FQP03 Fiqh of Penalties – Conditions of the Obligation and Execution of Qisas
Channel: Hatem al-Haj
Series: Hatem al-Haj - Fiqh of Penalties
File Size: 43.78MB
now the Bible's route to Jubilee sauce, Lima, Allah said in his book on that in fact under the chapter to the book sauce was the E or the chapter and conditions of the obligation and execution of cases where we started to do B or about road,
car t McCullough Fanfan masovian. Mattoon, fella kisara himer there are four conditions for the obligation of retribution. First, the murder must be McCullough, there is no retribution against the child or the insane.
Now, he will talk about
that different things that, you know, when is the SAS binding?
And when is it executable? Because these are two different things could be binding but not executable.
And then when does it drop?
to three questions that we will have to answer until the end of the session and Sharla when is facades binding?
When is it executable conditions for it to be executable. And then when does a drug
123 What about binding when is because binding for conditions he said the fourth condition are
So, one has the
person needs to be McCandless
to that's the killer,
The second is
the kill the needs to be more so
The third is
the victim needs to be equal to the murder
in two regards,
that we will come to talk about
the fourth is
there should not be a parent and relationship. But when you know the
the murderer should not be a parent. That is any parent and not a father only a mother, father, grandfather grandmother, a, an ancestor of the murdered the murder, no ancestry.
Because ancestry routes out the sauce
he was a cause for his existence, the other one will not be a cause for his death. So the child will not be a cause for the death of the ancestor when the ancestor was a cause for the his
or her existence. That's the that's the point here but we will come to discuss each one of these in some detail because these are important. The first one is self explanatory.
The cartel the murder, the four conditions for the obligation of redistribution, the murder must be more color there is no retribution against the child or the insane when the Kim it will be considered Kwazii intentional caused by murder which means that there will be
the day and the expansion but not the
So, the next one
the next condition
Conan McCune ma Suman in Kandahar Bay and omata. Now cottolin film Ohara zanni and masano katella. With nipsey O'Malley out hermit he fell into MonaVie. Second, the victim must be inviolable, that's for getting the heartbeat. warring the enemy, the apostate, the killer, member of a group of bandits, the adulterer or one killed in self defense or to protect one's property or honor, there is no liability in these cases. But as we said, if someone gives an adulterer there is a punishment by the state.
If someone kills anyone that is deserving of kidding, except at the time of war, or to
defend yourself property and honor.
These are the two exceptions for people if you are part of an army then certainly like a tug of war.
anyone who is deserving of this
even though he has like a judgment has been made by the High Court and everybody and so on. You are not the one to selfie this you are not the one to implement the punishment or apply the punishment and if you do, then you're liable for punishment and punishment it is determined by the state and it should be severe enough to deter people from taking the law into their own hands.
Because you know that that immense chaos can result from people taking the law into their own hands.
Okay, so inviolable that's the second condition and we set four different things will make someone and viable viable Muslim I had them me Muslim Muslim covenant and non Muslim you know non Muslim living in Muslim land
under contract and mister man that is someone given security
then the third Assad is coming in to McAfee and the cartel factor and horrible Muslim Muslim woman hotter in Muslim advocate and Ghana on
her own behalf denwa Muslim on Be careful in the
morning Be careful work through the menu visit me when Muslim
with a Muslim me, my doctor Oh Allah Abu Dhabi with her through a bit hurt.
So Third, the victim must be equal in terms of religion and freedom. So these are the two things equal in terms
of religion and freedom
to the killer, so the free Muslim would be killed for killing the free Muslim regardless of sex, a free man will not be killed for killing a slave nor a Muslim for a non Muslim, because the Muslims are have a lot of loss of themselves. Nobody has to be killed for a disbeliever that is empty sauce that they mean is killed for killing another than me for a Muslim, a slave for a slave and a free man for a free man. So certainly this is a sensitive issue. And we want to address it with transparency, open mindedness, respect our scholars, honor our legacy and our tradition, but also, you know, do all of this
who has sort of
approach, discerning approach, let's not say in the 30 critical but his discerning approach and also a realistic approach the surname and trying to figure out what was actually right what was actually the stronger position among the scholars, and when it comes to a realistic approach what is suitable for our times, two different things. Now, this equality, this equality.
Any inviolable human being is equal to all inviolable, inviolable human beings in this regard, according to the HANA fees and salary and as Harvard Law, so hanifa salary as Hubbard ry
others as well are important from ahmednagar
These reports is from others,
reporting from sight of animals.
So there is a, like a sizable minority, a sizable minority of scholars, including all of our alumni, who
said that every inviolable person is equal to every available person, whether they're free or not free, whether they are believers and non believers, some people made a distinction between religion and freedom. So, in everything, Allah is one of those who made the distinction, he is a believer will not be killed for an unbeliever, but free man will be killed for a slave. So he served in employment law said freedom does not matter here it is not.
It is not a qualifier at this qualifier of sauce
to be to not be free. But he said religion matters. Now, the position of the HANA fees and salary and as harbor cry, is that there are no disqualifiers of sauce. No, this qualifies, because it's naps. And that's it. Enough. So goodness, okay, devanahalli in fee and nepsac, with nefs, what I nevermind will unfold, and we'll open up the original sin of his sin or rocky sauce. So we have ordained for them. And when Allah says that we have ordained for them, it applies unless otherwise proven, abrogated.
That that sold for so at the eye for eye,
nose, for nose, tooth for tooth, and, you know, wounds are there, then there should be equal retribution for wounds or, you know, equal causes for wounds. So enough, the nafs is what the went by. And they said, Let's stop here. So let's take the thing about the free man and the slave.
Now, this loving and discerning approach, loving, critical or discerning approach is what we want to understand
that are, whatever the majority navigation is, and Hungary's in the authorized view, because the minor view in the Hunter Valley method was like the handpiece, but in the authorized view, whatever the majority, the Maliki shafa is an Hungary's and why did they say a free man should not be killed for a slave? Because, you know, keep in mind, you know, when it comes to the issue of slavery, please read my appendix slavery in Islam has different criteria, different sort of,
is, was pretty different from how it was practiced in some historical context or even by like, Muslims did not always have the ideas of Islam. And this is something that we are to be sort of honest with ourselves about. Muslims did not always live up to the ideals of Islam, not only in this regard, but in all regards, how many Muslims pray five times a day, you know, just let alone anything else. How many Muslims what is the percentage of Muslims who pray five times a day?
So, that is something that we should be clear on.
So they said this, and our scholars said this not evil because they are biased or prejudiced but because they were working with hermeneutics, consistently their their hermeneutics led them there. Here's how it happened. Now, they have this report from the Prophet sallallahu Sallam
which says like that
now, Dr. Ron Dr.
a free man will not be killed for asleep. Now, where what is what made the person a slave?
What made the person give the person knocks if wrote back or like a lower degree islamically
because slavery was basically a result of girlfriend harm, not only girlfriend harm, because the all the sort of the tributaries of slavery were cut off except what
war capitals of war so now cooker plus hot, not hot balloon.
Because you can't enslave a believer, even if they are you are at war with them. Not Alone because you just can't enslave, covenanted or sort of peaceful, non Muslims, but it is the combination of the two different heart. Now, this results in Knox for rottman. So you were enslaved, because you were to combine the two sort of enormities together comprehend harm, or aggression?
Well, yes, you need to get out of this, like, it has an arbitrary, he got out of this, like, haha, like most of our famous level, in that we became slaves in where, you know, became from an ancestry of slaves about they were able to get themselves out of it, that community should support you until you get out of it, you know, for catacomb in an empty Empire, and if you know that they are good then you know, contract to them to by themselves and that is how you know the slaves were able to get out of it until you get out of this
you have a lower route back in many regards, and
although you know, treatment of slaves, you could read the appendix and all of that, but they instead consider you an equal to the freemen.
This particular hobbies if you look at this hobbies,
you will find that we have another hobbies which says man catalog the Hakata now, Amanda Aveda huzzah Donna man Katara Abdo, Katana
and if you impartially examine and you know this is not a hobbyist class
you know, factor is my area of interest, this is not a hadith class. So, that we are not going to go over the details of the chains here. But if you basically
survey the positions of the different mahasi concerning these two hobbies, this one will fare a lot better than this one, the one that would make that says whoever kills his slave, we will kill him, whoever mutilates his slave, we will mutilate him, this is stronger than the in light of that, you know, being a homebody and being an athlete, I do not feel any betrayal of my principles to side with the HANA fees like anything Mia did, he he just he could not stay within the mazahub because he felt that fair examination of the evidence will lead him to sign with a different method. And you know,
people can be like sometimes we
sort of unfair enough to find this reprehensible to find that this deviant you know, to basically leave your mouth Who are you to leave the you know the mother of a mother and so on or to leave this mother or to even have the very notion of the having the capacity to choose you know,
but at any rate,
he would you have this principle here the Quranic principle and you have conflicting reports. And in fact, you know, that the reports that agree with the Quranic principles seem to be stronger than the reports that do not agree with the Quranic principle. If you are impartial, independent,
much the head, then you will end up making a choice and, you know, basically, even if it is, if it is not in your best interest, I guess, like politically speaking,
because this was like this position when, you know, it's not the position of the majority. So that's the first thing it's about the slave. Now what about the
so what about the majority that for the majority, the first trip
It was stronger to them than the second report. That's it. So for the majority, they went by the first report. And they found this report to make the seas from the moon taxi specification from the generality of the area that is general about every soul for every soul. But that's how these mixed oxys specifies out of this, this, this particular scenario, and they said that this is not the only taxis there are other taxis there. Equality and religion. So when it comes to the issue of equality
in religion, the Prophet sallallahu Sallam said that Oh,
Muslim wouldn't be fair.
For me, don't be careful.
like Dr. Muslim McCaffrey, so a believer will not be killed for an unbeliever for getting a non believer. Now this was never was never not a punishable crime. It was always a punishable crime. You know, getting like I said, the Prophet sallallahu Sallam said, Whoever kills a covenant non Muslim will not smell the fragrance of Paradise, even though it's fragrance can be found from a distance of 40 years before the Bible quality. So, but when it comes to equal retribution, it is a punishable crime. But the recompense recompense is not equal retribution. Now, can the state intervene and like make a punishment that is severe enough to deter people? Yes, the state can intervene, as we said
So what is vendor punishment according to the majority, it will be there, it will be there.
so why is it that the Hanafi still and not only the honeybees, keep in mind the snapper when we talk about the honeybees, where we're usually talking about others as well, we're talking about Kufa, we're talking about even Abby Laila, with the honeybees we're talking about naturally, we're talking about, you know, grades, like like those people like salary as well.
Remember, so if you had a salary, so pianos salary, the fact that you know, we say that Hana fees alone, so it's three to one don't feel that is three to one really, that is like our concoctions it may have not been three to one
because like a piano salary is not less than a monument. The mathematics is said that there is no I cannot have it with a piano he did not hold any one equal to Savannah 30 that is
so, you have people make an inference of your salary for instance, saying know that a believer will be killed for hitting a non believer. So, the the
why how did they arrive at this now,
this had ease here, this is this is authentic, this is coming from the Prophet sallallahu. Now, the Hanafi is may say that Baba has to report to do not specify the generality of the Quran. How can I agree with the HANA fees about the conclusion when I don't agree with them on this principle, because that is not the only thing they are using to say.
Enough save enough they are saying that this had these the Catherine This is The Warning
This video disbeliever not the peaceful disbeliever because in another report, the Prophet sallallahu Sallam said lyac fellow
Muslim one big
one though I have been fee
Muslim and be careful.
So which means that a Muslim will not be killed for giving a Kaffir
nor a covenanted non Muslim will be killed as long as his covenant is valid.
Okay. Now, how did the two groups understand this? One group said this means like to Muslim and be careful that Hannah is said that this means that Muslim will not be killed for killing you
cafer nor when a covenant non Muslim be killed for killing a cafe
nor with a covenant non Muslim, which would mean the cafe here is something different from the covenant not Muslim. What could it be? How to be? That's it.
Now, how did the majority understand this? The majority said a Muslim will not be killed for getting a Kaffir full stop, not common full stop. And
a covenanted non Muslim will not be killed
as long as their covenant is valid.
So, it is about quotation marks. What do you put a full stop here? Or a comma?
What do you say? Neither a Muslim Nora covenanted non Muslim will be killed for getting a Kaffir? In other words, how to be worrying this believer?
Or what do you say
Muslim will not be killed for getting a non Muslim?
Full stop. And he covenanted non Muslim will not be killed.
While the covenant is valid,
to different interpretations. Now, this is not as clear, obviously, as the previous one where I was a little bit more passionate about the position, the hanafy position.
And it is it is not for political correctness, it is just for the the evidence that we have in front of us that in the previous example, the evidence was more clear that the Hanafi school also in the previous example, use the Hadith of the Prophet SAW Selim, where he said that you don't have to take effort with the
believers, the believers blood is equal, the blood of the believers is equal to the cafo, the amount of the very concept that we're talking about the capital, here, the prophet said, all the believers their brothers equal. So, so, it is a little bit subtle here, it is a little bit softer here. So, now, we we, we said that we will do this loving and discerning examination of our legacy to see what is stronger. In the previous example, it was clear to me that one opinion is stronger.
In this example, it is not clear that one opinion is stronger giving the established hermeneutics that we are working with the establishment. But since I cannot, we cannot be certain either way, with all of this disagreement. You know, so when you say that this is the position of the majority, keep in mind that it was a hanifa, who said otherwise, it was a felony who said otherwise was NECA Ibrahim, and otherwise, it was gonna be late I was otherwise. So you're also
setting yourself up against heavy weights. This Okay, just be careful.
So in this case, when we cannot be certain, and Abu hanifa is bringing you reports from Ali and Omar Abdulaziz that they actually retaliated from Muslims, for not for killing demand of Muslims.
When you have this uncertainty, isn't it reasonable to take the position that is more suitable?
Yes, it is. It absolutely is. And we just have to
you Muslims need to be realistic, so that you understand the concept of reciprocation, understand the concept, that we're not living in a vacuum. We're living in a world
where we're not really entitled to rule it with chaos that we are
And it's just so obvious that you will have to use the principles of
reciprocation, you know,
and in this case, there is only one suitable position here. That's the hanafy position.
There's only one suitable position here that is the Hanafi opposition which is the position of
Savannah salary, and many, many others.
Or at least this is what I believe in. So
can you don't have to believe in?
You don't have, you don't have to agree with me by the way, and I don't like when
people say, you know, say I'm sorry Wi Fi, you don't have to be sorry to disagree, please disagree. Because that intellectual independence is important with humbleness and humility, intellectual independence also is important, because, particularly for the Muslim use, you should not give up your intellect to anyone.
There was only one infallible human being of this oma certainly before him, there were others but of this own, which is the profits all of a sudden everyone else they take from any leaf for, or you reject their take from their positions or their positions. And you have to do this and work from certainty and go out from certainty. You know, the one verse that is more certain about this message of Islam
in the end, you know, that where you want to position yourself and build up from there, and do not basically be fooled. Do not make haste. Take it easy take take your time, to move from 30 to certainty, the last verse and sort of gaffe, study it that is certainty and then move out in circles of certainty afterwards after you understand the comprehend and you take your time. What does
versatility cafe, call international Masako, you have a animal who had famine cannot do the job for Yama, Ramadan, sorry, hon. What I should
say, I am only a human being that say, oh Mohamed Salah laws Allah, I'm only a human being like you, I'm only a man like you, who is
to whom it has been revealed that there is no God, but God, but one God, you highly animated icon there your Lord is one Lord,
feminine cannot be so he who hopes to meet his Lord, he or she wants to meet his or her Lord for the Yama Ramadan. So, they let them do righteous work, what else should be harder and do not ascribe partners and the to their lower they were in the worship of the Lord, this is the your most solid foundation and then go out you know, like increase your area of certainty
gradually and wisely and do not make haste and do not be
brainwashed by anyone.
Okay, the I'm not gonna finish the executable when were the conditions of excludability. And when the causes drops, what I want to finish the binding with in order for the process to be binding, you have the guitar has to be legally liable. The victim has to be inviolable muscle there.
When it comes to equality, we said that this is the position of the Hanbury, the authorized somebody's mother, there has to be equality and freedom and religion. We said that the hanafy position in the position of Allah is that every human every inviolable soul is equal to industry guard.
And then the last one that we will discuss here is ancestry and this is a little bit easier. But Jim hoard the majority of scholars Yes.
It is the same thing so as me will be killed for me but as any one of me will be killed for killing as me or a Muslim.
Because the semi is equal to me, and they consider the Muslim to be above the zoom me, therefore you are, you know, it's obvious, like if as in me as a Muslim, then the
equal distribution would be by
as opposed to equal
which is a higher degree.
Of course, the equality here and the sense of the, the victim in order for us to be violent then the victim should be equal to or lower than the murder or the murder
will be no the victims in order for cousins to be binding, binding the victim must be equal to or lower than
the merger if the victim is higher,
okay, in order to resolve any binding, okay? It's obvious guys. I mean, equal, you know, equal for equal, okay? But if you kill someone who's higher than you, then possesses more binding like it is equally binding, but it's, you know, it makes sense a for sure. Yeah. Okay. So that's what they said. But as we said, that every inviolable, so is equal, all inviolable souls are equal based on the Hanafi position, which seems to be stronger
and more suitable,
if not stronger than at least more so than
the last one is ancestry and ancestry is
imminent. Kodama hears that we read it.
You actually don't be one of the heroes in Suffern, whatever. And if you have US or Canada or Li, you dumb dummy, whatever then have level v haco. In Colombia, and powered
force, the killer is not the victims parent, a parent will not be killed for killing his descendant, no matter how many generations down the two parents are the same in this regard of the blood custodian, or one of them, regardless of how small his entitlement is a descendant of the killer retribution will not be binding.
Okay, which means what? ancestry? Now, this is this is not only about the father, it is about any parent, it is actually about any ancestor just use this word ancestor.
If an ancestor gives their offspring
the gym who would win say no. Lisa, Lisa, retaliation, no lethal retaliation, notice as no equal retribution
what will be binding you move to the day okay. Now, why are they saying this? Because they report there is a report from the province of Southern lbf controversial so the lay of the land of the parents will not be killed for getting their offspring for their child. In addition to this, they say they use our lead which is ratio ratiocination or rationalization. They say that one was the cause of one's existence, and should the other one should not be the cause of their termination.
Now, imagine man, Vic
said, If a man brings their child and lays them down and slaughters them, we would kill him for getting the child. What the Prophet said is that meant that they may or they likely did not intended, it was likely enough and intentional murder, because a parent will not give their child
unless it was, you know, in the heat of the moment, they did something the threw something at them they did this or that. But the mathematic is saying this is not a matter of just immunity to the parents.
You know, certainly no one is saying it's a matter of immunity. No one is saying it's an ad. A loss is not acceptable.
unlock unlock another
To consider the rhythms of
There are many many I add to that talk about the provision of this. I mean, it's, it's, it's a no brainer, but we're talking about equal retribution, we're not talking about the sinfulness there, whenever they said there is no equal retribution, they did not deny the sin. And they did not deny the possibility of the state punishing the aggressor, a different type of punishment, that has not equal retribution. And certainly, we discussed the disagreement over the right of the state and whether the state would have a right or not, and the majority said that the state would have the right. So, the position of the mathematic seems to be stronger in this regard, that if we are
certain of the parent intending to take care of their child, there should be equal distribution. However, there is another issue here
that we will come to talk about next time inshallah, which is sauce, when you inherit the right to possess, inherit the right to kisaki sauce,
you inherit, you know, the right to some of your blood,
how does this happen, but before this,
they say that a parent will not be killed for the child and if the child inherited, inherited the right to getting the parent to then they will not have that, right. So a married couple, the wife killed the husband,
and they have a child,
this wife is not subject to equity, retribution.
Her child cannot demand the death penalty for his mother, even if he wants it.
That's the point to hear. Even if he wanted, he can, it's not it, you know, he is legally does not have the capacity to demand a death penalty for his mother or any of his ancestors.
so, the next time in Java, we will talk a little bit more in detail about this issue, because it can sometimes be interesting.
Like they give the example of like, so certain of the father, mother,
brother, sister, for instance.
you know, this family, this happy family,
let us say that the brother gives the father
and then the sister gives the mother.
I mean, imagine, just like a hypothetical thing. But, but but doesn't look around you like you don't hear in the news like horror stories like this. So the brother gets sick as the mother, brother gives the father first. So when the brother gives to the Father first,
who would inherit and keep in mind then
there is a report a minor report that
that there would be retribution. But according to the majority, there's, here's what happens. The brother killed the father first. And then.
So who was now entitled to killing that
kid here, and the mother because the mother inherits from her husband. Both were entitled, when the sister killed the mother.
The brother inherited some of the mother's right to his own blood.
Therefore, no equal retribution for the brother.
Now he owes the sister he owes the sister he owes the sister whatever
the you know the hair percentage of the day of the Father
hair a percentage of the DNA of the Father. But then the sister gives the mother
it's not you know, this is not sexist or anything we could you could just change it in any order. It doesn't matter whether it is a man or a woman. But then this is the kill the mother or another brother killed the mother.
who inherits the right now? who inherits the right?
Or becomes the entitled heir to the blood money for it to the blood or the blood? The brother,
the brother now can have his sister killed?
Because she did not inherit
any part of them? Why doesn't she inherit from her mother? But the Prophet said layout is so powerful that a killer will not inherit from the murder. So she will not inherit from the mother, he won't inherit, he will be entitled to demand one of three things. What are they equal retribution there? Or pardon her? So, if this was switched, you know, if if she killed her first, and then he killed him second.
She would owe him the idea of the mother.
she can demand his death for the good and God the Father.
Anyway, so the bottom line is the ancestor will not be killed for the descendant, and if the descendant becomes entitled to the blood of the ancestor, because drops equals retribution drugs, because a descendant does not have the capacity to demand the death penalty for the ancestor.
Having said that, does the state have the right yes, the state has the right to punish
the deter people from aggression towards anyone, including their parents and children, who probably have
to wait until I'll take five minutes.
Break and for people to leave and then we'll take your questions.