Murder

You know,

human beings find murder a fascinating subject.

It is a whole genre in literature,

the murder mystery,

and likewise on TV and in the movies

murder is seen as the ultimate crime to excite and attract an audience.

We are always looking for new ways to deal with the subject,

whether it be through detectives or forensic specialists who investigate it,

whether fictional or real life,

individual murders or serial killings.

It was always that way,

back to the Penny Dreadfuls and before,

with the notoriety of some long gone murderers

becoming part of folk history.

Well over a hundred years after the event,

children can still be heard skipping to the story of Lizzie Bordern,

who it is said had an axe

and gave her mother forty whacks,

and when she saw what she had done

then gave her father forty-one.

Murder is seen as a suitable subject not just for skipping rhymes,

but also for grown ups in popular song.

Most people will have heard that Frankie shot her man Johnny

with a .44

for 'doing her wrong',

though few will remember the nineteenth century crime on which the song was based.

and most might guess that Johnny Cash wasn't really in Folsom Prison

for shooting a man in Reno

'just to watch him die'.

So murder may be rare enough to be thought of as extreme,

but there still seems to be a lot of it around.

But there was probably a lot more of it in the time of the Jahiliyya,

when friendly co-operation was usually something to be found only within a family or tribe.

Inter-tribal relations were more likely to be characterised by a sense of hostility,

with an obligation of vengeance, for any insult or injury

tha'r,

being foundational to their sense of honour.

In this situation, with the constant tit-for-tat,

skirmishing feuds initiated for the most trivial of reasons could last for forty years,

and murder was seen as just an extension of violent injury,

to be revenged in the Old Testament way of

an eye for an eye and a tooth for a tooth,

though the exactness of this relationship was inevitably not always

quite as precise as that.

And to modern eyes, much of what passed as justice at the time

can seem extraordinarily brutal and bloody.

When the Jewish tribe of the Banu Qurayzah

chose the Aws chief Sa'd ibn Mu'adh

to pass judgement upon them

for trying to betray their fellow citizens in Madinah

at the Battle of the Ditch,

his judgement was that betrayal warranted a punishment of death,

and that was what happened to all the men of the tribe.

But the tribes did also use a more peaceful alternative to the bloodletting of endless feuding,

which was the payment of a certain value

in money, goods or livestock,

as compensation or redress for injury,

and this approach was considered acceptable by the Messenger

when formalising the Constitution of Madinah.

But the traditional agreements between tribes

was that this compensatory blood money,

diya,

varied according to the status of the offender and the victim

and the relative strength and prestige of their tribes.

But with Islam came the introduction of a law of Qisas, retaliation,

where in cases of murder the life of the culprit was forfeit

or a fixed amount of blood money paid

regardless of status or tribe.

One life for one life

because all are equal in the sight of God.

Qisas involves inflicting upon a culprit

an injury exactly equal to the injury inflicted upon the victim,

though in lesser injuries than murder this is usually known as Qawad.

But with the development of understandings of Shari'ah,

the legal approach to killing was discussed and developed.

As the old tribal traditions faded,

it was considered whether murder was a crime in which

the state must intervene with punishment,

or whether it can be considered as a civil wrong for which

remedy is available to the wronged individual if they so request.

It is the treatment of murder as a civil wrong

to be approached in terms of qisas

that clearly distinguishes the Shari'ah treatment of murder

from many other legal systems,

along with the division of types of killing into various sub-categories

varying by school of law.

The Maliki and Zahiri schools simply divide types of killing into two categories,

deliberate and accidental,

whereas the Hanafi school can have five.

Deliberate killing,

quasi-deliberate,

accidental,

equivalent to accidental,

and indirect killing

can all be considered as separate categories,

and the Shari'ah approach to the subject can be quite complex and subtle,

if occasionally somewhat confusing.

Confusion is not eased by the fact

that definition of each category is disputed

not only amongst the different schools of law,

but also different scholars of the same school.

Another layer of complexity is added when it is considered

that in the event of guilt being pronounced on the perpetrator,

the punishment is then dependent upon the will of the one bringing the charge.

The complainant can choose between the enforcement of the death penalty,

or the payment of blood money, diya, as an alternative,

or if they so choose they can show mercy,

and the state has no right to interfere.

This interaction

between complainant and perpetrator

has had to be considered by most modern muslim states

when formulating their individual legal systems,

and most have accepted the Shari'ah understanding

of murder as being a civil matter.

But with killing being something that it is usually considered

preferable to keep out of individual hands,

most modern states will allow those seeking retribution to insist on execution,

but insist that the responsibility for carrying out such sentences

rests solely with the state.