Al-Baqarah: (178) O you who believe...
(O you who believe): This is the commencement of the explanation of certain legal rulings, presented in a manner that serves as a remedy for the lapses of those who were negligent regarding the aforementioned foundational principles of religion, upon which the affairs of this life and the Hereafter are built.
(Prescribed for you): That is, made obligatory and binding upon the demand of the one who possesses the right. The ability of the guardian (wali) to pardon does not invalidate this, for the obligation is considered in relation to the authorities or the killers. The origin of the word kitabah (writing) is the line, then it was used metaphorically to mean binding obligation. The particle ‘ala (upon) is explicit in this.
(The law of equality in cases of murder): That is, on account of them, similar to the expression: "A woman entered the Fire because of a cat she tied up." It is said that qisas (equality/retribution) is connected with the preposition fi (in) because it entails the meaning of equality, for it implies that the same thing should be done to a person as he has done. From this, the word miqass (scissors) is derived, because its two sides are equal; a qissah (story) is so called because the narration is equivalent to that which is narrated; and qisas is so called because it recounts something similar to the events of people.
(The slain) is the plural of qatil (slain), like jarih (wounded) and jarha. It has been recited in the active voice: Kataba (He prescribed).
(The law of equality)—in the accusative case. There is no implied ellipsis before it that was already established before its mention; rather, it is a declarative sentence explaining what came before it. That is: "The free for the free, the slave for the slave, and the female for the female."
It is said that this was taken as a reference to a situation where, in the pre-Islamic era (Jahiliyyah), there was bloodshed between two Arab tribes, and one had dominance over the other, swearing that they would kill the free among them for the slave, and the male for the female. When Islam came, they brought their case to the Messenger of Allah (may Allah bless him and grant him peace), and this verse was revealed, commanding them to return to the correct positions.
Thus, the verse does not imply that a slave should not be killed for a free man, nor a female for a male, because the concept of opposition (mafhum al-mukhalafah) is only considered when its negation is not known through the concept of agreement (mafhum al-muwafaqah). Since it is established that a slave is killed for a slave, and a female for a female, it is known by priority (tariq al-awla) that a slave is killed for a free man, and a female for a male. Likewise, it does not imply that a free man is not killed for a slave, or a male for a female, because the concept of opposition is conditional upon the specialization having no other benefit. The Hadith clarifies the benefit, which is to prevent transgression and establish equality between free and free, and slave and slave.
Therefore, Al-Shafi’i and Malik prohibited killing a free man for a slave—whether it is his slave or another’s—not because of the verse, but because of the Sunnah, consensus (ijma), and analogy (qiyas). As for the first (Sunnah), Ibn Abi Shaybah recorded from Ali (may Allah be pleased with him) that a man killed his slave, and the Messenger (may Allah bless him and grant him peace) whipped him and exiled him for a year, but did not execute him for the slave. It is also recorded that he (may Allah bless him and grant him peace) said: "It is from the Sunnah that a Muslim is not killed for a disbeliever under treaty, nor a free man for a slave." As for the second (Consensus), it is reported that Abu Bakr and Umar (may Allah be pleased with them) did not kill a free man for a slave in the presence of the Companions, and none of them—those who did not fear the blame of any critic for the sake of Allah—objected. As for the third (Analogy), it is because there is no qisas for limbs between a free man and a slave by agreement, so murder is analogized to it.
According to our Great Imam (may Allah be pleased with him), a free man is killed for a slave due to the saying of the Prophet (may Allah bless him and grant him peace): "The blood of the Muslims is of equal value," and because qisas relies on equality in immunity, which is established by faith or territory, and they are equal in both. Differentiation regarding the soul itself is not considered, evidenced by the fact that if a group kills one person, they are all killed for him. Also, the Almighty says: "The soul for the soul." The law of those before us, when related to us without any indication of its abrogation, is binding upon us as our own law.
Some say the verse indicates the view of the opponents because "the free for the free" is an explanation of "prescribed for you is qisas for the slain," proving that observing equality in status (freedom/slavery) is essential. Making qisas obligatory upon a free man for killing a slave ignores this equality. The implication would be that a slave is not killed except for a slave, and a female not except for a female. However, the opponents did not follow this; they opposed the apparent meaning for the sake of analogy and consensus. Those among us who accept this view claim the verse was abrogated by the Almighty’s saying: "The soul for the soul," because its generality abrogates the requirement of equality in freedom and gender derived from the previous verse. This is reported from Ibn Abbas, Sa’id ibn al-Musayyib, Al-Sha’bi, Al-Nakha’i, and Al-Thawri. It is objected that the verse is a narrative of what was in the Torah, and the authority of the law of those before us is conditional upon no abrogator appearing for it. This depends on there being nothing in the Quran that contradicts what is narrated; if such a thing existed, it would be its abrogator.
Our masters, the Hanafis and Malikis, and a group hold that the guardian has no right but qisas, and he does not take blood money (diyah) except with the killer's consent. This is because Allah mentioned diyah for accidental killing, so it is determined that qisas is for its opposite, which is intentional killing. Since it is determined for intentional killing, one should not deviate from it, lest it lead to adding to the text based on opinion. It is objected that the text's explicit wording (mantuq) is the obligation to observe equality in qisas, which does not necessitate the obligation of qisas itself. It is answered that qisas—which is the execution of justice through equality—necessitates the obligation of both.
(But if the brother of the slain grants any remission): That is, something that is called "something" of pardon and forgiveness, even if it is very little. The indefinite noun here acts as a noun that is qualified, so it can act as the agent. "From his brother" can be related to the verb or be a state of "something." Placing "something" in the position of the agent implies that some pardon—such as pardoning part of the blood-price, or one of the heirs pardoning—is like total pardon in dropping the qisas, because it is indivisible. The "brother" refers to the guardian of the blood; he is called a brother to elicit sympathy, by reminding them of the brotherhood of humanity and faith. It is also said that it refers to the slain; the sentence carries an implied genitive, i.e., "the blood of his brother." He called him the killer's brother to indicate that the brotherhood of Islam between them is not severed by the killing.
"Pardoned" ('ufiya) is transitive to the criminal and the crime by the particle ‘an. It is said: "I pardoned Zayd (‘an Zayd) and his sin (‘an dhanbihi)." When it is transitive to the sin, it is transitive to the criminal by the letter lam (for), because the pardoning is for the first, and the benefit is for the second. The intent here is pardoning the crime, though its mention is omitted because the focus is on the state of the criminal.
(Then follow with fairness): That is, let the following be done, or the command is to follow. The intent is a recommendation to the one who pardons not to be harsh in seeking blood money from the pardoned, to grant him respite if he is in difficulty, and not to demand more. The pardoned is recommended not to delay in paying it, not to diminish it, and to pay it when possible. This is the view of Ibn Abbas, Al-Hasan, Qatadah, and Mujahid. It is said the meaning is: "It is upon the pardoned to follow and pay."
(This is a concession from your Lord and a mercy): That is, the ruling mentioned in the context of the explanation of pardon and blood money. In the legality of pardon, there is ease for the killer, and in the legality of blood money, there is benefit for the guardians of the slain. Muqatil says that qisas alone was prescribed for the Jews, and pardon alone for the Christians, while this nation was given the choice between the three to facilitate for them, lowering the ruling according to the situation.
(Then whoever transgresses after that): That is, goes beyond what was legislated by killing someone other than the killer after this ruling was revealed, or by killing the killer after pardoning him and taking blood money.
(For him is a painful punishment): That is, a type of punishment that is painful. The immediate understanding is that this is in the Hereafter. It is reported from Al-Hasan and Ibn Jubayr that it is in this world, in that he will be executed without fail, and no blood money will be accepted from him, according to what Abu Dawud recorded from a hadith of Samurah (raised to the Prophet): "I do not pardon anyone who kills after taking the blood money."
