Islamic Law and Its Wisdom – Retaliation (Qisas)
Equality is the main principle for the justice and that if anyone takes another one’s life, he/she must pay it with his own, with the same way if anyone harms someone else’s goods or causes an injury, the same thing applies for these situations too.
This is called ‘respect to humanity and human rights’. Forgiving the murderer is a violation of the rights of the one killed. The Quran’s suggestion to the people about this issue is to forgive the one who committed the act. But this right to forgive belongs only to the family of the victim.
The decision then is theirs. If they wish, they forgive or they take the blood money (ransom). In case they do not forgive, the guilty must be punished. And this punishment can only be executed by the administrators (The rulers of the Islamic state). Retaliation is a punishment the Quran establishes. The Prophet (pbuh) did both apply it and advise it. And all of the scholars of Islam have agreed upon this point as well. ( Surah Baqarah, 178/179) “O you who believe! retaliation is prescribed for you in the matter of the slain; the free for the free, and the slave for the slave, and the female for the female; but if any remission is made to any one by his (aggrieved) brother, then (the demand for the bloodwit) should be made according to usage, and payment should be made to him in a good manner; this is an alleviation from your Lord and a mercy; so whoever exceeds the limit after this, he shall have a painful chastisement. And there is life for you in the retaliation, O men of understanding, that you may guard your-selves (against evil)”
Nowadays some people oppose retaliation law saying it’s a severe penalty. Retaliation is to respond with the equivalent. In brief, to administer justice. The real injustice is the abolition of these punishments and taking away the rights of the relatives of the dead. How could anyone usurp the rights of the successors of the murdered? Not punishing the murderer is a violation of the rights of another. It also fuels the want of revenge of the heirs of the killed. In fact, in many places, the relatives of the murdered try to punish the murderers as they haven’t been given the punishment they deserve, for this reason blood feuds continue. The killer’s right to live is no more sacred than that of the one killed. There is life in retaliation for people. Most coherent way, from the point of morals, social peace, deterrence and clemency is retaliation. Allah calls people to be sensible about this subject. The punishment for harm is as much as the harm done. However, Allah(swt) will reward those who forgive and choose reconciliation.(42/Ash-Shura,40).
In Islam, there is neither persecuting nor staying silent when persecuted. After establishing the rights of the right owners, the Quran suggests them to forgive. This is a complete composure, justice and mercy. It is Allah himself who sees the punishment of retaliation fit and as necessary. The God, who is all-knowing, certainly knows the best for the people. He shows who is right. Who can know right and wrong better than Him? Those who oppose his judgment are either ignorant or very arrogant. They are those who couldn’t know and accept the lordship of Allah. Certain conditions are sought for the implementation of the penalty of retaliation. The important conditions are briefly as follows:
1- Retaliation law is applied on whoever committed the murder.
2- Only muslim authorities can execute the retaliation penalty, not everybody or a community.
3- If multiple persons committed a murder together, retaliation law is applied on all of them.
4- If there is a doubt about whether it is a murder, retaliation law is not applied.
5- The punishment is executed regardless of the position of the murderer. No discrimination is made, even between a citizen and the head of the state.
6- Death penalty is given if the crime was committed deliberately. There are other penalties for killing by mistake and injuring.
7- If the heirs of the killed or the one who has been injured wants blood money(ransom) or forgives, retaliation is not applied.
8- Retaliation is applied equally, it is not excessive. There are good and benefits in every rule of Islamic law.
It is like this even though some are unaware of it. Because it is the religion of the Lord of the heavens and the earth. An equivalent punishment is given in case of hurting and damage to organs. Justice can be established only if what Allah commanded are applied. Islamic law is the assurance of human rights, society rights, animal rights, environmental safety. Those who turn away from this law will be devoid of establishing justice and of establishing these rights. And the consequences of injustice are cruelty, oppression, ill-treatment, chaos and such. And of course a divine punishment. Qısas also means to exchange a right with its equivalent. Its concept is to punish in kind. To make the murderer pay blood in kind is an equal treatment in return. Life is sacred. It is Allah who gives life; he is Al-Hayy(the alive), Al-Muhyi(the giver of life). And it is Allah who takes life; he is Al-Mumeet(the inflictor of death). No one has the right to take life without His order and permission.
Qısas(retaliation) that is one of the main rules of the Islamic, which is about the punishment the culprit in kind. Sentencing someone, who killed deliberately and wrongfully, to imprisonment is not sensible. There is no prison in Islam, there is detention house. The one who committed a crime is either to be sentenced with capital punishment or to be imposed fine or to be exiled, but is not put in prison. Pardon is very important in Islam. If the one, who must be executed for his crime, is forgiven by the right owner, he is given a pecuniary penalty. It is expressed like this in Surah Baqarah(178) in which retaliation is ordered. Killing during self-defense, killing to punish the one who killed first -namely Qısas- are service for life. (2/179) Even though retaliation might seem as a severe punishment for some people, the people of intellect admit that this is the requirement of justice. Just as cutting off a gangrenous part to save the body, It’s a life saving sanction. Because retaliation is applied to the ones who killed without a legitimate reason, such as religious defence or self defence. It is necessary to take one’s life, who takes someone’s right to live by brute strength and without a reason. A person who knows that he/she will be killed if he/she kills someone without a valid reason, could not dare to kill anyone. Thus murder incidents decrease in the society. If some murderers appear sometimes, they’d be eliminated by God’s law, and then, peace and tranquility would prevail.
Then, when the murderers get what they deserve, the families of the killed no more bear a grudge and want revenge. “and there is life for you in the retaliation, O men of understanding, that you may guard your-selves (against evil)” (179). “There is life for you in retaliation” is a wonderfully laconical sentence and it is a significant statement. Because if retaliation law is applied many are protected by killing one. Thus feuds are prevented.
Violating the right of the one killed to pardon the felon who took the life of an innocent person, is neither mercy nor humanity. Just as it is not possible for a person to absolve the right of a society, no society or a system has right and authority to absolve the right of a person. Pardoning a murderer by society and law or sentencing it to light sentences other than what Allah set as a punishment is not mercy but injustice. An injustice against innocent, its relatives and against humanity. The responsibility of societies and systems is to protect the rights of the right owners; it is not to save someone who violates the fundamental right of another.
The paper by Kadir Çandarlıoğlu was translated from Turkish into English by “Historical Reconstruction” Team.