“I am convinced about the veracity of my opinions, but I do consider it likely that they may turn out to be incorrect. Likewise, I am convinced about the incorrectness of the views different from mine, but I do concede the possibility that they may turn out to be correct.” — Imam Shafa’i
Generally speaking the language of the Quran is lucid and clear; it is fun reading and studying it. However there are situations where the text sounds difficult and open to different interpretations. The present ayah is an example, as we will see shortly. It is giving the eight injunction in the set of ayahs termed sometimes as the “Ten Commandments of the Quran” (not to be taken literally) which we have been discussing in the last few sessions.
To start with, the ayah clearly prohibits taking of any human life because Allah Ta’aala Subhaanahoo has made human life sacred; they are innocent souls. Islam considers the killing of any human being to be a crime of the highest order, ranking next to associating partners with God. The Quran has declared that unjust killing of one soul is tantamount to killing the whole of humanity. It’s punishment says the Quran is eternal Hell. The warning against slaying souls that God has made inviolable is also found in ayah 151 of Surah Al An’am and ayah 68 of Surah Al Furqan. Maudoodi points out that taking one’s own life is also covered by this ayah; hence suicide also should be haraam. As ours is a Divine religion, it is natural and realistic; it recognizes that sometimes taking one life may be required to save many others. Hence the ayah adds “illaa bil haque” — except for a just cause — after mentioning the prohibition of killing. These causes of justified killing are discussed elsewhere in the Text. Basically there are only two circumstances in which taking a human life is justified in our Shari’ah:
- Unjust murder of another human being; murder in genuine self-defense is exempted.
- The second is mentioned in ayah 33 of Surah Al Ma’idah: “Verily the recompense of those who wage war against God and His Messenger, and endeavor to work corruption upon the earth is that they be killed….” That is, ignoring the collective will of Muslims in any acton against the life, property and honor of other Muslims will be dealt with an iron hand. In other words to curb fitna in the society, fighting a war, rebellion against a government or any upheaval or turmoil in the society.
- Some traditional scholars have added two other categories for capital punishment. These are controversial because conflicting and inadequate rivaayaat have been given precedence over the clear and plain text of the Quran:
Adultery; sexual indiscretion by married couple
A renegade from Islam
Next the ayah declares that, in the event of “qutelaa mazlooman” (slain wrongfully/unjustly) “verily we have made for his wali an authority” (“faqad ja-alnaa le walayyehi sultana”). That’s it. Now we have to figure out who the wali is and what is the authority. Before I proceed further let me point out that slain wrongfully refers to a first degree murder and not to manslaughter as the concept of “zulm” in Islam necessarily refers only to intentional misconduct.
Wali is usually taken to mean the heir or next of kin of the victim in the present context. Technically the term also means “protector” or “defender of [one’s] rights”. Zamakhshari, therefore, observes that it may also apply to the government (or sultan) as he is the “protector” or “defender of the rights” of all its citizens. Mufti Mohammed Shafi regards lineal heir as the real heir; in his absence the head of the govt. is the legal heir. As pointed out by Maudoodi, in a case of murder, the legal plaintiff is not the government but the guardian or the guardians of the victim; they are authorized to demand qisaas, to pardon or receive blood-money. The head of the State has no role to play. This is in sharp contrast to the practice found in almost the whole of non-Muslim world. Further, there is an ongoing movement in the world to ban capital punishment. This is a non-starter for Muslims. Our Quran mandates categorically and for good reasons:
[3]“for, in [the law of] just retribution, O you who are endowed with insight, there is life for you, so that you might remain conscious of God!”
As per this ayah, this Wali has been given a “sultana” i.e. an authority. Which authority? What authority? The ayah is quiet on this according to the general style of the Holy Text. The reader in the early seventh century knew where to look in the Text for this authority:
[4]“ O YOU who have attained to faith! Just retribution is ordained for you in cases of killing: the free for the free, and the slave for the slave, and the woman for the woman. And if something [of his guilt] is remitted to a guilty person by his brother, this [remission] shall be adhered to with fairness, and restitution to his fellow-man shall be made in a goodly manner. This is an alleviation from your Sustainer, and an act of His grace. And for him who, none the less, wilfully transgresses the bounds of what is right, there is grievous suffering in store”
Basically religion is for the individual; but this individual is part of a society; each has to react with the other. Unless there are laws to regulate this interaction there will be chaos. To put it beautifully and effectively “This is the innermost reason why legislation plays so great a role within the ideology of Islam, and why the Qur’an consistently intertwines its moral and spiritual exhortation with ordinances relating to practical aspects of social life.” (Dr. Mohammed Asad)
The ayah is discussing “fi’l-qatla” which literally means “in the matter of the killed”. This will include all types of homicide like premeditated murder, murder under extreme provocation, culpable homicide, accidental manslaughter etc. However this ayah covers the first kind only. The legal retribution for unintentional homicide is discussed in Ayah 92 of Surah Al Nisa.
This is the ayah of Qisaas which is describing the “authority” referred to in our index ayah. Many of our traditional and well known mufassirs have translated Qisaas as the “law of retaliation”. Linguistically this is absolutely baseless. According to all the classical commentators the word Qisaas is almost synonymous with musaawah, i.e., “making a thing equal (to another thing)”; in this instance, making the punishment equal (or appropriate) to the crime. Hence Qisaas can be best rendered as “just retribution” and not (as has been often, and erroneously, done) as “retaliation”. Yousuf Ali calls it “law of equality” which has much mitigated the horrors of the pre-Islamic custom of retaliation and meets the strict claims of justice. Mohsin Khan labels it as “the law of Equality in Punishment”. The jurists have carefully laid down that the law of qisaas refers to first degree murder only — deliberate and premeditated. Qisaas is not applicable to manslaughter, due to a mistake or an accident. In all these cases there is no capital punishment. Obviously, there should be no subterfuges, no bribes, no unseemly byplay etc. in tackling such cases.
Nasr in his “Study Quran” refers to an interesting historical use of this ayah: “This verse was invoked by ʿAmr ibn al-ʿĀṣ (d. 43/ 664) at the arbitration (37/ 658) that took place after the Battle of Ṣiffīn (37/ 657) as part of his argument that Muʿāwiyah ibn Abī Sufyān (then the governor of Syria) had the right to assume the caliphate. ʿAmr’s argument was that Muʿāwiyah, as the walī (in the sense of a near male relative) of his “unjustly slain” cousin, the third Caliph, ʿUthmān ibn ʿAffān, should be granted sulṭān, meaning political authority”. I am probably missing here something for I see very devious logic here. Caliphate was not a private property to be transferred to the heirs of the deceased.
The Quranic language is par excellence in its style and literary beauty which is the main basis for its Ejaaz. Most of the present day Arabs also are probably ignorant of this. We, the Ajmi cannot even visualize it. Yet, this does not really matter most of the time. It does become an issue though, as in this ayah when we fail to appreciate the meaning of what Allah Ta’aala Subhaanahoo is talking about because of this style. To most of us this ayah seems to suggest apparently that if a slave is killed another slave should be killed for the ayah says “and the slave for the slave”; it also speaks of “free for the free” and “woman for the woman”. It almost sounds as if who the killer is does not matter. This would be a great travesty of justice which is one 0f the essence of Islam. The Quran here has adopted the elliptical mode of expression. The meaning was very clear to the Bedouins of those days when for example if a “free” kills a person, he will not be touched and instead few of his slaves would be killed. The ayah puts a halt to this wrongful practice. It orders that whoever kills — free, slave, free woman or slave woman — he or she will be punished; no other person can be replaced or added. A woman is mentioned separately because her position as a mother or an economic worker is different. She does not form a different class, but a division in the other two classes.
Dr. Asad brings in an important divergence in interpretation. When it comes to remittance, the ayah uses the term “his brother”. Most exegesis refer to this as the victims brother. However Dr. Asad is of the opinion that “his” here pertains to the guilty party and “brother” denotes his brother in Faith that could extend to the whole community and its legal organs. This gives an entirely new outlook to approach the problem.
[5] Yousuf Ali also maintains that the term “The brother” is perfectly general; all men are brothers in Islam. In this, and in all questions of inheritance, females have similar rights to males, and therefore the masculine gender imports both sexes.
The Islamic Law of Qisaas, in one aspect differs fundamentally from the prevalent law and practice in most societies. In a case of murder the Plaintiff in Islamic jurisprudence is the heir of the deceased and not the State. The latter is required to control and felicitate the smooth enactment of the law. Only the heir has the right to demand execution or blood money or grant pardon. The head of the State does not have this power in our Shari’ah. If there is no heir or is not interested then the State takes this responsibility.
It cannot be over emphasised that ours is a very Natural and Practical religion. It recognizes the need for capital punishment and legislates for it. At the same time, as if in the same breath it strongly recommends forgiveness on the basis of common brotherhood and offers practical steps for it. After inspiring pardon and mercy, it exhorts to follow the procedure in a “maa’roof” way i.e. in a suitable and universally recognised and appreciated manner and to make the compensation with “ahsaan” i.e. with utter kindness and generosity. The ayah then calls this whole episode as a “takhfeef” i.e. concession from Allah Ta’aala Subhaanahoo and HIS “rehmah” i.e. mercy.
At the end of the ayah Bari Ta’aala warns of “azaabun aleem” — painful punishment — to those who “mane’ ta’daa” i.e. transgress the limits. The transgression is a pointer to and warning against the extended blood feuds that were often generated by such crimes in pre-Islamic Arabia. Only the actual murderer is subject to punishment. Additionally the murderer should not be tortured, maimed, or mutilated before execution. Warning of painful punishment is is a common style of God Almighty after an injunction. The only sanction these commandments of Allah have is our Taqwaa; God consciousness; our firm and practical belief in HIM and the day of judgement. HE does not employ any moral police force to enforce HIS instructions. In the absence of taqwaa, all the words of our Lord and Creator will fall on deaf ears.
Coming back to the index ayah. Next it warns “fa-laa yusrif fil qatle” i.e. do not transgress in enforcing the retribution. Thus the Waliyye or the Court of Justice should impose the sentence only on the actual culprits; the pagan practice 0f punishing others as well is forbidden. It is also recommended to avoid the capital punishment in the presence of possible mitigating circumstances.
The last segment again is open to two interpretations. It reads “for he is helped”. Who is helped? How he is helped? According to Razi, a Persian Hadith scholar “he” i.e. the victim is avenged in this world by the retribution exacted from his murderer, and in the life to come, blessed by the special grace which God bestows on all who have been slain without any legal or moral justification. According to some scholars “he” refers to the guilty. It is assured that he will be helped adequately by the Divine law of Qisaas and should be content on that. Maulana Maudoodi has a dissenting note to add: “It has not been defined how succor will be given because at the time of its revelation the Islamic State had not yet been established. After its establishment it was made clear that a guardian was not authorised to enforce retribution by murdering the criminal. The Islamic Government alone is legally authorized to take retribution; therefore, succor for justice should be demanded only from it”.
……..and Allah knows best.
May Allah Ta’aala bless us with true understanding–“fahm”–of our Deen, Aameen.
