Qesaas

قصاص

 

Qesaas is a simple straight forward concept in criminal jurisprudence to deal with a crime.  It is defined as “an eye for an eye, a tooth for a tooth”, etc.  Obviously no legal system is immune from abuses and, furthermore, exceptions are not norms.  Accordingly, Qesaas is discussed and compared with modern legal systems assuming they are reasonably applied and exceptions are minimized.  Also, one must take into account the potential for abuses in the comparative concepts. 

Neither Qesaas nor modern legal systems allow the victim or his/her family to judge the offender for guilt or innocence.  Having this in mind, the primarily difference between the two is the rights of the victim.  In Qesaas, the victim or his heir – not the government or the public -- decides to forgive the offender or to ask for retribution or a combination of both.  Again it is done after intentional guilt is proven in due process of law. 

This article is related to my other article in Persian under the same title.  It is neither a translation of that article nor independent from the basic concept presented there.  This is to shed some light on the issue in respect to comments I received.  This English version is in response to most bilingual readers who commented on the Persian one.

But before I get into discussing the issue, I need to state a personal belief.  I believe intentionally killing or physically harming innocent people is cruel whether it is done by military shock and awe, terrorism or simply domestic violence.  By the same token a system of justice in which a murderer can walk away from a crime -- through the maze of legal loopholes, national pride, religious decree, demagoguery, etc. -- is even more vicious than the crime itself. 

Furthermore, I am a vegetarian because I do NOT believe in killing animals for food.  So, why do I even think of Qesaas?  The answer is already stated, but I repeat:  Qesaas is NOT perfect AND does have many shortcomings, but it is by far a better solution, and serves justice more equitable than modern jurisprudence.  I must add I am neither a law professional nor a clergyman, but a student of reason.  Accordingly, as far as this issue is concerned, if I am not proven wrong, it would make ABSOLUTELY no difference whether an advanced legal system takes Qesaas and modernize its basic concept to make it even better or a religious autocracy applies modern standards to Qesaas to correct its shortcomings.

I maybe wrong, but I believe opposing an issue JUST because it is old and primitive is as na´ve as accepting an issue JUST because it is new and advanced.  As much as many old and primitive issues are based on common sense and everlasting, many new and advanced issues are inherently vicious, i.e. neocon vision of a preemptive strike based on unilateral choosing of power wielders.  Unfortunately most of the so called patsies of western values are double na´ve because they are brain washed to fall for both!  The opposite is also true, but not ubiquitous!

An individual who meditate and commits a crime in physically harming or killing another human being is brutal no matter how educated or civilized he/she may behave in the public eye.  The victim or his heir has the right to retribution as much as – if not more -- the offender has the right to a fair trial.  Qesaas in the scope of this issue should not be confused with vigilantism in which an individual takes the law in his/her own hand.  The victim or his/her heir would only decide the retribution after the verdict of guilt.  It is the legal system to enforce and execute it.  In other words, the victim is neither the judge nor the executer, but only a plaintiff demanding justice.

 Having understood the concept, I simply ignore politically motivated and emotionally charged unrelated comments as well as nay sayers who honestly believe religious laws could not be modified.  I would ask them to just study the whole history of religious jurisprudence – especially in Islam – for myriad of opposing interpretations and applications of the so called word of God.  But for a case in point, a reader who felt her intelligence was insulted wrote:

“…the Law of an Eye for an Eye, whether in Judeo-Christianity or in Islam, is a primitive and brutal law, indefensible by any modern and civilised person. Brutal laws such as execution, torture and cutting of people’s limbs, have never been a gazingstock for people, nor have prevented the recurrence of crimes. Furthermore, a victim or her/his family are too emotionally involved to decide a proportionate punishment for the culprit.”

First off, the crime of INTENTIONALLY harming someone or killing an innocent human being is also indefensible by not only modern and civilized people, but also by primitive and old fashioned people as well.  Such brutal crimes have been committed by modern and civilized people as much as – if not more than – old fashioned and primitive people.  While neither Qesaas nor the modern and civilized system of justice have ever been able to prevent the recurrence of crimes, Qesaas gives the victim some limited remedy.  The modern and civilized system of justice, on the other hand, is cruel to the innocent victim in favor of the offender who has already been proved being cruel and brutal. 

Finally, yes I agree; a victim or his/her family is emotionally involved.  So is the offender.  But the victim does NOT decide the proportionate punishment for the culprit.  It is already decided as “an eye for an eye”, the victim simply chooses to ask enforcing it or not.  The offender will be forced to reach out to the victim instead of ignoring him/her altogether and looking for legal loopholes to gloat.   The victim is given a chance to -- at least -- mitigate his/her agony by either forgiveness or demanding “an eye for an eye”, etc.  The question is then whether the legal system is supposed to suppress the reality of emotions.  Cool headed judgment is proper to the extent of proving guilt, but impartial punishment and forgiveness are calculated by factors beyond the scope of the crime; i.e. trying to minimize the load of crowded prisons.

Since some members of our groups, and a reader at Iranian.com referred me to a comment by D.W. Duke who is a law professional, I address it here.  Prior to my comment, please read his comment -- that is typical of opponents of Qesaas -- under the title “Life for Sale” at http://scenews.blog.com/1946498/

 

1. Government authorizes the ghisas (FALSE) and performs the act of execution (TRUE)

Qesaas is part of the jurisprudence as execution is part of the legal system in most states in modern world.  Opponents of Qesaas confuse the constitutional rights with executive power.  The government is given the responsibility to carry out the execution, but not the authority to decide who should be executed.  The victim is given the constitutional right to authorize it.  Quite to the contrary, it is the modern legal system NOT Qesaas that takes this constitutional right away from the victim and hands it over to the government.   The Judicial branch of the government in modern world authorizes the execution – even if the victim forgives the offender – and its executive branch performs its duty to carry out execution.  In Qesaas, if a victim forgives the murderer, the government cannot execute the offender.  Period.

Instead of resorting to sophistry, one must refrain from assuming modern world is right!  A private citizen as a victim is entitled to make the decision NOT the government or the public at large.

 “2.  The concept of ghisas places a monetary value on life and death” FALSE

Monetary value on life and death is an option available to the victim and it is by no means mandatory.  It is exactly the same – in concept -- as a wrongful death action seeking compensation for the pain and suffering associated with the loss.  Again, if the victim does not forgive the offender, but decides not to ask for “an eye for an eye” retribution either, he/she may settle for a monetary compensation defined by Qesaas instead of a judge in the modern world.  So it is not only false, but ridiculous to claim: “The system is inherently corrupt is the equivalent to extortion which is illegal in civilized nations of the world.”  Once again, there are many wrongs in “civilized nations of the world” that are legal and many rights that are illegal.  So as much as something legal in third world does not make it right, just because something is illegal in modern world does not make it wrong either.

 “3.  The system of ghisas discriminates on the basis of financial status”  TRUE AND FALSE

True to the extent that such discrimination is even worst in modern legal system in which an offender who cannot afford astronomical legal fees is doomed to lose.  False to the extent explained in item 2 in which the victim has a constitutional right to ask for “an eye for an eye”, if he decides not to forgive or settle for blood money, the offender who happens to be rich will be executed.  Quite to the contrary, in modern legal system money talks!  It is the rich who can get away with murder by hiring the most expensive defense team.  Examples are plentiful.

“4.  In the ghisas system, the decision over life and death is not made by an impartial trier of fact”  TRUE   

That is the whole point.  An impartial trier of fact is to decide guilt or innocence.  By the time it is decided, the brutality of the crime is covered by the appearance of the offender to have shown remorse or not, and definitely by the way controlled media plays it on air.  That is not so for the victim whose agony is as fresh as ever, but he/she is also human and can forgive.  Now who is more qualified to make the decision?  A judge or jury who is -- at best -- tired of the trial or the victim who suffered a loss, but so patiently heard the offender. 

The fundamental flaw of logic in favor of civilized nations is to think a life is lost and cannot be reversed, let’s save the life of the guy who caused it! 

 “5.  The ghisas system holds the accused hostage until a ransom is paid” TRUE

True, but biased and provocative choice of words because the accused in modern worlds is also held hostage – kept in prison – in the death row till his execution.  Again, a modern legal system is more concerned about crowded prisons than justice.  The victim is simply given no rights whatsoever.

  “6.  Under the system of ghisas one is executed for minor crimes and set free for capital offenses”  FALSE

Here we have two entirely different issues.  Capital offenses that are either forgiven or settled by retribution in the form of blood money are not to be compared with other crimes.  A victimless crime is inherently out of the scope of Qesaas because it cannot fit in the concept of “an eye for an eye”, i.e. where a life is not lost to claim the same.  So I oppose the death sentence for such crimes. 

The other case in point is the controversial homosexuality.  If it is not consensual, a crime is committed under any legal system, but its punishment is covered by laws other than Qesaas.  The law against consensual homosexuality is not within the scope of Qesaas either; simply because it does not fit the “an eye for an eye” concept. 

While ordinary people have no problem understanding such basic facts in the concept of Qesaas, biased intelligentsia twist and distort reality to create a false perception.  I certainly acknowledge many unfair laws in both modern and religious laws that are to be identified and modified.  But I wonder whether there is a political interest in opposing Qesaas.  Just think about it.  Who would benefit from a legal system without Qesaas?  It is neither the society nor the victim.  It is the offender. 

Then think about the enormous applications of Qesaas.  Just for a point in case, it is common knowledge that board members of cigarette companies, who knew smoking kills, WILLFULLY advertised it for profit.  Then what happens when they are convicted?  In modern legal systems, they simply pay blood money out of the dirty profit they made over the lives of so many people who fell for it.  If a prosecutor pushes it really hard, they may get some prison terms.  In Qesaas all is needed is just one victim not to forgive or settle for blood money, and every convicted board member will be executed!  Now, I want to see a cool headed and sophisticated board member who is not emotionally enraged to kill someone, to willfully mislead the public for smoking! 

What a panacea to myriads of economically motivated and malicious deeds, including war.  But I do not intend to underestimate its abuses. However, “an eye for an eye” is more justice than brutality.  It is an equitable extension to self defense in modern legal system.  Killing in self defense is to prevent the offender from doing it.  In Qesaas the victim punishes the offender for the crime he/she has already committed. 

The role of majority is outrageously propagated in misleading terms.  Learning from American civil rights movement, the white men overwhelmingly considered blacks as slaves and treated them as their properties.  It was the rule of majority that sanctioned it.  In fact such rules as pillars of democracy in modern world are hardly ever fair to minorities.  They are subjective, at best, that is precisely in line with outdated religious beliefs.  In fact, as far as civil rights in America are concerned, the rule of majority was hardly ever equitable.  It was almost always the legal system through prominent religious figures like Dr. King who paved the way out of unjust laws.

While religion in any school of theology is equally subjective for unbelievable abuses in practice, it is still the only meaningful source of compassion and mercy to minorities.  No wonder almost all charity organizations carry some form of a religious symbol.  Keep in mind the fact that both offenders and victims are --in a way-- minorities.  They are exceptions to a society as a whole.  And no matter how secular a society is, most offenders and victims seek religious consolation for different reasons.  One can feel its presence in a court of law in modern world as well.  Think of the order to take the oath saying “help me God” to tell the truth.

Yet that is not the point I am either interested in or intend to promote.  Before finding its way to Old Testament, I am sure Qesaas was an equitable mechanism for justice, and it will never lose that status.

Peace,

Mohamad Purqurian

January 8, 2009