Hostname: page-component-78c5997874-lj6df Total loading time: 0 Render date: 2024-11-10T08:35:05.605Z Has data issue: false hasContentIssue false
  • English
  • Français

Homicide in Islamic Law

Published online by Cambridge University Press:  24 December 2009

J. N. D. Anderson
Get access Rights & Permissions [Opens in a new window]

Extract

Perhaps the first point which attracts the attention of the European lawyer who begins to study the treatment of qatl (homicide) in the text-books of Islamic law is that it is there treated, in modern parlance, more as a tort than a crime. To understand the offence properly, however, no such simple classification will suffice: instead, it is essential to view it in its historical setting and detailed development.

Under the heading of ‘uqūbāt, or punishments, Muslim lawyers treat primarily the very limited number of offences for which definite penalties (hudūd, singular hadd) are expressly prescribed in the arīa, although reference is also frequently made to the discretionary power of the Ruler or Judge suitably to punish other wrongdoing. Offences in general, moreover, are normally sub-divided into those which are regarded as exclusively involving the “right of God”, those in which both the “right of God” and the right of some individual is recognized but the former is held to preponderate, and those in which the latter is regarded as predominant. In the first category all jurists include sariqa in its two degrees (theft and brigandage), zinā (illicit sex relations), urb (wine drinking) and, when placed in this context, irtidād (apostacy from Islam); in the second, some jurists place qaf (the unproved assertion of a chaste person's incontinence), although others put this in the third category; while in the latter all include homicide and wounding. In effect an offence in which the right of God (as the Head of the community) is held to be exclusive or preponderant more or less corresponds to the modern crime, and one in which a private individual's right is regarded as predominant to the modern tort, for the chief practical difference is that in the former neither the party primarily injured nor, indeed, the Court may drop the case or allow a settlement once it has been started, while in the latter the injured party may do either at his or her discretion.

Type
Articles
Information
Bulletin of the School of Oriental and African Studies , Volume 13 , Issue 4 , February 1951 , pp. 811 - 828
Copyright
Copyright © School of Oriental and African Studies 1951

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

page 811 note 1 See article on Katl by J. Schacht in Encyclopaedia of Islam, both here and throughout this article.

page 811 note 2 Others, again, use jināyāt to cover all wrongdoing.

page 812 note 1 See article on Kisās by J. Schacht in Encyclopaedia of Islam, both here and throughout this article; also “al-Qisās fī’l-Shari‘ati’l-Islāmīya”, by Ibrahim, Ahmad Muhammad. [Cairo;, 1944.]Google Scholar

page 812 note 2 In cases of homicide. In cases of wounding, expert knowledge is demanded by some jurists.

page 812 note 3 It is, however, significant that where a homicide is committed in the course of brigandage (īrāba), the Ruler may execute the culprit even if the heirs of blood pardon him: and some jurists (e.g. the Mālikīs) take the same view of any homicide for an ulterior motive (īla). Here the concept of crime is obvious.

page 813 note 1 i.e. Abü Yūsuf and Muhammad al-Shaybānī, so called because they, were the immediate followers of Abū Hanīfa—who himself apparently opted for blood-wit in such cases.

page 813 note 2 According to one report Ibn Hanbal himself limited this exemption to fathers, to the exclusion of mothers.

page 814 note 1 Other explanations are, of course, given, e.g. (a) that a father's love for his children is such that no fear of talion is needed to deter Kim from killing them; and (b) that since an ascendant is the cause of his descendant's life, the latter must not be the cause of the former's death.

page 814 note 2 e.g. holding him down and cutting his throat, etc.

page 814 note 3 Al-Naa‘i and D’ūd however are quoted as holding that a man is liable to talion even for the killing of his own slave.

page 815 note 1 i.e. immis (followers of a revealed religion who are protected subjects, but not full citizens, of the Muslim state) or mu'āhads (infidel subjects of a state in temporary treaty relationship with the Muslims). There are complications concerning musta'mins (enemy infidels who enter the Muslim state under temporary guarantee of safety) and concerning Muslims who leave Muslim territory, but these need not detain us here.

page 816 note 1 And the same applies if the victim is a slave.

page 816 note 2 As opposed to a immī, or infidel subject of the Muslim state.

page 816 note 3 But there is some Mālikī and Shāfi'ī authority to the contrary.

page 817 note 1 In the Mālikī view. But some Mālikīs exclude talion entirely where a madman is involved.

page 817 note 2 If, therefore, one of two combatants in a duel is killed, talion may be claimed against the other.

page 817 note 3 According to one report Abū Hanīfa insisted on blood-money, while according to another he denied it. The Two Companions denied it, but some later Hanafīs have questioned this opinion.

page 818 note 1 Or where the guilt is only established by qasāma (among the Malikis).

page 818 note 2 Both views are attributed to Ibn Hanbal.

page 818 note 3 Again, cf. article on Katl by J. Schaoht in Encyclopaedia of Islam, here and below.

page 819 note 1 But this is disputed.

page 819 note 2 The other view excludes the “deliberate” slayer (only) even from a legacy.

page 820 note 1 Those Mālikis who accept the category of “quasi-deliberate” homicide, where the blow (etc.) but not the killing was “deliberate”, usually allow talion all the same, so they merely apply these same principles to “deliberate” and “quasi-deliberate” homicides taken together. Only a few Mālikī jurists favour blood-wit (whether normal or “heavier”) but no talion in homicides which they regard as “quasi-deliberate”. Other Mālikīs restrict the term “quasi-deliberate” to those homicides by an ascendant which would be classified as “deliberate” in anyone else.

page 823 note 1 The subject of homicide by neglect is given perhaps its fullest treatment by Ibn Hazm (the Zāhirī), who carries the above principles to their logical conclusion. Thus, if a traveller asks water and others refuse, knowing that he has no other supply, he holds them guilty of “deliberate” homicide, however many persons are involved—except any who did not know the facts. If, however, they think him capable of reaching other water they will only be guilty of “accidental” homicide. The same principle also applies to those who see another attacked by leopards, could save him but do nothing: this is deliberate homicide, in his view.

page 824 note 1 If it was intended to harm the actual victim the Mālikīs even allow talion.

page 824 note 2 The Mālikīs provide for qasāma in such cases.

page 824 note 3 In practice, women suspected of moral laxity are frequently killed by their relatives, in Muslim lands, in “crimes of family honour”.

page 825 note 1 A well-known Hanafī law book much esteemed in India and elsewhere.

page 825 note 2 Which is established by the appropriate physical signs at any age or presumed at the age of fifteen, according to most jurists.

page 825 note 3 Either permanently or, if the insanity is intermittent, at the relevant time.

page 825 note 4 Or out of their own property in the āfi'I view.

page 826 note 1 One test of the requisite degree of intoxication ia whether a man says things of which he is not conscious and which he would not otherwise say.

page 826 note 2 Such as Ibn Hazm (the Zāhirī), certain followers of al-āfi'ī and, among the Hanafis, al Tahāwī, al-, and (according to one report) even Abū Yūsuf and Zufar.

page 826 note 3 Provided the threatener is one whom the actual killer would naturally fear to disobey, etc.

page 826 note 4 Abū Hanīfa himself apparently regarded this condition as excluding all except the Ruler or his representatives; but others took a wider view.

page 827 note 1 This suggestion was not, however, accepted by any of the four recognized schools.

page 827 note 2 Some Mālikī texts, however, simply state that the one who inflicted the most grievous wound is alone liable to talion, if known.