Channel: Hatem al-Haj
Series: Hatem al-Haj - Fiqh of Penalties
Hello Nadia Savio in order
today in sha Allah who you want to go over to follow to cut the darbuka ferritin Kotler the chapter on expiation, forgetting chapter on expansion forgetting
just for orientation, we are in the section of penalties. And we have talked before about equal retribution cases. And we have talked before about the yet which are the BMI is the plural of DHEA. And there is indemnity for getting
indemnity is sometimes called the blood money. That's the sort of the compensation for the victim's family whether this getting is intentional or mistaken or Quasar intentional, there is compensation for the victim's family, there's compensation in the case of intentional killing, can be accepted by the family if they desire in place of equal retribution.
However, in mistaken caring and koza intentional, the compensation is the only thing that's there because there is no equal retribution in these cases, but it is not only equal retribution and compensation, there is another thing that is also required, which is an kuffaar. expiation. Now, while kuffaar is not necessarily
how can partido and so, this is not necessarily the right of the victim and the family of the victim, but this is hochland law, this is the right of Allah subhanaw taala and that godfather
required in which cases and any and non intentional killing, so it would be required then mistaken and quiz I intentional because as we said before, was I intensive is treated like mistaken in every respect, except that that there will be magnified in quiz I intentional, like it is magnified, unintentional, but in other respects, who is I intentional, which should be alarmed, you're fighting with someone, you hit them, you kill them. It's unintended, the killing is unintended. But since it was part of an assault, and intended assault, attack on the victim, we don't treat it just exactly like mistaken killing because there is some aggression involved here. But at the same time, you
didn't really mean to kill them.
And these things could happen a lot, you know, where people are not really intended murder, but, you know,
like, in the heat of, like, five things could happen. And and so it is, it is somewhere between intentional and mistaken murder. So, when it comes to the expiation
for which is the kofoed, aka farrotto, Catholic expiation for getting according to the majority that exhibition of getting is only required of
mistaken and quiz I intentional.
Getting, like people who commit mistaken Ark was I intentional killing, as if people who commit intentional murder, that crime is too big to have, like a fodder for it. That's that that's the concept to hear. Because some people may ask, and actually that's not the rationale is not particularly that far fetched the remote because the shaft is used that rationale to say that the capybara is also required the people who commit intention and murder it's the a4 CRI rationale, that's what this APA is use. If it is required that people who commit mistake and murder than a four CRI, it would be required that people who commit intentional murder, but the more said no, it is not
an a4 sheet or argument. It's a different type of thing completely intentional murder is too big of a crime, to have to have expiation
and, you know, the expiation is required that people get
make mistake and arco is an intentional murder, because this is an exhibition that they could do in the donia to basically relieve them of accountability and the hereafter. So they exhibit and adonia by,
you know the emancipation of a free slave, male or female, or
for those who are unable to emancipate, then the past
two successive months, two months in succession, or in a row.
Okay, so email
Allah in his book at the Honda says under the chapter on expiation for getting the babka feral cat woman catala Amina I was a me and because it happened, I will Shara caffee will be a Scottie jenine for Allah He will we're here to hurt Iraq
for millennia didn't foresee
any better min Allah Salah on ghanim colophon our via McCann Levin, her run, how are we done? So ON CAM colophon
hot run out whoever kills a believer or as a me that is covenanted contracted, non Muslim, in a Muslim land without justification, or participates in a killing or in the abortion of a fetus must expiate the expiation is by freeing a believing slave, he who does not find the means to do so must fast two consecutive months to show repentance to Allah. This is whether or not he the killer, or she could be his Micallef and whether he or she is free, or enslave.
Okay, so let's break this down. So he's saying that anyone who gives a believer or is it me
believe it happen or participates
or abort a fetus, then cafaro will be required of them. So the first thing is men or them me.
So, you know, I believe her
more than me
and the family as according to the majority, the Maliki said no, but the majority said even semi anyone had any covenant with any contracted non Muslim, any non harby non combative, non Muslim,
the kafala will also apply in killing them because it's an act of aggression, that is that would require a an act of aggression or if it is mistaken killing
there is some element of negligence and that is what we need to understand about mistaken killing and Islam and why there is
all of this the kuffaar and so on, although it was mistaken, because there is some degree of negligence involved in mistaken killing, you did not pay attention.
Basically, you shot the deer without looking you know, right and left
to see if there is anyone within range any human being within range.
So, your bullet you know, hit a person, there is some degree of negligence on your part. So anyway, so whether it is aggression as Inquisitor intentional murder or sub negligence as an mistaken murder, you did something wrong. So whether the victim is men, a believer or them me, Becca fara is still required.
And the proof from this is, you know,
Allah subhanaw taala said
comida hado in caramel Coleman, I don't mean like confetti, rockabilly momento and caramel come in by Nick Mulvaney Misuk for the most elementary lady
in Canada come in baina Covina home is the most elementary.
If there is a covenant between you and those people, then what is required is there that would be
surrendered or given to his family and
emancipation of free emancipation of a believing slave and now this is not saying a believer
this is saying anyone between us and who speaks people
there is a covenant or a or you know a peace treaty or something
citizenship constitutes on citizenship is our citizenship is a covenant and the people who are citizens of one country they have all come to agree among themselves that they
that they will sign on to this agreement which has been compatriots and being citizens of that particular entity or polity
it is covenanter that is my head you know which could be large it could be wider than them is me is usually used in the context of some non muslim living in a muslim land with a covenant with god but this also applies to anyone that has that is the position in the method it's not my own you know concoction so it is about that if there is between us and then a cover the covenant then there then that person is muscle with them meaning inviolable and if they are if they are inviolable then this discussion will pertain to them according to the majority including ham bodies okay so that's the first part he said our shara caffee which means or participates in killing
our participants in a getting so 200 people participate in the getting of one person
participate in the getting of one person how many they is what they pay to that one person how many they is indemnities while they pay to that one person one day
okay 200 people participated in the killing of one of this person how many believing slaves they do they need to free
gut flora is not divided between them gaffar is the individual responsibility of each one who participates in the killing the individual responsibility of each one who participates in the killing
and the sad here
while he is potty janine of course of course according to the majority the victim could be free or slave doesn't matter according to the majority the kupwara is binding whether the victim is free or slave and certainly whether the victim is all very young when the victim is male or female you know so the only is the you know the free or slave according to the majority it doesn't it is not it doesn't matter that believing and
basically covenanted contracted non believer are also the same so it is basically killing anyone who is inviolable
then of course inviolable means someone that is not attacking you because if you basically try to defend yourself and in the course of defending yourself you kill a sovereign or the attacker then there is no fatah there is no there there is no kufa because you were entitled to this action you were entitled to defending yourself but certainly not transgress in
self defense so confira is an individual obligation
of everyone who participates in the killing and we're talking about which killing here
was i intentional because intentional murder there is no profiler it's too big of a crime to be expiated for
and then he said what he is scotty janine
and the abortion have a fetus which jenny in that janine lovett assa t our fy falcoda added a new letter southwater meaning that janine or the fetus that shows the features of human embryo that they
says a truly human embryo that is to them to us nowadays
there could be there could be other ways to figure out if this was actually adenine or not because they did not limit this to a particular you know because this is how they figured that out like how do i know that this was not a clot of blood if i see features of human embryo then this was not a clot of blood but now there is i can figure this out better than they did so this is a one of the issues that are subject to hdr because of the change of circumstances or circumstantial variables okay then finally he got far away at the hero rocker button
okay must expiate thanks a patient has by freeing a believing slave because allah said for the minute you know
for mlm yada yada yada in a matata behind it because allah said follow me i just put the arms behind the those who are
don't have the means or don't find the means to do so must fast two consecutive months to short repentance to allah so on canon mukalla fan o'hara mccullough finn haoran however then whether that killer is mccann laugh or not could be a child could be insane so if it is a child or insane how do we ask them to expiate
child you know not responsible not accountable yes not responsible not accountable but then we can take from their money their way
the way you survey well imagine no one will take from their money which is the custodian of the child or the you know insane will take from their money and expiate on their behalf
whether it is horror or free or slave the killer so how does the killer how does the slave free a slave now he will move too fast in two months in this case you know he will what will we be required of them is fasting two months in this case
and keep in mind i may have told you that there is a position in the hanbury mel's habits actually the authorized position if you killed yourself you're required to expiate that it's it's it's controversial within the method but actually it is according to the letter generations the authorized position
that if you kill yourself by mistake you're required to explain or expiation will be required the meaning that it will come out of your inheritance
so we will take out of your inheritance some money to free to emancipate
then it drops
follow the sacrament of san fermata father could never had a minimum okay so we're we're done with this part and we have talked about it
and talked about
that's enough for now to solve a monopsony for a matter of adequately or hidden minimum market fara where the two sahibi
we're in can fit say any matter follows
the manohara said
if two people collide and die then acha fara expiation is binding on each of them
you understand they died but the kuffaar will be taken out of their money okay
each of them and the indemnity for each one is binding on the others family
gee do you i do know that in the hanbury method the indemnity is not binding on the killer and i talked about this last time that i said that i don't particularly believe in this it would be binding on the killer and the dark pillar but in the hanbury mess up you know what cover with the other half in it in the hadith of the two women from hosea that the prophets of salaam decreed the there will be paid will be the responsibility of the art dealer and he did not say the miranda aka the woman and her family he said that family so in the hanbury method they take this to heart and they say that their killer will not be responsible for the indemnity it is only the family of the
killer okay so that's what they're saying here the you know two people collide they're walking they collide with or they're riding or not riding they just could live with
are both. So, what are we going to do, we will take enough money from the inheritance of each one of them to free a slave,
slave, okay? and their families, there families
will then be responsible for that they do the the family of x will be responsible for that they are to pay to y, the family of y will be responsible for their to pay to the family of x, the family of x will pay the for the family of y, the family of Y will pay the theater the family of x.
If they were, if they have equal two years, the two of them, then it's an equal exchange.
And then, so the
Finally, the the our outcome of this, the net result of this is
not a bad thing, good, a good thing a good outcome, then the
honors actually tried to justify this rationally by saying you made you basically
you heard to the Muslim community by getting a believer you are to free someone from the captivity of slavery to replenish sort of the community with another believer that will join
that community now as a free a completely capable person and relieve the captivity of slavery.
So, versus if they can live in Canada fairly sane if I'm at a
minimum, other manohara said, since they're talking about it, they also mentioned this, if they are Yes.
As we said before, you You didn't read the appendix on slavery of that, at the end of the book, I have a complete appendix on slavery at the end of the book.
And as we said before that Islam
that that the fact that there is no slavery nowadays is something that Islam welcomes and something that Islam you know, encouraged the emancipation of slaves and you know, no other religion did this, as much as Islam did it and no other religion did this as much as Islam did, it was something that we have to be clear on. And there are alternatives. So, if there is no, if there are no slaves, there is when it comes to the expiation there is the alternative of fasting two months, fasting two months, but certainly if the people died, then that will drop you can you you because they are not there to fast two months and the first thing the nearby lotfy this type of fasting
did not come up to say okay, now you
can know suggestion of buying monitors, you
know, we have
many scholars that have been actually talking about, you know, the
many scholars have been talking about not moving from the emancipation to other exhibitions in the absence of slaves, but paying an amount equal to
that value at that time, you know, you just correct for inflation, I guess, but
a pain in the mountain that is equal and directing this amount to free and paid people from captivity or like
charitable purposes, that are as close as possible to the concept of emancipation of slaves, but but in general charitable concept, charitable endeavors.
This I think that this is a viable that they have a validates they had that needs to be further
discussed by the senior scholars and if they decide to mainstream it, then we should accept that you will always find the people that are resistant to anything, but at the end of the day, once there is enough momentum. So once the scholars the senior scholars agree on something, so let us say we have a conference of scholars from Ahmed Cora and Imam Mohammed, who then lasar in Karachi and and say to
anna and darla loom and various thunderlord rooms in the band
and so on and they decide to sort of if they discuss a matter and then they pass a declaration i think the unmatured should you know like it is enough that
we have basically
surrendered our fate to
for too long i guess and we just need to respect scholarship and we need to respect expertise and defer to the senior scholars on these matters and if something you cannot completely wrap your head around it may be because your head is not
big enough word malleable enough
so just like suspect to your head
anyway moving on
okay then sad
okay so if the if they were to horse men on horses and their horses died each one of them would be liable for the others horse
obvious each one of them would be liable for the others horse and then that you know moves to another scenario and he says when can
iran fall sad at the mono that battle work for our killer t there too if one of them was standing and the other was moving the moving one would be liable for the amount for the amount of the standing one and his arm taylor would owe the indemnity for him so we're talking about two people colliding both of them are moving but what if someone is standing
and someone is moving and they just hit them and they kill their horse or totaled their car and killed the the person the writer
what would be the one who's standing still is not liable for anything no kuffaar no indemnity the one who is moving is liable for the aca fara the expiation and his or her family is liable for the indemnity according to the humbert emails and we said that you know the other position is that
they and the family are liable for the eighth okay so that's the other scenario then we'll mention another scenario and look at the amount of detail you know these are traffic laws that they're describing in great detail and we could benefit extrapolate from and particularly benefited from the principles because it's the principles that we can apply in different
environments and different circumstances not the detailed rulings but rather the principles they're using and then he said inlandia kunal huapi formata rd and bo kofi kalka id fitori
allah he kept fara what amano said allah allah higa fara what amano said what they're better when i say allah azza wa keleti
this is unless the standing one was committing a violation by standing such as one who sits in a narrow street corner path that belongs to the moving commuter in this case in this this is this is amazing in this case he would be liable for the expiation the compensation for the moving commuter and his mount and nothing would be owed by the moving commuter or his
or his arcada so here here are the person who was standing goes bubble park and someone moving hit them and killed the person inside the car and totaled the car
that person that is standing he was double park is responsible
and this person was assumed this person died as well and his car was totaled as well this person who was standing in the wrong you know spot will be now responsible for the moving commuter and their mount their car or their cab
then the sec said
this is a completely different scenario now it's not
All traffic anymore. Wherever I'm at Sarah satin been Manzanita, Catalan Haider Omar Suleman, follow Aquila Haddad minnewanka Fatah wa Kira t sudo su deity. We're in cotulla.
In the hospital todo de LTV mocha Bella te
o Okay, so if three people using a catapult and the rock, if three people using catapult the rock hits an inviolable person, or three people launch a projectile, if three people launch a projectile using a catapult and the rock hits an inviolable prison, expiation is binding on each one of them, and 1/3 of the indemnity is due from his pillar. If the rock kills one of them, the three The same applies, except that 1/3 of the indemnity will be dropped since his death was partially caused by the
individual himself, okay. So we have a catapult here.
Okay, whenever Calico,
you know, and then the project titled saying, and we have three operators, three operators X, Y, and Z operating the caterpillar and the project I am rock hates an inviolable person, inviolable person.
So, each one of them would have been expiation, right, we'll do the expiation free as labor fast two months if he has unable to fiercely
two consecutive months. But then
can we set that is there equal retribution? pithos. No mistaken cause I intention of no equal retribution? What What is left? Think about it there and expiation, we said expiation, each it's an individual responsibility of each one of them that there will be divided 1/3 1/3 1/3 three operators is that they are binding on them. This is Hanbury now. No, they're not. You know, even if it's not combative, the, you know, the the other position is there's not basically acquit the ocular completely.
But says that the killer is one of you know, it will participate also, you know, his family would help him. It's not like he would walk away free. No, so Okay, so but in the hand value possession, the 1/3 will be on this person's a family, the 1/3 will be on this person's family. Okay, so they will expiate and 1/3 of the day will be paid by their family, to the family of the victim. Yes, sorry.
military experience. So how does this work in a war? So
but but you got to be careful to like, if you were completely found that to be at no fault, like never say, that inviolable person was within the rows of the enemy, you're not at fault.
If you can, if you if you're the if that inviolable person was standing with the enemy, you are now full.
but, but the catapult also you may, you may try to hit one side and you have another side or you may like
not pay attention, and friendly fire, but friendly fire was some negligence on your part.
Any person that is inviolable, inviolable, that is killed in the course of some negligent operation for some sort of like,
indiscriminate operation. Whether it be
you know, there will be expiation and indemnity for those inviolable people.
Well, Islam wants to protect every inviolable so
when can wax
i mean selasa socket has certain criteria about pdfium well
if they are more than three then the share for which the victim okay so so okay so the catapults one more time and these are three people and they kill the this person whatever they have their three people try to shoot that projectile and it went back and killed one of them one of the three
so then he says
we're in put it
in there now the us court sort of the de facto carbon fed okay so that they tried to shoot it were fired back and killed one of them each one of them including them the victim will have to expiate we will take because the victim was one of the three operators so the victim would xp this would explain this will execute okay
the victim now
the family of the victim now are waiting for what the indemnity
okay so the indemnity will be 1/3 1/3 zero because he killed himself so when you get yourself you're not going to be responsible for indemnity you're going to be responsible for expiation if you get yourself according to the company
but you know
but anyway so 1/3 and 1/3 so the family the family of this guy will pay 1/3 of the indemnity to the family of z the family of y will pay 1/3 of the indemnity to the family of z they would eventually walk away with two thirds of the indemnity because their relative participated in his killing
okay but then he says we're in cannot exit i'm in sara sakata has certain criteria back they have been
ever they are more than three
then the shear for which the victim is responsible is dropped and the remaining indemnity is binding on the rest that share of the persons then the then the share of for which the victim is responsible so let us say the are five five operators and they killed one of them killed one of them then 1/5 of the day
will be dropped because he was participating
so the family of this would pay 1/5 the family of this would maybe pay 1/5 of the family of this will pay 1/5 of the family of this would pay 1/5 the family of the victim would walk away with four fifths but they will not get the whole day because the relative participated in his own or her own killing now
we said the family will get the family or get will get from home
the from the from the family from the family of the attacker wrong
more than three
we said 1/5 of the day
halaqa solos the family will never be accountable for less than 1/3
if there is less than 1/3 of the day of buying then it will always be the person themselves
the attacker the killer mistaken or cause i intentional remember this when we talked about the act
that family will only be responsible
and rollin there are certain things where the aka would not be accountable now kayla will only be accountable if it is more than 1/3 of the day or 1/3 or more of the day at our gala will will come in here less than 1/3 of the day okay you remove the hair off of my eyebrow one no that's what i brought i was like 50 you remove the air of one of my islands one of my eyelids i have four eyelids you remove the hair off of one of my eyelids completely permanently what is that
25 who pays that? You pay? Okay, now, you
come up for my fingers. What is the deer? 40 camels. Okay, who pays that? Your family? Because now it's crossed 1/3 so 1/3 or more your family would come in.
And that's why it makes sense although this is not the hunt buddy position that you know if your family comes in at 1/3 or more, you should not walk out like you should still be around like trying to help here.
24 fingers is
for free fingers 4.8 31 No, we're not talking about a woman here we're talking about a man.
Well, four fingers will be 20 if it is a woman according to the
master keys on hand bodies, not the HANA fees and shaeffer is the HANA fees and Java is for them. It is what?
four fingers. It is actually 20 still, but not not because not like the Americas or Hanbury 1020 3020. No, it is 510 1520 Yeah. So anyway.
So that is why he said while back the DFE m whannell. Back in and the remaining indemnity is binding on the rest the rest of the killers, not their families, not their families, because it's more than three people. So if it is 1/4 of the day, it's binding on the kid or not the family.
So, now, this is the last point that I wanted to cover here is the first point that we started with in the beginning.
This expiation for killing is binding, in which cases what are the cases of what are the different types of murder in general? 12341 is what?
Okay, so if we take it, you know, so So let's say that we have intentional
And we haven't mistaken murder.
These are by agreement, two different types of murder according to openness to different types of intentional and mistaken
now, the Maliki's don't believe in cuisine intentional.
to resign pension for them is mistaken. The man did not or the woman did not actually mean to kill. It's mistaken murder. Okay.
The job who have this cause I intentional as a type. The Maliki's ad, Lila, treacherous murder, Vila.
Rila for the Maliki is not equal to retribution. It is hard.
It's a fixed penalty. There is no app where there is no pardoning and we told you, we allow you to set up an appointment to someone come meet me and you know the cemetery or desert or someplace and then you go and kill them. So that is that. So we have four different types of murder for different types of murder.
the difference between intention and Riba has likes
to know it now and it involves some degree of treachery, some degree of deception, treachery. Like, sort of, yeah.
So now we have those four different types of ILA.
You remove this right away, because we said that the Maliki's who came up with that category, they don't believe it is a retribution of this different discussion. It's a hub okay. So what is left intentional mistaken and was it intentional?
According to the magic is there is no quiz I intentional.
So the magic is will say that expiation for killing applies to miss
they can which will include was our intention because it's been the limit okay so that is
so so let us say that it is the ham bodies plus the hanafi is plus the maliki's all of them will apply this only to mistaken and who is i intentional and not to intentional murder according to one position in the madhhab that is not the popular position or the authorized position and the shafa is
expiation for getting applies also to intentional killing based on the a for shear argument for shear i argument if it is required in mistaken kidding it's a for shear i required an intention of killing and the johor said know that allah subhanaw taala said
you know mecanim
our webinar veen and whoever kills a believer intentionally then that has allah subhanaw taala mentioned their their punishments but allah did not ever say that they will have to expiate
it is too big of a crime that the more said
for there to be expiation
so no expiation because the crime is too big for expiation
and that's pretty much it when it comes to babka forgotten capital or the chapter on expiation for giving
call recording will take just like five minutes and come back to