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Last Updated: 2009/12/28
Summary of question
Is there any hope for revoking capital punishment and prohibiting corporal punishment within Iran?
Is there any hope for revoking capital punishment and prohibiting corporal punishment within Iran? Does Islamic jurisprudence (fiqh) consider the application of such punishments mandatory, or does the possibility of milder punishments exist?
Concise answer

The legal source of capital punishment and other forms of punishment is derived from the Quran and hadith (narrations from the Infallibles). For this reason, it is not possible to completely revoke that which has been instated there. Milder punishments may be enacted in cases such as qisas (retribution) – if the legal guardian of an individual forgives the person in question – or in other cases where an Islamic government deems it wise. This alternate course of action however, does not imply that such punishments are in anyway inhumane or unethical, thus necessitating their repeal.

Detailed Answer

This question can be considered from several aspects:

1 – Can capital punishment, and other forms of punishment presented in the divine sharia (laws) of Islam, be considered violent, inhumane, or contradictory to the innate rights of mankind?

2 – From a shari perspective, is enacting such punishments mandatory?

3 – Would it be possible for society to head in a direction where we would no longer witness the practice of such punishments within Islamic countries?

We will begin by addressing the questions mentioned above:

First and foremost, it should be understood that the religion of Islam, like other divine faiths, has immense respect for the life of human beings; so much, that it compares the heedless murder of an individual to massacring all of mankind[1]. Murder is considered one of the greatest sins, which brings about eternal punishment in hell for those who commit it.[2]

Furthermore, Islam places such immense value on human life that it disapproves of acts such as suicide and abortion.[3]

Keeping this in mind, if we see that Islam has designated the use of capital punishment in certain cases, it should be understood that specific conditions brought about its necessity, and this cannot be ignored or overlooked.

Through examining Islamic texts, we understand that capital punishment can be carried out in three primary cases. A brief explanation regarding each individual case will be given.

A) Qisas (retribution) of an individual:

If a person kills another individual, the family of that person may request qisas in the form of capital punishment from the judiciary.[4] In this case, enacting capital punishment upon a murderer is completely in line with human ethics and morality. If the murderer did not observe the laws of humanity or the right of another human being to life, how can he expect others to observe the same laws in relation to him? Furthermore, the use of capital punishment upon those who choose to kill and cause bloodshed will certainly discourage others from committing such crimes. In the words of the Holy Quran: “و لکم فی القصاص حیاة یا اولی الالباب لعلکم تتقون[5]. It states “There is life for you in retribution, O you who possess intellects! Maybe you will be Godwary”. This verse alludes that those who witness qisas will be discouraged from performing this heinous crime.

Imam Sajjad (as) in commentary to this verse states:

The lives of the following people will be preserved as a result of enacting the ruling of qisas:

1 – The life of an individual who would have been otherwise killed, but was spared as result of the proposed murderer’s fear of qisas.

2 – The life of the individual who had presumed murder, but was discouraged due the reason mentioned above.

3 – The lives of people in society at large.[6]

However, the enactment of qisas in the form of capital punishment is not a hard-and-fast ruling. The family of the victim can instead request the killer to pay diyah (blood money), thus allowing him to live. Furthermore, the family can choose to forgive the killer and grant him a complete pardon. In particular cases (which can be very rare), however, the state may choose to proceed with the death penalty in order to maintain public and social order.[7]

Although Islamic teachings give the right of qisas to the victim’s family, it also highly encourages them to pardon and forgive.[8]

B) Causing warfare (Muharabah) and corruption on earth (Fasad fil-Ardh):

Another case in which capital punishment may apply is in regards to those who cause war and wreak havoc within society, in turn, eliminating public safety. God has instated heavy punishments – namely capital punishment, exile, etc. – for those who choose to agitate order and security within society.[9] It is the responsibility of the Islamic state to analyze the circumstances surrounding each individual case and then rule on which form of punishment is appropriate.[10] It should be mentioned that even in regards to those who have no respect for the peace and safety of others, thus causing chaos and corruption in society, the Islamic state can sentence them to milder forms of penalties besides capital punishment.

C) Committing certain crimes against social modesty:

According to Islamic teachings, when crimes of this type are committed, it is encouraged to keep them concealed and away from public view, and the one committing the crime has been encouraged to repent for his sin and return to the Lord[11] The Islamic judicial system should attempt to find even the smallest of faults that may be found in the proceedings in hopes of dismissing the case and the punishments associated with it.[12] However, it is not permissible to disregard the crimes of an individual who has no regard for social modesty. An example of this is a person who is married but chooses to satisfy their desires through immoral means. In this case, the presence of eye witnesses (to the crime) would make it necessary for the divine ruling to be implemented. Furthermore, due to the stringent methods prescribed by Islam in proving such crimes, only a fraction of those accused will actually undergo such punishment.

Considering what has been mentioned, two points can be understood regarding the death penalty and other forms of punishment. Firstly, crimes which would require such punishment are few in number, due to the fact that proving the crime itself is very difficult. Secondly, if the crime is proven, in many cases it is possible to enact other forms of punishment besides the death penalty. However, in the case that all the legal conditions are met, the appropriate ruling must be enacted.

Prior to addressing the final part of your question regarding the possibility of revoking such punishments, it is first necessary to understand the difference between revoking a law and suspending it.

In fiqh (Islamic jurisprudence) and within law, the revocation of a law would mean that it would be annulled and put aside completely. However, the suspension of a law would not indicate that it has lost its legal significance, but rather temporarily suspends it for whatever reason.

Islamic rulings have been enacted so that they are permanent and unalterable. Therefore, the thought of completely revoking that which has been presented in Islam is contradictory to the beliefs of Muslims. Since these punishments have been established by God, it is not possible for us to replace that which we may consider harsh with deterrents more favorable to us. A parallel example of this would be abandoning prayer and fasting because one considers it more favorable to worship through other means.

One may say that due to the long span of time between the introduction of Islam and modern times, humanity as a whole has become greatly advanced, thus requiring a new model to live by, not that which has been presented by Islam over fourteen hundred years ago.

The response to this is that a change in time or place does not nullify Islam’s validity. Granted, society has evolved over time, thus necessitating new laws and rulings. However, it should be understood that this change only applies to a minority of cases, leaving the vast majority of Islamic rulings unaltered regardless of time or place.[13]

For example, at a time, the Quran encouraged Muslims to gather steadfast horses so that they would be militarily prepared against their enemies. However, in current times, nobody would encourage such a practice. Modern military strength lies in other means such as tanks and missiles, making the pursuit of such resources necessary. However, can the same rule be applied to punishments such as the death penalty and other such punishments? This is something which must be viewed from a fiqhi perspective. If it is decided that such rulings are firm and inalterable, then time and place would be irrelevant to the ruling’s status. Even if we consider Islamic punishments as “methods” in which Islam has introduced as a means of carrying out and enforcing other Islamic commands, it would still be incorrect to say that these punishments are out of date today and no longer effective, the reason being that there is no consensus amongst scholars regarding the necessity of amending these rulings. Many current jurists consider heavy punishments vital in hindering crime. They regard milder punishments such as imprisonment and probation as being ineffective or insufficient in preventing crime, thus necessitating heavier penalties. Consequently, the death penalty is practiced in a host of un-Islamic countries as well – such as the United States – and has not yet been suspended or prohibited. Strong movements to prohibit such punishments, regardless of the case, are solely seen in some European countries.

If we hope to no longer see such punishments taking place in society, this can only happen in two cases:

1) The religious culture within society must elevate to a degree where no one commits crimes which would even require such heavy punishments. We, along with our religious leaders, have always desired a society with such qualities.

2) In some cases, punishments may not be carried out in due to the fact that enacting them would cause severe problems or difficulties for the Islamic state within the country itself or abroad. In this case, the leaders of that society can assess the situation, and if necessary, implement secondary rulings (hukm thanawi) in order to suspend the practice of such punishments. It should be noted that this suspension is only on a temporary basis and it does not fundamentally change the ruling or revoke it. Consequently, these penalties will be reinstated when the controversy surrounding them dissipates. Furthermore, some fuqaha (jurists) believe that such punishments cannot be implemented during the time of the occultation of an infallible Imam (as), thus temporarily suspending the ruling, but not completely annulling it.

In regards to the topic of torture, it should be understood that in accordance with the constitution of the Islamic Republic of Iran, any use of torture in order to force a confession or acquire information is strictly prohibited.[14]

Another point which should be considered is that we should not suspend a ruling that has been divinely instated solely due to the objections of some countries and human rights organizations. The reason for this is the fact that their objections and protests are often based on standards which go against our religious teachings, thus making our acceptance of their view unfeasible. Additionally, it is not only Iran which faces such objections to its policies. Thus, it is unreasonable for it to disregard implementing the orders of Islam at the first sign of hostility or threat. At the present time, we see dozens of people being massacred on a daily basis and hundreds more being tortured and tormented behind the bars of various prisons under the pretext of a “war on terror”. The numbers of those who undergo such punishments within Islamic states are quite insignificant in comparison to the multitude of people who have been slaughtered in the so called “war on terror”, making the establishments that find fault with such punishments hypocritical in their claims. Therefore, one should be wise and know that even if such penalties were revoked, it not incur a change in attitude on behalf of the opposition. In the words of the Almighty, the Christians and Jews will never be content with the Muslims, unless they forfeit their beliefs and adopt their (the Christian and Jew’s) faith.[15]

[1] Ma’idah:32.

[2] Nisa:93.

[3] Nisa:29, An’am:151, Isra:31.

[4] Ma’idah:45.

[5] Baqarah:179.

[6] Muhammad ibn Hasan Hurr Ameli, Wasa’ilul-Shia, vol. 29, pg. 53, hadith 35134.

[7] In Islamic penal law, in cases in which there is a complainant that files a complaint to the court and the crime committed is one that calls for punishment, even if the complainant forgives the criminal, the Muslim judiciary can still rule that he/she be punished slightly so that social order can be maintained; this punishment will no longer be the punishment specified in Islamic law anymore though; it is to be specified by the judge according to whatever he deems appropriate.

[8] Isra:33. Regarding this subject, you can also refer to the hadith on page 119 of volume 29 of Wasa’ilul-Shia.

[9] Ma’idah:33.

[10] Wasa’ilul-Shia, vol. 28, pg. 308, hadith 34833.

[11] Furqan:68-71. Also: Wasa’ilul-Shia, vol. 28, pg. 15, hadith 34100.

[12] Wasa’illul-Shia, vol. 28, pg. 47, hadith 34179.

[13] For further information, see: The theory of codified thought, Question 900 (website: 988).

[14] The constitutional law of The Islamic Republic of Iran, law 38.

[15] Baqarah:120.

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