Types of Homicide with an Emphasis on the Opinion of Imam Malik and the Physician's Responsibility

Abstract

Homicide in Islamic jurisprudence is subject to various classifications. Imam Malik divides homicide into purely intentional ('amd maḥḍ) and pure error (khaṭa' maḥḍ), recognizing no other category. In another classification, homicide is divided into intentional, quasi-intentional (shibh 'amd), and pure error. This tripartite division of homicide enjoys greater renown among Islamic jurisprudential schools. Imami Shi'a jurists have studied and evaluated homicide based on this very tripartite division. Yet another classification group divides homicide into four types, adding a fourth category as being subsumed under pure error, such as homicide committed by a sleeping person or through causation (tasbīb). Some jurists have excluded homicide by causation from the category of pure error, designating it as the crime of homicide by causation, thus enumerating five types of homicide. One of the areas where the classification of homicide has a significant impact is the responsibility of the physician. A homicide resulting from a physician's conduct is, by nature, classified under quasi-intentional homicide, with the blood-money (diyah) being the liability of the physician. However, according to Imam Malik's view, it must be considered intentional. Nonetheless, given specific legal proofs and the fulfillment of certain conditions, the physician bears no criminal or civil liability for his actions. The majority of Imami jurists have conditioned the non-liability of the physician upon obtaining a disclaimer (barā'ah), whereas jurists of Sunni schools do not deem this condition necessary. The present research, employing a descriptive-analytical method, organizes its content into three sections: first, it delves into the various classifications of homicide; second, it explores Malik's opinion; and finally, it examines the physician's responsibility.