Is the right to Qisas (retaliation in kind) established for guardians (awliya) if they take an oath, assuming the claim of intentional killing is made?
Chapter on Qasamah (Oaths regarding murder)
Al-Mughni
Book of Blood-Money (Diyyāt)
Primary text
The guardians are entitled to Qisas if they swear an oath, provided the claim is intentional, unless a preventing factor exists. This view is reported from Ibn al-Zubayr and Umar ibn Abd al-Aziz, and is the position of Malik, Abu Thawr, and Ibn al-Mundhir. The evidence for this is the Prophet's saying: 'Fifty of you shall swear against one of them, and he shall be handed over to you with his rope (rimmah).' Another narration states that they become entitled to the blood of their companion, referring to the killer's blood, as the blood price of the deceased was already established for them before the oath. Furthermore, since the oath establishes intentionality, Qisas must follow, similar to how clear evidence (bayyinah) establishes it. A narration by al-Athram, via Amir al-Aswal, states that the Prophet (peace be upon him) enacted Qisas based on the Qasamah oath taken by a group.
Supporting text
A dissenting view held by Muawiyah, Ibn Abbas, al-Hasan, and Ishaq holds that no blood money (Diyyah) is obligatory based on this oath. They cite the Prophet's statement to the Jews: 'Either pay for your companion, or be informed of war from Allah.' They argue that the claimants' oaths are based on strong presumption and apparent truth, which is insufficient to justify taking a life due to the potential for doubt. Moreover, it is an evidentiary proof that neither establishes marriage nor mandates Qisas, similar to a witness combined with an oath. Al-Shafi'i has two opinions corresponding to these two main schools of thought.