Some Lessons from Jurisprudence (Fiqh)

An offense that is "similar to intentional" is that the intention is to do the act but not to do the harm which the act causes. An example of this is that a person with the intention of-hurting another person hits him with a club, which results in the victim's death. Another example is that someone hits a child in their way of teaching a lesson and the child dies. Also in this status is the case of the doctor who treats his patient for a certain disease and the treatment causes the patient to die.

Purely a mistake, however, is that there was no intention at all, such as the killing of someone by a person who was only cleaning his rifle and it accidentally fired a shot, or by a person who was only driving his car quite normally in the street.

In the cases of intentional killing or similar to intentional killing the heirs of the deceased have the right of qisas, meaning that under the supervision of the Islamic government, and at the discretion of the nearest of kin, the killer can either be executed or forced to pay recompensetbut in the case of merely a mistake the killer is not to be executed and is only obliged to pay the heirs the diyah, the financial recompense.

The Book of Financial Recompense (diyah)

Diyah is like qisas in that it is a right of the offended person or the heirs of the offended person upon the offender, with the difference that qisas is a way of taking payment in kind while diyah is a financial penalty. The laws of diyah like the laws of qisas, are very detailed.

Under the books of qisas and diyah, the jurisprudents have gone into the question of the liability of doctors and of teachers.

About doctors they say that if the doctor is not proficient and makes a mistake in his treatment of the patient that leads to the patient's death, he is liable. And, if he is proficient and he treats the patient without the patient's permission or the permission of the patient's nearest of kin, and the treatment leads to the patient's death, he is again liable. If the doctor is proficient, however, and he treats the patient with the permission of that patient, or of the patient's nearest of kin, he must first make the condition to the patient or to the heirs that he will do his utmost, but that, should his efforts happen to lead to the patient's death, he is not responsible. In this case, supposing that the patient dies or suffers some physical loss, the doctor is not liable and not subject to qisas. If, however, he does not make this condition before beginning the treatment, some of the jurisprudents say that he is liable.

Likewise, if a teacher unnecessarily hitting a child leads to the child's death or damage to the child's body, the teacher is liable. If, however, it is really in the child's best interest to be punished, and this should happen to lead to the child's death or damage to the child's body, the teacher must have taken permission to punish him from the child's guardians, otherwise he is liable. 

Translator's Epilogue

From the brief introduction to the issues of jurisprudence that has been given here, it is to be seen how jurisprudence, like the Shari'ah itself, enters into all the aspects of Islamic life, a necessity if life is going to be Islamic.