9*+* Kenny, Outlines of Criminal Law, l6th Ed. 1952 , p.539> quoted in Winfield, ibid. p*6.
95* Fleming, ibid. p.2.
9 6 . It is possible that a criminal court may order a com pensatory sum of money to be paid by the wrongdoer to the injured party. But this is distinguished from
tort cases by: a) it is obtainable only in addition to a punishment, or an order in the nature of punishment, inflicted or made by the court; and b) in a crime the compensation which may benefit the injured party is not claimable in the first instance; but in a tort
181.
Now to turn to homicide in Islamic law, the victim or his nearest relatives have three rights: first the right to demand the execution of "qisas" against the
• •
murderer, second, the right to pardon the murderer in return for his paying the fixed amount of blood-money,
and, third, the right to pardon him freely, i.e. to pardon the offender without taking the blood-money. Here these three rights will be considered respectively in order to reach the correct classification of homicide. It is the right of the nearest relative of the murdered person to demand retaliation or ’'qisas” , and without this demand it
• *
cannot be inflicted. The jurists added, that when "qisas”
• •
is demanded it is the right of the murdered relatives to carry it out and he cannot be deprived of this right if
97
he is capable of using it in the proper way. This is the view of the four Sunni schools, and it is clear that
the old tradition of personal revenge was the reason behind 98
this view. This view, however, was supported by an interpretation of the Qur'anic verse "... and if any one is slain wrongfully we have given his heir authority" XVII, 33. To explain this "authority" which was said to have
97. Mughni, op.cit. p.307. Badail, op.cit. p.2k2 et seq.^jtJmm, op.cit. p. 17. Hattab, his commentary on Mukhtasar Khalil, op.cit. p.250.
182.
been given to the heir, the majority hold that it is the authority to kill the culprit. On the other hand, some of the commentators on the Qurfan explain it as his (the heirfs) authority to demand the execution of "qiaas"
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or to remit it. But the execution itself is the ruler’s 99
or judge’s duty end not anybody else*s. In the majority view, "qisas” is clearly a matter of private justice or
• •
rather personal revenge. But in the other view the idea of crime and punishment emerges. This view is held by
100
all the contemporary writers on the subject. The
strongest evidence they use to support their view is that in the Qur’an "qisas" was described as the duty of the
* •
Muslim community, who could not carry it out except through a representative who would be, in this case, the judge or ruler. To explain this concept, Shaltut stated that the duties of the community in Islam are two-fold. Firstly, there are the duties incumbent on each individual, like prayer, fasting and the payment of alms, and secondly there are those carried out by a representative acting for the community, it being impossible for each individual
99- Qurtubi, Tafsir, vol.II, pp.2^-5? 2|56. See also:_ Shaltut, op.cit. pp.385-88, where he cjuoted Razi, Qurtubi and Muhammad ’Abdu, in al-Manar (Tafsir)* 100* Shaltut, ibid. Ahmad Ibrahim op.cit. pp.215-218.
*Uda, op.cit..vollll, ]%155* SharabasT, op.cit. p. 134* et seq. Sayed Sabiq, Fiqh al-Sunna, vol.X, Kuwait, 1968, p.61-6 3 .
183.
to do them. One of these is the carrying out of the
101
"qisas11 when it is demanded.
As for the second right of the victim’s relatives, i.e. the right to remit retaliation and to receive the "diya", it is here where homicide appears to be more of a tort, or completely so. The "diya" is, above all, a compensation, fixed to satisfy the victim’s relatives. This is even more clear in cases where the matter is settled out of court for an amount greater or smaller than the fixed "diya". If it could be argued that it is a sort of punishment in cases where the "diya" is ordered to be paid by the court, such an argument is completely unfounded in the other case.
Moreover, the victim’s relatives have the right
to remit retaliation freely, without being paid anything. This right may be exercised even after the court has
ordered "qisas" to be executed against the culprit. The M M • ft
Q ur’an and the Sunna recommend the remission of retal-
102.
iation. Or, to use Prof. Anderson’s words, "It is regarded as more meritorious to remit retaliation, and for this reason most jurists hold that if any adult,
101. Shaltut, op.cit. p.386, attention is drawn to other juristic views, according to which the concept of a punishment for a crime is predominant, see Section III, above.
102. Qur’an, II, 178 and for Sunna see Abu Dawud, vol. II, p. 1*78.
I8*f#
sane heir waives this right, the others have no option 103
but to comply.11 According to most of the jurists, if the right of- remission was exercised, the culprit would not be liable to any punishment. But the Maliki
school allow a discretionary punishment "ta'zir11 to be inflicted in this case, and indeed, in all cases of deliberate homicide where, for one reason or another
lOh
there was no retaliation. Here, unlike in the other viexv, the concept of crime which should be punished for
105