Criticism of the basis of legal sentence for participation in homicide in Islamic Penal Code
Journal Title: فقه و اصول - Year 2015, Vol 47, Issue 101
Abstract
The main question of the article is whether tens, hundreds or large numbers of people participating in the killing of an individual can be punished in retaliation? Is this sentence compatible with the spirit of Islam and its policy of criminal justice, or with the minimalistic interpretation in favor of the accused? The author hypothesizes and claims that the permission to retaliation against a community of people having participated in the homicide of an individual is inconsistent with the justice-seeking spirit of Islamic Penal Code; moreover, it is unjustified and at least ambivalent and open to doubts based on our understanding of an important and fundamental Qur’anic verse, 33 of Surah Isra (17:33). More importantly, a detailed evaluation of the provisions of conflicting but relevant narratives as well as the language of the verses of qişāş reveals that the sentence to retribution against more than one of the participants in a homicide (without specification) and also available to the choice of the victim’s heir is a clear example of the need to enforce the rule ‘ward off the hudūd by suspicion.’ Hence, the punishment of an individual among the community of participants in an act of homicide especially on the basis of the heirs’ choice and calculated by subtracting the blood money (with that diya being an independent punishment itself) seems to fulfill justice, retribution and the balance (similarity) between crime and punishment much greater than killing all participants for the murder of one person. It would be sufficient to notice the importance of research into this problem in light of the caution urged when it comes to questions of blood and honor: the more critique is made about those issues, the more consistent and closer to the truth become the sentences and rulings surrounding them. The present article aims to apply descriptive-analytic tools in order to criticize the very basis of the criminal sentence against participation in homicide.
Authors and Affiliations
Amir Hamzeh S alarzaee
Keywords
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- EP ID EP190129
- DOI 10.22067/fiqh.v47i21.28829
- Views 116
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