Is it permissible for a person to kill somebody or a thief who enters his house without permission?

- In America, a landlord who kills somebody trying to steal his car is not punished because he protects his property. Is it not an excessive reaction?
- In Islamic law, can a person kill someone or thief who enters his house without permission only if the attacker wants to kill him as self-defense?

Dear Brother / Sister,

A person who is attacked for his life or property or with the intention of raping, he/she has the right to defend himself/herself and prevent the attack. He/she can use this right by resorting to anything and even kill that person if he/she has nothing else to do. For, the person who is attacked uses his/her legitimate right of self-defense and it is a state of obligation. He/she has to prevent the attack with his/her own power, not with the authority of the public. When Ibn Qudama mentions a person entering a house to kill the landlord, he states the following:

"If the landlord has no other way of preventing the attack than killing, or if he is afraid that the trespasser will kill him if he does not kill him, he can kill the trespasser or hit him hard to break one of his organs. He does not have to pay diyah (blood money) due to wounding or killing him because he has done it to prevent the trespasser’s evil – just like rebels. The trespasser has obliged the landlord to kill him, which is like committing suicide. The same decree is valid for anyone who attacks a person to kill or to rob him..."1

The Conditions for Self-Defense: 

There are some conditions for the state of self-defense, which makes it permissible to prevent an attack even by killing the attacker, to occur: 

a) One’s life or property must be attacked or an attempt of raping must occur. 

b) It must be impossible for the person who is attacked to take refuge in authorities or security forces.   

c) There must not be any other way of preventing the attack.2

The attack does not have to take place actually; it is enough to deduce it from the attitudes of the trespasser.3 

The Legal Grounds for the Right of Self-Defense: 

Islamic law gives immunity to one's life, property and honor and demands that they be respected. The Prophet (pbuh) states the following in a hadith:

"Everything of a Muslim is haram for other Muslims; his blood, honor and property. For this reason, the Muslim is under the protection of Islamic Law; a dhimmi (non-Muslim citizen) is like a Muslim in this regard."

The following statement of Hz. Ali expresses it: "They have signed the dhimmi deal so that their property will be like our property and their lives will be like our lives."4

Islamic Law declares that it protects human life, property and honor and that they are untouchable; therefore, Islam makes it obligatory for its members not to violate the rights of others; anyone who violates this obligation deserves to be punished.

It is the duty of the state to protect the rights and to prevent them from being violated; it is essential for the state to perform this duty; however, in cases when the attacked person cannot take refuge in security forces, Islamic law gives permission to the attacked person to protect himself even at the expense of the life of the attacker. The following hadith refers to the decree in question: Ya'la b. Umayya quarreled with a man; one of them bit the other's hand; and when he whose hand was bitten pulled his hand, the front tooth of the one who bit fell off. They applied to the Prophet (pbuh) to settle the case. The Prophet (pbuh) said,

"Do you bite like wild animals? There is no compensation to it."5

The following is stated in a hadith reported from the Messenger of Allah (pbuh):

"He who is killed while defending his life is a martyr; he who is killed while defending his family is a martyr; he who is killed while defending his property is a martyr."6 

A Muslim becomes a martyr when he is killed only if he is right in his fight. The meaning of all this is as follows: Islamic Law gives a person who is attacked or is tried to be attacked the right of self-defense. 

Legitimate Defense of Others and the Basis for it: 

The right to legitimate defense in the sense we have explained above is not valid only for the person who is attacked; it is also valid for others. That is, a person can prevent the attack on the life, property and honor of another person and can use the right of legitimate defense. The following sentence exists in al-Mughni:

"Others can also help a victim whose life, property or honor is attacked to prevent the attacker."7 

The following statement exists in Ramli’s book called Nihayatul-Muhtaj:

"When there is no danger for a person himself but when there is an attack on others, the prevention of the attack is permissible or fard for that person as if he himself is attacked."8 

The right of legitimate defense on behalf of others is based on two points:

a) Individuals are obliged to prevent bad deeds (illegitimate behaviors). The Prophet (pbuh) states the following:

"Whoever sees an evil should correct it with his hand; he who cannot do it should do it with his tongue and he who cannot do it should do it with his heart; that is what the one with the weakest belief should do."

Undoubtedly, attacking anyone is a bad, illegitimate and ugly act that should be prevented. 

b) It is fard to help anyone who is persecuted and wronged. The Prophet (pbuh) said, "Help your brother, whether he is the oppressor or the oppressed." They asked, "We can help the oppressed, but how can we help the oppressor?" He said, "If you prevent him from oppressing others, you will help him." In that case, helping the oppressed means to support him and to prevent him from being harmed. Helping the oppressor means to prevent him from wronging others and hence from making mistakes and committing sins. There is no doubt that saving him from sins is the greatest help.

Is it a right or a duty? 

When self-defense is legitimate, what is the decree about this legitimacy: Is it a right or a duty? In other words, does the person who is attacked have the right to choose between one of the two options: to fight off the attack by using all of his means, even at the expense of the life of the attacker or not to attempt to defend himself even at the expense of his own life? Is he obliged to try to prevent the attack even at the expense of the life of one of the parties? There are disagreements among fiqh scholars and various explanations regarding the issue; we will summarize them in the following paragraphs:

To Protect Life: 

There are two views of scholars about self-defense in order to protect life. Ibn Taymiyya states the following:

"As it is known, it is permissible for anyone to fight off the attack on his life; this is definite in terms of the sunnah and consensus (ijma). 'Is it fard to prevent it by fighting?' There are two views to answer that question: Both views are reported from Ahmad b. Hanbal."9 

However, Ibn Qudama, who is also a Hanbali fiqh scholar, cites only one view of Hanbali madhhab regarding the issue: "it is not fard". That is probably the view that he prefers. He writes the following:

"It is not fard for someone who is attacked for his life or property to defend himself." Then, he mentions an objection: "If it is said: You say that it is fard – according to one of the two views – for someone who is about to starve to death to eat if whatever he finds to eat;  why do you not adopt the same decree regarding this issue?" We will answer it as follows: "When he eats it, he saves his life without hurting anyone else; he has to kill someone else to live in that case; and that is why self-defense is not fard."10

According to what Ramli says, it is not fard for a Muslim who is attacked by another person with the intention of killing to defend himself according to Shafii sect; what is more, it is sunnah to surrender. 11

In Hanafi madhhab, Imam Jassas states that self-defense is fard even at the expense of the death of the attacker and he does not mention another view of his madhhab. Jassas explains this view as follows: The attacker is a "baghiy (rebel/oppressor)". Allah orders us to fight baghiys. He continues as follows:

"If a person who is attacked by someone with the intention of killing is obliged to kill the attacker if he can; it is not permissible for him not to kill the attacker if he can. Allah states the following in the Quran:

"If two parties among the Believers fall into a quarrel, make ye peace between them: but if one of them transgresses beyond bounds against the other, then fight ye (all) against the one that transgresses until it complies with the command of Allah..." (al-Hujurat: 49/9) 

In the verse above, Allah orders us to fight against those who transgress (baghiys); there can be no transgression worse than trying to kill a person unjustly."12

The view of the great fiqh scholar al-Jassas is the strongest view. There are other supports for the view mentioned above in addition to what he mentions: Islam forbids shedding blood unjustly because it means oppression and to cause mischief on the earth. Allah orders us to eliminate oppression and mischief. The surrendering of a person who is attacked means to surrender to the oppression, which cannot be permissible. Likewise, a person's life is not his own property, he has no right to risk his life by surrendering to anyone who attacks him unjustly -if he has the power to fight back.13

To Protect One’s Honor: 

It is fard to prevent anyone attacking one’s honor (chastity) even at the expense of death. If a man wants to rape a woman, and if the woman cannot find any way of getting rid of him except killing him, it is fard for her to kill the attacker - if she can. For, it is haram for her to allow the attacker to fulfill his desire; to give up defense means “to give him the opportunity” and it is not permissible. Likewise, it is fard for a person who sees anyone trying to rape a woman to kill him - if there is nothing else to do. 14

According to Ibn Taymiyya, the husband can kill anyone who wants to rape his wife even if he has the opportunity to fight him off in another way. He states the following regarding the issue:

"... that is why, the husband can kill anyone who wants to rape his wife – in order to prevent him from raping. It is unanimously agreed that he can kill the transgressor if there is nothing else to do. It is the strong view that he can kill the transgressor even if there is something else to prevent him."15* 

To Protect One’s Property: 

It is not fard but a right to prevent attack against property. It is permissible for anyone whose property is grabbed to leave it or to give the attacker the goods that he wants without fighting.16 Likewise, it is also permissible for him to defend his property even at the expense of killing the attacker.17 According to what is reported from Ibn Umar, a thief entered his house and he drew his sword to attack the thief. If they had not prevented him, he would have hit the thief with the sword. 18

The view that I prefer is as follows: it is fard (a duty) for a person who is attacked for his property to prevent this attack even at the expense of killing the attacker because this attack is oppression, unjust assault and aims to disrupt law and order. The religion of Islam orders us to eliminate them. We cannot say, "The life of attacker or the attacked person is more valuable than the property," because the attacker transgresses not only the property of someone else, but also the boundaries of the religion that Allah orders to be respected, protected and maintained by Muslims. This transgression does not only intimidate the public and violate security but also violates the duty of "protecting people's property" which Allah has rendered a duty for people. If a person uses this right of defending his property and is killed while defending it, he becomes a martyr; there is no degree superior to martyrdom in the eye of Allah. 

Legitimate Self-Defense is limited with the Criterion of Obligation: 

The purpose of the defense against the transgressor is to prevent his transgression and evil; the purpose is not to punish him because what obliges the attacked person to exercise this right and to defend himself in person is the transgressor. It is necessary for the person who is attacked to exercise his right to self-defense beginning from the mild way up to the hardest one. Otherwise, he will be held responsible for the deeds that the legitimate defense does not render necessary because obligation makes it permissible for him to defend himself; obligations cannot exceed the criteria. There is no need to use the harder deed if it is possible to prevent the transgression with a milder deed. Accordingly, if possible, he should protect himself verbally and by calling others to help; if it is not possible, he should hit him; if it is possible to fight the attacker off by hitting him, it is not permissible to wound him; if he wounds the attacker, he will be held responsible. If he cannot stop the transgression by hitting the attacker, he should wound him but not kill him. If he kills the attacker when there is no obligation, he will be held responsible. If there is nothing else to do, he should kill the attacker; in that case, he will not be held responsible. If the person who is attacked is killed, he becomes a martyr. 19

However, if the attacked is unable to act in accordance with the sequence mentioned above, for instance, if he is afraid that if he frightens the attacker or calls others to help, he will killed by the attacker, it is permissible for him to injure and if necessary to kill the attacker; he will not be held responsible for doing so. In his book called al-Mabsut, Sarakhsi states that it is permissible for the person who is attacked not to start from the mild deed and not to comply with the sequence mentioned above due to the following principle: "In the situations where it is impossible to know the reality (the real nature of something), strong view is regarded as the reality."20

There is another issue: "If escaping guarantees survival, is it necessary for the person who is attacked to escape?" According to some scholars like Shafiis, he must escape because he can save himself without harming anyone else; and this is obligatory like eating carrion in case of starvation. According to some scholars, it is permissible, not fard, to escape because this is a legitimate self-defense; it cannot be fard. One of the two views of Hanbalis is like that. 21

The purpose of self-defense against the attacker is to prevent the attack; therefore, it is not permissible to follow and chase the attacker if he escapes because the attack stops when he escapes and the purpose is accomplished . However, if the offender escapes with a certain amount of goods, it is permissible to follow him and to take back the goods by using force. 

Penal and Legal Responsibility in case of Legitimate Defense: 

The legitimate right of defense or duty used in accordance with its limits and principles does not bring about any penal responsibility for the user because what he does is a permissible and free act; it is not qualified as a crime, and no penalty can be given to those who commit such a deed. 22

As for the legal responsibility, since the person who is attacked uses his right or duty based on the permission of the Islamic Law, such responsibility does not occur; that is the opinion of the majority of the scholars. According to Abu Hanifa, if the attacker is a child or a mentally ill person, the attacked person will have to compensate for the damages and injuries he causes. The evidence of the imam is as follows: The deeds of such people are not regarded as crime; self-defense against them becomes permissible due to an obligation; therefore, it does not exempt the attacker from paying for the damages he causes.23

Footnotes:

1. al-Mughni, Vol VIII, p. 330. 
2. al-Mughni, Vol VIII, p. 330; Abdulqadir Udah, at-Tashri'ul-Jinai al-Islami, Vol I, p. 478 ff. 
3. The Turkish Penal Code regulated the state of "legitimate self-defense" in the second paragraph of Article 49. This article determines the following conditions for the acceptance of legitimate defense as an excuse: a) The attack and transgression must be unjust. b) Self-defense must be in question. c) There must be contact and proportion between the attack and the defense in terms of time and severity. d) The attack must be toward life or honor (chastity). It was discussed in the doctrine whether attack on property gave rise to legitimate defense. (H.K.) 
4. al-Mughni, Vol VIII, p. 445; Qasani, al-Badayi, Vol VII, p. 111; ad-Durrul-Muhtar, Vol I, p. 312. 
5. Muslim, Sahih, Vol I, p. 312. 
6. Imam Ahmad narrated it; see Jami'us-Saghir, Vol II, p. 544. 
7. al-Mughni, Vol VIII, p. 332. 
8. Ramli, Nihayatul-Muhtaj, Vol VIII, p. 23. 
9. Ibn Taymiyya, Fatawa, Vol IV, p. 559. 
10. al-Mughni, Vol VIII, p. 331. 
11. Nihayatu'l-Muhtaj, Vol VIII, p. 23. 
12. al-Jassas, Ahkamul-Qur'an, Vol II, p. 401. 
13. The Iraqi Penal Code regards the right of legitimate self-defense as a right not as a duty; therefore, it leaves it to the preference of the victim. (article 43). 
14. al-Mughni, Vol VIII, p. 331; Nihayatul-Muhtaj, Vol VIII, p. 22. It is fard for a woman to prevent rape even at the expense of killing the attacker; similarly, it is fard to prevent the attacker who wants to rape a person through the anus because sodomy is an ugly deed that the scholars unanimously agree to be haram. According to the majority of the scholars, a man who commits sodomy is killed whether he is single or married. The following is stated in a hadith: "When you find those who commit sodomy, kill both the active and passive person." al-Mughni, Vol VII, p. 187. 
15. Ibn Taymiyya, Majmu'atul-Fatawa, Vol XV, p. 122. 
* Turkish Penal Code. Article: 43. subclause: 2. 
16. Ibn Taymiyya, ibid., Vol II, p. 202. 
17. Ibn Taymiyya, Ikhtiyarat, p. 91; al-Mughni, Vol VIII, p. 329. 
19. al-Umm, Vol VI, p. 31; al-Mughni, Vol VIII, p. 328; Fatawa, Vol IV, p. 222; Nihayatul-Muhtaj, Vol VIII, p. 24. 
20. al-Mabsut, Vol XXIV, p. 50. 
21. al-Mughni, Vol VII, p. 331; Nihayatu'l-Muhtaj, Vol VIII, p. 25. 
22. Iraq Penal Code (article: 42) adopts the same view. 
23. al-Mughni, Vol VIII, p. 328-330; Abdulqadir Udah, at-Tashri'ul-Jinai, Vol p. 480, 

(see Hayrettin Karaman, İslam'ın Işığında Günün Meseleleri, Vol. 2, İslâm Hukukunda Zarûret Hali Bölümü.)

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