Qiṣāṣ (قصاص) in Islam
Etymology
The term Qiṣāṣ (Arabic: قصاص), derived from the root word qaṣaṣ, literally means “tracking the footsteps of an enemy.”
Meaning and Concept
Qiṣāṣ is the Islamic concept of retributive justice or retaliation. It resembles the lex talionis of Mosaic Law but with notable distinctions. In Islamic law, the next of kin of a victim can choose monetary compensation for willful murder instead of direct retaliation.
Arabic Translation:
- Qiṣāṣ: قصاص
Turkish Translation:
- Qisas: Kısas
Applications of Qiṣāṣ
The concept of Qiṣāṣ can be bifurcated into two main categories:
- Retaliation in cases affecting life
- Retaliation in matters short of life
1. Retaliation in Cases Affecting Life
In cases of wilfully killing a person whose life is under continuous protection (e.g., a Muslim or a Ẕimmī), retaliation comes into play. Here are some key points:
- A freeman is typically slain for killing another freeman, and a slave for a slave.
- Differences arise depending on the interpretation, such as whether a freeman can be killed for murdering a slave.
- Gender and physical conditions do not exempt one from retaliation; e.g., a man may be slain for a woman, and an adult for an infant.
- Exceptionally, a parent is not slain for a child, reflecting the saying of Prophet Muhammad: “Retaliation must not be executed upon the parent for his offspring.”
- Retaliation is to be executed by the next of kin using a lethal weapon or sharp instrument.
2. Retaliation in Matters Short of Life
When bodily harm is inflicted, retaliation can also be exacted:
- Striking off a hand entails the retaliatory removal of the offender’s hand, adhering to the Qur’anic injunction: “There is retaliation in case of wounds” (Sūrah 5:45).
- Retaliatory measures for other body parts or senses (like teeth, eyes) must achieve equivalent injury.
- Disagreement exists in whether retaliation is applicable across different statuses (e.g., a free person and a slave).
Commutation and Financial Compensation
Financial compensation is an alternative to physical retaliation:
- The Qur’an permits and even encourages accepting monetary compensation for murder: “But if someone remits the retaliation by way of charity, it is an act of atonement for him” (Sūrah 5:45).
- Tradition also supports this option, indicating flexibility and contextual fairness in applying Qiṣāṣ.
Key Takeaways
- Understanding Qiṣāṣ is essential for comprehending Islamic criminal justice and its ethical foundation.
- Financial Compensation provides a humane alternative to retaliation, highlighting the value placed on both justice and mercy.
- Equality in Retaliation emphasizes fairness within the framework but also recognizes practical limitations, leading to varying juristic opinions.
Reference Books for Further Studies
- “The Islamic Law of Personal Status” by Jamal J. Nasir
- “Crime and Punishment in Islamic Law” by Rudolph Peters
- “The Spirit of Islamic Law” by Bernard G. Weiss
- “Understanding Islamic Law: From Classical to Contemporary” by Hisham M. Ramadan
Conclusion
The complex and multifaceted principle of Qiṣāṣ underscores Islamic law’s commitment to justice while allowing for mercy and financial recompense, tailoring to the needs of both the victims’ kin and broader societal ethics.
