Q ishās (Retaliation)
3. Q ishās (Retaliation)
The word qishās derived from qashasha-yaqushshu qashshan wa qashashan which means “follow the trace”. Al-Qishās or al-Qashas also means al- mumatsalah or balance or equal. Terminologically, qishās means infliction of
similar act done by the perpetrator (mujazatu al-jani bi mitstli fi’lihi). 78 For example, Bani Israil applied qishās to whoever committed crimes against human’s life that can be measured like killing, amputating limbs, eliminating limb function, attempting limb injury that can be measured. Thus, not all infringement of human’s life is subject to qishās. In the Qur’an Qur’anic verse Al-Maidah 3:45 stated that:
78 Al-Zuhaili, Al-Fiqh al-Islam, p. 261
We ordained therein for them: ‘life for life, eye for eye, nose for nose, ear for ear, tooth for tooth, and wounds equal for equal.’ But if anyone remit the retaliation by way of charity, it is an act of atonement for themselves. And if any fail to judge by (the light of ) what Allah hath revealed, they are (no better than) wrongdoers.
The verse cited above shows that qishās is not originally the ordinance assigned by Islam, but was practiced by religions and great nations before the Qur’an was revealed. Muhammad teachings attempt to reduce the sanction of qishās only to the perpetrator not to the entire member of the clan, just like what was practiced in Jews’ tradition. Qishās in Islam regulates the impliction in equal stand (the man for the man, the woman for the woman, the free for the free and the slave for the slave). In addition, Islam attempts to break way of the practice of killing among groups (clans) in a sophisticated way by giving opportunity to the perpetrator to ask for forgiveness and repentance to the victim’s clan and compensate by paying diyat (financial compensation; blood money). The Qur’anQur’anic verse al-Baqarah, 2:178- 179 stated:
O ye who believe! The law of equality is prescribed to you in cases of murder: the free for the free, the slave for the slave, the woman for the woman. But if any remission is made by the brother of the slain, then grant any reasonable demand, and compensate him with handsome gratitude; this is a concession and a Mercy from your Lord. After this whoever exeeds the limits shall be in grave penalty.” In the law of equality, there is (saving of ) Life to you, O ye men of understanding; that ye may restrain yourself.
The above mentioned verse used the word katabna (God has ordained) which means that qishās have to be applied. However, the last part of the verse suggested to forgive. This would means that qishās punishment can be avoided. Al-Thabari, the famous exegete, has an interesting opinion on this issue, he said:
“The obligation to practice qishās as ordained by Allah should not be violated by murdering someone innocent. The obligation of qishās is different from that of praying and fasting, both of which should not be neglected. Al-Thabari argued that if this verse meant an obligation that should be applied strictly, then, God will not provide the rest of the phrase in this verse stated that “But if any remission is made by the brother of the slain...”which means no mercy for the murderer. Nevertheless, the phrase “but if any remission is made by the brother of the slain” means that qishās can be avoided by asking forgiveness. 79
79 Muhammad Abu Ja’far ath-Thabari, Jami al-Bayan fi Ta’wil Al-Qur’an, (n.d.: Muassasah ar-Risalah, 2000), vol. 3, p. 357.
According to Al-Thabari, the important message from the verse is not about its strict application, but to practice it porpotionally without trespassing the limit. The example of trespassing the limit in qishās was the practice of qishās in Jahiliyya (period of ignorant) by slaying the entire member clan/ family of the perpetrator. This verse means that there is an alternative option in qishās that is forgiving as it is shown from the last part of the verse takhfifun min rabbikum wa rahmah (a concession and a mercy from your Lord).
A concession and mercy from God is far more important to be considered by the believers than retaliation to the perpetrators and their family and clan. The Qur’an provides choices for the victim’s family in regard to qishās whether to retaliate or forgive. Giving forgiveness is encouraged and appreciated without ignoring the rights of the victim to claim justice. This could mean that legal proceeding continues while forgivenness have been given, to provide balance in the rights of the victim and the perpetrator.