Question:
Yahya related to me from Malik that Rabi’a ibn Abi ‘Abd ar-Rahman said, “I asked Sa’id ibn al-Musayyab, ‘How much is it for the finger of a woman?’ He replied, ‘Ten camels.’ I said, ‘How much for two fingers?’ He said, ‘Twenty camels.’ I asked, ‘How much for three?’ He said, ‘Thirty camels.’ I said, ‘How much for four?’ He said, ‘Twenty camels.’ I said, ‘When her wound is greater and her affliction stronger is her blood-money then less?’ He asked, ‘Are you an Iraqi then?’ I said, ‘Rather I am a scholar who seeks to verify things, or an ignorant man who seeks to learn.’ Sa’id said, ‘It is the Sunna, my nephew.'”
Is this authentic?
Answer:
It is sound and authentic. This is related in the Muwatta‘, Book of `Uqul [Damages], chapter 11, Damages for fingers (ma ja’a fi `aql al-asabi`). It is narrated from Malik by three of his major students in their respective Muwattas: Yahya al-Laythi, Abu Mus`ab al-Zuhri, and `Abd Allah b. Wahb.
Ibn al-Musayyab’s words “It is the Sunna” means he is actually relating it from the Prophet (upon him blessings and peace). It is indeed confirmed by the hadith of the Prophet in al-Nasa’i’s Sunan:(Kitab al-qasama, Bab `aql al-mar’a): “The blood damages for a woman are the same as for a man up to one third of his total blood money.”
عَقْلُ الْمَرْأَةِ مِثْلُ عَقْلِ الرّجُلِ حَتّى يَبْلُغَ الثّلُثَ مِنْ دِيَتِهَا
It is also related as a saying of Zayd b. Thabit, and something close to it from Ibn Mas`ud and `Uthman b. `Affan, Allah be well-pleased with them.
Al-Sindi explained in his marginalia on al-Nasa’i: “It means that her blood money (diya) is identical with that of the man as long as it is under one third of the blood money. Once it is more than one third, when the damage amount (`aql) reaches half the blood money, then the woman’s blood money becomes half that of the man’s.” And that is the madhhab of Layth b. Sa`d, the Malikis and the Hanbalis.
This is all made clear by Ibn al-Musayyab himself as related by Imam Malik himself in the same part of the Muwatta‘, five chapters earlier: Book of `Uqul, chapter 6, Damages for women (`aql al-mar’a):
Yahya related to me from Malik from Yahya ibn Said that Said ibn al-Musayyab said, “The blood-money for a woman is the same as for a man up to one third of the blood-money. Her finger is like his finger, her tooth is like his tooth, her injury which lays bare the bone is like his, and her head wound which splinters the bone is like his.” Yahya related to me from Malik that Ibn Shihab and also Urwa ibn az-Zubayr said the same as Said ibn al-Musayyab said about a woman. Her blood-money from a man is the same up to a third of the blood-money of a man. If what she is owed exceeds a third of the blood-money of the man, she is given up to half of the blood-money of a man. Malik said, “The explanation of that is that she has blood-money for a head wound that lays bare the bone and one that splinters the bone and for what is less than the brain wound and the belly wound and the like of that of those which obliges a third of the blood-money or more. If the amount owed her exceeds that, her blood-money in that is half of the blood-money of a man.”
The meaning of Ibn al-Musayyab’s question “Are you from Iraq?” reflects the Madinans’ view of Iraqi Muslims:
(i) as giving the fatwa that a woman’s blood money is always half that of a man’s no matter how great or small — which indeed is the madhhab of Sufyan al-Thawri and Abu Hanifa based on their narration of the same from `Ali b. Abi Talib, and it is also related from Ibn Mas`ud, Allah be well-pleased with them;
and
(ii) as given to putting reasoning (qiyas) before the explicit stipulation (nass). Then Ibn al-Musayyab showed loving kindness by calling the questioner “my brother’s son.” The questioner was Malik’s teacher, Rabi`at al-Ra’y.
Al-Shafi`i sided with Abu Hanifa in this because the hadith of `Abd Allah b. `Amr narrated by al-Nasa’i had apparently not reached him, so he could not find a Prophetic basis for Ibn al-Musayyab’s statement “It is the Sunna” which he interpreted to mean the Sunna of Zayd b. Thabit. So he said it is indeed a matter of qiyas, and in this we will prefer the qiyas of `Ali since its transmission is just as strong as the qiyas of Zayd (al-Umm, 1325 ed. 7:282; al-Bayhaqi, Sunan 8:96-97; Ma`rifat al-Sunan wal-Aathaar 12:133-136).
Ibn `Abd al-Barr stated that Ibn al-Musayyab’s words “It is the Sunna” do indeed refer to the Prophetic Sunna. He adduced al-Nasa’i’s narration and and gave a long documentation of the reports on this topic in al-Istidhkar (Qal`aji ed. 25:57-63 Bab `aql al-mar’a).
And Allah knows best.
Hajj Gibril Haddad
