Author: Mohammad Asem Ismail Zahi
The Wisdom and Philosophy of Qisas (Retribution) and Its Effects (the 10th and final part)
3. Doubt
One of the criticisms of the punishment of retribution is that this punishment is caused by a sense of revenge and promotes a spirit of revenge in society. This feeling should be eradicated from society and the murderer should be educated and reformed through public education. This approach is possible with a lesser punishment than murder, such as imprisonment, rather than the punishment of retribution, which promotes a spirit of revenge.
In addition, how has Islam, which has the best moral precepts, especially in social relations, prescribed the exercise of vengeful feelings here? Revenge is against moral principles. Today, humanity has reached a level of development and perfection that considers revenge to be against humanitarian feelings, and there is no place for revenge.
There are several answers to this doubt:
First: Retribution is different from revenge, and there is a difference between the two:
1. In revenge, the avenger is not bound to observe equality between the criminal act and the act of revenge and may go beyond it; as was the case in the pre-Islamic period; but in retribution, equality between the crime and the punishment is a condition, and if equality is not possible, as in some injuries, retribution is transformed into blood money;
2. Revenge is from the side of the victim and the ruler has no role in it; but although retribution is the right of the victim or the guardian of the deceased; the ruler also has a role in it and this is permissible and is carried out under the supervision of the ruler; therefore, retribution goes beyond the personal and purely vengeful aspect and acquires a social aspect.
Second: In dealing with crimes that are predominantly about violating human rights, such as the crime of murder, Islam first and foremost seeks to calm the spirit of the victim and quell the anger that burns within them. Therefore, this is not revenge; rather, it is the establishment of justice. Undoubtedly, granting such a right to the victim of a crime prevents him from taking personal revenge and going too far in it. Therefore, the law of retribution seeks to curb the spirit of revenge, not to promote it.
Third: According to verse 178 of Surah Al-Baqarah: “يَا أَيُّهَا الَّذِينَ آمَنُوا كُتِبَ عَلَيْكُمُ الْقِصَاصُ في القَتلَى الحُرِّ بِالْحَرِّ وَالْعَبْدُ بِالْعَبْدِ وَالْأُنثَى بِالْأُنثَى، فَمَنْ عُفِيَ لَهُ مِنْ أَخِيهِ شَيْءٌ فَاتَّبَاعٌ بِالْمَعْرُوفِ وَ أَداءٌ إِلَيْهِ بِاحْسانِ ذَلِكَ تَخْفِيفٌ مِنْ رَبِّكُمْ وَرَحْمَةٌ، فَمَنِ اعْتَدَى بَعْدَ ذَلِكَ فَلَهُ عَذَابٌ أَلِيمٌ” Translation: “O you who believe, the law of retribution has been made obligatory upon you regarding those who are killed: a free man for a free man, a slave for a slave, and a woman for a woman. So if one of the murderers is pardoned for the blood of his brother in faith, and the guardian of the murdered man refrains from killing the murderer and agrees to blood money, and the law of retribution is converted into blood money, then the right way should be followed, and in the method of paying the blood money, the condition of the payer should be taken into account, and the murderer should pay the blood money to the guardian of the murdered with kindness and not be indulgent in it. This law, meaning the permissibility of retribution and the permissibility of converting it into blood money, is a concession and mercy from your Lord to you, who has given you free rein and has not made one of them obligatory; rather, you can choose either of them as you wish. So whoever commits a crime after that, meaning that he kills someone other than the murderer, or kills the murderer again after forgiveness and taking blood money, will suffer a painful punishment for this crime, which will be retaliated against in this world and will be punished with hellfire in the Hereafter.” [Surah Al-Baqarah, Verses: 178-179.]
1. The verse begins with the title “Believers,” and it is obvious that believers do not base their actions on their whims, desires, and personal goals, and hatred and revenge are not their motivations;
2. Retribution is not a fixed matter; rather, the blood-saver and the victim have the choice between retribution and forgiveness;
3- The Quran calls the blood-saver or the victim “the brother of the criminal.” This way of thinking is more likely to arouse and promote feelings of love and brotherhood, rather than feelings of hatred and revenge.
Fourth: The sense of revenge arises from human nature, although this sense can be trained and transformed into a higher human trait; but not everyone can be forced to achieve it, if humans reach a stage of development where they consider retribution to be contrary to the spirit of humanity, they have definitely reached a stage where they will never commit a crime that requires retribution, and in this case, the issue of retribution will be eliminated. Islam has paid attention to both human nature and high human and moral principles in retribution, and it has recognized the right to retribution with regard to human nature, and on the other hand, it has also opened the way for those who have reached a high stage of development and perfection and has allowed them to pardon; it has even encouraged forgiveness.
Fifth: retribution does not promote the spirit of revenge in society; rather, it prevents it; Because when the guardian or victim feels that the law protects him and will punish the criminal for his actions and his right will not be lost; he refrains from revenge.
Sixth: Human, as required by his nature, reacts to actions that contradict his desires and interests. Depriving the victim or guardian of this reaction is depriving him of a natural right that may lead to the outbreak of vengeful feelings. Islamic criminal law has legislated retribution as a special right and at the same time encouraged forgiveness. Naturally, what causes the subsidence of vengeful feelings is the possibility of reciprocation, not necessarily its execution; However, humanitarian laws have considered disproportionate punishments for crimes against physical integrity, such as imprisonment or fines, and consider their application as a kind of public right that has no connection with the victim of the crime and promotes personal revenge.
Seventh: Assuming the existence of revenge in the execution of the punishment of retribution, it should be said that not every revenge is reprehensible; revenge against the oppressor for the benefit of the oppressed in order to practice justice and truth is not disliked; loving justice is not a vile trait, but rather is desirable and lovable; in addition, the legislation of retribution is not purely about revenge, but rather it leads to general reform and prevention of corruption. On the other hand, not every pardon and mercy is also undesirable; mercy towards a cruel and rebellious person is oppression of righteous people and causes disruption of the system and the destruction of virtues.
Eighth: If the intention is that the law of retribution and its execution arose from a sense of revenge, then this is not true; because this law was enacted to reduce the crime of intentional murder and to execute justice, and if the intention is to protect the soul; firstly, this is not always the case; Because sometimes the murderer is pardoned and secondly, if that is the case, he cannot be forced to give up his right, but can only be encouraged to pardon. [Muhammad Abu Zahra, The Philosophy of Punishment in Islamic Jurisprudence, p. 299, Publisher: Institute of Higher Arab Studies, Publication date: 1966. Khosrowshahi, Qudratullah, The Philosophy of Retribution from the Doctrine of Islam, p. 215, Publisher: Bostan Kitab Foundation, Publication date: 1380 AH, Tehran, Iran. Fekri Ahmad Akaz, The Philosophy of Punishment in Islamic Sharia and Law, p. 167, Publisher: Dar Al-Shorouq, Beirut, Lebanon, Publication date: 1403 AH]
Conclusion
Retribution is one of the signature and penal laws of Islam that existed during the pre-Islamic era, and the reason for its legitimacy is, in addition to the consensus of Islamic jurists, the Holy Quran and the Sunnah of the Prophet (peace and blessings of Allah be upon him). The most important goal of legislating retribution is to protect all human life, establish justice, social security, heal the souls of the deceased, and in short, to implement the divine command. If it is implemented well, it ensures human happiness in this world and the hereafter.
Retribution is the most severe punishment in Islamic law and is included in the category of life-threatening punishments. This punishment is generally divided into retribution for the soul and retribution for the body.
In today’s world, there is no punishment superior to Qisas (retribution). Since the implementation of Qisas takes the root of bloodshed and the courage to kill another from dangerous individuals, and also heals the wounded feelings of the society by implementing Qisas. Of course, Islam has paid more attention to the private aspect of this crime and has legislated Qisas in terms of the “right of people” and has granted the right of Qisas to the relatives of the victim and the person against whom the crime was committed (in the case of public injuries) to comfort their spiritual pain and suffering.
Hopefully, by thinking and deliberating on the divine commandments and implementing them precisely, we will create a society with life and vitality and provide the basis for the growth, prosperity and development of all. Undoubtedly, opposing any of the divine commandments or closing them can create harmful effects in the society; because half implementation of the Sharia commands, in addition to showing weak belief, causes the other divine commandments to be ineffective if implemented; Because it is the collection of Islamic laws together that can create a superior and Quranic society, and failure to implement any ruling will result in failure to achieve the goals of legislating the Sharia rulings. Therefore, it is necessary to define all rulings in a network and strive to implement all of them as puzzles to create an exemplary and superior society.
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Sources and References:
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