Channel: Hatem al-Haj
Series: Hatem al-Haj - Fiqh of Penalties
manaakitanga de la Samora solaria Savio Manasa mama to proceed.
We are still covering the
book of penalties or the section on penalties because it has books inside the section on penalties.
And as we said before,
the section on penalties will be followed by the section on you know section on penalties here I mean by both pizzazz which is equal to retribution and Hadoop,
fixed penalties that will be followed by the sections on Jihad and
finished in the section of penalties
about one third of it.
And today we will start from the chapter on retribution for wounds babble covered from zero or the chapter on retribution for wounds. Lima habla Kodama Rahim Allah seven his book calahonda Kodama died in the year 620 after hedra he wrote his book calendar for the beginners and then he wrote a mock Nana coffee and nominee for
you know, the three levels
that are you may consider them to be sort of middle school high school, college and then graduate
studies morning would be a graduate
so anyway the mountain climber and Allah said in his book along the under Babel covered from zero up chapter on retribution for wounds Jezebel covered equally odd when we miss lee photocathode I know that I he was an COVID and fee what what could have been minute Daphne was suffer. Well this
was sin. What do you do originally was recorded in the mithila vatika Coloma I'm gonna also fee for each part of the victims body retribution is obligatory on its counterpart in the offender's body. Therefore on high is taken for an eye nose for nose and each one of the eyelids lips tongue, teeth, hands feet, penis testicles, for its counterpart and likewise for every part concerning which retribution is plausible.
As a Lost Planet, Allah says in the Quran, Allah Subhanallah MP and an epsilon epsilon
within a syllabus in Sydney will Judo ha the sauce as a lot smarter than the Quran when we have the rain for them in it that is taking forever and I you know, like life for life, I nose for nose,
ear for ear tooth for tooth and equity retribution should be applied with regard to wounds.
So, he says here
that every organ will be basically or every part of the victim's body, retribution will be obligatory on its counterpart on the offender's body counterpart, that includes the side. So right for right and left for left, you don't take right for left or left for right.
And counterpart includes
the condition so you do not think a basically a good hand for a paralyzed one and so on. So it's, it's it's the counterpart in every sense there has to be equality
because it's all about equal retribution.
And then when he says we're kinetica koloman Kanaka Sophie, and likewise for every part concerning which retribution is plausible concerning which retribution is possible because retribution is not plausible in many cases,
and we may come to discuss some of these cases, but in general equality, you know,
We have to ensure equality.
And we have to ensure non transgression, augmented or non transgression. Meaning that if you basically break someone's bone
into pieces, how do we do this? How do we ensure complete equality? It's not possible.
If you cut someone's arm from the joint, from this joint, we can ensure equality.
If you cut it from here, we cannot ensure equality
or at least that's what they said.
And I have written something about this
you know, like with skins, consideration of advances in surgical surgical industry and how sometimes some of the things that are said cannot be
retribution cannot be accomplished with complete equality because of their inability to be precise.
with certain advancements of surgical in industry, I think a lot could be done very precisely.
Not everything but a lot, not everything for sure, there will be always things that we cannot basic no matter how precise we are, we just can't ensure equality and hardness suraiya which means lack of complications, complications, no matter how precise we are, sometimes we cannot ensure that there will not be complications resulting in greater harm than the harm that was inflicted initially by the offender on the victim.
Then he says the prerequisites for the obligation of classes and this this title is between coronary brackets which means I'm having this title.
prerequisites for the obligation of sauce.
So remember Kodama Allah said by autoboca imagine era McAfee on the journey, the following must be considered for retribution.
He will he would mentioned three here
the the basically
and or intentionality.
He had mentioned equality
between the offender and the victim and even mentioned intentionality parents, he would mention the guarantee or assurance of non transgression.
And we talked about non transgression. So, equality he mentioned that, if someone cuts someone's hand, then we have to ensure equality and this equality, as I said, has to do with the hand but it also has to do with offender and the victim they have to be equal in terms of, according to the honeyberries and according to the majority, in terms of
in terms of religion and freedom. And as we said before, according to the Melvin hanifa
aq equal retribution is applied regardless of religion and freedom, regardless of religion and freedom. And particularly when it comes to freedom, we have the hadith of Hassan Samara, although Hansen's reports from summer are somewhat controversial, but man gotta have delicata Nemanja da da da da dada is corroborated by other reports from the Prophet sallallahu Sallam on the Sahaba. And for by the general principles of Islam, whoever gives his slave we will kill him and whoever maintained a slave we will name him.
So that's one of the things that you may go hunting for, but when it comes to freedom and religion, the hanafy position may be which is how do you position here means that it is not considered may have maybe a little bit more challenged than when it comes to freedom, when it comes to equality,
with respect to freedom,
but again, at the same time, we have discussed this before we went over it. And what I want to say is that the Hanafi madhhab was the method of the best he asked many
philosophers or the the episode and Ottoman empires. And if
you know so this was this was the efficient method of the Muslim state.
For the majority of Muslim history anyway, and according to this math have equal retribution and part part of it also, honestly speaking is that when you are in that position
he like you're
your perspective changes because of because of being in that position, the position of Kava and
causes some change of perspective, you will find the vessel throughout, you know, the fatawa of the Buddha from all different mazahub if you trace the photography of the Buddha, you will find the photo of the Buddha are a little bit more nuanced. That experience and in in particular, you know, not not certainly in Salah it's not going to make much difference. But in particular issues, you find the fatalities are new ones, because they have been through it.
So, the it gives them the depth.
So, the chief law said we're October covenant madonia Cafe a little Johnny the following must be considered for retribution, the vector must be equal to the offender. So whatever they are not equal,
good the state impose a punishment other than the day that they are granted. If there is no equality, there will be the there will be compensation. It's not like the offender will just go home and that's it, there will be compensation. But could the state in addition to the compensation impose some punishment and as we said before, yes, the state could impose some punishment to deter the offenders.
Then the cynic said what can we deny and then that guy must be intentional, of course, for an unintentional crime, you know, like, wouldn't or this or that be that there is no equal retribution, there is only compensation blood money or compensation for the wound.
And then the she accept what have nominated the bionic arm and MIPS Some are have done, he and he or he can let it and he
can Kalamata Ha, ha, Allah Teton de la Hala is on should be La
It would be awkward if you say Dante la Hereford referring to HUD or the extent
there must be assurance that there will be not there will not there must be assurance, there will not be transgression. This assurance is plausible when he cuts at a joint or when the wound has an in identifiable extent, had the entity such as the mobile,
head and face wound that reaches the bone, but does not damage it. And more there
are different types of Shujaat or head and face wounds. One of them is a mother and a mother her is what cuts the skin reaches the wound, but does not break the wound. anything short of a mother heart anything more than the complete equality will be hard to ascertain or to ensure complete equality will be hard to ensure if it is short of a movie, it does not reach the bone or it is worse than normal, it breaks the bone. So, in Maldives, the only one in terms of head and face wounds. Her mother is the only one
about which equal retribution is prescribed or applicable. Why? Because we can ensure equality, we can inflict the same wound on the offender while ensuring complete equality because there is an identifiable extent to
the bone. Just get to the bone and stop. That's it.
When does he accept ala angiography my focus will be more than one except two which means here
unless he accepts inflicting gamuda for a wound greater than it, so I have Shema for instance.
We will tell him, well this is more than a model ha This is worse than the model and we cannot ensure equality. So we will
You will be offered compensation then he will say no, give me a motor hmm and I'll be okay. You know taking a MOBA for this Well
anyway, Ilan yada
yada well our fifth MP in lemon meringue watermelon, I mean
there is no retribution for injuries to the nose except for injury to the bowl of the nose which is the soft part that cartilage So, if someone cuts off that cartilage he can cut off that cartilage if you cut off the bridge or if you break the bridge of the nose no no equal retribution in this case because equality cannot be ensured but the the mat and the length which is the soft part the ball of the nose, the cartilage cartilaginous part of the nose
you could certainly because it has an identifiable extent which is that junction between the bone and the cartilage
and then as you said we started with the savvy Phyllis me when my older fella one minute young what you saw with earlier was so elaborate Miss Leah equality of the part applies to the name and location name and location bus, the right left upper and lower parks when only be taken for the exact counterparts. So the upper lip
and the lower lip are not equal or not the exact counterparts the upper for the upper or the lower for the lower the upper eyelid, the lower eyelid, the right hand the left hand you know the sun is not like the middle finger everything exact counterpart left and right has to be left for left right for right and so on.
What I do because it's about whether on mother and Mona Mona you can say both well I told her this is Brian Osborne. Also you could say both
Mona what a sin 11 Miss Leah. Well, I took us Camila Camila to Asahi been Episode What are sorry shala
episode two bit Camila was Allah Oba Sahaja is Amina
the finger finger tip or tooth will only be taken for its exact counterpart, the whole hand with a full set of fingers will not be taken for a defective one lacking some fingers, the fine hand is not taken for the paralyzed one. However, the defective may be taken for the whole and the paralyzed one for the fine one, as long as there is assurance that it will not cause death in suing from the wound. It means that it will not cause death and why.
Okay, so it is clear. So someone cut off a defective hand, you don't cut off his good hand in retribution, because they're not equal okay. Someone cut off a good hand and his hand is the you know, if it is right then his right hand is paralyzed. What do you do in this case?
You can if the if the victim wants equal retribution, he says okay, he cut off my good hand I will be okay cutting off his paralyzed man, you could do this, if you can ensure that there will not be tough or death in suing from cotton off shala the paralyzed Why? Because there could be like air embolism and bleeding into from carving off a paralyzed hand
you know, cut more complications that could result in this if you call off the paralyzed versus the good hand.
So the the you know, what I'm trying to say here is that they try this as hard as they could within their capacities to ensure equality equal retribution, no transgression.
And just to achieve that equal retribution within
You have to ensure that there will not be complications resulting in the, the,
the wound basically inflected for retribution exceeded
The one the original one,
you have to make sure that there are no complications, whether it's death or not this nothing, you know, you have to ensure that the wounded that you will inflict for retribution will not exceed the original wound.
differentiate between dominant versus non dominant.
No, they still talked about science, not the dominant and non dominant. Yes, yeah. What if somebody was mutilated and then killed?
But that would be that would be an interesting point to examine, actually.
mutilated and murdered the murderer.
mutilated and then murdered.
they overlap if they are two different people, then you will mutilate the mutilator and you give the killer but if there's one person you will be with overlap and you will apply the law the higher
retribution, the higher sort of punishment.
We'll start out with the salary
that we finish this Yes. Then the sex ed mutilation of pieces of body parts first, the waiver. kapa. haka design II, II, II, II, II, who has a mythical, you cut the ribbon, can this be a soulless one with him
in Okay, that there too, who, okay, that will cause the minha.
subsection if one cuts off part of his tongue tip of the nose, lip lands or ear, the equivalent will be caught in retaliation, the equivalence is based on fractions such as one half, one third, and so on, if the indemnity is taken, and instead, it is proportionate to that, it's proportionate to that. So one third of the lip proportionate to that would be one third of the of the indemnity for the
you will find here that sometimes when with regard to these
identifiable parts that are soft tissues,
they were okay, figuring out the portion, you know, the percentage that was cut off, and although you may say so, but, you know, but complete equality is hard here as well,
to apply complete equality and to be completely precise, but they have allowed for this, they have allowed for part, if you could estimate the part that was cut off of the tongue, the nose, the lip, that lands, the ear,
then you cover off similar parts similar, not, it's not like, you know,
one ounce for one ounce, it is the percentage. So if you cut off one third of someone's ear will cut off one third of your ear, not an equal part in terms of weight or size. It's, you know, percentage, and the same will apply to the year. And that's why I'm saying that it seems from what they said that if precision can be achieved, then you do whatever in terms of equal distribution, if you can achieve that precision and like I said with advances in surgery,
and these are issues that you will find
decent amount of research on these issues from from Saudi scholars, because they have
they have these they have these types of punishment
in their court systems, therefore, they are doing like that interface between surgery and equal retribution and things of that nature. They are doing this on a practical level so they are looking into it
what can be applied.
Then the sheikh said we're in consider about the Sydney brewery demand signal Danny mithila is amin and pilau
Which, okay it says a year if one breaks part of his tooth, the equivalent of the broken tooth will be failed, I'm sorry, five, five of the offender's tooth, as long as there is assurance it will not be dislodged. So, you break off half of
this front tooth here, then if we then we can figure out how much to file of yours
as long as we can ensure that it will not be dislodged
the tooth itself
then does he accept what I assume in a Sydney hacked? I mean, how do what I mean, he had he Abra retribution for the tooth is not executed until there is no hope that the victims tooth will re erupt. Similarly, retaliation is not executed for a wound until it has healed until it has healed.
And there is a report
that that sort of with acceptable chain that a man
had inflicted a wound then once in another man's thigh, and he came to the Prophet sallallahu Sallam to complain to him about the wound and to demand equal retribution the prophet SAW, said to him, wait until it heals, wait on equal retribution. Don't ask for it until your wound heals. And then he insisted to get a equal retribution. So the Prophet sallallahu Sallam gave him what he asked for. And then thereafter, that man that victim had a limb. So he came to say to the province, Well, look, now I have a limb profit loss from settlements over
and rebuked him for not listening to him the first time when he told them this wait.
what is it
retribution against that person?
No, no. So he like it was a wound. So they apply the inflicted on the offender a similar wound, but then after the victim started to have a limb as a complication of the wound, so we will not go back.
If it was, if it were, if it were doable, achievable, equal retribution achievable, they would have otherwise, if it were, if it wasn't achievable, then they would have given him the compensation.
Then he's was hired to cover demo data. The complications of the wound inflicted and retribution are not compensable.
It's obvious that we try as much as we can to have no complications, yet complications may arise. And the one that is inflected in retribution
is not basically we cannot assure lack of complications, and we cannot compensate for complications. And the state in general, the punishments by the state in general
are not compensable live there are complications.
Because they are lawful. When they were done. They were lawful and they were done lawfully. Now if they were not done locally, of course, there were there may be compensation, but if they were done lawfully, there is not compensation was right in the name of Mona COVID. sauce, what they're in the Ania Sofia salsa cabela Berea fells Koto de manua the complications of the wound inflicted in aggression weren't retribution or indemnity. But if retribution is taken before it is completely healed. There is no further liability for complications that may occur later. You know, the story about the wound and the side.
Like if you inflict a wound on me,
and that wound continues to cause complications, and I don't ask for equal retribution until the wound reaches its sort of final state,
you are liable for everything that happened not for the year wound, but for whatever your wound caused, or the complications that you won't cause you will be liable if I am patient enough to not ask for retribution for equal retribution. If I were not patient enough, when I asked for equal retribution, whatever happens thereafter, you're you're not liable for it. Therefore, that should be enough reason for victims to wait until complete healing before they asked for equal retribution.
Injury lose their lives.
So how would that be?
No, they will not. No, they did not talk about that.
Could there be considerations for this in the court in terms of sort of disciplinary
And in terms of an automatic melee? Yeah, the this questionable, which is financial penalties and financial penalties are questionable. It's it's one of the mayor's positions that that
questionable sort of the financial penalties are the right of the state to impose financial penalties. But that is a very small minority position, honestly.
Because of the the, the the vast majority, they limit the punishments to the scriptural ones or the reported ones. But certainly, he also has has argument
that and reports that he can trace to the Sahaba into
a 100 candles back then it will be set for life, pretty much I mean,
we have we have 50 years, it's something that, I guess in other cases 50 camels would be like, that's all the Yeah, I mean, it's 50 camels and their time is really a big thing. Yeah. Like, if you have like four or five camels, you would be well off
in exchange of equal retribution. So you have to say no, no.
Yes, it's either or Yes, correct. It's either or
their preference for the person to take this loss or to take
like if the person was injured
or is it better to take
it depends on the you know, the type of
loss set from an upper rule of law, whoever forgives and brings about conciliation, then his reward is with a law. So he said that the the, you know, forgiveness here is link to conciliation, if forgiveness will not result in conciliation but emboldening the offender, then it is not favorable. And what's favorable here is retribution equal retribution. But if forgiveness will bring about conciliation and reform, reform the offender US law, so, as law has to do with two things, reform and conciliation, so if there will be reform and conciliation, then half will is preferable, if there will not be reform and conciliation than equal retribution is preferable. So it is
passed to be judged on individual basis case by case.
It is the actual person
it's to do with the actual to do with the victims assessment of
what, what are
Who may result in and if it may result in can say, and it may also have to do with with a lot of other considerations, the you know it but we're leaving it to the victim to feel empowered. We're advising him to forgive him forgiveness would result in reform reconciliation, let us say the the assault was really provoked and in his estimation that it was really provoked
then he may be more inclined to pardoning
so it's, it's multifactorial, and we will take a little break here because we'll start like another chapter in seven minutes. And so Allah which is the chapter on at the heart, or actually the book of the Kitab dia, the book of indemnities probably has nothing to do that comes from Should I learn stuff