Qisas
Qisas or Qiṣāṣ is an Islamic term interpreted to mean "retaliation in kind", "eye for an eye", or retributive justice. Qisas is one of several forms of punishment in classical/traditional Islamic criminal jurisprudence, the others being hudud and ta'zir.
According to James Lindgren it is standard wisdom among legal historians that collective responsibility in ancient law has given way to individual responsibility in modern law. In ancient societies, the person perpetrating a crime or the family or tribe to which they belonged was commonly punished following the principle, "Life for life, eye for eye, nose for nose, ear for ear, tooth for tooth, and wounds equal for equal."
Qisas has been called a "refinement" of practices described in the Bible and Arab pre-Islamic sources for dealing with personal crimes.
In pre-Islamic Arabian society, inter-tribal conflicts were resolved by a member of the offending tribe being handed over to the victim's family for qisas retaliation — the handed-over person be equivalent in gender and social status to the victim of the offense..
The legal systems of Afghanistan, Iran, Pakistan, Saudi Arabia, the United Arab Emirates, Qatar, and the northern states of Nigeria currently apply qisas to some extent.
History
A legal concept similar to qisas is the principle of "eye for an eye" first recorded in the Code of Hammurabi.In ancient societies, the principle of retaliation and of collective responsibility were common practices, and meant that the person perpetrating a crime or the tribe to which they belonged was punished in a manner, equivalent to the crime committed, following the maxim, "Life for life, eye for eye, nose for nose, ear for ear, tooth for tooth, and wounds equal for equal." Since in ancient times, collective responsibility was a common practice, as exemplified by retaliation of victims and their sympathizers against an offender’s family or community,
someone else, such as the closest relative, could be punished instead of the criminal. Most of the time, it was ignored whether the act was intentional or not, and a price of life or blood was charged for each life.
File:Code of Hammurabi IMG 1937.JPG|thumb|alt=Cuneiform on the stele. Refer to adjacent text|In the laws of Hammurabi, an eye for an eye was applied if a free man gouged out the eye/broke the bone of another free man of equal status; otherwise, a monetary penalty was paid.
Qisas was a practice used as a resolution tool in inter-tribal conflicts in pre-Islamic Arabian society. The basis of this practice was that a member of the tribe to which the murderer belonged was handed over to the victim's family for execution, equivalent to the social status of the murdered person. The condition of social equivalence meant the execution of a member of the murderer's tribe who was equivalent to the murdered, in that the murdered person was male or female, slave or free, elite or common. For example, only one slave can be killed for a slave, and a woman can be killed for a woman. To this pre-islamic understanding the discussion of whether a Muslim could be executed for a non-Muslim was added in Islamic period.
Islamic scriptures
Quran
The qisas قصاص in Quran is,The verse appears to address the pre-Islamic practice of collective punishment where the tribal equivalent of the murdered from the killer's tribe was killed in retaliation. However, the Quran encourages the aggrieved party to receive monetary compensation instead of qisas,. Quran also acknowledges the retaliation that existed in Judaism.
Hadith
The Hadiths have extensive discussion of qisas. For example, Sahih Bukhari states,Many premodern Islamic scholars ruled, based on hadith, that when the victim was a non-Muslim dhimmi or a non-Muslim slave owned by a Muslim, only diya and not qisas should be available as compensation.
Traditional jurisprudence
Classical/traditional Islamic jurisprudence treats homicide as a civil dispute between victim and perpetrator, rather than an act requiring corrective punishment by the state to maintain order. In all cases of murder, unintentional homicide, bodily injury and property damage, under classical/traditional Islamic law, the prosecutor is not the state, but only the victim or the victim's heir. Qisas can only be demanded by the victim or victim's heirs.Basis
The main verse for implementation in Islam is Al Baqara; 178 verse: "Believers! Retaliation is ordained for you regarding the people who were killed. Free versus free, captive versus captive, woman versus woman. Whoever is forgiven by the brother of the slain for a price, let him abide by the custom and pay the price well."In the tasfir of this verse, Al-Shafi'i provides: 'On the authority of Ibn Abi Hatim, Ibn Kathir has reported that, just before the advent of Islam, war broke out between two tribes. Many men and women, free and slaves, belonging to both, were killed. Their case was still undecided when the Islamic period set in and the two tribes entered the fold of Islam. Now that they were Muslims, they started talking about retaliation for those killed on each side. One of the tribes which was more powerful insisted that they would not agree to anything less than that a free man for their slave and a man for their woman be killed from the other side. It was to refute this barbaric demand on their part that this verse was revealed. By saying 'free man for a free man, slave for a slave and female for a female' it is intended to negate their absurd demand that a free man for a slave and man for a woman should be killed in retaliation, even though he may not be the killer. The just law that Islam enforced was that the killer is the one who has to be killed in Qisas. If a woman is the killer why should an innocent man be killed in retaliation? Similarly, if the killer is a slave, there is no sense in retaliating against an innocent free man. This is an injustice which can never be tolerated in Islam.'
The element of "intention" is taken into account in only one of the accusations in the Quran and in return for this, a slave should be freed and to the family of the killed one, should be paid "unspecified" financial compensation. However, in the continuation of the verse, another condition for financial compensation is considered. According to this, it is claimed that the deceased person must live in the same community with the believers or the society in which the deceased lives must have an agreement with the believers. The two-month fasting that the murderer will keep in case of financial inadequacy is considered sufficient as a reward for the crime. On the other hand, the later jurists stipulates "the element of intent" in case of physical injury and killing acts as well as other conditions determined for bodily retaliation.
The applicability of the punishment of qisas has been conditioned by the fiqhists on a large number of conditions, such as the innocence of the injured person or the victim. Injury which may be the subject of a qisas application may only be applied if there is a definite organ loss whose limits can be guaranteed that no more harm will be done to the offender than he has caused in the punishment. In this case, qisas cannot be made against the most common forms of killing and wounding that occur during ordinary daily fights using stone sticks, blades, and piercing tools. Because the qisas is the punishment of the offender exactly the same crime committed, for a person who is raped to death or beheaded, the plain death sentence to be given to the murderer does not mean that qisas has been fulfilled.
Differences in treatment according to religion and status of victim
In the early history of Islam, there were considerable disagreements in Muslim judicial opinions on applicability of qisas and diyya when a Muslim murdered a non-Muslim.According to classical jurists of three of the four Sunni Islamic schools of jurisprudence, qisas is available only when the victim is Muslim; while the Hanafi school holds it may apply in some circumstances when a Muslim has done harm to a non-Muslim.
Jurists agree that neither qisas punishment nor any form of compensation need be given in cases where the victim is:
- an apostate,
- a person who has committed the hadd crime of transgression against Islam or Imam,
- a non-Muslim who does not enjoy the protection of a Muslim state under the status of a Dhimmi or Musta'min, or
- if the non-Muslim victim's family could not prove that the victim used to pay Jizya.
This was justified by the hadith:
Hanafi
The Hanafi school ordains lesser-than-murder qisas across religions, whether the perpetrator is Muslim or non-Muslim, according to Sayyid Sabiq's Fiqh Sunnah.Most Hanafi scholars ruled that, if a Muslim killed a dhimmi or a slave, Qisas was applicable against the Muslim, but this could be averted by paying a Diyya. In one case, the Hanafi jurist Abu Yusuf initially ordered Qisas when a Muslim killed a dhimmi, but under Caliph Harun al-Rashid's pressure replaced the order with Diyya if the victim's family members were unable to prove the victim was paying jizya willingly as a dhimmi. According to Fatawa-e-Alamgiri, a 17th-century compilation of Hanafi fiqh in South Asia, a master who kills his slave should not face capital punishment under the retaliation doctrine.
If a Muslim or a dhimmi killed a Musta'min who did not enjoy permanent protection in Dar al-Islam and might take up arms against Muslims after returning to his homeland, neither Qisas nor Diyya applied against the Musta'min's murderer according to Hanafi fiqh according to Yohanan Friedmann. But Abdul Aziz bin Mabrouk Al-Ahmadi narrates that the Hanafi scholars say that Musta'min is entitled to Diyya equal to Diyya of a Muslim, and he quotes this opinion from a group of other muslim scholars, including a some of Companions of the Prophet, and he also narrates that this is one of the opinions of the Hanbalis if the killing occurred intentionally.