TAU; FACULTY OF HUMANITIES; ARABIC AND ISLAMIC STUDIES DEPARTMENT

Islamic and Jewish Law

Approaches to Killings
Steven Aiello

Contents
I. Introduction

II. Methodology

III.

In Scripture

IV.

Intent

a. Categories in Jewish Law

i.

Additional Cases

b. Categories in Islamic Law

c. Comparing the Systems

V.

Accepting Monetary Compensation

10

a. Blood Money in Jewish Law

10

b. Blood Money in Islamic Law

11

VI.

Application to non-Members

11

VII.

Multiple Attackers

12

VIII.

Comparing the System

12

IX.

Conclusion

14

Bibliography

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Introduction
Islamic law and Jewish law share many commonalities, in form and substance. Each also has its own
idiosyncrasies. In both commonalities and distinctions, a close inspection of the legal formulations
show dynamic systemsa reflection of the broader historical, geographical and environmental context
of Jewish and Islamic scholars, the realities and needs of their communities, and the give and take of
legal mandates that based their claim to authority on legacies of divine prophecy and were part
evolutionary and part revolutionary.
This paper uses the laws relating to murder to showcase these points. Islamic and Jewish law differ on
many details, at times strikingly. Yet the comparison of both shows a common trend of quasirevolutionary change of pre-existing societal norms. This attempt to change is in turn tempered by the
realities of the difficulties of imposing widespread reforms, even for a system placing its authority in
the word of God.

I. Methodology
The research involved a two-tiered comparison. Firstly, the relevant verses in the Qur'an and the Torah
are cited. Subsequently, various laws dealing with the Islamic and Jewish law approaches to killings are
presented based on Maimonides's Mishneh Torah codex and Islamic law codex. These laws are
presented in topics, including intent, bloodmoney, and distinctions between classes of attackers and
victims. There is thus a comparison between Islamic law and Jewish law in practice on similar topics,
as well as a comparison between the Quranic or biblical references, and their expanded codifications in
later law books. Finally, an analysis of both is offered.

II. In Scripture
O you who believe! Retribution is prescribed for you in the matter of the murdered: free for free, slave
for slave, female for female. But for one who receives a pardon from his brother, let it be
observed honorably, and let the restitution be made to him with goodness. That is an alleviation
from your Lord and a mercy. Whoever transgresses after that shall have a painful punishment.
(Qur'an 2:178)1

It is not for a believer to kill a believer unless it be in error. Whoever kills a believer by mistake, let
him take a believing slave and pay compensation to the deceased's family unless they remit it in
charity. If the deceased was from a people at war with you but he himself was a believer - then
[only] a believing slave is to be set free. And if he was from a people with whom you have a
treaty, let him pay compensation to the deceased's family and free a believing slave. Whoever
does not find [the means to do so], let him fast for two consecutive months as a penance from
God. Allah is ever Knowing and Wise. (Qur'an 4:92)
'Speak to the children of Israel, and say to them: When you pass over the Jordan into the land of
Canaan, then you shall appoint for yourself cities to be cities of refuge for you, that the killer that kills
any person through error may flee there. And the cities shall serve you as refuge from the avenger, that
the killer not die, until he stand before the congregation for judgment. And as to the cities which you
shall give, there shall be for you six cities of refuge. You shall give three cities beyond the Jordan, and
three cities shall you give in the land of Canaan; they shall be cities of refuge. These six cities shall be a
refuge for the children of Israel, and for the stranger and the settler among them, that anyone that kills a
person through error may flee there. But if he smote him with an instrument of iron, so that he died, he
1

Quranic translations used are adapted from Nasser, Seyyed Hossein and Dagli, Caner K., Dakake, Maria Massi, Lumbard,
Joseph E.B., Rustom, Mohammad, The Study Quran, HarperOne, 2015

is a murderer; the murderer shall surely be put to death. And if he smote him with a stone in the hand,
whereby a man may die, and he died, he is a murderer; the murderer shall surely be put to death. Or if
he smote him with a weapon of wood in the hand, whereby a man may die, and he died, he is a
murderer; the murderer shall surely be put to death. The blood-avenger shall himself kill the murderer;
when he meets him, he shall put him to death. And if he thrust him of hatred, or hurled at him anything,
lying in wait, so that he died; or in enmity smote him with his hand, that he died; he that smote him
shall surely be put to death: he is a murderer; the avenger of blood shall put the murderer to death when
he meets him. But if he thrust him suddenly without enmity, or hurled upon him anything without lying
in wait, or with any stone, whereby a man may die, seeing him not, and cast it upon him, so that he
died, and he was not his enemy, neither sought his harm; then the congregation shall judge between the
killer and the avenger of blood according to these ordinances; and the congregation shall deliver the
killer out of the hand of the avenger of blood, and the congregation shall restore him to his city of
refuge, whither he was fled; and he shall dwell therein until the death of the high priest, who was
anointed with the holy oil. But if the killer shall at any time go beyond the border of his city of refuge,
wherever he flees; and the avenger of blood find him without the border of his city of refuge, and the
avenger of blood slay the killer; there shall be no bloodguiltiness for him; because he must remain in
his city of refuge until the death of the high priest; but after the death of the high priest the killer may
return to the land of his possession. And these things shall be a statute of judgment unto you throughout
your generations in all your dwellings. Whoever kills any person, the murderer shall be killed at the
mouth of witnesses; but one witness shall not testify against any person that he die. Moreover you shall
take no ransom for the life of a murderer, that is guilty of death; but he shall surely be put to death. And
you shall take no ransom for him that has fled to his city of refuge, that he should come again to dwell
in the land, until the death of the priest. So you shall not pollute the land where you are; for blood
pollutes the land; and no expiation can be made for the land for the blood that is shed therein, but by
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the blood of him that shed it. And you shall not defile the land which you inhabit, in the midst of which
I dwell; for I the Lord dwell in the midst of the children of Israel.' (Numbers, 35:10-34)2

III. Intent
The first major issue is that of determining into which category to place the attack, largely
corresponding to the nature of the intent of the attacker (whether expressed or assumed via evidence
and circumstances). In Jewish law, there is a distinction between the intentional killingmurder, and
the accidental killing. Under the accidental killing rubric there is then a further subdivision to three
categories. Islamic law, which similarly distinguishes between intentional and accidental killing uses
three to five categories, depending upon the madh-hab (school of law) followed.

a. Categories in Jewish Law

The distinction between intentional and accidental killing in Jewish law is biblical, as seen above.3
Intentional murder carries a death penalty if the evidentiary standards are met.4 Accidental killing
instead carries a distinct potential punishment, one unique in Jewish lawexile to one of several
predesignated cities of refuge.
In the case of an intentional killing, evidence must first be provided.5 In that case, the court must
sentence the individual to death and oversee the carrying out of the punishment. If the killer acted with
intent, but cannot be killed because of a technicality, then the relatives of the victim are allowed to kill
the killer in a retributive attack (i.e. the general prohibition on taking a life does not apply in these
specific circumstances).
In the case of an unintentional killing, as noted, the unique punishment of exile may apply, pending

Translation adapted from mechonmamre.org

For example, contrast verses 15 and 17.
4
Maimonides, Mishneh Torah, Book of Damages, Laws of Killing and Self-Defense, Chapter 1:1.
5
Ibid. 1:5
3

evidentiary requirements being met. But as also described above, there are differing levels of killings
which fail to meet the level of intentional killing.
The classical accidental killer is one who had no intent to kill at all. These are cases in which there is
a prima facie, genuine mistake in understanding of circumstances or in action, which leads to the
unintentional killing. In this case the biblical prescription is followedthe killer must flee to the
nearest city of refuge.6 If he does not, or if he then chooses to leave the premises, his life becomes
forfeitthe relatives of his victim may kill him in a retributive act without facing any penalty under the
law.7 The killer here is also to apologize and request forgiveness from the family of the deceased.8
There are two additional circumstances, one in which the killer bears greater moral responsibility and
one in which he bears lesser responsibility. The former case is one of negligence (). This case falls
in between the two categories of intentional and accidental killing. In this case, the court cannot put the
killer to death, but neither can he find solace, protection or atonement in a city of refuge. 9 An example
of this category is one who throws a rock into the public domain.10 In this case, although there may not
be specific intent to kill a specific individual, the significant probability, or at least risk, of causing
harm to another characterizes the act as negligent, and deprives the killer of the protection (and
penitence) of the city of refuge.
In the final category, the circumstances are so unusual that the case is removed from the category of
accidental and classified as extenuating ( literally coerced). In such a case, the killer goes
free; he is not exiled to a city of refuge, nor may relatives of the deceased kill him.11 An example
provided is someone who falls off a ladder (while climbing up) and on to another person.12

Ibid. 5:1.
Ibid. 5:9.
8
Ibid. 6:1.
9
Ibid. 6:3.
10
Ibid. 6:5.
11
Ibid, 6:2.
12
Ibid. 6:10
7

i.

Additional Cases

There are several other cases which do not qualify as distinct cases, but which rather consist of cases
which fail to meet the standards of the accidental case and are thus adjudicated accordingly. One who
was known to hate the person he killed can't go to a city of refugethere is a presumption that one
does not kill his enemy accidentally, but rather intentionally. Thus the protection normally accorded the
accidental killerthat of the city of refuge, is not afforded here. Similarly, one who intended to kill one
person and instead killed another, or intended to kill an animal and instead killed a Jew, cannot flee to a
city of refuge, nor is he put to death by the courts.13

b. Categories in Islamic Law

According to the Shaf'i school, there are three principal categories regarding intent (note that intent is
measured in Islamic law by external evidence or indicatorssuch as the form of weapon used. This has
some parallel in Jewish law, for example the knowledge that killer and killed were enemies preventing
the assumption of unintentional killing) The first category is 'Amd, intent with a weapon likely to kill. 14
Here the result is either a reciprocal killing by relatives of the victim,15 or the payment of diyatblood
money, by the killer's family to the victim's family. 16 Another category, similar to the accidental
category in Jewish law, is that of khataa. This is where, for example, one shot at another target and
inadvertently hit the victim.17 Where one intended to injure but not kill his victim, it constitutes an
intermediate case known as 'amd khataa (the very name implying that this category evolved from the

13

Ibid. 6:8.
Keller, Nuh Ha Mim, Reliance of the Traveler: A Classic Manual of Islamic Sacred Law, Amana Corporation, 1997, Book
of Justice, Chapter 2:4.
15
Ibid. 1:1; 3:1.
16
Ibid. 3:8.
17
Ibid. 2:2.
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preceding two at a later point in time).18 In the latter cases, the victim must pay indemnities, but cannot
be killed in retribution.
The Hanafi school in turn includes five distinct categories. The first category remains the same as in the
Shaf'i system. The second category, although bearing a different name (shibh al'amd) is likewise
similar: intent to injure but not kill, or use of a weapon not likely to kill. The third category of khataa
(accidental) includes where one intended to hit someone or something else. The fourth category is one
of no intent whatsoever (for example a sleeping man who falls), while the fifth category is where the
attack itself is indirect (for example where a pit is dug into which the victim then fallsthe intent is not
the focal point here, rather the means of killing become the most relevant issue).19

c. Comparing the Systems

When comparing the systems, we see a great deal of similarity. In both there are multiple categories,
with the primary distinction being intent, or circumstances related to intent (for example a victim
loathed by his killer, or the weapon used for the attack). Leaving aside the fifth category of the Hanafis
(for which there is a parallel in Jewish law as well, but which is treated as a distinct topic), the
categories of intentional, negligent, accidental and extenuating circumstances under Jewish law roughly
correspond to those of the Hanafi (note however that the particular applications may be different: for
example intending to kill one person but instead killing another, would be a case of is distinguished
from the accidental case in Jewish law, and treated more harshly, whereas this is considered an
accidental case by the Hanafis.)
Regarding the consequences for the killer, we see more differences. Under Jewish law, intentional
killing is met with court-ordered and implemented death. Under Islamic law, it too may bring death, but
not necessarily. The relatives may choose to accept a payment instead. This will be expanded upon in
18

19

Ibid. 2:3.
Powers, Paul R., Intent in Islamic Law, Brill Publishers 2005

the next section. Moreover, death comes at the hands of the relatives, not the court (although if not
enforced by the family, the state would step in).
The greater distinction lies with the accidental casesunder Jewish law a fully accidental killer would
flee to the city of refuge or risk being killed by relatives of the deceased. Under Islamic law there
would not be an option to kill him here; rather payment to the family of the deceased is in order.
Overall we see a common theme in both. In general life is protected. When one kills intentionally, they
forfeit such protectionin the case of Jewish law the court carries out the retribution while under
Islamic law it is up to the family of the victim to do so. This is likewise true regarding negligence
cases. It is when we reach accidental cases that there is a significant distinction. Under Jewish law the
killer still loses his protectionand thus must reach the city of refuge to remain safe. Under Islamic
law he is still protected; however he must achieve forgiveness via compensatory methods.

IV. Accepting Monetary Compensation

The role of blood money (diyat) and other forms of compensation (which need not be in monetary
form) as a means of avoiding physical punishment or gaining divine atonement, is a key point of
difference between Jewish and Islamic law. Both systems recognize the concept, which would seem to
have existed prior to Judaism or Islam, yet they take divergent approaches to incorporating it into their
own nascent legal systems.

a. Blood Money In Jewish Law

Blood Money is mentioned explicitly in the Torah, on multiple occasions. Specifically, regarding both
the intentional case and the accidental case, with punishments of court-enforced death penalty and
societally-enforced exile, the Torah warns against taking blood money ( ) as an alternative to
the Torah-prescribed punishment. These punishments are to be applied in all cases, dependent upon
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evidence and other circumstantial issues, but without the option of being waived. (In the case of the
intentional killer, this places the onus on the courts to carry out the ruling. In the accidental killer case,
this is not a call for action, but a ban on a potential actionno one is obligated to avenge the death, but
restoring protection on the killer via acceptance of payment is prohibited.)
The references appear in consecutive verses in Numbers, 35:31-32:
"And don't take blood money for the killer, who acted in evil by killing; for he must be put to death.
And don't take blood money from the one who fled to the city of refuge, to return to the land, until the
death of the high-priest. They are referenced directly in the Mishneh Torah.20

b. Blood Money in Islamic Law

This is in stark contrast to the approach taken by Islamic law. Here the Qur'an explicitly mentions
compensation for both accidental and intentional killings. In the former case it is presented as an
optional alternative, whereas in the latter case it is the legally mandated response.21
We also find greater flexibility for the evolution of the law. Thus we find more diversity overall,
between jurists of different schools (madh-hahib) and even within the same school, regarding how to
apply the different punishments. Regardless, the general consensus is clearblood money constitutes a
viable, and perhaps even preferable, alternative to retributive murder (qisas), while for accidental
murders, financial compensation is a requirement to purchase worldly, and perhaps even Divine,
forgiveness.22

Application to non-Members
Both Islamic law and Jewish law include different classifications regarding the identity of the killer and
the victim. (This is particularly understandable from a paradigm of protectiononly some classes are
20

Mishneh Torah, 1:1 and 5:1.

See 2:178 and 4:92 quoted above.
22
Keller, 4:1.
21

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protected by the law.) Under Jewish law, slaves, resident non-Jews ( ) and Jews who are
either victims or perpetrators of a killing are included under the aforementioned laws. However, nonresident non-Jews cannot flee to the city of refuge. If such an individual kills a Jew, even accidentally,
he is put to death.23 Under Islamic law, a distinction is drawn between men and women; freemen and
slaves, and Muslims and non-Muslims.24 A Muslim who kills a non-Muslim is not killed in return.25

Multiple Attackers
Where multiple attackers are involved, Islamic and Jewish law diverge again. Under Jewish law, if
none of the attackers can be shown to have caused the death on his own, none is to be killed. 26Under
Islamic law, all of the attackers are to be killed.27

Comparing the Systems

When comparing the systems, we see a great deal of similarity. In both there are multiple categories,
with the primary distinction being about intent, or circumstances related to intent (for example a victim
loathed by his killer, or the weapon used for the attack). Leaving aside the fifth category of the Hanafis
(for which there is a parallel in Jewish law as well, but which is treated as a distinct topic), the
categories of intentional, negligent, accidental and extenuating circumstances under Jewish law roughly
correspond to those of the Hanafi.
Regarding the consequences for the killer, we see a bit more divergence. Under Jewish law, intentional
killing is met with court-ordered and implemented death. Under Islamic law, it too may bring death, but
not necessarily. The relatives may choose to accept a payment instead. Moreover, death comes at the
hands of the relatives, not the court (although if not enforced by the family, the state would step in).
23

Mishneh Torah, 5:2-3.

Jews or Christians carry 1/3d the blood money of a Muslim. See Keller, 4:9.
25
Ibid. 2:1.
26
Mishneh Torah, 4:8.
27
Keller, 3:10.
24

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A greater distinction lies with the accidental casesunder Jewish law a fully accidental killer would
flee to the city of refuge or risk being killed by relatives of the deceased. Under Islamic law there
would not be an option to kill him here; rather payment to the family of the deceased is in order.
Overall we see a common theme in both Islamic and Jewish law. In general life is protected. When one
kills intentionally, they forfeit such protectionin the case of Jewish law the court carries out the
retribution while under Islamic law it is up to the family of the victim to do so. It is likewise with
negligence cases. It is when we reach accidental cases that there is a significant distinction. Under
Jewish law the killer still loses his protectionand thus must reach the city of refuge to remain safe.
Under Islamic law he is still protected; however he must achieve forgiveness via compensatory
methods.
Islamic law and Jewish law both address the subject of intentional and unintentional killing. When we
analyze both systems, and compare the original biblical and Quranic references to later legal
codification, we can identify similar trends. In both cases, the law clearly develops, from a binary
system of intentional and accidental killing (in the biblical or Quranic descriptions), to one involving
multiple classifications of intent (in the later codifications). This reflects the transition from a
theoretical system to a practical one, as well as the effects of evolving circumstances and diversifying
(geographically and culturally) venues of application of the law.
In both Islamic and Jewish law, attempts are made to determine intent using various circumstantial
means, such as the weapon used, or the relationship between the killer and the one killed. Although of
course the particular details are not identical, they are not much more different (and in some cases
perhaps even more similar) than distinctions between different opinions within their respective systems
(e.g. between Hanafis and Shaf'is, or other madh-habs).
With regard to the categories of individuals, the primary distinction in Jewish law is between Jews and
non-Jews. In Islamic law, there are three distinctions: between Muslims and non-Muslims, slaves and
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free-men, and men and women. Those distinctions frequently apply within Jewish law as well, but less
frequently in the criminal law realm. However, broadening the discussion to include injuries, increases
the similarities, for two reasons. Firstly, the laws for compensating injuries under Jewish law involve an
evaluation which at the time would almost certainly have ensured that men were compensated at a
higher rate than women (like the compensation for death under Islamic law). Secondly, the
responsibility to compensate for injuries under Jewish law does distinguish between slaves and nonslaves, and by gender, as well as Jew versus non-Jew (as well as multiple categories of non-Jews, also
similar to Islamic law).
Finally, there is the issue of blood money itself. Islamic law seems to modify a preexisting norm, by
allowing for two optionsretributive murder and compensatory indemnification, as responses to a
situation of intentional murder. With accidental murder, the retributive murder is no longer a valid
approach. Jewish law indicates that these two options were likely both present in biblical times, but
removes the option of paying for an exemption from intentional murderas well for that matter as
paying for exemption from liability for an accidental murder. Thus blood money is preserved, modified
and perhaps even promoted in Islamic law, while it is proscribed in Jewish law. Where both Islamic law
and Jewish law agree however, is on systematizing the process, and incorporating it as part of an
established judicial system, with clear evidentiary standards and objective judges.

Conclusion
There are different ways to interpret the information that has been presented. In some sense, there are
aspects of a criminal law approach herethe involvement of the state in adjudicating and enforcing
punishments, matters of intent, distinctions between members of the religious community (Jews or
Muslims) and others. However some of this, as well as additional reasoning (like the fact that in some
cases victims without families lead to a less severe consequence for the killer) could also be explained
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by approaches like a civil law compensatory regime, or levels of protection (adult, male, free Jews or
Muslims enjoying the highest standards of protection). As a whole, the approach seems to be one of
hybridization and evolution, certainly in the beginning stages of the legal development.

15

Bibliography

Book of Numbers, 35:10-34, translation used adapted from Mechon Mamre.org

Ismail, Siti Zubaida, The Modern Interpretation of the Diyat Formula for the Quantum of Damages:
The Case of Homicide and Personal Injuries, Arab Law Quarterly, 26 (2012) 3: 361-379
Ibn Maimon, Moses, Mishneh Torah
Keller, Nuh Ha Mim, Reliance of the Traveler: A Classic Manual of Islamic Sacred Law, Amana
Corporation, 1997
Nasser, Seyyed Hossein and Dagli, Caner K., Dakake, Maria Massi, Lumbard, Joseph E.B., Rustom,
Mohammad, The Study Quran, HarperOne, 2015
Powers, Paul R., Intent in Islamic Law, Brill Publishers 2005

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