate shukr for the benefactions he bestows is obedience: "He demands not a hundred camels, but fealty: obedience to His command, Envisaged here is a transaction of sorts in which the first element is a gift that obligates the receiver and the second is the receiver's acknowledgment of that relationship and its obligations. Thus 'thanking' is not saying 'thank-you' to God, but recognizing a sort of moral claim to sovereignty" (123-4). In this view, "a benefaction received meant an obligation incurred.... The goal was the satisfaction (ridā) of the benefactor" (124).
104. Ibid., 125. Reinhart, goes on to argue that by the fifth and sixth Islamic centuries, the understanding of shukr al-mun'im changed significantly, partly driven by the inability of a geographically widespread, stable, long-standing Muslim society to conceive of God's moral claim as needing any transactional justification. The understanding of ni'ma ma shifted from a particular gift given as part of a transaction to a much more general phenomenon, almost a characteristic of God or "merely one more synonym for the acts of the Creator, equivalent to ihsān (kindness), fadl (generous act), and so on" (128). Shukr correspondingly shifted from being a particular act of offering an appropriate response to the benefaction and acknowledgment of the benefactor's sovereignty, to being a pervasive, subjective, intellectual or emotional state, even a form of general piety. Acts of thanking were replaced by an attitude of "being thankful" (131, and see 116). In this view, humans are obedient, not. because of any transactional interaction with God, but simply because we stand as God's dependent creation, and we give thanks because revealed texts tell us to do so. In the context of this developmental approach, the Hanafī approach to shukr al-mun'im in cases of homicide appears closer to the earlier usage than the later.
105. Sarakhsī, Mabsūt, 26:77; he continues: "And if he is unable to do this, he is to fast for two consecutive months as shukr to God for sparing his life. Thus, we do not require kqffāra of the intentional killer, because the law imposes upon [the offender] retaliatory killing, but we do require it [kqffāra] for quasi-intentional killing, for here the law spares his life, lightening the burden on him."
106. Note that Sarakhsī cites a hadīth in which the Prophet addressed the issue of homicide, saying "Emancipate a slave, and God Almighty will emancipate from Hell a limb for each of [the slave's] limbs" (Mabsūt, 26:76-7).
107. Cf. Ibn Qudāma, Mughnī, 12:226-7, and see n. 49 above.
108. Alternatively, theMālikī disregard of the category "quasi-intentional" may result, at least in part from the influence of the Medinese context on that madhhab; the distinction between intentional and quasi-intentional homicide is not found in the tribal customary law of Medina. I am grateful to an anonymous reader at Islamic Law and Society for this point.
109. Ibn Qudāma, Mughnī, 12:227-8; on the 'āqila, see n. 29 above.
110. Kāsānl, Badā'i al-sanāi, 10:300.
111. Nawawī confirms this: "Abū Hanīfa and his followers require kqffāra for accidental killing because accidental killing is less serious than intentional killing, for there is no retaliation (qawad) for [accidental killing] and no sin (lā ithm), and the diya for this is lighter" (Majmū, 21:21).
112. Kāsānī, Badā'i al-sanāi, 10:353;
113. cf. Marghīnān̄, Hidāya, 4:503;
114. and Ibn Qudāma (Mughnī, 12:223), who attributes to Abū Hanīfa the view that such cases are not. properly considered qatl.
115. But see the Hanaīs Sarakhsī (Mabsūt, 26:79)
116. and Mūsilī (Ikhtiyār, 5:26), both of whom omit kqffāra for qatl bi-sabab, yet do not exclude such acts from die category of qatl. Mūsilī notes: "If someone falls into the well and dies of suffocation or starvation [rather than from the fall itself], the [owner of the well is liable] for an expiation (kqffā ra) of freeing a Muslim slave, or, if he cannot, then fasting for two consecutive months"; his editor notes a disagreement among Hanafīs over this issue (Ikhtiyār, 5:26).
117. Nawawī, Majmū', 21:22.
118. Marghīnānī (Hidāya, 4:503) recounts a view attributed to Shāfiī, that in indirect, cases, the offender sins in acting without proper command of his situation, but not in causing death; this is closely similar to Marghīnānī's own reasoning regarding the attribution of sin and the application of kqffāra in accidental killing, discussed below.
119. See Qur'ān 4:31: "If you avoid the most major things (kabā'ir) which are forbidden to you, We will remit (nukaffir) from you your evil deeds and admit you to a gate of great honor."
120. See also Mensia, "L'Acte Expiatoire en Islam," 131-3;
121. Toshihiko Izutsu, Ethico-Religious Concepts in the Qur'ān (Montreal and London: McGill-Queen's University Press, 2002 [1959]), esp. 243-9;
122. Josef van Ess, 'Theologie und Gesellschaft im 2. und 3. Jahrhundert Hidschra: Eine Geschichte des religiösen Denkens im frühen Islam (Berlin: Walter de Gruyter, 1997), 4:579-90.
123. See Jane H. Smith and Yvonne Y. Haddad, The Islamic Understanding of Death and Resurrection (Albany: State University of New York Press, 1981), 818; Schacht, "Kati."
124. Peters, Crime and Punishment, 31. Cf. Kāsānī, who notes that it is commonly held that "qisās in this life lifts the punishment of the afterlife," and diat this is in accordance with the hadīth that "the sword wipes away sins" (Badā'i al-sanā'l, 10:288).
125. Shīrāzī's text in Nawawl, Majmü', 21:18.
126. Cf. Kāsānī, Badā'i al-sanā, 10:297-9.
127. Nawawī, Majmū, 21:20.
128. Kāsānl, Badā'i al-sanā'i, 10:299.
129. Marghīnānī, Hidāya, 4:503, and see n. 70 above; Sarakhsī expresses a similar understanding of the element of sin within accidental killing (Mabsūt, 26:76). Both apparently reason that kaffāra is by definition a response to sin, and since the Qur'ān assigns kaffāra for accidental killing, this must be sinful, at. least as a failure to properly avoid the accident. Marghīnānī deems intentional killing a sin, calling it both al-ma'tham (Hidāya, 4:501) and kabīra mahda (4:502). He also calls quasi-intentional killing a sin (al-ithm), because there is sufficient agency in the act-and he assigns kaffāra for this because of its resemblance to accidental killing.
130. Mūsilī, Ikhtiyār, 5:25; his modern commentator, Mahmūd Abū Daqīqa, however, repeats almost verbatim the qualifications expressed by Marghlnānī.
131. Ibn Qudāma, Mughnī, 12:227.
132. Kāsānī, Badā'i, al-sanā'i, 301.
133. On repentance, see Peters, Crime and Punishment, 27-8.
134. Nawawī, Majmū, 21:21; cf. Ghazālī: "An accident is not permitted and also not forbidden" (Wasīt, 4:101).
135. Cf. Qur'ān 5:32, referring to Cain's murder of Abel: "Therefore We prescribed for the Children of Israel that if anyone kills a person - unless it be to retaliate for a soul slain, or for spreading corruption in the land - shall be as if he had killed all of mankind. And if anyone gives life to a soul, shall be as if he had given life to all of mankind."
136. Ibn Qudāma, Mughnī, 11:580.
137. Quoting Shīrazī's text in Nawawī, Masjmū, 21:18-19; on taking the kaffāra from the estate, see 21:22. Nawawī goes on to note that certain killings (he mentions killing the women and children of combatants), though forbidden, do not necessitate kaffāra, for these are forbidden as "the claim of men rather than the claim of God (li-haqq al-muslimīn lā li-haqq Allān)" (21:21).
138. Kāsānī, Badāil al-sanā'i, 10:301;
139. see also Nawawī, Majmū, 21:22-3.
140. Nawawī also cites a supportive hadīth which reports that the Prophet assigned the freeing of a slave as expiation for killing a newborn girl prior to the advent of Islam (Majmū, 21:23).
141. I am taking the "li'1-tafkīr" in my edition to be a misprint of " li'l-takfīr."
142. Ibid.
143. See Ibid., 21:22-3.
144. Kāsānl, Badā'i al-sanā'i, 10:301.
145. Cf. Ghazālī, who calls kaffāra a "bodily religious duty" (ibāda badaniyya) (Wasīt, 4:101);
146. and Marghīnānī, who also calls kaffāra an 'ibāda (Hidāya, 4:502).
147. Shihāb al-Dīn Ahmad b. Idrīs al-Qarāfl, Kitāb al-furūq (Cairo: Dār alSalām, 2001), 1:357. My thanks to Marion Katz for bringing this passage to my attention.
148. Ibid.
149. Ibid.
150. Anderson, "Homicide," 818.
151. Anderson, "Homicide," 811.
152. Peters, Crime and Punishment, 39.
153. See ibid. on the centrality of what he calls "the principle of private prosecution."
154. Ibid.
155. As my comments on "religion" throughout, this article have implied, calling kaffāra merely a matter of "conscience," as one might be tempted to do in light of its separation from court procedure, potentially overstates the interiority and privacy of "religion" and reinforces another false dichotomy, that between "religion" and "public life" as these are understood in pre-modern fiqh.
156. The notion that God needs the kaffāra/tahrīr is certainly anathema to most Muslim theology. However, the jurists' treatment of kaffāra/tahrīr in homicide law suggests that God should be understood as potentially willing to enter into an exchange with humans, and that the human action of kaffāra/tahrīr is a prerequisite for a divine counter-action of forgiveness. Such a view is perfectly in tune with a basic general assumption evident in Snnī fiqh, namely that human action potentially prompts predictable divine response, and right action potentially brings divine rewards. Most non-Mu'tazilīs, of course, hold that God is free to act otherwise at no cost to divine justice.
157. Peters, Crime and Punishment, 30.