Fourth Call: The Obligation of Retaliation for the Murdered
Allah Almighty says (what can be translated as):
O you who have believed, prescribed for you is legal retribution for those murdered - the free for the free, the slave for the slave, and the female for the female. But whoever overlooks from his brother anything, then there should be a suitable follow-up and payment to him with good conduct. This is an alleviation from your Lord and a mercy. But whoever transgresses after that will have a painful punishment. And there is for you in legal retribution [saving of] life, O you [people] of understanding, that you may become righteous." (Al-Baqarah: 178-179)
Allah Almighty says to the believers, it is obligatory for you to be just and equitable in performing al-Qisas2 (the law of equality in punishment) in case of a murder takes place, the free for the free if the murder was on purpose (premeditated murder) and the slave for the slave and the female for the female (At the time of the Prophet Muhammad (Peace Be upon Him) if a man killed a woman, he was killed as punishment and if a freeman killed a slave, he was killed as punishment). Yet, if the patron or next of kin of the murdered pardons the killer, then it should be done with beneficence and forbearance and if the killer is to pay Diyya3, then he should be fair without any procrastination.
Allah commands believers not to transgress or violate Allah’s laws like how the Jews did before them when they changed the commands of Almighty Allah, The Ever-Magnificent. For example, the tribe of Banu Qurayza5 was weak while the tribe of Banu an-Nadir6 was strong and dominant. So, when someone from Banu an-Nadir killed someone from Banu Qurayza, the killer was not killed as punishment but rather he had to pay the blood money. On the other hand, when someone from Banu Qurayza killed someone from Banu an-Nadir, the murderer was killed as a punishment for committing such crime and if it happened that the family of the murdered in Banu an-Nadir got compensation, they would get the double of what a family in Banu Qurayza would usually get.
Two tribes of the pagan Arabs in the pre-Islamic era were fighting. There were killed and wounded causalities on both sides. One of the tribes was not content unless they were to kill a freeman from the other tribe in return for their murdered slave and a man from the other tribe in return for a woman killed in their side, while others were only killing a man for a man, a woman for a woman and a slave for a slave. So, Almighty Allah has revealed in the Qur’an that the self for the self, the eye for the eye, the nose for the nose, the ear for the ear, and the tooth of the tooth and for wounds retaliation. If the patron of the murdered accepted to take the blood money or Diyya, he should end the situation with patience and forbearance, and if he is to spare the killer or remit the penalty or retaliation as alms, then it will be counted as an expiation for him. On return, the killer has to fulfill his obligation in paying the Diyya without procrastination, reduction or oppression. Also, he should not abuse or misbehave in fulfilling his penalty.
Allah Almighty says that paying the Diyya is a relief and mercy from Him to Muslims, as the former nations had to apply retaliation (al-Qisas) or remission. At these times, if the patrons of the killed (next of kin to the murdered) were many, and one of them pardoned the killer, pardon had to be given and al-Qisas would be skipped, pardoning in paying the blood money was applicable too. It is said that the children of Israel had to apply the retaliation only, as for the followers of the Bible they were ordered to pardon, and they did not have the right to take blood money in return for remission.
Allah threatens those who kill the pardoned killer, after they accepted the blood money and remission, of a painful punishment on the Day of Resurrection for breaking the pledge to pardon the murderer. Also, Allah makes it clear that in applying retaliation, there is preservation and protection to lives because if the al-Qisas is to be applied, then chances of murders will become less and less, anyone who thinks of killing another he probably would not commit the crime for fear of being killed as a punishment for his crime, so the life of the victim will be saved and the life of the person who was thinking to commit murder will be saved as well. People with intellects can understand that and they would become more pious in applying Allah’s decrees. Allah appropriated the people of intellects with this call because they understand the value of life and they wish to protect it. If people with intellects contemplate on the wisdom of applying retaliation, they will understand the importance of it in protecting lives and stopping the bloodshed.
Almighty Allah informs the believers that He has decreed retaliation, He details the command in the first verse then He clarifies the wisdom of such command in Shari'ah7 in the second verse. He prompts contemplation and mediation in people to recognize the wisdom of this command. He also addresses piety in their hearts which is like the safety valve in terms of applying retaliation and saving lives.
The command in the verse is retaliation for the murdered, in case it was on purpose without any right to do so, the freeman for the freeman, and the slave for the slave, and the female for the female.
“Yet whoever is offered anything in clemency by his brother, then the close following after should be with beneficence, and the payment back to him should be with fairness.” The clemency is accepting Diyya by the next of kin of the murdered, and upon accepting it and granting pardon, then he should ask for his right with forbearance. As for the pardoned murderer he should fulfill his obligation fully, without any slowness, abuse or postponement to apply fairness and heal the pains of the victim’s family and to strengthen the brotherly bonds among the living.
Allah says (what can be translated as): “This (Literally: That) is a lightening from your Lord and a mercy; then, he who transgresses after that, then he will have a painful torment.” Almighty Allah blesses the believers with the option to accept the Diyya or compensation because it reflects mercy and ease. It was not prescribed on the Israelites in the Torah, but it was later decreed for the Muslim nation to save lives in case of achieving reconciliation between parties.
Whoever violates the laws of Allah, he will suffer a great torment as stated in the verse: “Then, he who transgresses after that, then he will have a painful torment.” In addition to the torment in the Hereafter, no Diyya should be accepted from him because of his violation to the pledge of reconciliation and acceptance, break of peace and provocation of animosity.
Through the verses, we realize the broad mindedness and insight of Islam in legislating for humans based on the knowledge of their nature. Anger for blood is innate and natural in humans; this is why Islam establishes retaliation as a tool to achieve firm justice to calm down anger, to relieve psychological suffering, to prevent oppression of the criminal and to put an end to excess in killing. At the same time, Islam encourages the wronged person to pardon, it plans how reconciliation can be applied, the call for forgiveness comes after details of retaliation to prompt forbearance in case it is accepted by the patron of the murdered, but it is not obligatory so that not to overburden humans or order them to do what they cannot bear.
Some opinions state that these two verses mentioned above are abrogated8 by a verse in Surat Al-Ma'idahi in which Almighty Allah says (what can be translated as): “And therein We prescribed for them, “The self for the self, and the eye for the eye, and the nose for the nose, and the ear for the ear, and the tooth for the tooth, and for wounds retaliation. So, whoever donates it, (i.e., remits the penalty or the retaliation as alms “a free-will offering”) then it is expiation for him. And whoever does not judge according to what Allah has sent down, then those are they (who are) the unjust” (Al-Ma'idah: 45). Ibn Kathir says in his Tafsir that the reason for revelation of this verse is what was narrated by Imam Abu Muhammad Ibn Abi Hatim that the verse “O you who have believed, prescribed for you is retaliation concerning (the ones) killed…” means the premeditated murder, i.e. the freeman for the freeman, the slave for the slave..etc. It is revealed because two tribes of pagan Arabs were fighting in Jahiliyyah9, prior to Islam. The two tribes had causalities, not only men, but also women and slaves. They did not end their animosity until they both accepted Islam.
One of the two tribes were transgressing on the other because they have more weapons and fortunes, so they made an oath that they would retaliate for the dead slave in their tribe by killing a freeman in the opposing weak tribe and they would retaliate for the dead woman in their tribe by killing a man in the other tribe. Thus, Allah has revealed in the Qur’an: “the freeman for the freeman, and the slave for the slave, and the female for the female.” So, the verse is abrogated by “The self for the self, and the eye for the eye, and the nose for the nose, and the ear for the ear, and the tooth for the tooth, and for wounds retaliation.” Abu Malik said the same, namely abrogation of the two verses in Al-Baqrah by the previously mentioned verse in Al-Maidah.
However, we (the author) see that the two verses in surat Al-Baqarah “O you who have believed, prescribed for you is retaliation concerning (the ones) killed…” are meant for a different situation than the verse in Al-Maidah “The self for the self, and the eye for the eye, and the nose for the nose, and the ear for the ear, and the tooth for the tooth, and for wounds retaliation.” Each of them has a different context. The verse in Surat Al-Maidah applies to the individual crime committed by a person against another person, or some people against a person or against some people. The criminal should be taken, as long he committed a premeditated murder. As for the two verses in Surat Al-Baqarah, it applies to collective assault, such as the case of the two Arab tribes, when a family attacks a family, a tribe attacks a tribe or a group attacks a group leaving wounded and murdered casualties of freemen, slaves and women. When the retaliation is established, then the freeman should be taken for a freeman, the slave for the slave and the woman for the woman, equally on both sides. Otherwise how can retaliation be obtained in this case of collective assault, i.e. a whole group against another group?10 If this interpretation is correct, then the verses would not be abrogated and there would be no contradiction in al-Qisas verses.
The verses continue in explaining the commandment by revealing the insight and wisdom behind applying al-Qisas (retaliation): “And in retaliation there is life for you, O (men) endowed with intellects, that possibly you would be pious.” The aim is not revenge or satisfying spitefulness; it is for a higher and more important aim which is preserving lives. The people with intellects realize the wisdom of such commandment when they think it through and ponder on the matter; such contemplation revives faith and encourages hearts to be pious.
The life in retaliation is due to prevention of the attack, as the one who is certain that his life will be taken in return for the life he is to kill, will think a lot and most probably he will retreat and calls off his intention to kill. Also, it denotes the contentment of the next of kin of the murdered, as retaliation will stop them from excessive revenge; such revenge could take a very long time like the wars that were taking place between Arab tribes prior to Islam, i.e. Basus War11 that went on for forty years. Even in modern times, we have seen revenge taking place between families for years and even decades.
“And in retaliation there is life for you” addresses the general broad meaning of life; assaulting the life of one person represents an assault on life as a whole, and on every living human because he and the murdered both come under the classification of the living. So, by the same token, if the attacker calls off his plan to kill one life, it means he also recedes from assaulting life in the broad sense. So, this retreat saves life ultimately, not just the life of one person, one family or one group, but rather life as a whole, in the full meaning of the word.
The most important and effective element in preserving lives is prompting people to contemplate over the wisdom of Allah’s commandment to achieve piety. This piety is the restraint that stops from attacking others, the attack of killing and the attack of revenging. Piety is to fear Allah and avoid His anger, so humans do not attack because of this feeling of piety. Without piety and fearing Allah, Shar'iah cannot be established, law will not be applied and oppressors will not be deterred.
This explains the reason why the crimes that required application of prescribed punishments (Hudud)12 were very few at the time of Prophet Muhammad (Peace Be upon Him) and the time of Khulfa-e-Rashideen13. Even those few crimes were mostly found out because the erring person confessed willingly; this reflects a great deal of piety in their hearts that worked as a guard in the souls banning them from transgressing the sanctities of Allah. Also, Shari'ah helped in achieving this because it is familiar with the nature of humans and what their hearts conceal, because it is planned by the Master and Creator of the Universe. This integration between Shari'ah on the one hand and commandments and acts of worship on the other hand lead to the establishment of a healthy clean society because it sets up the first court in the human consciousness, the person is the first to judge and review his own actions.
If a human loses his way at one point and commits a sin or crime, with no one looking or knowing, so he cannot be punished by law, yet this person has faith, this faith will blame him harshly. His own consciousness will not calm down unless he confesses his guilt to the authority of the law and receives the punishment he deserves, he would also bear such punishment with patience because he believes that this is the way to avoid the anger of Allah and his punishment in the present life and on the Day of Judgment.
Indeed, it is piety!
(2) Al-Qisas is an Islamic term meaning "retaliation, retribution", it follows the principle of an eye for an eye, or lex talionis. In the case of murder, it means the right of the heirs of a murder victim to demand execution of the murderer.
(3) Diyya: (plural: Diyyat) is compensation paid to the heirs of a victim. In Arabic, the word means both blood money and ransom.
(5) Banu Qurayza: were a Jewish tribe which lived in northern Arabia, at the oasis of Yathrib (presently known as Madinah), until the 7th century. They had a pledge with the Prophet (PBUH) and the Muslims in Madinah but they breached the pledge and waged a war against the Muslims along with the polytheists of Makkah and that was the cause of their destruction.
(6) Banu an-Nadir: were a Jewish tribe which lived in northern Arabia, at the oasis of Yathrib (presently known as Madinah), until the 7th century.
(7) Shari'ah: ("way" or "path") is the code of conduct or religious law of Islam. Most Muslims believe Sharia is derived from two primary sources of Islamic law: the precepts set forth in the Qur'an, and the example set by the Prophet Muhammad (PBUH) in the Sunnah.
(8) Abrogated (Mansuukh): a decree or commandment that has been abrogated by another more recent one or modified by it.
(9) Jahiliyyah: is an Islamic concept of "ignorance of divine guidance" or "the state of ignorance of the guidance from God" or "Days of Ignorance" referring to the condition Arabs found themselves in pre-Islamic Arabia, i.e. prior to the revelation of the Qur'an to the Prophet Muhammad (Peace Be upon Him).
(10) This is an informed reasoning and personal opinion by the writer.
(11) Basus War: was a conflict between two rival clans in medieval Arabia. The Taghlib and Bakr tribes fought for roughly forty years (from 494-534 CE), locked in a perpetual cycle of vengeance.
(12) Hudud (literal meaning "limit", or "restriction") is the word often used in Islamic literature for the bounds of acceptable behavior and the punishments for serious crimes. In Islamic law or Sharia, hudud usually refers to the class of punishments that are fixed for certain that include crimes such as theft, fornication and consumption of alcohol.
(13) Khulfa-e-Rashideen: Rightly Guided Caliphs or the Righteous Caliphs is a term used in Islam to refer to the first four Caliphs who established the Rashidun Caliphate. The concept of "Rightly Guided Caliphs" originated with the Abbasid Dynasty. It is a reference to the Sunni tradition, "Hold firmly to my example (Sunnah) and that of the Rightly Guided Caliphs" (Ibn Majah and Abu Dawood).