Is judgment by refusal (*nakūl*) applicable in non-monetary claims such as retribution (Qiṣāṣ)?
General Chapter
Al-Mughni
Book of Judicial Rulings
Primary text
Judgment by refusal (*nakūl*) is not applied in cases that are not financial or where money is not the objective, such as in retaliation (*Qiṣāṣ*). Ahmad explicitly stated this regarding personal retribution. Abu Yusuf and Muhammad concur with this, holding that no judgment is passed based on refusal in such cases, differentiating neither between retribution concerning life nor limb. The view stated earlier (judging by refusal) is considered an older statement by Abu Bakr.
Supporting text
A differing view is held by Abu Hanifa, who allows judgment by refusal in *Qiṣāṣ* below the level of homicide. A narration from Ahmad suggests a similar position. However, the primary established view is that since *Qiṣāṣ* is a type of retribution, it should be treated like the other type (e.g., homicide). Concerning what should be done if the defendant refuses in such non-financial cases, one view suggests releasing them as no proof was established against them, with the oath serving only as a deterrent. The second view suggests detaining the defendant until they confess or swear.