What is the ruling if the defendant refuses to swear the oath in a homicide claim lacking enmity or evidential suspicion?
Chapter on Qasamah (Oaths regarding murder)
Al-Mughni
Book of Blood-Money (Diyyāt)
Primary text
If the defendant refuses to swear the oath, retribution (Qisas) is not incumbent, without any disagreement within the school of thought. The basis for this is that homicide was not established by clear proof or confession, nor was it supported by indicative evidence (lwath); thus, Qisas is not required, just as if he had not refused the oath. It is not correct to equate refusal of oath with clear proof or confession because the oath is weaker, as it is only legislated in the absence of the stronger proofs; therefore, it is a substitute for them, and a substitute cannot enforce a ruling that the original evidence does not.
Supporting text
The companions of Al-Shafi'i state that if the defendant refuses the oath, the oath is returned to the plaintiff, who then swears fifty oaths and is entitled to Qisas if the claim was intentional, or Diyah (blood money) if the homicide warrants Diyah. They argue that the plaintiff's oath, following the defendant's refusal, is equivalent to evidence or confession, both of which necessitate Qisas. Regarding Diyah, it is established by the defendant's refusal to swear according to those who establish property rights through such refusal, or the oath is returned to the plaintiff, who swears a single oath and is entitled to the Diyah, just as if the claim were concerning monetary property.