as being one oath is based on two aspects: First, that he unified the oath, so it refers to one [oath]. Second, that he did not differentiate regarding the legislated oath, which indicates the equality between what is legislated for blood and for wealth. Furthermore, it is an oath supported by external appearance and the original principle (al-asl), so it is not reinforced (ta'lidh), like other oaths. It is also an oath legislated on the side of the defendant initially, so it is not reinforced by repetition, like other oaths; thus, it differs from what they mentioned. If the defendant refuses to swear the oath, Qisas (retaliation) is not mandatory, without disagreement in the Madhhab. The companions of al-Shafi'i said: If the defendant refuses, the oath is returned to the plaintiff, who then swears fifty oaths and becomes entitled to Qisas if the claim was for an intentional killing, or the blood money (Diyah) if it was a case necessitating killing; because the oath of the plaintiff, coupled with the refusal of the defendant, is like evidence or a confession, and Qisas is mandatory by either of those. Our evidence is that the killing was not established by evidence or confession, nor was it supported by Lawth (circumstantial evidence), so Qisas is not mandatory, just as if he had not refused. It is not valid to equate oaths taken upon refusal with evidence or confession, because they are weaker than them, as evidenced by the fact that they are not legislated except in the absence of the latter; thus, they are a substitute for them, and a substitute is weaker than that for which it is substituted. It does not follow from the establishment of a ruling by stronger evidence that it is established by weaker evidence. Nor does it follow from the obligation of blood money that Qisas is obligatory, because it is not established by the testimony of women alongside men, nor by a single witness and an oath; rather, caution is exercised, and it is averted by doubts (shubuhat), whereas blood money is the opposite. As for the blood money, it is established by refusal for those who establish wealth by it, or the oath is returned to the plaintiff, who swears one oath and becomes entitled to it, just as if the claim were for wealth. And Allah knows best.

1521 - Issue: He said: (If there is enmity and Lawth between them, and his guardians make a claim against one person, the guardians shall swear fifty oaths against his killer and shall be entitled to his blood if the claim was for intentional killing.)

The discussion on this issue is in four sections: