Is capital punishment (Qisas) obligatory upon a competent adult for a joint intentional killing committed with an incompetent person (a minor or insane individual)?
General Chapter
Al-Mughni
Book of Wounds
Primary text
The soundest position in the school is that Qisas is not incumbent upon the competent partner. This view is held by Al-Hasan, Al-Awza'i, Ishaq, Abu Hanifa and his companions, and it is one of the two opinions of Al-Shafi'i. This is based on the principle that the intentional act of a minor or an insane person is treated as a mistake (*khata'*) in its ruling, thus removing Qisas liability, similar to the rule concerning the father's liability. Since the competent person only partnered with one who bears no sin for his act, Qisas is not required from the competent partner, akin to partnering with someone whose act was a mistake.
Supporting text
An alternative view, narrated from Ahmad, Malik, Al-Shafi'i's second opinion, Qatada, Al-Zuhri, and Hammad, holds that Qisas is obligatory upon the competent, sane adult. This is because Qisas is a retribution for the act itself; if the act was intentional and aggressive, Qisas is due based on that act alone, without regard to the partner's act, similar to a partner of a non-relative foreigner. Furthermore, minors and the insane possess an intent that does not fully qualify as valid intent because their confessions are not valid, hence their action resembles a mistake.