| Murder And Its Punishment In The Koran And The Torah |
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| Jihad-Terrorism-Human Rights - Jihad-Terrorism-Human Rights | |
| Written by Fethullah Gülen | |
| Sunday, 08 January 2006 | |
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Life is one of the most important values for God, for it is the ultimate blessing, the climax of existence. Life is the origin and the essence of everything; it makes anything associated with it the lord of almost everything else. Any living being can say that "all that exists is my possession; the world is my home; the universe is a gift given to me by my Lord," for it is life which connects us with everything, which allows us to benefit from everything. Moreover, life—the fruit of the tree of existence—is the crossroads of existence. From this perspective, i.e., that life is the center, or a target at which everything else is directed—life is the brightest proof of the unity of God Almighty, the finest demonstration of His Mercy, and the most complex example of His art. In short, if there were no life, existence would lose its meaning and become undistinguishable from non-existence. It is because this importance of life, especially the life of human beings—the most perfect form—is not quantitative, but qualitative in nature (in other words it is not divisible by the quantity of people) that one person's life represents the lives of all. It is for this reason that in the Koran one person's life is equal to the lives of all human beings, thus, murdering one person is considered to be the same as murdering all humans, and equally, saving the life of one person is regarded as being the same as saving the lives of all people (Ma'ida 5:32). In the context of this assessment, it is recorded (in the Koran) that this was also an order that was given to the Israelites, i.e., this is a principle that exists in the Torah. Murder is regarded as being a major crime and one of the capital sins in both the Koran and the Torah. This prohibition is one of the most consistently strict verdicts that exists in all monotheistic religions. If the person who takes the life of another is in contravention of the laws, if the act is intentional and results in death, then the penalty for the perpetrator is death, both in the Koran and in the Torah (Baqara 2:178-179; Exodus 21:12; Leviticus 24:17-18).[1] This action, prohibited by the imperative You shall not kill! in the Torah (Exodus 20:13), is also the sixth of the Ten Commandments. This rule protects the fundamental right of a human being's right to life, and emphasizes the importance of the sanctity of human life. In Judaism "to kill" (qatl) is defined as "to end someone else's life."[2] Islamic scholars have defined the verb qatl as "an act causing the soul to leave the body."[3] Murder in the Torah and the Establishment of the Crime The command You shall not kill, as recorded in Exodus 20:13, derives from Hebrew root of "r-ts-h." This word, as explained by Rashbam and Bekhor Shor, can only be used for "the act of killing unjustly," and thus is not used to describe killings that are part of executions carried out as punishments or deaths that occur during war. It is also not used to describe the cases when the subject of the verb (i.e., the person who commits the act of killing) is God or one of the angels. This prohibition is justified in Genesis 9:6 on the grounds that "if someone sheds blood, his blood needs to be shed by another human, for God created humanity from His own spirit." That means that life, created from God's own spirit, is absolutely sacred, and the right to take it, as well as the right to bestow it, belongs solely to God. Thus, anyone who takes a life usurps this sacred right with this indescribably horrific act, and violates the sovereignty of God. Since humans are created as sacred beings, a killer also denigrates the glory of God. It is for this reason that it is not in the domain of human beings to forgive a killer, or to remove the death penalty and replace it with monetary fines, as explained in Numbers 35:31.[4] While the Torah declares that those who have been charged with the crime of murder must be sentenced to death, the Verbal Law (the Talmud) sets out some restrictive regulations so as to determine what constitutes this crime. According to the Talmud, the killer must be warned just before committing the crime by two eyewitnesses that the action they are about to carry out is prohibited, and that they will be punished with the death penalty; the killer must declare that they are aware of these facts. In addition, the eyewitnesses must witness the act of murder. Even after all this, no matter how strong the evidence is, it is not enough by itself to establish that the crime had been committed. The case has to be brought before a religious court that consists of 23 judges. While a simple majority, with a margin of one vote, is enough for acquittal, for a guilty verdict to be passed the majority must be two votes. However, even if the judges convict the criminal unanimously, this punishment will be difficult to be carried out. R. Akiva and R. Tarfon remind that they had served in a court that was concerned with such crimes, and that no one had ever been sentenced to death. Despite the fact that the courts usually do not inflict the death penalty, those who are found guilty are sentenced to a long term of imprisonment.[5] In modern Israel, there is no death penalty for the crime of murder.[6] Murder and Its Penalty in the Torah The Torah, like the Koran, differentiates between the crime and the penalty for murder in terms of whether the act was intentional or accidental, relating this to the penal law. According to the Torah, the penalty for the intentional taking of a life is the death sentence (Exodus 21:12, 14, 23-25; Leviticus 24:17-18; Numbers 35:16-21; Deuteronomy 19:11, 21). Renowned scholars of the Torah provide detailed information in the context of the commentaries of the verses that are related to these penal codes. For instance, according to the famous commentator Maimonides, whoever intentionally kills a man violates one of the "Ten Commandments" (Exodus 20:13; 21:20), and should be condemned to death. If the killer commits the crime with any metal object or with fire then the death sentence is execution by decapitation with a sword.[7] Also according to another prominent commentator of the Torah, Hirsh, life is a value in and of itself, superior to all other things; it is the basic phenomena connecting all that is on the Earth. The following statements illustrate this point:
In these verses, only the men seem to be mentioned as the victims of the crime. Talmudic scholars say that the killing of women and children are not within the scope of qatl. The act of killing is associated with the act of "smiting" if the intention of this act was to kill. Moreover, the "smiting" and the "death" as a consequence of this action have been isolated to clarify the idea of intention in the crime. The death penalty here is incumbent upon the intentional taking of life. Penalties for manslaughter (unintentional death) are explained in other verses of the Torah. Despite the fact that Hirsh describes life as being the most fundamental value, he argues—in the context of the commentaries of these verses where the value of life is discussed—that in cases where the deceased is a woman or a child, then these verses do not apply; the penalty for such cases are not the subjects of these verses. This shows that to some commentators of the Torah, the life of an adult male is evaluated differently than that of a woman or a child.[8] However, the well-known commentator Rashi (1040-1105) when commenting on the same verses argues that the wording differentiates a "man" and "any person" in these verses. He points out that "If we take these two verses together, it is obvious that the emphasis is (not on who the killer is, but) on the way the killer strikes, and the intention involved." Rashi adopts the view that even if the victim does not die after being struck with an intention to kill, the perpetrator will still be charged for murder, and will be given the death sentence. The death sentence which the verse stipulates as being applicable when "a man who strikes a person and kills him," is only valid if the blow is fatal. And according to Rashi, this verse does not differentiate between a male, female, or immature victim; thus whether the person actually killed or intended to be killed is a man, or a woman, or a child,[9] the perpetrator will be sentenced to death. The other verses of the Torah that are related to intentional murder and the penal laws that pertain to it and commentaries of the scholars of Judaism are as follows:
Rashi clarifies some of the ambiguities in this verse. According to him, the following do not count as intentional death: to kill an infidel; the death of a patient under treatment by a doctor; the death of a convict during the execution of the "sentence of 40 whips" in the hands of the officers of the court; the death of a child while being punished by his father; the death of a pupil being disciplined by the teacher; or the death of a person caused by a stone that was thrown to kill somebody else. All these "causes of death" are separated from other deaths that have been intentionally committed by guile or treachery. Those who kill a man by the use of guile will be killed; even if the murderer were a rabbi in his synagogue, he will be taken from the altar of God and executed. According to some other commentators, the word "a man" in verses 24:17-18 of the Leviticus, denotes any person, including women and children. The usage of the phrase "soul for soul" at the end of the verse to include animals is interpreted as being the monetary value of any animal killed, with compensation being paid to the owner.[10] In the same vein, it is concluded from the clause "whoever kills a person, the penalty for the perpetrator is the death sentence," that the verdict is still applicable for cases where the killer is a woman or a child.[11] And he that kills a beast, he shall restore it: and he that kills a man, he shall be put to death. You shall have one manner of law, as well for the stranger, as for one of your own country: for I (am) the Lord your God. (Leviticus 24:21-22) The above decisively shows the distinction between humans and animals in the Torah. The law of the Torah regards human beings as "people," but animals as "possessions." Thus, the death sentence is incumbent upon a crime committed against human beings. At the end of the verse, the equality of the right of life for everybody, stranger or neighbor is focused on.[12] The phrase he who kills an animal in the aforementioned verse indicates inflicting fatal harm that ends in the animal's death.[13] Likewise, those who injure a human fatally and cause him or her to die will be sentenced to similar penalties. However, in the case of harm done to one's own parents, the harm itself will be regarded as being the same as if death had been the result. Even if the parent does not die of the injuries suffered at the moment of attack, the child who injured the parent fatally will still be sentenced to death.[14] And if he smites him with an instrument of iron, so that he dies, he (is) a murderer: the murderer shall surely be put to death. And if he smites him with throwing a stone, wherewith he may die, and he dies, he (is) a murderer: the murderer shall surely be put to death. Or (if) he smites him with a hand weapon of wood, wherewith he may die, and he dies, he (is) a murderer: the murderer shall surely be put to death. The revenger of blood himself shall slay the murderer: when he meets him, he shall slay him. But if he thrusts him of hatred, or hurls at him by laying of wait, that he dies; or in enmity smites him with his hand, that he dies: he that smote (him) shall surely be put to death; (for) he (is) a murderer: the revenger of blood shall slay the murderer, when he meets him. (Numbers 35:16-21) These verses are concerned with the act of murder and the criteria used to establish the offence. For instance, the general information given about the act of murder, and the tools utilized, the evidence and the conditions are all subject matter of these verses. The text provides the basis for court hearings; especially Numbers 35:16, where the size of the weapon, what it is made of, its features, the strength of power the user (i.e., the killer) expended when using it, the physical condition of the victim, and the wounds inflicted upon him, are all detailed.[15] In this verse, the penalty for the intentional killing of another person is emphasized by the phrase "for he is a murderer, and shall be put to death."[16] Priority is given to metal (used as a weapon) because sometimes a small piece of metal can cause more damage than a large piece of wood; if the injury is fatal, then the assaulter is condemned to death.[17] The priority here is on the lethality of the weapon and on the intention of the one who wields the weapon. The subject matter in Numbers 35:17-19 turns to stone and wood, which do not cause fatal injuries when wielded in normal conditions and sizes, but which may inflict fatal injuries if they are larger.[18] At the end of the verse, a tool made of stone or wood for the purpose of hitting and killing is specified. It is emphasized in the two verses that the tool or weapon used to hit a man should be of a size capable of killing. The penalty for those who use such a tool or weapon for the purpose of killing is without question the death sentence. Even if the killer takes refuge in a sanctuary, such as a synagogue, they will not be able to escape execution, as those from the immediate family of the victim has the right to kill them wherever they are found.[19] According to these verses of the Torah discussed here, if the perpetrator is found guilty of the crime, and the relatives of the victim are present at the court hearing, then the court turns the criminal over to them. If the court refuses to give the accused over to the relatives of the victim after the guilty verdict has been passed, or if the victim escapes, the relatives of the victim maintain their right for execution wherever they can find the murderer.[20] In short, the Torah, in some sense, accepts the right of an individual to carry out an execution. Another phrase that defines intention in the act of murder, and which incurs the death penalty, is phrased as if he thrusts him of hatred in verse 35:20 of Numbers. According to the commentator of the Torah, Chumash, the phrase if he thrusts means "to push from a high place to make him fall."[21] When using a weapon or tool to kill a person the intention is clear; it is for this reason that such acts are prioritized in verses 16-18 of Numbers. Subsequently, other acts that result in death are listed. In fact, whatever method is employed, the intention in the mind is the same, and thus the penalty given is the same. The verse Moreover you shall take no satisfaction for the life of a murderer, which (is) guilty of death: but he shall be surely put to death (Numbers 35:31) ensures that the penalty for "intentional killing" is the death penalty, with no other alternative. With this verse, any other alternatives, such as the payment of compensation, have clearly been eliminated.[22] The verdict commonly known as qisas (the law of retaliation) exists in the Torah as well. For instance:
The Issue of Qatl in the Koran There are many verses in the Koran that forbid killing. God Almighty commands (with regard to this meaning) in chapter Isra:
In another verse, the Koran declares that killing without a just cause is regarded as a crime committed against all humanity:
There are also verses where it is declared that crimes will not go unpunished, and the perpetrators will be penalized accordingly (Baqara 2:178-179; Ma'ida, 5:45). In Islam, the unlawful killing of a person is regarded as a crime, and it is one of the major sins. This offense is listed among the seven major sins by the Prophet that sentence their perpetrators to the sufferings of this world and hereafter, i.e., that demand qisas in this world, and the punishment of eternal hellfire in the next.[24] The taking of human life is a violation against the servants of God, whom He has made sacred, and against life; it is a threat to public security and to the fabric of society. The term qatl means "to kill somebody; to deprive a living being of life." It is defined as "the causative action of taking the soul out of body."[25] Those people who kill another living being cause the soul to leave the body, and these people are known as murderers, while the one who has been killed is called the victim.[26] According to Islam, taking the life of another unjustly is one of the greatest offenses, second only to shirk (associating partners with God).[27] God is the one who gives life, thus without His permission, or without considering the regulations He has set, no one can take it away. Every single person's life is sacred, inviolable, and protected, except in cases where the death penalty is deserved and has been decided on by a legal authority. Any punishment that has been decided on can only be carried out by a legally appointed body. And even the death penalty, which permits the taking of a human life, is also restricted by certain regulations. The Prophet, peace and blessings be upon him, declared that killing a Muslim, who bears witness that there is no deity but God, and that Muhammad is His messenger, can only be permissible under the following three situations: either as a retaliation for a life that has been taken; or as a punishment for adultery by married people, or as a punishment for apostatizing from Islam, and not being repentant within the given period, which is the penalty for violation of the previously adopted contract.[28] There are many hadiths relating to the subject some of which are as follows: "Killing a Muslim unjustly is as great an offense as exterminating the whole world."[29] "If all the people of Heaven and Earth came together, and joined in killing one Muslim, God would certainly throw them into hellfire face first, making them all low and contemptible."[30] "There is no doubt that your blood and your possessions are inviolable to you."[31] In another hadith, the Prophet warned of "Seven destructive things"; among these "taking a life, which God has made sacred, except for a just cause"[32] is also listed. Another hadith cautions that "those who kill a non-Muslim who has made an agreement with Muslims; or a non-Muslim subject who has accepted Islamic authority, will not even come close to Paradise."[33] Islamic scholars have made different categorizations of the types of killing. According to the Hanafi school there are five categories: Intentional killing, quasi-intentional killing, accidental killing, quasi-accidental killing, and killing by means of another.[34] According to the overwhelming majority of scholars (literally known as the jumhur—including the Hanbali and Shafii scholars—the number of categories is three, and according to Maliki scholars it is two. Here, we will follow the categorization in three types, namely, intentional killing; quasi-intentional killing; and accidental killing. Murder and Its Penalty in the Koran After having established that the taking of a life is a religiously forbidden offense, the Koran goes on to establish the penalty as the retaliation, if the heirs of the victim are not content with a ransom in this world although remitting retaliation by way of charity is encouraged (Baqara 2:178; Ma'ida 5:45), and eternal hellfire—if God does not pardon—in the Hereafter (Nisa 4:93; Zumar 39:53). In fact, for those who believe, the punishment of the Hereafter is the real penalty, indeed, the greatest, and the harshest penalty. That is to say, that being condemned to a punishment in the realm of eternity because of taking someone's life is a penalty whose horror makes a believer tremble with fear and prevents him or her from even daring to think of such an action. From this perspective, the penalties relating to the Hereafter constitute a strong ethical sanction. That is why God Almighty commands:
There is no other offense in the Koran that has such a harsh threat connected with it. The most comprehensive verse in the Koran on the laws related to the offense of taking a life and the penalty connected is the following one found in chapter Baqara:
This verse determines that retaliation or qisas is a requirement which can only be overcome if one of the heirs of the slain forgives—and that this (i.e., forgiveness) is the better and more favorable approach. It is permissible to agree upon a certain value in lieu of retaliation. This verse declares the equality of all with respect to "right to life." It modifies the Judaic Law in terms of its jurisdiction that forgiveness is unacceptable and the Christian ruling in which killing in retaliation is not allowed; it stresses the priority of ransom over retaliation and puts an end to the Arab traditions and laws which allow the taking of human life in the name of honor, violating human rights and disregarding the equality of right to life.[35] According to Muslim scholars, in the original text of the Torah, forgiveness and ransom did not exist; there was only a death penalty.[36] In fact, the Prophet, peace and blessings be upon him, said that "For the Children of Israel, there was no ransom, there was only retaliation."[37] This hadith is supported by the following verse found in the Torah of today:
According to the Torah, it is not possible to escape death by paying a ransom.[38] Forgiveness and Ransom Islam, as a code of law, permits person retaliation after having been wronged; justice requires mutuality in protection of inviolable values (Baqara 2:94). Nevertheless, retaliation for a wrong by doing something equal is not demanded. In many verses of the Koran, people are encouraged to forgive the wrong doings that they have suffered, as this is the more virtuous behavior. For instance:
Here we should note that individuals should be encouraged to forgive the wrong doings they have suffered. However, individuals do not have the authority to forgive the violations committed against society, the sacred values, or the values that God has put forth. As society and government cannot forgive an assault on behalf of the individual, nor can the individual exercise the power of forgiveness on behalf of society. The Koran also warns society with regard to the execution of the penalties and advises the maintenance of the limits of piety:
The Koran points out an important matter concerning the penalty inflicted on the killer which is not mentioned in the Torah: the right of preference and forgiveness given to the heirs of the slain, as the following verse states But if any remission is made by the brother of the slain, then (the killing for retaliation is annulled) grant any reasonable demand and compensate him with handsome gratitude. This is a concession and a Mercy from you Lord (Baqara 2:178). There is consolation here for the killer; forgiveness of the punishment is possible. There is also consolation here for the family of the victim; the acceptance of compensation is permissible. And having these three options (retaliation, forgiveness, and compensation) is a comfort and a mercy bestowed upon Muslim society by God.[39] This kindness is a gift that requires the gratitude of Muslims. It is a legal remedy given to Muslims in order to allow people to continue on living their lives by establishing reconciliation, without the taking of yet another life.[40] In fact, the Prophet, peace and blessings be upon him, clarified this issue by saying the following:
If the murderer's family gives a certain amount of money or goods to the victim's family, the retaliation is immediately annulled before the court hearing, provided that both sides have agreed upon this arrangement beforehand. Then both sides are obliged to comply with the conditions prescribed in the tradition; i.e., the family of the victim is expected to show mercy and forgiveness, whereas the murderer has to pay traditionally accepted amount of ransom to the other side.[42] If the murderer has been forgiven without any preconditioned amount in terms of ransom, then the victim's family should abide with this favor, and should not demand anything from then on.[43] Since partial retaliation is not possible, forgiveness is absolute, even though it may be partial.[44] Similarly, if an elderly from the family of the victim forgives the murderer, it is regarded as an absolute forgiveness by the entire family. Deprivation from Birthright and Inheritance Outside the abovementioned rulings in Islam, there is another ruling maintained in the Prophet's sunna, which prohibits a murderer's being an heir to the victim. It has been widely acknowledged by scholars that murder as a crime constitutes obstacle for rights related with inheritance and birthright. The Prophet is reported to have said the following on this issue: "There is no will for any murderer."[45] In another report he said, "A murderer can not receive anything as inheritance."[46] Thus, if an heir or any person who has a right on the will kills the predecessor, they will be deprived from the inheritance and the will. Hanafi jurists stipulate that the crime should be committed by the murder himself (mubasharat) rather than indirect and unintentional involvement (tasabbub) in someone's death. In mubasharat, it does not make any difference whether murder took place intentionally or through an accident. Dr. Adil Öksüz – PhD on Islamic Law and currently teaching at Sakarya University, Adapazarı. References
[1] Baruch 1989, 167. [2] Suzan Alalu et al. 2001, p. 156. [3] Jurjani, Ta'rifat, entry "q-t-l," p. 172; Abu al-Baka, Kulliyyat, p. 729; Ragib, Mufradat, entry "q-t-l,"; Bilmen, Vol. III, p. 17. [4] Nahum M. Sarna, Bible Commentary: Exodus, Philadelphia: The JPS (Jewish Publication Society), 1991, 20/13, p. 113. [5] Besalel, Yusuf. Yahudilik Ansiklopedisi, II, 317. [6] Ibid. II, 318. [7] Moses Maimonides. Code of Maimonides, Book Eleven, the Book of Torts, Yale University Press: 1954. Translated from Hebrew into English by Hyman Klein. pp. 195-203. [8] Hirsh, II, 304. [9] At this point, a discussion on the case of a fetus takes place. According to the Torah, a baby born 2 months premature (i.e., when it is a 7 month old fetus) does live; whereas a baby born 1 month premature (that is 8 month old fetus) does not. Thus, slaughtering the latter is out of the scope of this penalty. (Rashi, II, 304; Rosenberg and Cohen 1947, 474). [10] Rosenberg and Cohen 1947, 760. [11] Rashi, III, 112a-113. [12] Hirschler, p. 486-487. [13] Rosenberg and Cohen 1947, 760; Rashi, III, 112b. [14] Rashi, III, 112b. [15] Hirschler, p. 643. [16] Rosenberg and Cohen 1947, 979. [17] Hirsh, IV, 559. [18] Rosenberg and Cohen 1947, 980. [19] Rashi, IV, 168 [20] Hirsh, IV, 559. [21] Rosenberg and Cohen 1947, 980. [22] Jacob Milgrom, Bible Commentary Series: Numbers, Philadelphia: The JPS (Jewish Publication Society), 1991. Verses 35:30-31, p. 295. [23] For similar expressions in Talmud see Mawdudi, Tafhim, I/495: "Whoever murders, takes a life of Israel, from the stand point of the Book of God, he destroys the whole world. And who protects a life of Israel, he saves the whole world in the sight of the Book of God." Moreover, it is recorded in the Talmud that the judges of the Israelites used to address the witnesses by saying "whoever takes a man's life, he should be interrogated as if he had killed all the people of the world." [24] Bukhari, Hudud, 44; Muslim, Iman, 144-145. [25] Jurjani, Ta'rifat, p. 172; Abu al-Baka, Kulliyyat, p. 729; Ragib, Mufradat, "q-t-l"; Zuhayli, Fiqh al-Islami, VI, 217. [26] Bilmen, Ömer Nasuhi, Hukuk-u İslamiyye, III, 17. [27] Muslim, Iman, 144; Bukhari, Hudud, 44. [28] Bukhari, Diyat, 6; Muslim, Kasame, 25-26. [29] Nasai, Tahrim ad-Dam, 2. [30] Tirmidhi, Diyat, 8. [31] Bukhari, Ilm, 37; Muslim, Hajj, 147. [32] Bukhari, Hudud, 44; Müslim, Iman, 144-145. [33] Bukhari, Diyat 30; Abu Dawud, Jihad 153. [34] Udah, Abdulkadir. Al-Tashri al-Jinaiyy al-Islami, II, 8-9, Beirut: Muassasa al-Risale, 1996; Zuhayli, Fiqh al-Islami, VI, 221. [35] Yazır, Elmalılı M. Hamdi. Hak Dini Kur'an Dili, 1/601. [36] Zamahshari, Kashshaf, al-Baqara, 178, I, 220; Radhi, Mafatih, al-Baqara, 178, II, 221, 225. [37] Bukhari, Tafsir, 23, Diyat, 8. [38] Rashi, IV, 170. [39] Alusi, Ruh al-Maani, Baqara, 178, I, 51. [40] Qutb, Fi zilal al Koran, Baqara, 178, I, 164. [41] Abu Dawud, Diyat, 3, 4; Tirmidhi, Diyat, 13. [42] Jassas, Ahkam, I, 184. [43] Ibn Humam, X, 239. [44] Yazır, Bakara, 178, I, 604-605. See Radhi, Mafatih, Bakara, 178, II, 225-6. [45] Ibn Maja, Diyat, 14; Ahmad ibn Hanbal, Musnad, 1/49. [46] Zaylai, Nasb ar-Raya, 4/402. |
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