Is Qisas (the Law of Retaliation) against the Norms of Intellect and Human Sentiments?
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โAnd there is life for you in (the law of) retaliation, O men of understanding, that you may guard yourselves.โ[111]
This is because, at times, elimination of dangerous individuals is the best option for the development of a society and since qisas safeguards life, it is perhaps for this reason that it has been placed as an instinct within man.
Be it the medical system, agriculture industry or animal husbandry, etcโฆ each and every thing is based upon this rational principle - elimination of a dangerous and troublesome entity. We observe that for the purpose of protecting the body, the diseased part of the body is amputated; or for ensuring the growth of a plant, harmful and inconveniencing branches are sawed away. Those, who regard the killing of the murderer as being a loss of another individual, only visualize it from an individual perspective; however if they were to take the welfare of the entire society into consideration and were to know what role the implementation of qisas plays in safeguarding and educating all the other individuals, they would surely review their words. Eliminating such blood-shedding individuals from the society is akin to severing a harmful limb or a branch, which, as per the ruling of reason, must necessarily be severed. And indeed, it must be realized that until today, no one has ever objected to the amputation of a diseased limb or detrimental branch. This was in connection with the first objection.
With respect to the second objection, it must be realized that fundamentally, the legislation of qisas is in no way related to the issue of vengefulness. This is because vengeance means smothering the flames of anger arising due to a personal issue. On the other hand, qisas has been decreed for preventing a repetition of oppression within the society and with the objective of seeking seek justice for the other innocent individuals of it.
As for the third objection that the killer must necessarily be suffering from a psychological disorder and that it is not possible for such a crime to be perpetrated on the part of normal individuals, it must be said that this speech is true in certain instances and Islam too, in such instances, has not imposed the ruling of qisas for an insane killer or the like. However, the sickness of the killer cannot be provided as an excuse since the evils that this would unleash and the audacity that it would impart to offenders is evident for one and all. And if this argument is true in the case of killers, it should also be true for all the criminals, offenders and those who violate the rights of others. This is because a person possessing a complete soundness of intellect shall never encroach upon the rights of others. Accordingly, all penal laws should be annulled and all offenders should be dispatched to hospitals housing psychologically-diseased patients instead of prisons.
The fourth objection stated that the development of society does not accept the law of qisas, for qisas could only play a role in the ancient societies. Accordingly today, qisas being regarded as a ruling contrary to conscience must be deleted. The answer lies in this one sentence: The above claim, taking into account the widespread nature of offences in today's world and the statistics of casualties of the battle-fields and other locations, is one which is worthless and merely a flight of the imagination. And upon the assumption that such a world does come into existence, Islam has never presented qisas to be the one and only way but has also placed the ruling of pardon alongside it. Undoubtedly, in that assumed environment, the people might themselves prefer granting pardon to the killer - however, in today's world, wherein offences in various forms are surely more numerous and barbaric than those in the past, deletion of this law would not achieve anything except an increase in the offences.
With respect to the fifth objection it must be comprehended that the aim of qisas, as explicitly expressed by the Qur`an, is to safeguard the general life of the society and prevent the repetition of crime. Certainly, prisons do not possess a noticeable influence (especially today's prisons, which are better than the houses of many of the offenders). It is due to this that in countries where capital punishment had been annulled, in a short time, the crime and murder figures had skyrocketed. This is particularly so if the sentence of imprisonment, as is usual, can be graced with pardon, for in such a case criminals would perpetuate criminal violations with a greater peace of mind and tranquillity of thought.[112]
Notes:
[111] Suratul Baqarah (2), Verse 179
[112] Tafsir-e-Namuna, vol. 1, pg. 607
Is the Punishment of Amputation of the Hands, Rough and Violent?
Before answering this question it is essential to mention the conditions which govern the punishment of amputation of a thief's hand.
From the entire collection of Islamic traditions, it can be inferred that there are numerous requirements, which have to be fulfilled, in order that this Islamic punishment is put into execution, and failing which, initiating this punishment is not permissible. Some of these requirements are as follows:
ยท The item that is stolen should possess a value of at least one-fourth of a dinar.[113]
ยท It should have been stolen from a secured place such as a house, a shop, internal pockets etc.
ยท The theft should not have taken place during famines and droughts, when the people are suffering from hunger and possess no means.
ยท The thief should be sane and an adult, and should have committed the act out of his own choice and free will.
ยท This ruling shall not be applicable in the case of a father, who steals from the property of his son, or a partner, who does so from the property of the partnership.
ยท Stealing fruits from the trees of a garden has also been exempted from this ruling.
ยท Every instance, in which there exists a likelihood of error on the part of the thief that he may have mistaken other's property as his own, is exempted this ruling.
ยท In addition to the above, there are some other conditions, which have been mentioned and explained in books of jurisprudence.
The above should not be mistaken to mean that theft is prohibited and unlawful only when all the above conditions gather together; in Islam, theft in every form, in every measure and in every way is prohibited and unlawful. What is meant by the above conditions is that only under such circumstances can this penalty be put into execution.
The measure in which the hand should be amputated
It is popular amongst our jurists that on the basis of the traditions of the Ahlul Bayt (a.s.) only the four fingers of the right hand must be amputation and not more - unlike the Sunnite jurists, who have stipulated more than this.
Is this Islamic penalty rough and violent?
Very often the opponents of Islam and even some of the less knowledgeable Muslims have levelled this objection that this Islamic penalty appears to be intensely harsh, and if this ruling were to be implemented in today's world, there would be numerous hands which would have to be cut. In addition, enforcement of this ruling would entail that a person, in addition to losing an important part of his body, would become infamous and notorious all throughout his life.
In answering this objection, attention ought to be paid to this reality that:
Firstly: Just as we had mentioned in the conditions of this ruling that not every thief shall become encompassed by this law, rather, there shall be only one group of dangerous thieves, who shall be formally subjected to this punishment.
Secondly: In view of the fact that in Islam there are several requirements and conditions that need to be met in order to prove a crime, the occurrence of this punishment further diminishes.
Thirdly: Many of the objections which people, possessing less knowledge, have propounded against the Islamic laws is simply because they have sought to examine its one ruling, independently and without taking into account its other rulings; in other words, they attempt to envisage that ruling in a completely non-Islamic society. But if we were to take into consideration the fact that Islam is not just one ruling but a collection of rulings, which when implemented in a society results in enforcement of social justice, fight against poverty, correct education and training, awakening, awareness and piety, then it would become manifest that very few people would become eligible for this punishment. However, it should not be mistaken to mean that in today's societies this ruling should not be enforced; rather, it means that all these aspects and dimensions ought to be taken into consideration at the time of judgement.
In short, an Islamic government is duty-bound to fulfill the basic needs of all the individuals of the country, impart to them the necessary education and also train them with respect to ethics and morals; it is self-evident that in such an environment, offenders shall be few and far in between.
Fourthly: If we observe theft to be rampant today, it is because such rulings are not being enforced; and hence, in environments in which this Islamic ruling is enforced (like Saudi Arabia, in which until very recently this ruling had been in force), extraordinary safety is observed to prevail over them with regards money and property. Numerous pilgrims to the House of Allah (s.w.t.) have personally witnessed purses and wallets containing money lying on the roads and in the streets with none possessing the courage to touch them until such a time that the functionaries of the Department of Collection of Lost Items carry them to the mentioned department from where the owners retrieve their lost items by presenting the necessary identifications. Most of the shops are not locked at night but despite this, no one attempts to break into them.
Interestingly, this Islamic ruling - despite being in force for centuries and under whose shade the Muslims in the initial stages of Islam lived in peace, security and comfort - has only been implemented upon a very few number.
Is the amputation of a few criminal hands an extravagant price to pay for the several-century security of a nation?
Some people object: Is the execution of this penalty with respect to a thief for the sake of a quarter of a dinar not in contradiction with Islam's immense respect for the life of the Muslims and the importance attached by it for protecting them from all harms? This is especially so in view of the fact that the atonement money, stipulated by Islam, for cutting four fingers of a person is an amount, which is excessive and extravagant.
Incidentally, this same question, as reported in some of the books of history, had been put to the distinguished scholar 'Alam al-Huda - the late Sayyid Murtadha - a thousand years ago. The questioner presented his query in the form of a couplet, which is as follows:
