Comparative Criminal Law and Enforcement: Islam
Homicide And Bodily Harm ( Jinayat)
Pre-Islamic Arabia treated attacks against one's tribesman as an attack on the tribe itself. Such an attack could result in a blood feud between the two tribes where any member of the other tribe was an object of vengeance. Through arbitration, justice could sometimes be secured by retaliation against the specific offender or by the payment of blood money to the victim's tribesmen.
Islamic law accepted the basic structure of the traditional Arabic law of homicide and bodily harm, but modified it in three ways:
- • the blood feud was abolished;
- • vengeance could be exacted only after a trial before a judicial authority, which determined the guilt of the accused; and
- • punishment was scaled according to the offender's degree of culpability and the harm inflicted on the victim.
There is a wide variety in the interpretation of the rules by the various schools of law.
Three kinds of punishments can be permitted in cases of proven homicide or bodily harm:
- • retaliation (qisas),
- • blood money (diya),
- • penitence (kaffara).
Where retaliation (qisas) is applied, the guilty party is liable to the same degree of harm as he inflicted on his victim. In the case of homicide, the nearest kinsman of the victim performs the retaliation. Where there is bodily harm, the victim himself is entitled to perform the act of vengeance.
In most schools, the general rule is that retaliation is allowed only in cases in which the victim was equal or superior to the attacker in terms of freedom and religion. So, for example, with a few exceptions among the opinions of the jurists, a father may not be killed in retaliation for murdering his child, but the child can be subject to the penalty for patricide. The same formula applies to homicidal actions between masters and slaves. The Hanafi school is alone in holding that a freeman may be subject to retaliation if he kills the slave of another.
Retaliation can come about if, after proper conviction, the nearest relative of the victim (or the master, in the case of a slave) demands it. The schools differ on the question of which relatives have standing to demand retaliation and which have the right to inflict a capital retaliation. If the victim has no living relatives, the right of retaliation falls to the state, which can execute the offender.
In the case of wounding, only the victim can demand retaliation. Before he dies from his injuries, a wounded man can, on his own, remit retaliation for the offender. If the guilty party dies before retaliation can be inflicted, the cause lapses entirely in the Maliki and Hanafi schools, but the shafi'i and the Hanbali schools allow blood money (diya) to be paid. If many persons participated in the murder, all can suffer retaliation if the action of any one of them would have resulted in death.
A murderer is to be killed in the same way as he killed, according to the Maliki and shafi'i schools. The Hanafi require execution by the sword and punish any other form of execution by ta'zir. The Hanbali jurists are divided on the issue. If a person is entitled to inflict retaliation but inflicts it before proper judicial procedure has been completed, he is subject to ta'zir. If a man avenges a killing without any possible legal entitlement, he himself is subject to the law of retaliation.
In cases of bodily harm, an exact equivalence of harm is inflicted on the perpetrator: a hand for a hand, a tooth for a tooth. Loss of sight can be avenged, but not the loss of an eyeball, for the injury cannot be exactly duplicated. Neither can retaliation be inflicted for the loss of the nose or penis. Only blood money is permitted as punishment in those cases.
If there was an attack by many, all the perpetrators suffer the same loss as the wounded victim, but this is not permitted in the Hanafi school. Nor do the Hanafi permit retaliation for wounding between men and women or between slaves. When retaliation is allowed, all schools except the Maliki allow the victim to return the wound. The Maliki assign an expert to inflict the punishment. Any excess harm is punishable by ta'zir.
The second form of punishment is blood money. The diya is sometimes an alternative to retaliation, at the option of the nearest relative of the slain person or of the wounded victim. At other times, depending on the circumstances of the crime, diya and forgiveness are the only options available.
The traditional diya, as taken over from Arabic custom, is set at two levels. In serious cases the heavier diya is imposed, set at one hundred female camels equally divided between one, two, three, and four year olds. In less serious cases the lighter diya is imposed, amounting to eighty female camels, similarly divided by age, in addition to twenty one-year-old male camels.
The near relatives of the offender pay the diya to the heirs of the deceased, or to the wounded victim. If the near relatives cannot be found, the state assumes the obligation to pay the diya. In all but the Hanafi school, the full amount of the diya is due only when the victim is a free male Muslim. If the victim is a dhimmi (a non-Muslim protected by treaty) or a musta'min (a non-Muslim under safe-conduct pass), the diya ranges from one-third to one-half of that for a Muslim except in the Hanafi school, which requires full payment. The diya for a murdered slave is his market value.
The diya for bodily injury is a proportion of the payment for loss of life. If there is only one of a bodily part, such as the nose, the diya is the same as for loss of life. If there are more than one, the diya is proportionately smaller—for example, one-half for an arm, a leg, or an eye; one-tenth for a finger; a third of one-tenth for each joint of a finger; and one-twentieth for a tooth. The jurists have established an elaborate scale of payments. If an injury falls outside of the defined examples, compensation is paid on the basis of the "actual harm suffered" (but does not include any pain and suffering endured). The diya for a woman is half that of a man, but in no case, such as for partial injuries, is it to fall below a third of what a man would receive.
The third form of punishment is penitence (kaffara), but penitence is never the sole required punishment. When imposed, it is attached in certain kinds of cases to the payment of diya. An act of penitence consists in freeing a Muslim slave or, if one has no slaves, in fasting during daylight hours for two consecutive months. Generally speaking, Islamic law holds that those entitled to retaliation or diya may remit the punishment on their own accord or may agree to any level of settlement, although not normally higher than the legal diya.
Procedurally, the charge of homicide must be brought by the nearest relative of the deceased, or by the wounded victim prior to his death. Proof is by retractable confession or by testimony of two male witnesses. In addition, there is the unusual procedure known as kasama, whereby the oaths of fifty reliable persons who are not witnesses are accepted as proof where incomplete evidence has created a presumption of guilt. The Maliki school utilizes kasama to complete proof. The Hanafi use it to prevent a conviction.
In a number of instances, killing or inflicting bodily injury is excused. Of course, retaliation properly applied after an adjudication of guilt is permitted. There is no culpability if a man kills his wife, daughter, or sister as well as her lover if he discovers them in an act of unlawful intercourse, and none, except in the Maliki school, for harm or death inflicted with the consent of the victim.
Self-defense is permitted if it is an act of resistance to an unlawful assault and if it is proportionate to the danger. Preemptive action is allowed to forestall an imminent attack. However, in the Hanafi school, one must pay the heavier diya if he uses a deadly weapon to kill a minor or insane person in self-defense. Killing combatants in lawful war is, of course, permitted and, in many cases, may take on an obligatory nature. One is permitted to kill male non-Muslims who refuse to pay the obligatory poll tax and who also refuse to convert to Islam.
Most schools divide homicide into three categories (the Hanafi have developed five):
- • Willful homicide is an action resulting in death that was undertaken with no legal excuse, with the intention to wound or kill, and by means of an instrument that normally causes death. The punishment is retaliation or, if remitted, the heavier diya, plus loss to the offender of any rights of inheritance from the deceased. All schools except the Hanafi categorize as willful homicide death resulting from intentional false testimony at trial, as well as death caused by intentionally withholding food and water. The shafi'i and the Hanbali also term as willful homicide any fatal action resulting from repeated blows, no one of which would normally cause death.
- • Quasi-willful homicide is intent to kill or wound with an instrument not normally known to be fatal. If death results, the punishment consists of the heavier diya, acts of penitence, and loss of inheritance rights. If only bodily harm results, the offense is then one of willful wounding, the punishment for which is retaliation or, if remitted, the appropriate proportion of the diya.
- • Accidental homicide occurs when the offender either did not intend to kill a person or he did intend to kill a person but believed that he was acting legally. For example, if one shoots at an animal but misses and kills a person instead, or if one believes he is shooting at a deer but in reality is shooting at a human being, or if during wartime one kills a Muslim under the impression that he is a non-Muslim, the case will be treated as accidental homicide. The punishment is payment of the lighter diya, the obligation to perform acts of penitence, and in some schools the loss of inheritance rights.
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