The Rationale for the Necessity of Settling the Debts of an Intentional Homicide Victim from the Property Obtained through Compromise over Retaliation (Qiṣāṣ)

Abstract

Qiṣāṣ, as the principal punishment for intentional crimes, is a right that is granted to the wali al-dam (the victim’s legal heirs). This right may, in certain cases, be waived gratuitously or relinquished in exchange for financial compensation. According to the views of Islamic jurists and legal scholars, whenever a debtor whose assets are insufficient to discharge his liabilities is intentionally killed, and his heirs agree to compromise their right of qiṣāṣ in return for property, the compensation obtained through such compromise must be allocated to the payment of the deceased’s debts. This raises the question of why property that belongs to the wali al-dam should be used to settle the debts of the deceased, given that heirs bear no liability toward creditors beyond the assets of the deceased themselves. Owing to the distinct, significant, and practical legal consequences arising from this issue, the present article adopts a descriptive–analytical method to resolve this apparent tension and to provide a justification for the relevant statutory provisions and juristic opinions. The analysis demonstrates that, with the transformation of the nature of the right of qiṣāṣ at the moment it is converted into compensatory property, and with the consequent change in the subject matter of the issue, the applicable ruling likewise changes. This is because, in certain cases, there exist legal presumptions and juridical constructions grounded in Sharīʿa that may run counter to common rational intuitions. It is for this reason that, notwithstanding the attribution of the right of qiṣāṣ to the wali al-dam, once that right is compromised and exchanged for financial compensation, the debts of the deceased must be discharged from that consideration.