Can a legal execution (Qisas) that is not permissible by law be carried out through mutual consent?
Chapter on Retaliation (Qawad)
Al-Mughni
Book of Wounds
Primary text
That which is not permissible to take by way of retribution (Qisas) cannot be taken even by mutual consent and agreement of the involved parties. This is because lives cannot be made lawful merely through offering or consent. Consequently, if an individual offers their life initially, it is not permissible to take it, nor is it permissible for someone to kill themselves or sever their own limb; therefore, it is not permissible for another to do so merely by their offering. If two parties agree to sever one hand in lieu of the other hand (previously severed), and the retaliator severs the hand, the right to Qisas for the first injury lapses because the injured party relinquished it, and the right to Qisas for the second injury lapses due to the consenting party's permission for its severance. Since the blood-money (diyah) for both hands is equal, they cancel each other out. This is the position held by Abu Bakr. Furthermore, if the party entitled to Qisas severs the other hand unjustly, the Qisas lapses because both parties become equal in pain, diya, and the nature of the injury, causing them to cancel out. Imposing Qisas in such a scenario would lead to the severing of both hands, destruction of the utility of the limb, and great harm to both parties.
Supporting text
If the second severing is considered a hostile act (adwan), then each party has the right to Qisas against the other. However, if it occurs by mutual consent, there is no Qisas for the second act because the owner consented to its severance. Regarding the first injury, there are two views: one is that the right to Qisas lapses based on the principle that the consent was given for an unestablished compensation. The second view is that the right does not lapse because the right-holder consented to relinquish it for a compensation that did not materialize, allowing them to revert to their original right, similar to a sale transaction involving intoxicants where the buyer defaults. Under this second view, Qisas is due, but only after the other limb heals. The perpetrator owes the injured party the diya for the hand. If the diyas are equal, they offset each other; if one is greater, Qisas is due to the party whose diya is higher, such as in the case between a man and a woman.