328 SHĀFI'I'S REASONING

Tr. VIII, 14:¹ Weregeld is of two kinds, that for ʿamd which is to be paid by the culprit, be it large or small, and that for khaṭaʾ which is to be paid by the ʿāqila, be it large or small, because whoever is responsible for the larger amount is also responsible for the smaller. This is, first of all, a sufficient argument in itself, because if the uncontradicted principle in the case of ʿamd is that the weregeld, large or small, is to be paid by the culprit, and the principle in the case of khaṭaʾ is that the larger amounts are to be paid by the ʿāqila, the same must apply also to the smaller amounts. Further, there is an argument taken from tradition: the Prophet made the ʿāqila responsible for the [whole] weregeld in the case of khaṭaʾ; if this were the only relevant tradition it would follow that the ʿāqila is responsible for all payments in the case of khaṭaʾ, unless one chose on principle to put the financial responsibility for all injuries on the culprit, and to consider the decision of the Prophet on the responsibility of the ʿāqila as [an exception] the limit of which has to be fixed; but if one fixes the limit at one-third, one may as well fix it at nine-tenths or two-thirds or one-half. . . . Abū Ḥanīfa fixes the limit at one-twentieth of the weregeld; the answer to him is the same as to those who fix it at one-third. As to the argument that the smallest amount laid on the ʿāqila by the Prophet is one-twentieth of the weregeld, the only consistent way of treating the responsibility of the ʿāqila as an exception, based on tradition, and of avoiding analogy altogether, would be to lay on the ʿāqila only the full weregeld and one-twentieth of the weregeld, but not the intermediate amounts, leaving them to be paid by the culprit according to the general principle. If analogy is to be used at all, only one of two things is possible: either the lack of a decision by the Prophet on amounts involving less than one-twentieth of the weregeld makes these injuries negligible, without provision for weregeld or retaliation, as strokes and blows are; or these injuries have to be decided by the exercise of systematic reasoning (ijtihād al-raʾy) and judged by analogy with those cases on which there is a decision of the Prophet; if this is right, the obligation of the ʿāqila to pay the weregeld for khaṭaʾ must also be extended by analogy.'