University of Baltimore Law Forum Volume 6 Article 4 Number 3 March, 1976 3-1976 "In The aM tter of A Murdered Person ... " The Qur'an, 2:178 T. W. Lapin Follow this and additional works at: http://scholarworks.law.ubalt.edu/lf Part of the Law Commons Recommended Citation Lapin, T. W. (1976) ""In The aM tter of A Murdered Person ... " The Qur'an, 2:178," University of Baltimore Law Forum: Vol. 6 : No. 3 , Article 4. Available at: http://scholarworks.law.ubalt.edu/lf/vol6/iss3/4 This Article is brought to you for free and open access by ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion in University of Baltimore Law Forum by an authorized editor of ScholarWorks@University of Baltimore School of Law. For more information, please contact [email protected]. "In The Matter of A Murdered Person ... " The Qur'im, 2: 178 by T. W. Lapin At4:30p.m. on the.18thofJune 1975 the head of Prince Faisal ibn Musa'id of Saudi Arabia was severed from his body by two strokes of the executioner's sword. [For a detailed description of the exec;ution see appendix at the end of this article.] Prince Faisal died, on March 25, 1975, as a result of his assassination of his uncle, Faisal ibn' Abd al- 'AZlz, King of Saudi Arabia. In accordance with the 1300 year-old Shari'a, the law of Islam, a murderer was made to account for his crime. Islamic law prescribes the death pen­ alty for four crimes: murder, highway robbery involving homicide (what we would call "felony murder"), adultery by married people, and apostasy from Is­ lam. Far from being a bloodthirsty code, the Shari 'a permits capital punishment but recommends clemency, either by payment of blood-money or forgive­ ness. The choice of punishment rests with the victim or his survivors, retribu­ tion being considered a personal right (although the requirements of modem life have diminished the ability of private trition (kaffara), and blood-money der without the use of a deadly weapon, individuals to exact penalties). The in­ (diya), or combinations of one or more punishment for which is kaffara and diya dividual may, at will, waive his right to of the three. (expiation and blood-money). The dif­ punish the culprit via the right of retalia­ Intentional and willful murder is similar ference between 'amd and shibh al­ tion, mercy being deemed highly to our "murder in the first degree": the 'amd has been a moot subject for cen­ meritorious in the eyes of God. act involves deliberate intent ('amd or turies, and the distinctions are still far Murder is divided into four categories: qasd), and implies the lise of a deadly from clear: e.g. murder by burning is 1. Intentional, or willful murder; 2. Unin­ weapon. The penalty required is qisas 'amd, murder by flogging is shibh al­ tentional murder; 3. Retaliatory murder; (retaliation, Le., the death penalty) with­ 'amd, and murder by drowning or and 4. Murder of female infants. out kaffara (expiation), but may be set· strangling may be either one. The generic term for homicide is "qatl". tled by a payment of blood-money to the Murder by mistake (e.g. killing a man Qatl is divided into varying degrees wall ad-dam, the victim's next of kin. thinking he is an animal one is hunting, whose essentials and penalties are fairly Quasi-deliberate intent, called "shibh or shooting at a target and accidentally well codified. The penalties for homicide al-'amd" meaning "resembling a pur­ killing a man) is called "khata," and is lie among retaliation (qisas), acts of con- pose," involves a deliberate act of mur- further compncated by the fact that Is- ill] THE FORUM lamic law does not recognize the concept the early Muslim jurists. In a society such forced. It is reported that Muhammad of negligence. The penalty for khata' is as theirs, which engaged in extensive once had a man stoned to death after the the same as for quasi-deliberate murder commerce by caravan to distant lands, fellow was brought before him for the (supra), but allows a reduction in the the necessity for safe passage of men fifth time for thievery: after the first con­ amount of blood-money required. and merchandise was essential; this viction for theft the man had had one There is an additional category called caused swift and severe punishment to hand amputated; after the second con­ "qatl bi-sabab" which is a form of indi­ be favored for those who engaged in viction, the other hand went the way of rect homicide as opposed to "direct, what might be termed violent restraint of the first; upon the third conviction, one bodily causation". This consists of per­ trade. Mere plundering was regarded as leg (or foot) was removed, followed by forming an otherwise legal act at an un­ theft and was punished by a complex the remaining foot on the fourth convic­ authorized time or place, which act re­ system which made the severity of the tion. Just how the man was able to steal sults in the death of another person. The penalty dependent on the amount and anything, bereft of his hands and feet (or penalty exacted in this event is the pay­ value of merchandise stolen. legs!) as he was, is a matter of considera­ ment of blood-money; an act of contri­ If a homicide occurs during the com­ ble interest. tion is not required. mission of a robbery and no goods sto­ The most common form of execution The Prophet Muhammad outlawed len concurrently, the penalty prescribed in the classical Islamic appears to have the custom, practised among many Ara­ by law is death by the sword (generally, been death by the sword: it was (and is) bian tribes of his era, of killing unwanted decapitation is preferred). However, if quick, convenient, and inexpensive. female children. The Arabic language re­ death occurs to the innocent party or Ideally, the condemmed was to receive a tains a verb for the custom: "wa' ada", parties with an attendant loss of prop­ slight, preliminary cut on the back of the meaning "to bury alive one's baby erty, the death penalty is to be crucifixion neck before the coup de grace effected daughter." The penalty established by alive for the killer. (Regarding crucifixion the Final Separation. The purpose of this the Sharl 'a is death, usually by lapida­ as punishment: it is extremely rare in Is­ initial slicing (which was inflicted upon tion. Lest we regard the pre-Islamic lamic law for such a manner of death to the late Prince Faisal) was to give the Arabs as an exceptionally barbarous be ordered. The only other crime which criminal a taste of the suffering he had people, it is well to remember that infan­ warrants crucifixion, to my knowledge, is caused his victim and the victim's family: ticide was practised extensively the making of war on God or His a highly commendable practice. The first throughout the ancient world (and con­ Prophet, see The Qur'an, chapter of cut was followed immediately by a tinues today in certain parts of the "The 'Table Served"). If one of the mighty stroke which severed the head globe). Indeed, official policy of the bandits involved in the commission of from the body. After the execution, the Greek city-state of Sparta required each a robbery in which an innocent party head is to be displayed before the spec­ newborn Spartan to be examined by the is killed is a minor, he is not subject to tators (and there are always spectators as government to determine if it were capital punishment. Moreover, while executions are required to be carried out worthy of living. (viz. the law of Lycur­ collective guilt is applied to all mem­ in public places at a time when a goodly gus). Infanticide was also quite common bers of a bandit gang if one of its number of people are present to witness in the Roman Empire until an addition to members commits a "felony murder," the punishment, that being the key rea­ the Cornelian laws in the fifth century if one or more of the gang taking part son for the punishment itself: an object A.D. specifically forbade it. in the incident involved is a minor, col­ lesson for would-be wrongdoers. A pre­ Adultery merits the death penalty only lective guilt (with its attendant collec­ ferred time for public executions is for the married adulteror or adulteress; tive decapitation or crucifixion) is not shortly after noonday prayers on Friday, the unmarried party is merely flogged imposed, and each man is held indi­ the Muslim Sabbath, when many people severely. vidually accountable for his actions. are to be found in the public places of Women are accorded preferential This clemency towards juveniles is cities, towns, and villages). As previously treatment in the application of penalties part of the legal philosophy of Islam mentioned, death by crucifixion and for apostasy from Islam. While the male which prohibits the execution of minors death by lapidation (Le. stoning) are heretic is given three days in which to re­ or mental incompetents. Furthermore, popular methods of capital punishment. cant his rejection of the Faith and, if he an execution may not be carried out on This writer has learned from reliable fails to so do, is executed, the female an intoxicated person: one must be an sources that execution by hurling the apostate is simply imprisoned, and adult and compos mentis to be executed condemned from the top of a minaret beaten every three days - a female under Islamic law.