Homicide in Islamic Law

Abstract

Perhaps the first point which attracts the attention of the European lawyer who begins to study the treatment of qatl (homicide) in the text-books of Islamic law is that it is there treated, in modern parlance, more as a tort than a crime. To understand the offence properly, however, no such simple classification will suffice: instead, it is essential to view it in its historical setting and detailed development.Under the heading of ‘uqūbāt, or punishments, Muslim lawyers treat primarily the very limited number of offences for which definite penalties (hudūd, singular hadd) are expressly prescribed in the arīa, although reference is also frequently made to the discretionary power of the Ruler or Judge suitably to punish other wrongdoing. Offences in general, moreover, are normally sub-divided into those which are regarded as exclusively involving the “right of God”, those in which both the “right of God” and the right of some individual is recognized but the former is held to preponderate, and those in which the latter is regarded as predominant. In the first category all jurists include sariqa in its two degrees (theft and brigandage), zinā (illicit sex relations), urb (wine drinking) and, when placed in this context, irtidād (apostacy from Islam); in the second, some jurists place qaf (the unproved assertion of a chaste person's incontinence), although others put this in the third category; while in the latter all include homicide and wounding. In effect an offence in which the right of God (as the Head of the community) is held to be exclusive or preponderant more or less corresponds to the modern crime, and one in which a private individual's right is regarded as predominant to the modern tort, for the chief practical difference is that in the former neither the party primarily injured nor, indeed, the Court may drop the case or allow a settlement once it has been started, while in the latter the injured party may do either at his or her discretion.