Qisas

Surah 5 (Al-Ma’idah/The Table Spread): 45

And We ordained for them in (the Torah): a life for a life, and an eye for an eye, and a nose for a nose, and an ear for an ear, and a tooth for a tooth, and a (similar) retribution for wounds, but he who shall forgo it out of charity will atone thereby for some of his past sins.

And they who do not judge in accordance with what God has revealed, they are the evildoers!

 

For offences of physical violence, the Qur’an adopts a variation on the ancient principle of lex talionis, the communal agreement that a victim of violence, or their heir, should be permitted to inflict upon the assailant an injury equivalent to the harm caused by the original aggression. The Qur’an expounds further upon this theme, in relation to causing a death, in {2.178}:

{2.178} O you who believe!

Retribution is prescribed for you in the matter of the slain.

Freeman for freeman, slave for slave, female for female.

But for one who receives any pardon from his brother, let it be observed honourably, and let the restitution be made to him with goodness.

That is an alleviation from your Lord and a mercy.

Whoever transgresses after that shall have a painful punishment.

On the face of the text, {2.178} would appear to approach the issue of a retribution for homicide from the perspective of a dispute between clans, so that a clan that has deprived another clan of the life of a freeman, slave or woman, must itself lose a life of equivalent status. However, the verse is invariably read down to mean merely that a person who takes a life should not face death in qisas for taking a life that is deemed to be less valuable – according to the freeman-slave-female – hierarchy, than their own.

 

As {5.45} acknowledges, the system of retributive justice is based upon that in the Torah, where it appears in three passages: Exodus 21.22-25 † , Leviticus 24.19-21 † and Deuteronomy 19.16-21 † . However, the principle, and even the wording, dates back much further than the Hebrew scripture. The first known set of laws, the Babylonian Code of Hammurabi † ,dated to more than a thousand years before the Torah, reads:

If a man destroy the eye of another man, they shall destroy his eye.

If one breaks a man’s bone, they shall break his bone.

If one destroy the eye of a freeman or break the bone of a freeman he shall pay one gold mina.

If one destroy the eye of a man’s slave, or break the bone of a man’s slave he shall pay one half his price’

No doubt, along with Creation myths and the Gilgamesh stories that became the biblical tales of Adam and Eve and Noah’s Ark, the phrase ’an eye for an eye, and a tooth for a tooth’ became integrated into Jewish lore during or after the Babylonian Captivity (sixth century BC). Of the three Torah passages, cited above, it is only in the Book of Exodus that the rule is stated as having varied applicability to injured slaves, making this the version closest to the Qur’an’s regime:

22. When men have a fight …
23. … if an injury ensues you shall give life for life,
24. Eye for eye, tooth for tooth, hand for hand, foot for foot,
25. Burn for burn, wound for wound, stripe for stripe.
26. When a man strikes his male or female slave in the eye in the eye and destroys the use of the eye, he shall let the slave go free in compensation for the eye.
27. If he knocks out the tooth of his male or female slave, he shall let the slave go free in compensation for the tooth.

 

Exodus proceeds to lay down that if a man allows his ox to kill a free man, knowing that the animal is dangerous he shall be put to death, and that if the ox kills a slave he must compensate the slave’s owner. In contrast to what would become for Christians the Old testament, Jesus had taught a radically different ethic in the Gospel of St Matthew (5.38-39 † ):

You have heard the commandment ‘An eye for an eye, a tooth for a tooth’. But what I say to you is offer no resistance to injury. When a person offers you their right cheek, turn and offer him the other.

 

As with its punishment for illicit sexual activity 〈66.〉 and its dietary laws 〈74.〉 the Quranic system of retributive justice pursues a middle way between the extremes of the strictness of the Torah and Jesus’s exhortation to unqualified forgiveness. A victim, or their heir, is offered a formal election whether to inflict the proportionate injury (‘qiṣāṣ’) or to take compensation in lieu (‘diyya’). The practical effect of this middle way, though, is unsatisfactory from the jurisprudential perspective of deterring violence through sanctions. Either, on the one hand, the sharia state engages in (or invites a victim or their family to engage in) the mutilation or killing of offenders – which may be disproportionate where an assailant causes a provoked, unintended or unforeseeable injury and which, even if fully justified would do nothing to compensate the victim or their dependents – or else an offender is offered the opportunity to avoid the disabling punishment that a poorer person in their place may have incurred, through the payment of ‘blood money’, effectively allowing a wealthy person to buy their way out of trouble. A further disadvantage becomes evident when one considers how the decision to insist upon qisas or accept diyya may fall to be considered by a victim’s heirs. {17.33} states that, wherever a person is slain unjustly, ‘We have appointed authority unto his heir’. This has the practical consequence that an heir will have to balance the public interest, vindictiveness and the restoration of family honour against their own material self-interest or the potential benefit to other family members of accepting compensation.

 

The wording of {17.33} also raises a specific conundrum where one person stands simultaneously in the position of both killer and heir. In a hadith, Muhammad is said to have ruled that ‘the son is to suffer retaliation for [killing] his father but the father is not to suffer retaliation for [killing] his son’ and this was the position taken, at least in relation to capital punishment, by all the major early jurists.

 

For the Qur’an’s apparent endorsement of ‘honour killing’ see 〈28.〉