Why You Should Poison Your Husband: A Note on Liability in Ḥanafī Law in the

Ottoman Period
Author(s): Colin Imber
Source: Islamic Law and Society , 1994, Vol. 1, No. 2 (1994), pp. 206-216
Published by: Brill

Stable URL: https://www.jstor.org/stable/3399334

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 WHY YOU SHOULD POISON YOUR HUSBAND:
A NOTE ON LIABILITY IN HANAFI LAW IN THE
OTTOMAN PERIOD

COLIN IMBER

(Manchester, UK)

Abstract

Hanafi legal doctrine contains an implicit analogy (although not one that the
jurists themselves make) between ordering an agent to kill and killing someone by
poison. In the former case, it is not the principal but the agent who is liable,
unless the agent acted under compulsion. Similarly, a poisoner is liable only when
he forces the poisonous substance down the victim's throat, not when the victim
consumes the poison voluntarily. A victim who accepts the poison is like an agent
who has received an order to kill and carries out the order voluntarily; but if the
poisoner forces the substance down the victim's throat, the victim is in the
position of an agent who kills under compulsion, and the poisoner becomes liable.
This rule suggested to Ottoman jurists an unusual solution to the problem of how
to prevent an ex-husband from fornicating with his divorced wife. The ex-wife
could, without incurring any liability, poison him.

1HE FETVAS (legal opinions) of the Ottoman ?eyhii'l-islams are a

rich but largely neglected source for the history of Hanafi law between
the early sixteenth and early twentieth centuries. During this period, the
geyhii'l-islam - by origin the Mufti of Istanbul' -was head of the
Ottoman legal establishment, and the Fetva Office (fetvahdne) over
which he presided was the central Ottoman legal institution. The fetvas
which it issued, each bearing the ?eyhii'l-islam's signature, were
authoritative statements of the law, and the prestige which they
enjoyed inspired compilers to collect them into systematically edited
volumes. Many of these collections survive, both in manuscript and in
printed editions. In some of the collections, the compilers have added
proof-texts to some or all of the fetvas.
Application to the ?eyhi'l-islam for a fetva was open not only to
members of the Ottoman government, judiciary and administration,
but equally to members of the public seeking out-of-court settlements
of disputes or answers to private queries. As a result, during the first

1 For the development of this office, see R.C. Repp, The Miifti of Istanbul
(Oxford: Ithaca Press, 1986).

? E.J. Brill, Leiden, 1994 Islamic Law and Society 1,2

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 WHY YOU SHOULD POISON YOUR HUSBAND 207

half of the sixteenth century, the volume of business became too great
for the eyhii'l-islam to handle on his own. The solution to this prob-
lem was to organise the Fetva Office as a department of government,
with a permanent staff serving under a "superintendent of fetvas," the
fetvd emini. The organisation was largely the work of the ?eyhii'l-
islam, Ebi'l-su'id [held office 1545-74]. It is very clear that after his
time, most Ottoman fetvas were the work less of the ?eyhii'l-islams
whose signatures they bear than of the fetva emini and his staff. It was
the fetva eminis who received the questions in the Fetva Office, recast
them into the form in which they came before the ,eyhii'l-islam, and
indicated to him what answers were required.2
The format of the fetvgs makes them an excellent source for the
study of Hanafi doctrine. The fetva eminis, particularly from the end of
the sixteenth century, were careful to draft the questions so as to
address a specific point of law and to omit any material that was
legally irrelevant. As a result, each fetva presents a clear statement of
the law. Another characteristic of Ottoman fetvas is that, almost
invariably, they arose out of practical problems which had been
presented at the Fetva Office for practical solutions. It is interesting,
therefore, to compare the rulings of the ?eyhii'l-islams on certain
problems, with the same problems as they appear in academic works
offiqh, whose authors at times seem to show more concern for
intellectual elegance than they do for practicality. This article, which
examines a problem in Hanafi fiqh as it appears in the works of a
small selection of "classical" jurists and in the fetvas of five geyhii'l-
islams, demonstrates how the ?eyhii'l-islams could sometimes mani-
pulate Hanafi legal doctrine to achieve unexpected ends.
What happens if you use poison to kill somebody? HIanafi law
gives an unexpected answer to the problem.
Poisoning occupies an unimportant niche in the jurists' general
discussions of compensation for killing and injury. The general rule in
cases of homicide is that intentional killing incurs qisds, whereby the
the victim's next-of-kin - the wall al-dam - may claim the killer's
life, while unintentional killing incurs diya - the payment of fixed-
sum compensation to the wall al-dam. The only criterion for
determining whether the killing was "intentional" or "unintentional" is
the type of weapon used.3 The law deems homicide to be "intentional"

2 Uriel Heyd, "Some aspects of the Ottoman fetvd," Bulletin of the School of
Oriental and African Studies, xxxii (1969), 35-56.
3 The jurists in fact recognise four categories of unintentional killing. These

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208 COLIN IMBER

only if the killer used an "offensive weapon" (dla jdriha) meaning, in

effect, a weapon of war or an instrument specifically adapted to kill.
All other methods of killing, including poisoning, are deemed to be
"unintentional." Poisoning, however, is exceptional. In most cases it
does not even incur the payment of diya.
It appears that this quirk in the law came about in part because the
jurists based their reasoning on the solution to an entirely different
problem: Who is liable when a man kills at the command of another?
The man who gave the order or his agent? Hanafi jurists usually
consider this problem under the general heading of compulsion (ikrCh).
Al-Marghinani [d. 1197] presents it like this:
If a person compels another to kill someone by threatening to kill him, it
is not within the capacity of the person [receiving the command] to be
[thus] approached and to remain patient until he [himself] is killed. But
if [the person receiving the command] kills [as he was ordered], he is a
sinner (dthim), because killing a Muslim is one of those things which
necessity does not render permissible (mubdh). The person who
compelled him is liable for qisds if the killing was intentional. He -
may God be pleased with him - said: This is according to Muhammad
[al-Shaybani]. Zufar said: The one who was compelled is liable. Abu
Yusuf said: Neither is liable for qisds. Al-Shafi'i said: Both are liable.4

Here the preferred rule is that where there is compulsion, it is the

person giving the command, and not his agent, who is liable for qisdas.
Al-Marghinani is, however, reluctant to concede this. Even though the
agent acted under compulsion, he remains dthim. Furthermore, al-
Marghiniani cites alternative opinions, attributed respectively to Zufar
and Abi Yusuf, which make either the agent or neither of the parties
liable. The opinion attributed to al-Shffi'i is by implication not the
Hanafi view. It follows that where there was no compulsion the agent
alone is liable, on the ground that he had the option to reject the
command to kill. Thus the question of who is liable depends solely on
the question of whether the command to kill constituted compulsion
[ikrdh]. The text quoted defines compulsion as an immediate threat to
the agent's life. The definition also came to include a command from a
coercive authority (sultan), no doubt because a sultan has powers of
life and death.
It was, it seems, only in the second half of the seventeenth century
that the fetvas of Ottoman geyhii'l-islams begin to demand a very strict

categories are not, however, relevant to the argument which follows.

4 Al-Marghinani, al-Hidaya (Cairo: Matba'at Mustafa al-Babi al-Halabi,
1970), vol. 9, 244.

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 WHY YOU SHOULD POISON YOUR HUSBAND 209

application of these rules. Thefetvd eminis who drafted the questions

for the fetvas are careful to define whether or not the order to kill
constituted compulsion, and it is always this element in the question
that determines the answer. A fetva of the ?eyhiil-islam Diirrizde
Mehmed 'Arif [held office 1785-86, 1792-98] illustrates this point:
(1) Question: Zeyd is a person who is able to put his threat into
effect. He compels 'Amr with the words, "If you do
not immediately kill Bekr with an offensive weapon,
I'll kill you." Furthermore, 'Amr knows that if he does
not kill Bekr, Zeyd will kill him. Acting under
compulsion, in the presence of Zeyd, he intentionally
kills Bekr with an offensive weapon. Are Bekr's heirs
able to have qisas inflicted on Zeyd?
Answer: Yes.

Here the fetva emini has drafted the question so that only on
is possible. The killer used an offensive weapon. The killing i
fore intentional and so incurs qisdas. The killer acted under com
and so it is the man who compelled him who is liable. In mo
however, the compulsion was not absolute, and in such c
?eyhii'l-islams pronounced the agent alone to be liable. A
qatalcal 'All [held office 1674-86; 1692] provides an example:
(2) Question: Zeyd is not the sort whose simple comman
stitutes compulsion. He becomes angry with 'Amr
over some matter and orders his servant (hizmetkir),
Bekr, to kill him. Bekr strangles 'Amr with a rope and
kills him. When 'Amr's heirs seek diya from Bekr, is
Bekr able not to pay, simply because he killed at
Zeyd's command. Can he [instead] say, "Take the
diya from Zeyd"?
Answer: No.

[Proof-text]: "If a minor orders an adult to kill someone, an

kills that person as he has been ordered, the minor
who gave the order is not liable. If an adult orders an
adult to do this, the one who killed is liable, and not
the one who gave the order - from the Khdniyya5 in
the chapter on liability for diya."

The killer here is liable for diya rather than qisds because rop
an offensive weapon, and the law therefore deems the killing
unintentional. The important question, however, is who is liab

5 This refers to the Fatw&d of Q&dikhan (d. 1196). The compilers of O

fetva collections frequently cite it as a proof-text.

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210 COLIN IMBER

master's command is insufficient to constitute compulsion. His agent

is a servant rather than a slave, and is therefore legally competent. As
a free man he had the option to disobey the command, but chose
instead to obey it and is therefore liable.
The same strict application of Hanafi rules appears in the following
fetva of Dirrizade. The case involves no more than the loss of a tooth,
but the principle for determining who is liable is exactly the same as in
a homicide case. What is remarkable is the tone of the question. The
fetva emtni who drafted it seems outraged at the mere suggestion that
anyone but the agent should pay diya:
(3) Question: Zeyd's simple command does not constitute com-
pulsion. He orders 'Amr to strike Bekr. 'Amr strikes
Bekr and knocks out one of his teeth. Is Bekr able to
demand the diya for his tooth not from 'Amr but
[instead and] without reason (bi-gayr-i vech), to force
Zeyd to give it, simply because he issued the order?
Answer: No.

What is odd about these and other fetvas of the late seventeenth
eighteenth centuries is that they abandon a modification to th
rules which had appeared in Ottoman fetvas of the sixteenth a
first half of the seventeenth centuries. The following fetva
su'id [held office 1545-74] provides an illustration:
(4) Question: Zeyd's goods are stolen. He delivers the sus
'Amr, to the executive authorities (ehl-i 'urf) and gets
them to torture him. 'Amr dies during the torture. Zeyd
did not personally torture 'Amr, but was nevertheless
the cause. According to the sharl'a are 'Amr's heirs
able to take diya from Zeyd?
Answer: They can have him severely chastised (ta'zir-i
and imprisoned for a long time. They receive diya
from the person who administered the torture ('urf
eden).

Ebi'l-su'uid follows the Hanafi rule in making the agent liable for diya,
but does not exempt the man who caused the torture from any kind of
retribution. Instead he invokes his discretionary powers to prescribe
corrective punishment (ta'zfr), which seems in practice to have meant
flogging. The fetvas of the geyhii'l-islam 'Abdu'l-rahim [held office
1647-49] suggest that by the seventeenth century this had become
standard practice:
(5) Question: Zeyd and 'Amr order Bekr to go and kill Be?r. Bekr
deliberately strikes Be?r with an offensive weapon

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 WHY YOU SHOULD POISON YOUR HUSBAND 211

and kills him. What should happen to Zeyd, 'Amr and

the said killer?

Answer: Qisas is inflicted on Bekr. Zeyd and 'Amr suffer a

severe chastisement and long imprisonment

The strict Hanafi rule is therefore that the killer himself is liable, not
the man who commanded him to kill, except in cases in which he acted
under compulsion, defined as an immediate threat to his own life. Only
when there was compulsion is the man who commanded him liable.
Some jurists, however, used their powers of discretion to make the
man who gave the command to kill liable for corrective punishment
(ta'zir).
The Hanafi procedures for determining liability in cases of killing
by poison seem to emerge from a bizarre analogy with these rules. It
must, however, be stressed that, although it is strongly implied in their
reasoning, the Hanafi jurists never themselves explicitly made this
analogy between poisoning and giving an order to kill.
Since poison is not an "offensive weapon," the offence should incur
diya, but this is not the preferred opinion of al-Sarakhsi [d. 1090]:
If someone gets a man to drink poison or pours it into his mouth, he is
not liable for qisas, but his 'dqila6 are liable for diya. In some texts
there is the opinion that [if] someone gets another to drink poison or
pours it into his mouth, he becomes his destroyer (sdra mutlifan
lahu)[but not his killer]. This is the most correct, because if he gave it
to him and he drank it of his own accord, he is not liable for anything:
the drinker had the choice of whether to drink it or not and so he killed
himself. The person who gave it to him deceived him when he did not
tell him that there was poison in it, but for deceit he does not become
liable [to compensate] for [the loss of] the life.
The basis for (the ruling in) this matter is the Jewish woman who
brought a poisoned sheep as a gift to the Apostle of God. Bishr b.
Bara' ate from it and died. The Apostle of God did not make her liable
for his diya because he had accepted it by choice.7

Al-Sarakhsi's view is that drinking is a voluntary act and that

drinking poison is therefore suicide. The person who administered the
poison is guilty of nothing but deception and so escapes liability. Al-
Sarakhsi mentions the case of pouring poison into the victim's mouth
- in effect, exercising compulsion - but seems not to differentiate it

6 In cases of unintentional killing, the diya is due, strictly speaking, from the
killer's 'aqila. The quotation from al-Kasani below and the fetvas of the Ottoman
?eyhi'l-islams indicate that jurists did not adhere invariably to this rule.
7 Al-Sarakhsi, al-Mabsut (Beirut: Dar al-Ma'rifa, 1986), vol. 26, 153.

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212 COLIN IMBER

from the case of the victim drinking the poison voluntarily, perhaps on
the grounds that the victim is always free to spit it out.
Al-Sarakhsi did, it seems, have his followers, including Ibn
Nujaym [d. 1563], a jurist in early Ottoman Egypt:
(6) He was asked about a man who gave something to another. He
drank it not knowing what it was and died. Does [the poisoner]
inherit if he was one of his heirs and is he liable for anything
because of this, or not?
He replied: "Yes, he inherits from him and he is not liable for
anything."

Among Ottoman jurists Ibn Nujaym was out on a limb. The ?eyhui'l-
islams, it appears, preferred to follow the opinion of al-Kasani
[d. 1189] who, while accepting the structure of al-Sarakhsi's argu-
ment, modifies his view of culpability:
Someone makes another eat poison and he dies. If [the victim]
accepted it himself, the person who made him eat it is not liable,
because [the victim] ate it voluntarily. However, [the poisoner] is
chastised (yu'azzaru), beaten and corrected (yu'addabu) because he
committed an offence for which there is no specified punishment,
namely, deception. But if [the poisoner] made [his victim] drink the
poison, then he is liable for diya.8

Al-Kasani accepts that a poisoner is not liable for diya if the victim
eats or drinks the poison with his own hand. He prescribes corrective
punishment, not for poisoning, but for deception. When the poisoner
forces his victim, then he becomes liable for diya. In effect, the victim
has taken his own life, but has done so under compulsion, and it is
therefore the person who compelled him who is liable. The analogy
seems to be with a man who kills at the command of another.
Al-Kasani's opinion became so much the standard in Ottoman law
that Ibn Nujaym's Turkish translator altered not simply the format of
his fetva, but also it contents:
(7) Question: Zeyd gives 'Amr a poisoned drink. Then, because
'Amr does not know what it is, he drinks it with his
own hand. If he dies as a result, is anything necessary
by way of diya?
Answer: No, but a severe chastisement is necessary.
In which case: If he is an heir, is he able to receive his inheritance?
Answer: Yes [emphasis added].

8 Al-Kiasni, Bada'i' al-Sana'i' (Beirut: Dar al-Kitab al-'Arabi, 1982), vol. 7,

235.

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 WHY YOU SHOULD POISON YOUR HUSBAND 213

The translator has added the phrase "with his own hand" to emphasise
the point that the victim drank voluntarily, but more importantly he has
made the poisoner liable for a severe chastisement. He has, in fact,
adapted Ibn Nujaym's answer to conform to al-Kasiani's ruling.
In doing so he is following what had been the mainstream Ottoman
opinion since at least the time of Ebi'l-su'id:
(8) Question: Zeyd's wife, Hind, co-operates with 'Amr in getting
the said Zeyd to drink poison and in killing him. If
they confess voluntarily, what should happen to the
aforenamed?

Answer: If they made him drink it with their own hands, diya is
necessary. If Zeyd drank it himself, a severe chastise-
ment and imprisonment are necessary.

This is al-Kasani's rule exactly, and one to which later ?eyhti'l-islams

seem happy to adhere. The next two fetvas are from (atalcah 'All:
(9) Question: Hind puts poison into the food which Zeyneb is going
to eat. Unaware of this, Zeyneb eats the food with her
own hand and dies as a result. What should happen to
Hind?

Answer: Severe chastisement and imprisonment.

[Proof-text]: "If someone mixes poison into another's food and that
person eats it and dies, there is no liability. [The
poisoner] is chastised - Ghunya on Jindydt.9

(10) Question: Zeyd adds a medicine to a food because it is an

abortifacient and gives it to the pregnant Hind. Not
knowing what it is, Hind eats it with her own hand
and as a result produces a still-born foetus. What
should happen to Zeyd?
Answer: Chastisement.

[Proof-text]: "If someone gives another [poison] in his drink and

[that person] dies, diya is not necessary, because he
drank by choice: except that the person who gave it to
him deceived him, [and so] nothing is incumbent
except chastisement and repentance - from the
section on homicide in JindyCt in the Khdniyya."

The killer is liable for diya only when he administers the poison
himself and the victim takes it under compulsion. In the fetva of

9 Presumably the Ghunyat al-Mughni by Yfsuf b. al-Sa'id 'Ali al-Sijistini (fl.

mid-thirteenth century).

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 214 COLIN IMBER

Dirrizade which follows, the fetvd emini has taken care to draft the
question so as to leave no doubt that compulsion was used:
(11) Question: Zeyd forces poison down 'Amr's throat and 'Amr dies
as a result. Is Zeyd liable for diya?
Answer: Yes.

The basic rule, therefore, is that a poisoner is not liable for

his victim consumes the poison voluntarily with his own han
poisoner is analogous to a man who gives an order to kill,
victim is analogous to his agent. The agent has the option to
the command, and the poisoner's victim has the option not to
the poison. The man who gives an order to kill is liable only w
exercises compulsion, and the poisoner is liable only when he
his victim to swallow the poison. Both these rules underwent t
modification. Some jurists prescribe corrective punishment (ta
the man who gives an order to kill, and most prescribe ta'zlr
poisoner. Ta'zir is, however, a discretionary punishment, and
dropped.
These peculiar Hanafi rules for determining liability sometimes
prompted the ?eyhi'l-islams to offer women an unexpected piece of
advice. This first emerges in a fetva of Ebu'l-suid:
(12) Question: Zeyd says, "If I do this thing, may my wife be
divorced three times." He then does it. His wife knows
this, but is unable to prove it. Is Zeyd's wife a sinner
(dthim) because Zeyd is intimate with her?

Answer: It is fornication (zina). It is essential that she does not

[submit] voluntarily [to Zeyd's embrace]. She must
give what she has and there must be a khul' divorce. If
he tries to have intercourse [with her] and there is no
other means of escape, it is licit according to the
shari'a to add poison to his food. She would not
commit a sin (giinch) and there is no diya.

The problem here began when the husband pronounced an irrevocable

divorce dependent on a condition.10 The moment the condition was
fulfilled, the divorce came into effect.l1 The former husband, however,
denied that he had fulfilled the condition, and the wife's word alone

10 In Hanafi law, the formula, "If I do X, my wife is divorced," is a form of

oath. If a man pronounces these words and then does X, his wife is divorced
immediately.
11 Witnesses are not required for a valid divorce. The divorce formula alone is
sufficient to dissolve the marriage.

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 WHY YOU SHOULD POISON YOUR HUSBAND 215

was insufficient evidence. The ex-husband claims wrongly that they

are still married; the wife insists correctly that they are not. The ques-
tion is whether the wife bears any guilt if she accepts the advances of
her ex-husband. The answer is clear. The couple are divorced. Inter-
course would therefore be an act of fornication (zind), and so an
offence in the eyes of God. To prevent this, Ebf'l-su'ufd offers two
solutions. The first - which seems unnecessarily harsh on the woman
- is for the couple to conclude a khul' divorce, whereby the wife
requests her husband to divorce her against payment. In Hanafi law,
khul' is the only form of divorce which a woman can initiate, and
Ebu'l-su'ud presumably requires it here because there is insufficient
evidence to prove in the eyes of the world that the first divorce actually
took place. He is in effect prescribing a second divorce. The other
solution is for the woman to poison her ex-husband. She would not in
any circumstances be liable for diya unless she made him eat it "with
her own hands," and since she has acted both to defend herself and to
prevent a crime against God, she is not a sinner (dthim). She is not,
therefore, liable for ta'zir.'2
Faced with the same problem, the seyhii'l-islam Hiiseyn [held office
1632-34] comes more directly to the point:
(13) Question: While Zeyd is drunk with a forbidden substance, he
divorces his wife Hind with a triple divorce. After
daybreak he denies it and his wife Hind is unable to
prove it. What is the way for Hind to save herself
from fornication?

Answer: If no other means of escape is possible, it is licit to add

poison to Zeyd's food.

Like Ebi'l-su'fd, Hiiseyn is concerned not with the woman's welfare,

but to prevent an offence against God. When it is merely a woman's
welfare that is at stake, Ebfi'l-su'fid at least is less specific in his
remedy:
(14) Question: Zeyd hurts his wife Hind in many ways. If the qadi
knows about it, is he able to separate Hind from
Zeyd?

12 Ebi'l-su'id is perhaps being unduly punctilious in prescribing the use of

poison to kill the ex-husband. In another case in which a woman, in order to
prevent zind, kills her assailant with an axe - that is, with an offensive weapon
- he exempts her entirely from liability, declaring that she has performed an act
of "holy war" (ghazd). [M.E.Diizdag, Seyhiilisldm Ebussud efendi fetvalart
itglinda 16.asir Turk hayatt (Istanbul: Enderun Kitabevi, 1972), no. 781]. Poison-
ing, however, is undoubtedly more satisfactory than using a weapon. It is unobtru-
sive and exploits a legal subtlety.

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216 COLIN IMBER

Answer: He is able to prevent his hurting her by whatever

means are posssible.

The answer is hardly satisfactory, but since the husband's offence is

in this case against his wife and not against God, it is unlikely that
Ebi'l-su'id would recommend that she use poison.

Source Referencesfor Fetvds Quoted

DZ Durrizade Mehmed 'Arif, Netlcetii'l-fetava (Manchester: John

Rylands Library, Turkish Ms no.104).
Ali qatalcall 'Ali (compiled with proof-texts by $ilih b. Ahmed
el-Kefevi), Fetava-yi 'All Efendi (Istanbul: Imperial Press,
1312/1894-95)
ES M.E.Diizdak, $eyhiilislam Ebussuud Efendi Fetvalarin qlinda
16 Asir Turk Hayati (Istanbul: Enderun Kitabevi, 1972).
'Abd 'Abdu'l-rahim, Fetdvd-yi 'Abdii'l-rahim (Istanbul: Imperial
Press, 1243/1827).
IN Ibn Nujaym (compiled with Turkish translation by Re'fet b.
el-Hacc Ibrahim RiiOdi), Fetdvd-yi Ibn-i Niiceym (Istanbul:
Matba'a-yi $eyh Yahya, 1279/1862-63).
Hus Fetdvd-yi Kemdlpa;azdde (Manchester: John Rylands
Library, Turkish Ms no.39).

(1) DZf.142v
(2) Ali vol.2 p.296
(3) DZf.143r
(4) ES no.666
(5) 'Abd vol.l, p.369
(6) INp.336
(7) IN p.336-7
(8) ES no.755
(9) Ali vol.2 p.299
(10) Ali vol.2, p.299
(11) DZf.128v
(12) ES no.780
(13) Hus f.382r
(14) ES no.144

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