Justice: Retaliation For Bodily Injury Or Death (Qisas)

This is another article in the chapter Justice from the classical manual on Sharia called Reliance of the Traveller. The articles are posted one by one in the order they are given in the book.

03.0 RETALIATION FOR BODILY INJURY OR DEATH (QISAS)

03.1 Retaliation is obligatory (A: if those entitled wish to take it (dis: 03.8» when there is a (N: purely) intentional injury (def: 02.4) against life or limb.

03.2 Retaliation is obligatory in return for injuries (A: part for commensurate part) whenever the retaliatory injury can be (0: fully) inflicted without exceeding the extent of the original injury, such as (A: when the retaliatory injury is on) an eye, eyelid, the soft part of the nose, the ear, tooth. lip, hand, foot, finger, fingertip, penis, testicles, vulva, and the like; provided that the retaliatory injury is like the original, meaning that a right member is not taken for a left, an upper one for a lower, nor a functional member for a paralyzed one. (N: Nor is there retaliation for nonfatal bullet wounds in the stomach or chest, for example, because such injuries cannot be reproduced without risk of greater damage than the original, for which reason they call for an indemnity (dis: 04.15) alone.) There is no retaliation for (0: breaking) a bone (A: though payment is due to cover the cost of treatment and so forth).

03.3 Females are entitled to retaliate against males, children against adults, and lower class people against upper class; whether the retaliation is a life for a life, or limb for a limb.

03.4 It is not permissible to exact retaliation against someone without the presence of the caliph (def: 025) or his representative (0: meaning that it is necessary to have the permission of one of them because of the danger and lack of knowledge involved in exacting retaliation oneself, as it requires the judgement and personal reasoning of a ruler. If someone takes retaliation without the caliph’s permission, then it is valid (A: i.e. suffices the demand for it) but the person who took it is disciplined (def: 017) for arrogating the caliph’s prerogative, since administering retaliation is one of his functions, and to encroach upon it is wrong).

If a person who is entitled to retaliate is able to do so proficiently (0: being a strong man who knows how to do it), he is allowed to. If not, he is ordered (N: by the ruler or his representative) to have another do it.

03.5 If two (0: or more) people are entitled to exact retaliation against the offender, it is not permissible for just one of them to insist on doing so (0: though if they choose one of themselves to exact it, this is permissible, and the one chosen is considered as the other’s commissioned agent.

The two may not take retaliation together, as this amounts to torturing the person being retaliated against). If each insists that he be the one, they draw lots to see who will do it.

03.6 There is no retaliation against a pregnant woman until she has given birth and the infant is able to suffice with another’s milk.

03.8 Whenever someone who is entitled to exact retaliation decides instead to forgive the offender and take an indemnity (def: 04) from him, then retaliation is no longer called for, and the deserving person is entitled to the indemnity. If some of a group of people who are entitled to retaliaton agree to forgo it, as when a murder victim has children and one of them forgives the murderer, then retaliation is no longer obligatory, and the group deserves an indemnity from the offender. (A: Or the indemnity may also be waived.)

03.9 When someone kills a group of people or maims them one after another, retaliation is exacted for the first individual attacked, and the other deserving parties receive an indemnity. If the offender injures them all at once, then those entitled to retaliate against him draw lots to determine who will do so.

03.10 When a group of people together murder a single person, they are all killed in retaliation, no matter whether the amount of injury inflicted by each upon the victim is the same or whether it differs.

03.12 There is no retaliation against anyone for an injury or death caused by someone who did so intentionally but in conjunction with someone who did so by mistake. When an injurious crime is caused by a nonfamily member in cooperation with the victim’s father, retaliation is only taken against the nonfamily member (dis: 01.2(4)).

03.13 Retaliation is also obligatory (dis: 03.8) for every wound that cuts to the bone, such as a cut on the head or face that reaches the skull, Or a cut to the bone in the upper arm, lower leg, or thigh. To the bone means that it is known that a knife or a needle, for example, has reached the bone, not that the wound actually exposes the bone to view.

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