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Encyclopedia of Religion entry forQisasFrom qasas. Lit. "Tracking the footsteps of an enemy."The law of retaliation. The lex talionis of the Mosaic law, with the importantexception that in the Muslim law the next of kin can accept a money compensation forwillful murder. The subject of retaliation must be considered, first, as to the occasions affectinglife, and, secondly, as to retaliation in matters short of life. (1) In occasions affecting life, retaliation is incurred by willfully killing a personwhose blood is under continual protection, such as a Muslim or a Zimmi, in opposition toaliens who have only an occasional or temporary protection. A freeman is to be slain for a freeman, and a slave for a slave; but according to Abu Hanifah, a freeman is to be slain for the murder of a slave if the slave be the property of another. A Muslim is also to be slain for the murder of a zimmi, according to Abu Hanifa, but ash-Shafi‘i disputes this, because the Prophet said a Muslim is not to beput to death for an infidel. A man is slain for a woman, and adult for an infant, and a sound person for one who is blind, infirm, dismembered, lame, or insane. A father is not to be slain for his child, because the Prophet has said, "Retaliation must notbe executed upon the parent for his offspring"; but a child is slain for the murderof his parent. A master is not slain for his slave, and if one of two partners in a slavekill such a slave, retaliation is not incurred. If a person inherit the right ofretaliating upon his parent, the retaliation fails. Retaliation is to be executed by thenext of kin with some mortal weapon or sharp instrument capable of inflicting a mortalwound. If a person immerse another, whether an infant or an adult, into water from which it isimpossible to escape, retaliation, according to Abu Hanifah, is not incurred, but his twodisciples maintain otherwise. (2) Of retaliation short of life. If a person wilfully strikes off the hand ofanother, his hand it to be struck off in return, because it is said in the Qur’an (Surah v. 49), “There is retaliation in case of wounds.” If a person strike off the foot of another, or cut off the nose, retaliation is inflicted in turn. If a person strike another on the eye, so as to force the member, with its vessels, out of the socket, there is no retaliation; it is impossible to preserve a perfect equality in extracting the eye. If, on the contrary, the eye remain in its place, but the faculty of seeing be destroyed, retaliation is to be inflicted, as in this case equality may be effected by extinguishing the sight of the offender’s corresponding eye with a hot iron. If a person strike out the teeth of another, he incurs retaliation: for it is said in the Qur’an, “A tooth fora tooth.” (Surah v. 49.) Retaliation is not to be inflicted in the case of breaking any bones except teeth,because it is impossible to observe an equality in other fractures. There is noretaliation, in offenses short of life, between a man and a woman, a free person and a slave, or one slave and another slave; but ash-Shafi‘i maintains that that retaliation holds in these cases. Retaliation for parts of the body holds between a Muslim and an unbeliever, both being upon an equality between each other with respect to fines for the offences in question. If the corresponding member of the maimer be defective, nothing more than retaliationon that defective member, or a fine; and if such member be in the meantime lost, nothingwhatever is due. There is no retaliation for the tongue or the virile member. (3) Retaliation may be commuted for a sum of money. When the heirs of a murderedperson enter into a composition with the murderer for a certain sum, retaliation isremitted, and the sum agreed to is due, to whatever amount. This is founded upon anexpress injunction of the Qur’an: “Where the heir of the murdered person is offered anything, by way of compensation, out of the property of the murderer, let him take it." And also in the Traditions, it is related that Muhammad said (Mishkat, book xiv.): "The heir of the murderedperson is at liberty either to take retaliation, or a fine with the murderer’sconsent." Moreover, it is maintained by Muhammadan jurists that retaliation is purelya matter which rests with the next of kin, who are at liberty to remit entirely by pardon,and that therefore a compensation can be accepted which is advantageous to the heirs andalso to the murderer. When a person who has incurred retaliation dies, the right of retaliation necessarilyceases, and consequently no fine is due from the murderer’s estate. [MURDER.]
citations: Dictionary of Islam, Hughes
article created 2006-04-12 , last updated 2006-04-12 |
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