Qisas

A legal concept similar to qisas is the principle of "eye for an eye" first recorded in the Code of Hammurabi.

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 tafsir (exogesis) of this verse, Mohammed Shafi' says: '...the one who has killed will be the one to be killed in Qisas قصاص . It is not permissible to kill an innocent man or someone free for a killer, woman or slave. Let us hasten to clarify that the verse does not mean that Qisas قصاص will not be taken from a man who kills a woman or from a free man who kills a slave. In the very beginning of this verse the words الْقِصَاصُ فِي الْقَتْلَى: "The Qisas قصاص has been enjoined upon you in the case of those murdered" are a clear proof of this universality of application. There are other verses where this aspect has been stated more explicitly, for instance, in النَّفْسَ بِالنَّفْسِ (the person for the person).' [4] Another view: 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.[5]

The element of "intention" is taken into account in only one of the accusations in the Quran (killing and in a single case (a believers killing another believer) and in return for this, a slave should be freed and to the family of the killed one, should be paid "unspecified" financial compensation (diyya). 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 (Surah Al-Nisa; 176). On the other hand, the later jurists stipulates "the element of intent"[6] in case of physical injury and killing acts as well as other conditions determined for bodily retaliation.[7][8]

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.[9] 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.

Classical/traditional Islamic jurisprudence (fiqh) treats homicide as a civil dispute between victim and perpetrator,[13] rather than an act requiring corrective punishment by the state to maintain order.[14] 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 (or owner, in the case when the victim is a slave). Qisas can only be demanded by the victim or victim's heirs.[15]

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 (Dhimmi, Musta'min or slave).[16][17] (In yet another class were murdered apostates from and blasphemers of Islam, non-Muslims who does not enjoy the protection of a Muslim state under the status of a Dhimmi or Musta'min, etc.)

According to classical jurists of three of the four Sunni Islamic schools of jurisprudence (Shafi'i,[18] Maliki, and Hanbali schools), 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.[19][20][21]

Jurists agree that neither qisas nor any other form of compensation applied in cases where the victim is

• an apostate (converted from Islam to another religion),
• a person who has committed the hadd crime of transgression against Islam or Imam (baghy), or
• 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.[16][22]

Numerous Hanafi, Shafi'i and Maliki jurists stated that a Muslim and a non-Muslim are neither equal nor of same status under sharia, and thus the judicial process and punishment applicable must vary.[23] This was justified by the hadith:[23]

Narrated Abdullah ibn Amr ibn al-'As: The Prophet said: A believer will not be killed for an infidel. If anyone kills a man deliberately, he is to be handed over to the relatives of the one who has been killed. If they wish, they may kill, but if they wish, they may accept blood-wit.

— Sunan Abu Dawood, 39:4491

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 (retaliation) was applicable against the Muslim, but this could be averted by paying a Diyya.[16][24] 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.[25] 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.[26]

If a Muslim or a dhimmi killed a Musta'min (foreigner visiting) who did not enjoy permanent protection in Dar al-Islam and might take up arms against Muslims after returning to his homeland (dar al-harb), neither Qisas nor Diyya applied against the Musta'min's murderer according to Hanafi fiqh according to Yohanan Friedmann.[27] 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.[28]

Non-Hanafi

Non-Hanafi jurists have historically ruled that qisas does not apply against a Muslim, if he murders any non-Muslim (including dhimmi) or a slave for any reason.[20][21] Instead, the schools impose Diyya on the perpetrator.[29]

Both Shafi'i and Maliki fiqh doctrines maintained that the qisas applies only when there is "the element of equality between the perpetrator and the victim", according to scholar Yohanan Friedmann. Since "equality does not exist between a Muslim and an infidel, [because] Muslims are exalted above the infidels",[30] qisas is not available to an infidel victim when the crime's perpetrator is a Muslim.

In Shafi'i fiqh, this inequality was also expressed in diyya compensation payment to the heirs of a dhimmi victim's which should be a third of what would be due in case the victim was a Muslim.[19][22] In Maliki fiqh, compensation for a non-Muslim in the case of unintentional killing, bodily or property damage should be half of what would be due for an equivalent damage to a Muslim.[18]

Maliki fiqh does made an exception to the ban on applying qisas against a Muslim when their victim is a dhimmi in cases where the murder of the dhimmi is treacherous in nature.[19][16]

According to Hanbali legal school, if a Muslim kills or harms a non-Muslim, even if intentionally, qisas does not apply,[20] and the sharia court may only impose a diyya (monetary compensation) with or without a prison term on the Muslim at its discretion.

Qiṣāṣ is currently provided for by legal systems of several countries which apply classical/traditional Islamic jurisprudence (Saudi Arabia) or have enacted qisas laws as part of modern legal reforms.

According to most variations of Islamic Law, qisas does not apply if a Muslim parent or grandparent kills their child[26] or grandchild,[48] or if the murder victim is a spouse with whom one has surviving children.[48] The culprit can be, however, subject to Diyya (financial compensation) which is payable to the surviving heirs of the victims or punished through Tazir which is a Fixed punishment given by the Judge or Ruler.[48]

The four major schools of Sunni Sharia have been divided on applicability of qisas when the victim is a child, and the father is the murderer. The Hanafi, Shafi'i, and Hanbali Sunni sharias have ruled that qisas does not apply, as has the Shia Sharia doctrine. The Maliki school, however, has ruled that qisas may be demanded by the mother if a father kills his son.[1][49] The Hanafi, Hanbali and Shafi'i sharia extend this principle to cases when the victim is a child and the mother or grandparents are the murderers.[18][50]

Some suggest that this exemption of parents and relatives from Qisas, and the treatment of homicide-related qisas as a civil dispute that should be handled privately by victim's family under sharia doctrine, encourages honor crimes, particularly against females, as well as allows the murderer(s) to go unpunished.[51][52][53] This, state Devers and Bacon, is why many honor crimes are not reported to the police, nor handled in the public arena.[54][55] However, if the killer was proven to have accused the victim of adultery, a false accusation of rape case can be raised and the sentence carried out. [29] Furthermore, relations between the Islamic law and honor killing might be somewhat off since the tradition of honor killings also occurs and encouraged in non-Muslim world, even the Western one.[56][57] Historically, Sharia did not stipulate any capital punishment against the accused when the victim is the child of the murderer, but in modern times some Sharia-based Muslim countries have introduced laws that grant courts the discretion to impose imprisonment of the murderer.[48] However, the victim's heirs have the right to waive qisas, seek diyat, or pardon the killer.[53][58]

• Sabr
• Sharia
• Hudud
• Tazir
• Diyya
• Application of sharia law by country