Tafsir of Al-Ma'idah 5:95

Tafsir of Surah Al-Ma'idah (5:95)

Verse 95: O you who have believed, do not kill game while you are in the state of Iḥrām (sanctuary/consecration).

There are two main scholarly opinions regarding what constitutes "game" (ṣayd) prohibited for killing while in Iḥrām:

1. Opinion 1: It refers to any wild animal, whether its meat is lawful to eat or not.
   • According to this view (held by Abu Hanifa), if a pilgrim kills a predatory animal whose meat is unlawful (like a lion), he is liable for compensation (ḍamān), which must be the value of a sheep.
   • Zafar held that the compensation is due regardless of the animal's value.

2. Opinion 2: It refers only to animals whose meat is lawful to eat.
   • According to this view (held by Al-Shafi'i), there is no liability for compensation when killing a predator.
   • Al-Shafi'i's Argument:
     • Quranic Evidence: The verse following this one states: "Lawful for you is the game of the sea and its food as provision for you and for the travelers, but unlawful for you is the game of the land as long as you are in the state of Iḥrām." (5:96). This implies that what is lawful to eat is defined as "game." Since predators are unlawful to eat, they are not considered "game" in this context. Since they are not "game," the general principle of no liability (al-aṣl ‘adam al-ḍamān) applies, as the prohibition on killing game is the only basis for imposing liability here.
     • Hadith Evidence: The famous Hadith mentions five categories of harmful creatures (fawāsiq) that a pilgrim is permitted to kill, even in the sanctuary or while in Iḥrām: the crow, the kite, the snake, the scorpion, and the ferocious dog (al-kalb al-‘aqūr). Another narration includes the ferocious predator (al-saba‘ al-ḍārī).
       • This Hadith indicates that being classified as a fāsiq (harmful creature) is the effective cause (‘illah) for permitting its killing. The strongest form of harm is found in predators, thus justifying their killing and exemption from liability.

• Abu Hanifa's Rebuttal: A predator is still "game" and falls under the general prohibition. He cites poetry (e.g., "The lion raised its young to be hunted") and a saying attributed to 'Ali (peace be upon him): "The game of kings is hares and foxes..."
  • Response to Rebuttal: Unknown poetry is not authoritative. As for the saying attributed to 'Ali, it is irrelevant because, in our view, the fox is lawful to eat (and thus falls under the definition of game, but the predator argument remains).

There are three interpretations:

1. It means you are in the state of Iḥrām for Hajj.
2. It means you have entered the sacred precinct (Ḥaram).
3. Both meanings are intended by the verse.
   • There is a difference of opinion on whether this prohibition applies to someone in Iḥrām for ‘Umrah (the minor pilgrimage).

The command "Do not kill" (lā taqtulū) prohibits both direct killing and causing death indirectly. Therefore, a pilgrim must not harm game using weapons, trained birds, or hunting dogs, whether the game is from the area outside the sanctuary (Ḥill) or inside the sanctuary (Ḥaram).

However, if the animal is lawful to hunt (i.e., not in Iḥrām), the person may hunt in the Ḥill but not in the Ḥaram. If we accept that "Wa Antum Ḥurum" covers both being in Iḥrām and being inside the Ḥaram, then all these rulings are covered by the verse.

There are different readings for the phrase:

• Reading of 'Āṣim, Ḥamzah, and Al-Kisā’ī: Fa-jazā’un (with tanwīn on jazā’), and mithlu (in the nominative case, raf‘).
  • Meaning: He owes a penalty similar to the killed animal, from the livestock. Mithlu is in the nominative case because it is an adjective describing jazā’. They argue that adding jazā’ to mithl (compensation of the like) is inappropriate, as the obligation is compensation for the killed animal, not compensation for a like of the killed animal that he did not kill.
  • The phrase min al-na‘am (from the livestock) is an adjective for the indefinite jazā’. Meaning: "So, a penalty from the livestock, the like of what he killed."

• Reading of Other Reciters: Fa-jazā’u mithli (adding jazā’ to mithl).
  • They argue that even though the obligation is compensation for the killed animal, not compensation for its like, the construction is used idiomatically, similar to saying "I honor your like" (ukrimu mithlak), meaning "I honor you." Another parallel is {There is nothing like unto Him} (42:11), meaning "He is not like a thing."
  • Alternatively, it means: "The compensation, the like of what he killed, shall be from the livestock," similar to saying "a ring of silver" (khātam fiḍḍah), meaning "a ring made of silver."

• Dāwūd’s View: If the pilgrim kills game accidentally (khaṭa’), nothing is due.
  • Argument: The verse specifies the condition: {And whoever kills one of them intentionally (muta‘ammidan)}. When the condition is absent, the result is absent. Furthermore, the verse concludes: {And whoever returns [to that], then indeed, Allah will inflict punishment upon him}. Punishment (intiqām) applies only to intentional acts, not accidental ones. This implies the preceding penalty was also for intentional killing.

• Majority View (Jumhūr): Compensation is due whether the killing is intentional or accidental.
  • Argument: The prohibition {And unlawful for you is the game of the land as long as you are in the state of Iḥrām} (5:96) makes the act forbidden due to the Iḥrām. Its consequence (liability) does not lapse due to error or ignorance, just as in shaving the head or in compensating for damage to a Muslim's property.
  • They also cite Hadith where the Prophet (PBUH) ruled that killing a hyena requires a ram, and Companions ruled that killing a gazelle requires a sheep, without mentioning intent.
  • Dāwūd's Rebuttal: The explicit text of the Quran overrides single narrations, Companion reports, and analogy (qiyās).

The verse requires the penalty to be the like of what was killed, but scholars differed on how to determine this "like":

• Al-Shafi'i and Muḥammad ibn al-Ḥasan:
  • If the game has a direct equivalent among livestock (na‘am), it must be compensated with that like.
  • If it has no direct equivalent, compensation is by monetary value (qīmah).

• Abu Hanifa and Abu Yusuf: The required "like" (mithl) is always the monetary value (qīmah).

• Al-Shafi'i's Arguments for the Literal Like:
  1. Quranic Readings: The reading Fa-jazā’un (with tanwīn) implies: "A penalty from the livestock, similar to what was killed." Valuing it monetarily contradicts this explicit similarity.
  2. The reading Fa-jazā’u mithli mā qutila min al-na‘am implies the penalty must be from the livestock, contradicting those who allow monetary value only.
  3. Ibn Mas'ud's reading: Fa-jazā’uhu mithlu mā qutila min al-na‘am (His penalty is the like of what he killed from the livestock), which is explicit.
  4. The verse states the penalty must be judged by two just men {yuḥkam bihi dhawā ‘adlin minkum} and must be an offering brought to the Ka‘bah {hadyan bāligha al-ka‘bah}. If the obligation were merely monetary value, the person could choose whether or not to buy the offering, contradicting the explicit command that the judgment itself must be an offering.

• Hadith Evidence: The report from Jābir that the Prophet (PBUH) ruled that killing a hyena requires a ram, which is a direct substitution, not a valuation.

• Consensus (Ijma‘): Al-Shafi'i noted that narrations from 'Umar, 'Uthmān, 'Abd al-Raḥmān ibn 'Awf, Ibn 'Abbās, and Ibn 'Umar, across different times and places, show they judged the penalty by the closest equivalent in livestock (e.g., an ostrich for a camel, a cow for a wild ass, a ram for a hyena, a goat for a gazelle, a sheep for a deer, a young female goat for a hare). This shows they looked for the closest physical resemblance, not just monetary value.

• Analogy (Qiyās): The purpose of compensation is to replace the destroyed item. The more perfect the similarity, the more complete the compensation.

• Abu Hanifa's Argument: Since compensation for game without a like is determined by value, the word mithl in the verse must also mean value in all cases, as the same word should carry one meaning.
  • Rebuttal: The essence of similarity is known. Since the Lawgiver commanded adherence to similarity, it must be observed as much as possible. If perfect similarity is possible, it is required; if only value achieves similarity (due to necessity), then value suffices.

If a group of pilgrims kills one animal:

• Al-Shafi'i, Aḥmad, Isḥāq: Only one penalty is due.
  • Argument: The verse requires the like of the killed animal, and the like of one animal is one penalty. 'Umar's report supports this.

• Abu Hanifa, Mālik, Al-Thawrī: Each person owes a full penalty.
  • Argument: Each individual participated in the killing, so each is liable for a full penalty, based on the general wording {And whoever kills one of them intentionally...}. This is analogous to oaths, where if several people swear not to do something and one act occurs, each owes a penance. Similarly, in qiṣāṣ (retaliation), if a group kills one person, each is liable for the full retaliation.
  • Rebuttal to Abu Hanifa: The act of killing is singular; it cannot be fully accomplished by more than one agent simultaneously. Their combined actions result in one act of killing. Thus, none of them is truly the sole killer under the verse's literal meaning. The analogy to oaths and qiṣāṣ is based on devotional rulings (ta‘abbud).

• Al-Shafi'i: The guide (dāll) is not liable for the penalty.
  • Argument: The penalty is tied directly to the act of killing in the verse. Guidance is not killing. Compensation for destruction is not due for mere guidance (like in homicide or property damage).

• Abu Hanifa: The guide is liable.
  • Argument: 'Umar consulted 'Abd al-Raḥmān ibn 'Awf, and they agreed the guide owes the penalty. Ibn 'Abbās also held the guide liable.
  • Rebuttal to Abu Hanifa: The explicit text of the Quran is superior to the reports of some Companions.

• Al-Shafi'i: If a pilgrim wounds a deer, reducing its value by one-tenth, he owes one-tenth the value of a sheep.
• Dāwūd: Nothing is due unless the animal is killed.
• Al-Muzanī: He owes a sheep (implying the full penalty for injury).
  • Dāwūd's Argument: The verse conditions liability on killing (al-qatl).
  • Rebuttal: The obligation is tied to the like of the killed animal. Since we hold that liability is due even for accidental killing, the condition of killing is satisfied by the act that necessitates the penalty, even if partial.

If a pilgrim shoots game from outside the Ḥill and the arrow passes through a portion of the Ḥaram before hitting the game (which is in the Ḥill):

• Al-Shafi'i: It is forbidden (muḥarram), and the penalty is due.
  • Argument: The cause of death is composite: part permissible (shooting from Ḥill) and part forbidden (passing through the Ḥaram). When the forbidden and permissible are combined in an act where the essence is prohibition (like slaughter), the forbidden element prevails.

• Abu Hanifa: It is not forbidden.
  • Argument: The verse prohibits killing while you are in Ḥurmun (i.e., being in the Ḥaram during the act). Since neither condition (being in Iḥrām or being in the Ḥaram) was fully met for the act of killing, the prohibition does not apply.

A non-pilgrim (Ḥāll) hunts game in the Ḥill and brings it into the Ḥaram.

• Abu Hanifa: He must release it (irsal). If he slaughters it, it is forbidden, and he owes the penalty.
  • Argument: The verse {Do not kill game while you are in Ḥurmun} prohibits killing game while in the state of Iḥrām, which applies to game hunted in the Ḥill or the Ḥaram.

• Al-Shafi'i: It is lawful for him to slaughter it, and he owes no penalty.
  • Argument: Based on {Lawful for you is the game of the sea... but unlawful for you is the game of the land as long as you are in the state of Iḥrām} (5:96), which implies that the prohibition is tied to the state of Iḥrām, not the location of the animal.

If a pilgrim kills game, pays the penalty, and then kills another animal:

• Majority: A second penalty is due.
  • Argument: The cause (‘illah) for the penalty is the killing itself. Since the cause is repeated, the ruling must be repeated.
  • Rebuttal to the analogy of divorce: If a man tells his wives, "Whoever enters the house is divorced," and one enters twice, only one divorce occurs. The difference is that killing is the cause for the penalty, requiring repetition of the ruling upon repetition of the cause. Entering the house is a condition for the divorce, so repeating the condition does not require repeating the ruling.

• Dāwūd: No second penalty is due.
  • Argument: The verse states: {And whoever returns [to that], then indeed, Allah will inflict punishment upon him}. The penalty for the second offense is intiqām (punishment/vengeance), not another kaffārah (expiation).

• Al-Shafi'i: If the game is one-eyed, lame, or crippled, he should redeem it with its like. A large animal is preferred over a small one. A male is redeemed with a male, and a female with a female. It is best not to substitute a female for a male or vice versa, even though the female might be superior for breeding, because the male might be superior in meat quality or appearance. The Quran mandates the like.

Verse 95 (Cont.): {...judged by two just men among you as an offering brought to the Ka'bah...}

• Ibn 'Abbās: It means two righteous men, just men, from the community (milla) and religion, who are jurists (fuqahā’). They look for the closest equivalent among the livestock and judge accordingly.
  • This supports Abu Hanifa's view that valuation (taqwīm) requires judgment and deliberation, whereas physical similarity is apparent and requires no deliberation.
  • Rebuttal: The aspects of similarity between livestock and game are numerous and varied, requiring deliberation to distinguish the stronger from the weaker resemblance.
  • Evidence for Deliberation: The story of the Bedouin who approached Abu Bakr (RA) regarding game killed. Abu Bakr consulted Ubayy ibn Ka'b, stating that God commanded consultation: {judged by two just men among you}.
  • The story of Qubayṣah ibn Jabir, who killed a deer while in Iḥrām. 'Umar (RA) consulted 'Abd al-Raḥmān ibn 'Awf, who suggested a sheep. 'Umar agreed and ordered him to take a sheep. When Qubayṣah questioned 'Umar for consulting others, 'Umar struck him with his whip, saying: "Do you kill in the sanctuary and then question the judgment? God said: {judged by two just men among you}. I am 'Umar, and this is 'Abd al-Raḥmān ibn 'Awf."

• Al-Shafi'i: For game where the Companions ruled on the penalty (e.g., ostrich, wild ass, hyena), their ruling is binding because they witnessed the revelation and understood its interpretation. For cases where they did not rule, the judgment reverts to the deliberation of two just men, who look at the three categories of livestock and judge based on the closest resemblance.
• Mālik: The judgment set by the Companions must be followed, as well as cases where they did not rule.
  • Al-Shafi'i's Argument: The verse mandates judgment by two just men. If two Companions judged, they fulfilled the verse's requirement. Their judgment is superior because they witnessed the revelation.

• Al-Shafi'i: Yes, if the killing was accidental (khaṭa’), as he remains just. If intentional, no, as it constitutes sinfulness (fisq).
• Mālik: No, similar to the valuation of damaged property.
  • Al-Shafi'i's Argument: God commanded judgment by two just men. If he erred accidentally, he is still just. If he and another judge, they fulfill the requirement. A report shows 'Umar (RA) told a man who accidentally trod on a deer to judge the penalty himself, saying, "I commanded you to judge, not to testify to your own righteousness."
  • Based on this, our colleagues (Shafi'is) permit both judges to be the killers if the act was accidental.

If two just men rule on one penalty, and two other just men rule on a different penalty:

1. The pilgrim has the choice (yutakhayyar).
2. He must take the stricter penalty (al-aghlaẓ).

Some proponents of analogy argue that this verse proves the permissibility of using analogy and conjecture, as God entrusted the determination of the "like" to human deliberation and conjecture.

• Rebuttal: This is weak. The Lawgiver mandates reliance on conjecture (ẓann) in many areas (e.g., Qibla direction, witness testimony, valuation of damages, judicial rulings). While the ruling here is based on conjecture, this does not prove that analogy (qiyās) is valid in general. Proving analogy by analogy is inherently fallacious.
• Distinction: In all the cited examples (Qibla, witnesses, valuations), the ruling applies to a specific person, at a specific time, in a specific incident. A ruling based on analogy (qiyās) establishes a general legal principle (ḥukm kullī) binding for all time. It is impossible to explicitly state every specific ruling for every future incident, but stating general, eternal laws is possible.

Verse 95 (Cont.): {...as an offering brought to the Ka'bah}

1. First View (Preferred): They must judge a penalty that is an offering driven/led to the Ka‘bah to be slaughtered there. This confirms the view that the penalty must be the literal like from livestock, as God did not say, "something to buy an offering with," but rather, "an offering itself."
2. Second View (Distant from the text): They must judge something that can be used to purchase an offering.

The correct interpretation is the first. The word hadyan is in the accusative case (naṣb) as a circumstantial adverb (ḥāl) describing the pronoun in bihi (by which). The pronoun refers to the "like" (sheep, cow, etc.).

This is an adjective for hadyan. The nūn (in bālighūn) is omitted for brevity, similar to {a cloud bringing rain} (‘āriḍum mumṭirunā).

The Ka‘bah is named for its height and square shape. The term Ka‘bah here refers to the entire Ḥaram (sanctuary), as slaughtering and sacrifice are not confined strictly to the structure of the Ka‘bah itself, but occur within the sanctuary boundaries. This is analogous to {then its destination is the Ancient House} (22:33).

The meaning of "reaching the Ka‘bah" is that it must be slaughtered within the Ḥaram. If the pilgrim pays the value of the game to the poor while it is alive, it is insufficient; it must be slaughtered in the Ḥaram.

• Al-Shafi'i: Once slaughtered in the Ḥaram, he must also distribute the meat to the poor in the Ḥaram.
• Abu Hanifa: He may distribute the meat wherever he wishes.
  • Al-Shafi'i's Concession: He agrees that the pilgrim may fast wherever he wishes, as fasting offers no benefit to the poor of the Ḥaram.
  • Al-Shafi'i's Argument: Slaughtering itself is painful; it cannot be an act of worship (qurbah) in itself. The worship is delivering the meat to the poor. Thus, {an offering brought to the Ka‘bah} requires delivering that gift to the people of the Ḥaram.
  • Abu Hanifa's Argument: Once the penalty reaches the Ka‘bah (by being slaughtered there), it has fulfilled the condition of being an offering brought to the Ka‘bah, and the obligation is discharged.

Verse 95 (Cont.): {...or an expiation [by] feeding the needy, or the equivalent thereof in fasting.}

• Nāfi‘ and Ibn 'Āmir: Aw kaffāratu ṭa‘āmi masākīn (adding iḍāfah—Kaffārah is added to ṭa‘ām). This is because the pilgrim is given a choice between three things: the offering, fasting, or food. Adding ṭa‘ām specifies which type of expiation is meant (food expiation, not offering expiation or fasting expiation).
• Others: Aw kaffāratun (with tanwīn), and ṭa‘āmu masākīn is in the nominative case as an appositive (‘aṭf bayān). The expiation is not added to the food because the expiation is for killing the game, not for the food itself.

• Al-Shafi'i, Mālik, Abu Hanifa: The word aw implies choice (takhyeer).
• Aḥmad and Zafar: It implies sequence/order (tartīb).
  • Argument for Sequence: The word aw can imply order, as in {either they be killed or crucified or have their hands and feet cut off from opposite sides} (5:33), where each ruling is assigned to a specific circumstance. The context here suggests severity, indicated by {then indeed, Allah will inflict punishment upon him}. Choice contradicts this severity.
  • Rebuttal: The penalty of forfeiting the like (the offering) is not a harsher penalty than forfeiting the food/fasting. Therefore, choice does not negate the severity implied by mandating the offering first.

• Al-Shafi'i: If the game has a like, the pilgrim chooses between three options:
  1. Pay the literal like (from livestock).
  2. Value the like (not the game itself) in currency, buy food with that value, and give it as charity.
  3. Fast.
  • For game without a like, he chooses between: (1) Valuing the game, buying food, and giving charity, or (2) Fasting.

• Abu Hanifa and Mālik: The food must be purchased using the monetary value of the game itself, not the value of its like.
  • Al-Shafi'i's Argument: Since the like from livestock is the primary penalty, the food penalty is derived from that like, just as food is derived from fasting (as an alternative). Valuing the like is more precise than valuing the game itself.
  • Abu Hanifa's Argument: When a substitute for the destroyed item is required, it should be measured against the destroyed item itself, if possible. Since food is a substitute for the killed game, it should be valued based on the game.

• Majority: The valuation is done at the location where the game was killed.
• Al-Sha'bī: It is valued according to the price in Mecca, as the expiation is performed there.

• Al-Farrā’: ‘Adl means something equivalent from a different genus. ‘Adl (with tanwīn) means the like. You say, "I have an ‘adl of your slave" if you have a slave equivalent to his slave. If you mean its value from a different genus, you use the accusative: ‘adlan.
• Abu Al-Haytham: ‘Adl means the like, and ‘adlan means the value.
• Al-Zajjāj and Ibn Al-A'rābī: ‘Adl and ‘adlan are the same.
• Ṣiyāman (Fasting): It is in the accusative case as a specification (tamyīz), similar to saying, "I have two ratls of honey" (raṭlāni ‘asalan).

• Al-Shafi'i: He fasts one day for every Mudd (a measure of food).
• Abu Hanifa: He fasts one day for every half Ṣā‘ (a measure of food), consistent with the measure for the expiation of an oath.
  • Both agree the fasting duration is equivalent to the food portion for one day, but they differ on the measure of that day's food.

• Majority: The choice among the three options (offering, food, or fasting) belongs to the killer.
• Muḥammad ibn al-Ḥasan: The choice belongs to the two judges.
  • Majority Argument: Since God gave the killer the choice among the three options, the killer must be the one who chooses.
  • Muḥammad's Argument: The verse states the judges must rule {judged by two just men among you...}, implying they determine the penalty.
  • Rebuttal: The ruling of the two judges is specifically to determine the like (whether by value or physical form). The choice between the three types of penalty remains with the killer.

Verse 95 (Cont.): {...so that he may taste the consequence of his affair.}

• Wabāl linguistically refers to heaviness and unpleasantness. A difficult pasture is called mabāl. A difficult or indigestible food is wabīl. God says: {So We seized him with a severe seizure} (akhdhan wabīlan) (73:16).

Because the pilgrim is given a choice between three things, each of which is burdensome to the natural disposition (ṭab‘):

1. Paying the like (financial loss).
2. Feeding the needy (financial loss).
3. Fasting (physical pain). The meaning is that God has imposed one of these heavy consequences upon the killer of game so that he may be deterred from killing game while in Iḥrām.

Verse 95 (Cont.): {Allah has pardoned what has already passed. But whoever returns [to it], then Allah will inflict punishment upon him. And Allah is Exalted in Might, the Possessor of Retribution.}

1. First View: God has pardoned what occurred during the pre-Islamic ignorance (Jāhiliyyah) and what occurred before this prohibition was revealed in Islam.
2. Second View (Held by those who only mandate penalty for the first offense): The penalty is only due for the first offense after the ruling is established. For the second offense, the crime is too great to be expiated by the prescribed penalty. Therefore, "God has pardoned what has passed" refers to the first offense after the penalty has been paid. If he returns a second time, there is no expiation, but rather divine retribution (intiqām).
   • Argument: The fā’ (in fa-yantaqimu) is the fā’ of consequence, implying the retribution is sufficient for that sin, preventing any other penalty from being due.

Sibawayh stated that in this verse, and similar structures like {And whoever disbelieves, then indeed, Allah is free of need of him} (2:264), there is an implied subject (mubtada’ muḍmar).

• The structure is: "And whoever returns, he is one whom Allah will punish."
• The reason is that if the verb itself were the consequence, adding the particle fā’ would be superfluous. By implying a subject, the fā’ becomes necessary to link the consequence clause to the conditional clause, preventing it from being superfluous.

Verse 96: {Lawful for you is the game of the sea and its food as provision for you and for the travelers, but unlawful for you is the game of the land as long as you are in the state of Iḥrām. And fear Allah, to whom you will be gathered.}