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Death Penalty

After Catholic Church's Renunciation of Death Penalty, What Will the Islamic Establishment Do? Three Iranian Religious Experts Weigh In

Ali Kala'i / Translation by Abdorrahman Boroumand Center
Abdorrahman Boroumand Center
August 16, 2018
Web article

For centuries, the Catholic Church allowed the implementation of the death penalty, deeming it necessary “under certain circumstances”. Although the Roman Catholic Church had already modified its position since the time of Pope John Paul II, from 2013 onward and with the election of Pope Francis as the head of the Catholic Church, more has been said against this punishment by Church officials. Ultimately, in the early days of August of the current year, the Catholic Church and its leader Pope Francis, expressly called the death penalty “unacceptable” and stated that the punishment is “an attack on human dignity”. Thus, the death penalty has been eliminated from the Catholic Church’s official doctrine.

At the sixth World Congress against the Death Penalty held in Oslo, Norway in June 2016, Pope Francis had already expressly declared his opposition to the death penalty and said that any punishment without hope would be inappropriate: “Punishment for its own sake, without room for hope, is a form of torture, not of punishment.”

And while the Catholic Church, eliminates the death penalty, a vestige of the dark days of the Middle Ages, from its teachings, last year Iran in the era of the Islamic Republic, with criminal laws drawn from Islam, ranked second in the world (after China, and for the umpteenth time) for the number of executions carried out in the country (see Amnesty International’s Annual Report: Iran carried out the highest Number of Executions.)

While the Catholic Church eliminates the death penalty from its teachings, last year Iran, with criminal laws drawn from Islam, ranked second in the world for the number of executions carried out in the country

The Islamic Republic claims that its judicial apparatus functions on the basis of religious teachings. In the early years of the Revolution, its founder even said that those who opposed the “Qesas” (Law of Retribution) Bill were “apostates”.

Under these circumstances the question then becomes: Does it seem at all possible that Islam’s official [judicial] apparatus – whether Shi’a or Sunni – may one day agree to eliminate the death penalty from its religious teachings? Is there essentially a distinction between Qesas and the death penalty in the Islamic Holy Text (the Qur’an)? Given the existence of the concept of Qesas in the Holy Text, does the possibility of eliminating the death penalty and similar punishments exist at all?

And finally, what is the reason for the elimination of the death penalty from the teachings of the Catholic Church? Is it religious reform or are we dealing with a non-religious, political decision?

Zamaneh posed these questions to three religious intellectuals and researchers. Below are the responses from Abdolkarim Soroush, Mohsen Kadivar, and Hassan Yussefi Eshkevari.

I response to Zamaneh’s first two questions, Abdolkarim Soroush, author, theoretician, theologian, and university professor who has taught in various universities in Iran and abroad, said: “There is no religious decree that cannot be abolished and/or suspended, even if it is contained in the Qur’an itself.”

He further stated: “For centuries, Shi’as have considered Friday Prayers not to be mandatory, and have predicated its exercise on certain conditions, even though the mandatory nature of the decree has been expressly provided for in the Qur’an.”

 

Abdolkarim Soroush

Regarding the death penalty in the Qur’an, Dr. Soroush said: “The Qur’an prescribes the death penalty only for murder and Moharebeh (“waging war against Allah”), not for sodomy, adultery, or apostasy. Religious scholars have extremely different views regarding these issues; for instance, Hanafi jurisprudence does not consider the punishment for sodomy to be death.”

This religious theoretician said, however, that abolishment of Shari’a laws requires reasonable and justifiable grounds, and a religious decree can be modified if such grounds can be found.

“There is no religious decree that cannot be abolished and/or suspended, even if it is contained in the Qur’an itself.”

In response to Zamaneh’s question regarding the reasons for the Catholic Church eliminating the death penalty from its teachings, Soroush said that in strictly prohibiting the death penalty, the Church has taken a major step forward after centuries of burning heretics and apostates at the stake. He added: “The Pope’s reasoning is that Man’s dignity prevents God from agreeing to the taking of a life. The Pope even considers going to Hell a contradiction to God’s mercy and to Man’s dignity, and he therefore denies the existence of Hell. The conclusion he reaches is a correct one.”

This religious intellectual did not, however, consider the arguments presented by the Pope as sufficient, and further explained: “In my opinion, these arguments are not sufficient; stronger arguments are necessary. Relying solely on human beings’ inherent dignity is not sufficient where there is a social issue at stake. It must be shown that there is no higher value that human lif] and no sin worse than taking a life.”

In response to Zamaneh’s initial question, however, Mohsen Kadivar, author, theologian, and Duke University research fellow explained that although the “rational possibility” of eliminating the death penalty from Islamic teachings does exist, “but the possibility of its ‘actual occurrence’ within the framework of ‘traditional religious scholarly opinion’ is highly unlikely; in the most optimistic of cases, the implementation of the death penalty can just be greatly reduced within the aforementioned framework.”

This theologian then turned to the “Ijtihad (“having reached a level of religious legal expertise so as to issue fatwas or decrees”) in fundamentals and principles” approach and said: “In the ‘Ijtihad in fundamentals and principles’ approach, criminal law is considered to be – from a criminology standpoint (in most cases) and from a determining punishment standpoint (in absolutely all cases) - within the realm of non-religious affairs, and is relegated to non-religious institutions. Therefore, the possibility of the absolute elimination of punishment, of elimination of the death penalty and substituting it with lesser punishments in many cases, and with first degree punishment (the harshest possible punishment in any legal system other than the death penalty), does exist in certain limited cases. The death penalty is considered to be among temporary, seasonal, and archaic religious decrees.”

 

Mohsen Kadivar

In response to Zamaneh’s second question regarding Qesas and the death penalty in the Holy Text, however, Dr. Kadivar said: “In traditional Islam, the death penalty is not a necessity for Qesas. Qesas of life in cases of murder is not the sole available punishment; there are also potential substitute punishments available such as Diah (“blood money”) and pardon (the next of kin forgiving the murderer), and the latter punishment is considered to be the best [and wisest] and most preferable one.”

“In the ‘Ijtihad in fundamentals and principles’ approach, criminal law is considered to within the realm of non-religious affairs, and is relegated to non-religious institutions.”

He continued his response with the following explanation referencing traditional Fiqh (Islamic jurisprudence): “Within the framework of traditional Islamic jurisprudence, the death penalty is not reserved solely for intentional murder; it applies to at least 10 other crimes, such as armed endangerment of public safety (which in religious parlance is referred to as Moharebeh and Efsad fel-Arz (“spreading corruption on Earth”) which is the equivalent of terrorism and gang activities in modern culture), certain sex crimes (rape, sex with persons with whom marriage is prohibited, adultery, sodomy, sex between two women at least one of whom is married), insulting the Prophet Mohammad, claiming to be a prophet, witchcraft (if the person is a Moslem), apostasy of a male, and committing crimes that carry Hadd punishments for a third time. It is clear that in traditional Islam, eliminating the death penalty for intentional murder (Qesas) is not the equivalent of eliminating it for the other at least 10 cases, and abolishing the death penalty for the other crimes, within the framework of traditional Islamic jurisprudence, is highly unlikely.”

This theologian further stated: “Based on the ‘Ijtihad in fundamentals and principles’ approach, it must first be said regarding Qesas, that the fundamentalist interpretation of ‘corporeal equivalence between the crime and the punishment’ has been abrogated and ‘equivalence between the severity of the punishment and its deterrent effect with the crime’ has replaced it instead. Secondly, given the importance of ‘the public aspect of the crime’ in intentional murder, implementation of the death penalty is conditional upon the prosecutor’s consent and is not the exclusive domain of ‘the personal (private) aspect [of the crime]’ (the will of the next of kin).”

In a conversation entitled “The rule of Qesas from An ‘Ijtihad in Fundamentals and Principles’ Perspective” with Narges Tavassolian, published in March-April 2015 in the Iran Wire website, this author and theologian had provided further insight into these arguments.

Regarding [the death penalty] in cases other than Qesas, he told Zamaneh: “In non-Qesas cases, certain of the aforementioned cases (such as apostasy and homosexuality) have been de-criminalized. In other cases, once the crime has been proven, the death penalty is replaced with substitute punishments, and the determination of sentence in all cases, and criminalization in most, has been relegated to non-religious authorities. Therefore, a death sentence will ultimately not be issued from any Islamic authority.”

In response to the third question regarding the reasons for the elimination of the death penalty from the Catholic Church’s teachings, Mohsen Kadivar said: “Generally speaking, ‘divinity-centric’ Christianity has always been different from the very beginning from ‘law-centric’ Judaism and what was perceived as ‘Shari’a centric’ Islam; in Christianity, religion was therefore separate from the law from the start. That is the reason why biblical texts scarcely address punishments, including the death penalty. In the middle ages, the death penalty was applied primarily to heresy and excommunication and was the basis for much extreme violence. Subject matters such as heresy having become moot in most Christian societies in recent centuries, the death penalty has lost its importance from a religious standpoint. Various scientific surveys also show that most Christians believe that Jesus Christ had a negative [and unfavorable] view of the death penalty.” This theology and history researcher then completed his answer by speaking about the Vatican: “The Vatican has realized these past few decades, and is adjusting itself with the changing public opinion, especially because eliminating the death penalty has very little religious cost for contemporary Catholicism. The political ramifications of this decision are that they project a softer image of the Catholic Church. Given the above, it would be very difficult to interpret the elimination of the death penalty as a religious reform of the Catholic Church, although one cannot deny its symbolic importance in religious, secular, and political terms. The discussion of the justifications announced by the Vatican and comparing that with the continued prohibition of abortion and divorce in Catholic Christianity will be left for another time.”

In response to Zamaneh’s first two questions regarding the possibility of eliminating the death penalty from Islam’s official religious apparatus, as well as the distinction between “Qesas” and “the death penalty”, Hassan Yussefi Eshkevari, author and theologian, said: “As you know, we have no punishment in the Shari’a and Islamic jurisprudence entitled the “death penalty”; what we have is Qesas or other punishments that can be considered a form of murder. Qesas of life (the retributive taking of a life) by the next of kin is a form of redeeming individual rights in Islamic jurisprudence. In the framework of the modern nation-state’s legal inter-relations, however, the government also possesses a right, that is, it can and must supervise and protect public rights. Therefore, in the modern world, legal systems make decisions regarding the common good and national interest through such legitimate institutions as the legislature, and make laws about all forms of punishments, including those related to the right to life (as the most fundamental of human rights).

 

Hassan Yussefi Eshkevari

This theology researcher continued: “If we accept the validity of these basic tenets, then it follows that it is natural for the modern state to modify the Qesas of life punishment and other traditional religious punishments as needed, and replace them with substitute punishments; naturally, such developments occur in Islamic societies as well, and will happen as the times require.”

According to Yussefi Eshkevari, it won’t be long until the Islamic world will completely abolish the death penalty, as certain Islamic countries (such as Turkey) have already done, even though traditional Islamic scholars will continue to insist on their outdated, archaic, and pre-modern positions, at least until further notice.

It won’t be long until the Islamic world will completely abolish the death penalty, as certain Islamic countries (such as Turkey) have already done, even though traditional Islamic scholars will continue to insist on their outdated, archaic, and pre-modern positions

In response to Zamaneh’s third question regarding the elimination of the death penalty by the Catholic Church, this theology and history researcher and intellectual considered the decision to have been a result of Christian Reformation and said: “The reason or reasons for the abrogation of the death penalty in the Catholic Church, or any other religion, for that matter, is undoubtedly rooted in Christian Reformation, which itself is more rooted in the Protestant tradition. This reform itself, however, is rooted in a series of civil, economic, and cultural developments in the West in the last 500 years. No change and progress in the realm of human existence can ever be made without a background and the existence and satisfaction of a set of conditions and circumstances.”

In closing, however, Yussefi Eshkevari said: “As I said, in time, Moslems will not be able to stay away from and not be affected by these fast evolving human experiences. Logic dictates that sooner or later, Moslems will also join the fast-moving world civilization and make revisions in all punishments that are considered violent and inhuman, or at least unfair, within the framework of the human rights culture; religious scholars will ultimately have no other option but to give in to these developments. Developments in pluralistic Islamic societies indicate that this is actually the trend; even in the Fiqh-centric Islamic Republic ruled by the Islamic Scholar, we are more or less witnessing the same trend.”