The Second Chapter: If it is not possible to take from the public treasury, then there is nothing upon the killer. This is one of the two statements of al-Shafi'i, because the blood money became binding upon the aqila (kinsmen) from the outset, as evidenced by the fact that no one other than them is held liable for it, nor is their bearing of it or their consent to it considered, nor is it mandatory upon anyone other than the one upon whom it was made mandatory, just as if the killer were non-existent, for then the blood money would not be mandatory upon anyone; the same applies here. According to this view, if some of the aqila are found, they are charged with their share, and the remainder is dropped, so it is not mandatory upon anyone. It is possible to extrapolate that the blood money should be mandatory upon the killer if bearing it on his behalf becomes impossible. This is the second statement of al-Shafi'i, due to the generality of the saying of Allah, the Almighty: "and blood money paid to his family" (Quran 4:92). Furthermore, the implication of the evidence is that it is mandatory upon the perpetrator as a rectification for the soul he caused to be lost. The obligation was only dropped from the killer because the aqila stood in his place to rectify the loss; if that cannot be obtained, it remains mandatory upon him by the dictates of the evidence. Furthermore, the matter is between allowing the blood of the slain to be wasted and making his blood money mandatory upon the one who destroyed him; the first is not permissible, because it involves opposing the Book, the Sunnah, and the analogy of the principles of the Sharia, so the second becomes definite. Moreover, there is no parallel for wasting blood that is guaranteed, whereas making the blood money mandatory upon the killer in cases of error has many parallels. Indeed, when a renegade (murtad) has no aqila, the blood money becomes mandatory from his own wealth; a dhimmi who has no aqila is bound by the blood money; and someone who shot an arrow and then converted to Islam, or was a Muslim and then apostatized, or was under the guardianship of his mother's kin and then became associated with his father's kin, and then hit a person with an arrow and killed him, the blood money was upon his own wealth because it was impossible for his aqila to bear the responsibility. It is the same here. Thus, we construct an analogy from this and say: A protected person killed in the Abode of Islam, for whom it was impossible for his aqila to bear the blood money, thus it becomes mandatory upon his killer, like this case. This is more appropriate than wasting the blood of free people in most situations, for it is hardly ever the case that an aqila is found that can bear the entire blood money, and there is no way to take it from the public treasury, so blood would be lost and the rulings regarding the obligation of blood money would be missed. Their statement that "the blood money becomes mandatory upon the aqila from the outset" is contested; rather, it becomes mandatory upon the killer, and then the aqila bears it on his behalf. Even if we concede that it is mandatory upon them from the outset, this is only when they exist; but when they are non-existent, it is impossible to claim it is mandatory upon them. Furthermore, what they have mentioned is refuted by the examples we have presented. Consequently, the blood money becomes mandatory upon the killer if it is impossible for the whole of it to be borne [by the aqila], or the remainder of it if the aqila bears part of it. And Allah knows best.

1469 - Issue: He said: (The blood money of a free Kitabi (person of the Book) is half the blood money of a free Muslim, and their women are at half the rate of their men).

This is the apparent view of the school (Madhab). It is the school of Umar ibn Abd al-Aziz, Urwah, Malik, and Amr ibn Shu'ayb. It is reported from Ahmad that it is one-third of the blood money of a Muslim. However, he recanted this, for Salih reported from him that he said: "I used to say that the blood money of a Jew and a Christian is four thousand, but today I hold the view of half the blood money of a Muslim, based on the hadith of Amr ibn Shu'ayb and the hadith of Uthman which is narrated by al-Zuhri from Salim from his father." This is explicit in his recantation of the former view. It is reported from Umar and Uthman that his blood money is four thousand dirhams. This was the view of Sa'id ibn al-Musayyib, Ata', al-Hasan, Ikrimah, Amr ibn Dinar, al-Shafi'i, Ishaq, and Abu Thawr, based on what Ubadah ibn al-Samit reported that the Prophet (peace and blessings of Allah be upon him) said: "The blood money for a Jew and a Christian is four thousand, four thousand." It is reported from Umar, may Allah be pleased with him, that he set the blood money of a Jew and a Christian at four thousand, and the blood money of a Magian (Zoroastrian) at eight hundred dirhams. Alqamah, Mujahid, al-Sha'bi, al-Nakha'i, al-Thawri, and Abu Hanifah said: His blood money is like the blood money of a Muslim. This is also reported from Umar, Uthman, Ibn Mas'ud, and Mu'awiyah.