A Comparative Study of Retaliation (Qisas) in the Imamia and Hanafi Schools

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1 Technical Journal of Engineering and Applied Sciences Available online at TJEAS Journal / ISSN TJEAS A Comparative Study of Retaliation (Qisas) in the Imamia and Hanafi Schools Ali heidarinia 1*, Mohammad Ali Safa 2 1. MA in Jurisprudence and Principles of Islamic Law, Islamc Azad University, Jiroft Branch, Iran 2. Assistant Professor of Jurisprudence and Principles of Islamic Law, Islamc Azad University, Jiroft Branch, Iran Corresponding author: Ali heidarinia ABSTRACT: One of the most common and traditional ways of punishments for premeditated murder is retaliation which is being used against crimes on human murder while compliance with the special terms and conditions. In Islamic Jurisprudence, on rights of the victim, there are principles which are generally accepted by scholars of all Islamic schools but there are debates in the details between scholars.this paper tries to explain the views of Hanafi and Imamiajurisprudence and about retaliation. Key words: retaliation (Qisas), Imamia, Hanafi,murder Introduction Definition of Retaliation (Qisas) The word Qisas, in Persian, means death penalty, punishment, retaliation, compensation, reward and treatment of the subject like what he/she has done.in Arabic, this word is derived from Qess, meaning tracking downthe effect or trace of something. The origin of the word comes from tracing and following, like that, the punisher looks for the criminal to punish him/her.retaliation (Qisas) means the punishment for evil act and is one of the five penalties in the Iranian criminal law. Predetermined murder of someone who is respected and protected by law and have equal rights in the religion and liberty without the permission of the legislator (Helli, 1408).The Qisas for predetermined murder is called QisasAlnafs (death penalty) in case someone who is protected by the law is murdered against the justice.in jurisprudence, Qisas (retaliation) is follow-up and tracking the crime in order to punish the criminal exactly the way he/she did (Najafi, 1412). Retaliation in Islam One of the items of criminal law in Islam is retaliation (Qisas). Retaliation is a leading humanitarian law, whether when it was declared or in our time. "The Arabs, in the age of ignorance, were used to kill as many as they can from the tribe of the murderer one so that, they even were ready to destroy the all of that tribe and then Qisasverse was descended to declare the just death penalty (Makarem, 1995).The condition(revenge) was the cause of long term violence and hatred manners.islamic replaced blind revenge by retaliation (Qisas) Act. Islam, on the one hand, dragged revenge into the courts and turned it from illegal behavior to an act that needs judge and court to investigate the crime, criminal and the punishment and on the other hand,transformed it from revenge to retaliation and has ended the ravages of that era. Killing many people for the murder of an individual was a kind of blind revenge while the Quran has said that, "we ordered them to life for a life, eye for an eye, nose fora nose, ear for an ear, and tooth for a tooth. All wounds have retaliationsand if someone forgives it is considered as his atonement and violence from the laws of the God isoppression (Maede, verse 45).If a person is killed intentionally, the murdered must be retaliated and if the victim s family forgives the murderer, they will receive the blood money or they can forgive it as well. Even now, there is no better alternative for Qisas to satisfy the family of the victim. By Qisas, the criminal will be punished enough to be an example for others so that they cannot evade this by few years of prison and then putting the people in danger.islam, in every case, investigates the problems by observing reality and a comprehensive survey of the issues so that, in vase of the blood of the innocent,it has sentenced punishments away from extremism, not like the distorted Jewish laws that only accepts Qisas or like the current Christianity that recommendstheforgiveness or blood money since the latter encourages the criminals and the former encourages the revenge. The most important reason for the death sentence in Quran is maintaining the life of the society. Allah, in Baqarah Surah, said that: "O wise people, there is life and death for you in Qisas, may you

2 observe piety (al-baqarah, verse 179).It means that, the purpose of the Qisas is not death but is life. The purpose is repairing and restoring things back to normal for individuals or the society. Therefore, if human reach to the levels of moral development where the things can be fixed by other alternatives, they are true since the purpose is not the physical elimination but is life and God is merciful for all creatures. Therefore, the above verse addressed the wise men not their feelings and emotions.healthy social life depends on the existence of public peace and security and observing the mutual rights and obligations and public welfare depends on maintaining the principles and elements of a social life. In an inductive perspective and without emphasize on boundaries, the main elements of a social life are: religion, life, property, honor, human character and wisdom. These principles which were considered by Islamic scholars and jurists since Ghazali s time, in fact, constitute the foundation of a healthy society and its components and sub-assemblies can cover all important social issues (Khosroshahi, 2001). Given the above, one of the goals of Islamic criminal law and perhaps the most important goal is to maintain social and religious order, and this goal is not provided, unless the people, through improved education or through intimidation, stop doing criminal acts that destroy the foundations of the society. Implementing Islamic Qisas prevents dangerous people from killing or hurting others and it also heals the injured feelings of the society. Islam has paid more attention to the private aspect of this crime and has delegated the right of Qisas based on the fact that it is Hagh Al Nas (rights of others) and have delegated the right of Qisas to the family of the victim to consulate their pain. There are two types of verses in the Quran that refer to the principle of retaliation. The first set of verses which generally imply that retaliation, one of those instances is in criminal acts. The verses are: The punishing of any bad act is the same bad act and there is no blame for those retaliate after the injustice imposed to them (Shora, verses 40 and 41). If you want punish, punish as the way you are injured and if you (wait) forgive, this is better for you (Nahl, verse 126). If anyone infringe upon you infringe upon him/her the same way (Baqara, verse 194). These verses indicate that, the evil act can be answered by the same act and the victim has the right to compensate and in this case there is no responsibility or liability over him/her. One of the obvious examples of such evil acts is to kill another one or other types of injuries and according to these verses, retaliation against the criminal is permitted. The second set of verses is independently related to the Qisas. These verses are: O wise people, there is life for you in the retaliation.may you tend to piety (Baqara, verse 179). This verse which states the philosophy of retaliation is used in principle of retaliation (Qisas) (FazelMeghdad, 2001). O you who believe, the right of Qisashave delegated to you, the free for a free, slave for a slave and woman for woman and if anyone will be forgave something about retaliation right by his religious brother (victim s ward);he/she must follow it with respect and pay the blood money. This sentence is the mercy from God and if anyone violates his/her limits there is painful punishment for him/her (Baqara, verrse 178). The purpose of the verse is that,what it is must be performed is Qisas but forgiveness and accepting blood money are other rights of the family of the victim and therefore, we believe that accepting blood money is not obligatory for the murderer, although it is obligatory in the Hanafi school (ibid., 354). In the available religious books, there is independent chapter named "Qisas Conditions" which includes jurisprudential terms and conditions. In this paper, we first investigate the common conditions of both Imamia and Hanafi religious schools and their reasons followed byexplaining the specific terms and conditions of the Hanafi jurisprudence. METHODOLOGY AND DATA The conditions of Retaliation in Imamia and Hanafi Schools Being of murderer in the legal age The murderer must be wise and mature. If a mentally disabled or nonage individual has committed a murder the Qisas can not be performed. According to some sources in the Hanafi School,the sane becomes insane by committing murder. In case one becomes insane after committing murder, if he/she is a permanent insane the Qisas cannot be performed but in case of periodic madness, the Qisas can be performed. 2861

3 The reason for this sentence is a tradition in the Almuta book of Malik quoted by Yahya Bin Saeed: Marwan IbnHakam wrote a letter to MuawiyahIbnAbiSufyan saying that,an insane person has killed a man; Muawiyah replied, accept theblood money and ignoreretaliation. If nonage or an insane pulls a gun on someone and the other one kills him/her as self-defense, the Qisas cannot be performed and the murderer has to pay blood money. But the intoxicated person who commits premeditated murder, Qisas can be performed. There is a narrative in "Almuta" book expressing that, "Marwan Bin Hakamwrote a letter to Muawiyahstating that an intoxicated person has committed murder. Then Muawiyah replied that perform Qisas. In the Imamia jurisprudence literature, a murder committed by nonage or insane is just a fault and the legal guardian has to pay the blood money. If someone turns insane after committing murder, unlike HanafiSchool, the retaliation (qisas) is valid. About intoxication, when someone commits murder because of intoxication, based on what came in Tahrir Al Wasilah book, it is recommended to not to perform qisas. But according to other sources, such as JvaheralKalam, retaliation is preferred and the selected in Islamic Penal Code is the qisas of the intoxicated except in special circumstances. These conditions include "... Prove that, because of intoxication, the murderer has lost his/her mind and intention and the existence of previous evidences for this state (Article 224). In this case, in spite of the close views of two schools, there is only one conflict and that is the insanity of the murderer after committing the murder. Although both schools have strong reasons, discrimination of periodic and permanent insanity is an important issue and considering that, there is no responsibility for insane and the purposes of punishment are various, including: to warn the offender, and the interests of society;therefore, it seems that, performing qisas on permanent insane does not fulfill these goals.from the other hand, consideringthat the Imamia view performs qisas in both cases seems more close to the justice and equity since it is not fare to waste the right of the victim by excusing the perpetrator, when the life is very respected in the religion. In addition, the crime committed in the legal age, therefore, performing qisas in this situation seems justified by Imamia jurists. Equity of the Murderer and Victim in terms of being free or slave Hanafi jurists, in general,consider the principle of "equality" based on the verse in the Quran that says: we ordered them to life for a life, and believe that,qisas is valid for free against free. But in case of killing a slave by a free man, considering the generality of the verse, they explain that the qisas must be performed on the free man unless the victim is not Muslim since both of them are equal in terms of innocent. Then while the existence of the other conditions qisas can be performed. Their other reason is a Hadith from the Prophet. But qisas is not true for someone who has killed his/her slave. In the era of the Prophet, in these cases, they had to pay blood money for atonement. According to Imamia view, to perform the qisas the murderer and the victim must be equal in terms of being free or slave. Therefore, if a free man kills his slave, the qisas cannot be performed. This clause is true when the victim is slave, but in case where the slave kills the free, qisas on slave can be performed. In case of two slaves, their price must be calculated and the difference should be paid to the murderer before performing qisas. Based on Imamia jurists, to perform qisasfor free man who has killed a free woman, while other conditions are true, the half of the blood money should be paid before performing qisas. In the contract, there is no extra right for the family of victim than qisas. The reason for this sentence is several hadiths by Infallibles: "In cases where a woman kills a man deliberately and parents of victim want to perform the qisas, Imam said that the family should pay half of the blood money of a man". Equality in Religion Hanafi jurists have accepted this condition hardly with many exceptions, so that the scholars of the Hanafi School consider qisas for a Muslims who has killed an infidel and have reasons for that. They believe that the principle of equality is true even in terms of innocence (Ismat) and the purposes of Ismat by Hanafijurists are Din (religion) and Dar (significant). Imamia jurists clearly state that, the equality in religion of the victim and the murderer is the condition to perform qisas. But equality means that, qisas cannot be performed on a Muslim for killing an infidel and they argue that the reasons for this rule comes from valid Hadiths and the NadySabil Principle derived from Quran. There is also a Hadith from Imam Sadiq explaining that, "Retaliation (in case of infidel victims) is not performed unless Muslims become used to kill them. Qisas can be performed in case of killing an infidel by another infidel even they have different beliefs. 2862

4 If an infidel kills another infidel and then becomes Muslim the qisas cannot be performed because as stated above, the qisas cannot be performed on a Muslim for killing an infidel. Islam here, means being Muslim in time of the qisas not when committing the crime. According to the views of both schools and considering the principle of the equality, there are differences and debates in interpreting this principle so that, Imamia School does not consider equality in terms of Dar, but Hanafi School relying the principle of Ismat (innocence) consider this principle both in Din and Dar and it seems that it is due to protect the lives. Therefore, it is consistent with the logic that we consider qisas true for the dhimmi and the Convention murder and respect the equity so that thedhimmiinfidels feel security in Muslim countries and not produce problems for Muslims. As in the Iranian Constitution, about religious minorities, the legislator has ordered to the equality of blood many of them with Muslims. Lack of filiation Hanafi jurisprudence, in the principle, has strong conflict with Imamia jurisprudence. First of all, it prevents qisas for a father who has killed his child.their reasons are several Hadiths and rational reasons and believe that there is doubt in this case. The conflict between the two schools is relating this relationship to grandparents and mothers in Hanafi Schools which is against Imamia School. Hanafi jurists have related this sentence to the cases where, the child inherits the right of qisas from parent and stated that for the sake of fatherhood, qisas is invalid. Imamia jurists believe that, there is no qisas forfather or fatherly grandparent for killing child or grandchild. The reason for this sentence is consensus and Hadiths. Therefore, they have to pay blood money. Based on the meaning of the word "parent" (Waled), higher fatherly grandfather cab be excepted from qisas and according to most Imamiascholars this exceptions do not include other relatives such as brothers, sons, mothers, grandmothers and so on. The problem is that, not every 1+1 is equal with 2. As we except The reason for this difference in generalization of this exception to mother and grandmother in Hanafi School and its lack in Imamia School may be due to the lack of enough validity in the reasons such as analogy and Istihsan in Imamia jurisprudence. But given that, not performing qisas for father in case of murder is an exception to the qisas principle and in such cases, the exception must be stated clearly, and given that, in order to apply analogy, there are no principal facts, and the existence of the doubt, we have to decide carefully and it is better to ignore qisas in such rare situations. Being Mahghun Al Dam (have the right to live) for victim Under this condition, if the victim is MahdurAl Dam (by any reason he/she deserves death penalty),the qisas is not performed. Some examples of being aspects of Mahdur Al Dam include insulting the Prophet and Imams, innate apostate and so on. In some cases, such as adultery or sodomy, only the legislator has the right to order qisas and if another kills them, in spite of some debated in Imamia jurists, it is considered as murder. In Hanafi jurisprudence there is a little difference: the respect for blood is eternal, but in case of infidels, since their blood is not respected eternally, their killers cannot be retaliated. Specific Terms of Retaliation (Qisas) in Hanafi Jurisprudence The general terms of retaliation in Imamiaand Hanafi jurisprudence have been explained above. In addition to these provisions, in some books of Hanafi scholars, there are other conditions that we will explain in the following. Stewardship in murder and presence of lethal device This condition is argued in terms of the type of the murder. By the existence of this clause stewardship in murder deserves qisas. Accordingly, in addition to the intention,existence of the lethal weapon and stewardship in murder deserves qisas. The example in the "Al-Hedayah" book is that: If someone is killed by the metal part of the shovel, qisas can performed on murderer but if the victim is killed by the wooden part, since it is not usually causes the death the qisas is not true and the murderer have to pay blood money. The reason for this clause in Hanafi jurisprudence is that, they believe intentions are inner matters and its deliberate state can be determined by the used device. 2863

5 Presence of the guardian of the victim The guardian of the victim has to be present and known. Otherwise, qisas cannot be performed.but in Imamia jurisprudence, in such cases, the Islamic governor has the full authority to decide based on the interests of the guardians of the victims in order to maintain the justice. Not being abominable of the murderer on murder In addition to the intention, a number of scholars consider the freewill as the conditions of qisas. They believe that, if someone commits murder by reluctance, there is no qisas for the murderer. This thread is dedicated to the Hanafi jurisprudence. In Imamia jurisprudence, reluctance to the murder is not a license to kill since it is not desirable to kill another to preserve your own life. CONCLUSIONS Based on the foregoing, jurists of Hanafi and Imamia schools have considered terms and conditions for performing qisaswhere there are common terms in general. These conditions include: the legal age of committing murder, being free and slave, equality in religion, lack of filiation, and being Mahdur Al Dam. But in terms of details, there are differences between the two schools. Among these differences are: the possibility of performing qisas on insane, on free murderer for murdering a slave, on allowing qisas of Muslim for killing Dhimmi infidel, and on exception of mother. The causes of these differences are jurisprudential and principal differences which have been used in each school. For example, analogy and Istihsan exist in Hanafibut not in Imamia. There are also differences between the two schools in tradition (Sunnah). Therefore, there will be differences in the derived jurisprudential sentences. REFERENCES Behjat M Jameolmasael, ghom: daftarmoazamollah Ebnhashemansar J moghniolbeyb, Beyrout: darolfekr Elahighomshe ee M Ghoranmajid, Tehran: chapolhadi Falahzade M Jurisprudence learning, Ghom: alhadi Fazellankarani M Jameol masael, Ghom: No data Fazem M Kenzol erfan, Tehran: Maktabrazavi Gorji A Rangeofsanctionsandpunishment, Tehran: Tehran university publisher Haman M Beyrout: ma arefol eslamiye Helli J sharayeol eslam, Tehran: esmaeeliyan Horameli M Shiites means, ghom: zolghorbaeslami Jaziri A. No data, Jurisprudence onthefourdoctrines, Beyrout: darosaghaleyn Khomeyni R tahrirolvasiye, Ghom: nashrol eslami Khooee S Menhajosalehin, Ghom: Mat baol elmiye Khosroshahi Gh Retribution isthe philosophyofislam, Ghom: boostanketab Ma louf L Upholstered in language Tehran: piraste Makiol alemi M Shahid aval, Beyrout: darol alamol eslami Mirza eeghomi M Gholm: Islamic publisher Mokhtari M Glossaryjurisprudence, Tehran: Ghalamiran Morvarid M Jurisprudence Encyclopedia, Betrout: No data Najafi M Javaherol kalam, Beyrout: Arab history Nouri M Mostadrakol vasael, Ghom: Alelbaytelehya Shahidi M Punishment, Tehran: Majd Tabatabayi M The balance in the interpretation of the Koran, Ghom: Darol kotobeslamiye Tousi M. No data, Tebyan fi tafsirolghoran, Beyrout: Darol ehyaterasol arabi Zeynol abedinebn A Shahidsani, Ghom: Daftartablighateslami 2864