Is capital punishment (Qisas) obligatory if some guardians of a victim kill the perpetrator without the permission of the remaining guardians?

Chapter on Retaliation (Qawad)

Al-Mughni

Book of Wounds

Book 47 · Issue 1 · Bab 2

Open in Qurani

Primary text

Capital punishment is not obligatory in this situation. This view is held by Abu Hanifa and is one of the opinions of Al-Shafi'i. The reasoning is that the killer is a participant in the right to exact retaliation, just as one who co-owns a slave girl and has relations with her is not subject to a specific penalty for that act. Furthermore, where some own a part of a specific entity, the prescribed punishment upon its complete disposal is not incumbent, similar to the principal entity itself. In the case where a group kills one person, Qisas is not imposed by killing only a part of the soul; rather, each individual is considered a killer of the whole. If we were to grant that Qisas is due for killing part of a soul, it requires participation in the act, which is not realized here.

Supporting text

The opposing view holds that Qisas is obligatory because the killer is prohibited from carrying out the act, and part of the right did not belong to him. They argue that Qisas can become necessary by destroying part of the soul, evidenced by cases where a group jointly kills one person.