بِالۡحُرِّ

2:195; 5:46.

Important Words:

قصاص (retaliation) is derived from قص. They say قصه i.e. (1) he cut it (hair, etc.), or be clipped it; (2) he followed him closely or followed in his footsteps; and (3) he described or narrated it. قاص الرجل means, he did with the man the like of that which he did to him; he retaliated on him for the wrong done to him. اقص الامیر زیدا من بکر means, the Amir retaliated upon Bakr for the wrong he had done to Zaid. قصاص therefore, means, retaliation, by slaying for slaying, and wounding for wounding, etc. (Aqrab) or the following up of a murder or an injury with a view to retaliating or punishing (Mufradat).

القتلی (the slain) is the plural of قتیل in the sense of مقتول i.e. a murdered person (Aqrab).

الحر (freeman) is derived from حر meaning: (1) he was free-born; (2) he was of good and noble origin. حرالارض means, the best portion of land. Thus الحر means; (1) a freeman, opposite of slave or captive; (2) a noble person; (3) the good and pure portion of a thing (Aqrab).

Commentary:

This verse comprises a very important principle of civil law, i.e. equality of man and necessity of awarding proportionate punishment to all offenders without distinction, unless an offender is forgiven by the relatives of his victim under circumstances that are expected to lead to improvement and betterment of conditions.

The words کتب علیکم i.e. "is prescribed for you" show that retaliation for the slain is not simply permissible but is obligatory. Failure to inflict the punishment prescribed by Law on the offender would be tantamount to a violation of the commandment. The duty, however, of punishing the culprit does not devolve on the heirs of the murdered person but, as the plural number of the expression علیکم (for you) shows, on the authorities responsible for the maintenance of law and order. But, as the singular number of the expression اخیه (one’s brother) shows, the former have been given the option to forgive. The clause, therefore, means that on the one hand the concerned authorities are bound to punish the offender according to the requirements of law, having no right to pardon him of their own accord, and on the other hand the heirs of the murdered person are not entitled to take the law into their own hands and inflict the punishment on the guilty person themselves.

The verse under comment makes no distinction between different classes of persons in connection with the law of retaliation. The words used are of a general nature and apply to all offenders who might be guilty of murder, no matter of what rank or station in life or of what religion. Any person, irrespective of his caste or creed and irrespective of his station, must be put to death for the murder of any other person, unless pardoned by the relatives of the victim and unless the pardon has the sanction of the authorities. The sayings of the Holy Prophet are explicit on this point (Majah, ch. on Diyat).

There is indeed a saying of the Holy Prophet to the effect that a Muslim should not be put to death for killing a disbeliever. But this saying, read in conjunction with several others bearing on the same subject and interpreted in the light of the relevant Quranic verses, forces us to the conclusion that the word "disbeliever" in the tradition referred to above is not general but means only a حربی کافر i.e. such disbeliever as belongs to a people who are at war with the Muslims or, in other words, one who is a member of a belligerent community. In fact, the Companions of the Holy Prophet are all agreed that a Muslim may be put to death for murdering a non-belligerent unbeliever (Tabari, v. 44). The Holy Prophet himself ordered a Muslim murderer to be put to death for the murder of a non-belligerent non-Muslim (Qutni).

The expression, the freeman for the freeman and the slave for the slave and the female for the female, does not mean that a freeman should not be punished with death for the murder of a slave or that a woman should not be put to death for killing a member of the opposite sex, etc. The other verses of the Quran as well as the sayings and the practice of the Holy Prophet clearly establish the fact that the social position of a person or the sex of a party was never considered a bar to the application of this law. The peculiar construction, i.e. "the freeman for the freeman," etc. has been adopted here to refer to, and abolish, a custom of the Arabs whereby they used to take into consideration the sex and the social status of the murderer and the murdered person when determining punishment. If a man of high social position happened to kill a man of humble position, or if the slave of a great man killed that of a humble man, or if a lady of noble birth murdered a woman of humble origin, etc. the murderer was not punished with death, leniency being shown to him or her in sundry other ways as well. The commandment contained in this verse seeks to abolish that obnoxious custom of the Arabs and lays down in clear and unmistakable terms that no regard should be paid to the status of the murderer in the matter of retaliation.

In fact, the law of retaliation, as stated in this verse, is confined to the clause, equitable retaliation in the matter of the slain is prescribed for you, which forms a complete sentence in itself, giving a full and complete meaning. The ensuing expression, the freeman for the freeman and the slave for the slave and the female for the female, is something extra, not forming part of the law. It only contains a repudiation of the Arab custom referred to above and illustrates, by giving three instances, how the law is to be administered. Such an expression is known as جملة استینا فیه or جملة مستانفه in Arabic grammar, and is technically introduced with a view to answering a question which is suggested by the preceding clause to which it is added without any intervening conjunction. The question answered in such an expression is often understood and not expressed (Mukhtasar).

The sayings of the Holy Prophet and his practice also support the above interpretation, for it is on record that he once ordered a woman to be put to death for murdering a man (Muslim), and on another occasion he commanded that a freeman be put to death for the murder of a slave. Says the Holy Prophet: "Whoever kills his slave shall be put to death" (Majah). At another place he says: "The blood of all Muslims is alike in respect of the law of retaliation" (Nasa’i).

The words, if one is granted any remission by one’s brother, show that the infliction of capital punishment is not obligatory in all cases; for in special circumstances the murderer can be exempted from the extreme punishment by the heirs of the murdered person. Such exemption, which may be termed partial as the word شیء (any) indicates, means that the heirs of the deceased may renounce their right to have the murderer put to death and may in place of that receive from him blood money. Or as the Holy Prophet has made it clear, the heirs may, in exceptional cases and with the sanction of the authorities, even grant full pardon, remitting blood-money as well (Musnad & Baihaqi).

It is worthy of note that where the Quran speaks of remission, it uses the word "brother" instead of "heir of the murdered person". This is to hint to the heir of the slain person that he should, as far as possible, take a lenient view of the offence. On the other band, the murderer is also enjoined to pay blood money with good grace and without undue delay.

The concluding clause, i.e. whoso transgresses thereafter, for him there shall be a grievous punishment, is meant to point to the fact that if, after the matter has been amicably settled and the murderer granted a remission by the heirs of the murdered person, the heirs should take it into their heads to wreak vengeance on the murderer by killing him, they will be shown no mercy and will get capital punishment. Says the Prophet: "I will allow no remission in case of one whokills the murderer after he has accepted blood money from him" (Jarir).

The Islamic law of قصاص (retaliation), as briefly stated above, provides a very effective and practical means to put a stop to murder and safeguard human life. A man who shows a callous disregard for the life of a fellow person, loses his title to live as a member of human society. The option to pardon allowed to the heirs of the slain person should not be regarded as likely to encourage murder, for such option is not synonymous with exemption from punishment, as in ordinary circumstances the murderer will have to pay the blood money. Moreover, the would-be murderer possesses no means to know that the heirs of the person whose murder he contemplates will actually be persuaded to pardon him; so the fear of capital punishment will always be there to deter him from the commission of the crime. Again, pardon or remission is permissible only where the circumstances are such that pardon or remission is likely to improve matters and bring about good results for all parties concerned (42:41). Thus, while on the one hand, Islam has made due provision for the suppression of crime, it has, on the other, kept open the door for the display of the noble qualities of benevolence and mercy.

The way in which the Quran has upheld the ultimate necessity of the death penalty is indeed most significant. At the time when the Quran was revealed, people exacted retaliation for an injury done to them with a vengeance. They were not satisfied even with inflicting capital punishment on the murderer, to say nothing of pardoning him. They needed no incentive to retaliation. They were already overdoing it. In fact, the Islamic law of retaliation, viewed in the light of the circumstances prevailing at the time of its revelation, implied a prophecy that a time would come when people would go to the other extreme and a movement for the total abolition of capital punishment would be set on foot. So the Omniscient God laid down the law of retaliation in a form that is indispensable for the preservation and protection of human life, as well as the promotion of harmony and goodwill.

To prevent crime, Islam really aims at eliminating the conditions that produce it. It seeks to remove the very root-cause of all crime by working a complete moral reformation in man. But it does not remain content with that. It also prescribes deterrent laws in conformity with the dictates of reason, justice and humanity. The fact that, despite efforts to the contrary, the death penalty is still found on the Statute Books of most countries in one form or another, constitutes a sufficient proof of the wisdom of the Islamic teaching. As a matter of fact, even the most enthusiastic protagonists of the abolition of capital punishment have not yet been able to suggest a suitable alternative to it. They have had to admit that a long term of imprisonment as an alternative is "horrible" and is "not an ideal substitute" (Capital Punishment in the Twentieth Century by E. Roy Calvert, G. P. Putnam, London, 1930). The law of retaliation still remains the most effective deterrent to crime and an essential method to satisfy the demands of justice; and the Islamic Law takes a further step to bring about reconciliation between the offender and the aggrieved party.