The Classical Islamic Approach: Hadd, Qisas and Tazir
Chapter Twenty-Three
Syllabus topic 1, "Introductory"
Pages 92 to 95 of 806
In one line
Islamic criminal law divides offences into three classes according to whose right is violated, and each class has its own punishment, its own standard of proof and its own rules about pardon.
In the wording a student can write in an exam: the classical Islamic law of punishment classifies offences into hadd, qisas and tazir. Hadd offences are those for which the punishment is fixed by the Quran or the Sunnah and is regarded as a claim of God, so it can be neither reduced nor pardoned by any human authority. Qisas offences are homicide and bodily injury, for which the primary right belongs to the victim or the victim's heirs, who may demand retaliation, accept diya, blood money, or forgive. Tazir covers everything else, where both the offence and the punishment are left to the discretion of the ruler or the judge.
Why the classification is the answer
MU sets the classical Hindu and Islamic approaches together on five of the eight printed papers this book has read. What distinguishes a strong answer on the Islamic half is the classification, because everything else follows from it: the standard of proof follows from it, the possibility of pardon follows from it, and the scope for the ruler's discretion follows from it.
The three classes
Hadd
What it is. The plural is hudud, meaning limits. A hadd offence is one for which a specific punishment is laid down in the Quran or the Sunnah.
Whose right. It is treated as a right of God, that is a public right, so no individual and no ruler may waive it.
The offences. The lists in the classical schools differ slightly, and the usual enumeration is: theft, highway robbery, unlawful sexual intercourse, false accusation of unlawful sexual intercourse, drinking wine, and, in most accounts, apostasy and rebellion.
The consequence. The punishment is fixed. A judge has no discretion as to quantum and no power to substitute another penalty.
And that is precisely why hadd punishments were rarely inflicted. Because the punishment cannot be varied, the classical jurisprudence controls it at the other end, through the standard of proof, which is set extraordinarily high, and through the principle that a hadd punishment is to be averted by doubt. This is the point most answers miss and it is developed in [Islamic Criminal Justice: Proof, Pardon and Compensation].
Qisas
What it is. Retaliation. The word means equivalence.
Whose right. The right belongs primarily to the victim, or, where the victim is dead, to the heirs. It is a private right, and the state's role is to determine liability and to execute what the right-holder chooses.
The offences. Intentional homicide, and intentional bodily injury.
The Classical Islamic Approach: Hadd, Qisas and Tazir
The three options. The right-holder may demand qisas, that is retaliation in kind; may accept diya, blood money, a compensation fixed by law; or may forgive outright, in which case the offender is released from the primary penalty although the ruler may impose a tazir punishment in the public interest.
The victim's power to forgive is the single most striking feature of the system to a modern lawyer, because in the modern criminal process a murder is an offence against the state and no forgiveness by the family affects the prosecution. The comparison is developed in [Why the State Alone Punishes].
Tazir
What it is. Correction or chastisement. It is the discretionary category and it covers everything the first two do not.
Whose right. It may be a right of God, a right of an individual, or both, and the ruler or the judge decides.
The punishment. Discretionary as to kind and quantum. Admonition, reprimand, fine, imprisonment, banishment and lashes were all available, and the classical jurists debated the limits.
Tazir is the class that matters most for a penology paper, because it is the only one that involves what a modern lawyer would call sentencing discretion, and because in practice the great majority of offences in any Islamic legal system fell into it. It is also the class in which imprisonment, banishment and reformative measures appear.
The classes in a table
| Hadd | Qisas | Tazir | |
|---|---|---|---|
| Whose right | God, that is the public | The victim or the heirs | The public, the individual, or both |
| Punishment | Fixed by revelation | Retaliation, or diya, or forgiveness at the right-holder's choice | Discretionary as to kind and amount |
| May the ruler pardon | No | Not the primary right; the ruler may add a tazir punishment | Yes |
| May the victim forgive | No | Yes, and it ends the qisas | Where the right is the individual's |
| Standard of proof | Very high, and averted by doubt | High | Ordinary |
| Judicial discretion | None as to quantum | None as to the choice, which is the right-holder's | Full |
Diya, the blood money
Diya deserves separate treatment because it is the classical system's institutionalised alternative to punishment, and it has no counterpart in Indian criminal law.
It is a fixed compensation, payable to the victim or the heirs, in place of retaliation. Its amount is laid down and the classical texts differ on whether and how it varies. Where the killing was unintentional, diya rather than qisas is the primary remedy.
Compare section 395 of the Bharatiya Nagarik Suraksha Sanhita 2023, which permits a court to order compensation to the victim out of a fine, and section 396, the victim compensation scheme. Indian law reached institutionalised compensation for the victim of a homicide only in the late twentieth century, and the classical Islamic system had it from the beginning. That is the strongest point in the utility argument for this half of the question.
The Classical Islamic Approach: Hadd, Qisas and Tazir
A worked example
A intentionally kills B. B leaves two adult heirs.
Classification. Intentional homicide, a qisas offence.
Who decides. The court determines liability. The choice of remedy belongs to the heirs.
The three outcomes. If the heirs demand qisas, retaliation follows. If they accept diya, A pays the fixed compensation. If they forgive, the qisas right is extinguished, though the ruler may impose a tazir punishment because a homicide also disturbs public order.
If the killing had been unintentional? Diya is the primary remedy, and there is no qisas.
Compare Indian law. Murder is an offence against the state under section 103 of the Bharatiya Nyaya Sanhita 2023. It is not compoundable, the family's forgiveness does not end the prosecution, and the family's only financial remedy is compensation under section 395 or the state scheme under section 396.
The limits and the criticism
Three things a candid answer says.
The hadd punishments are corporal and in some cases capital, and they are fixed. Amputation for theft and stoning for unlawful intercourse are inconsistent with Article 21 of the Constitution as it has been interpreted and with the international instruments India has accepted.
The evidentiary rules that limited hadd in practice are as important as the punishments, and an answer that describes the penalties without describing the proof required gives a false picture of how the system operated.
Diya has been criticised as favouring the wealthy, because a rich offender can pay where a poor one cannot, so the same offence produces retaliation for one and compensation for another. The reply is that the choice belongs to the victim's family, not to the offender, and that a modern fine has exactly the same defect.
Quick revision
- Three classes: hadd, qisas, tazir, distinguished by whose right is violated.
- Hadd: punishment fixed by revelation, a right of God, no pardon and no discretion, but a very high standard of proof and averted by doubt. Offences usually listed: theft, highway robbery, unlawful sexual intercourse, false accusation of it, drinking wine, and in most accounts apostasy and rebellion.
- Qisas: homicide and bodily injury. The right belongs to the victim or the heirs, who may demand retaliation, accept diya, or forgive.
- Tazir: everything else, discretionary as to offence and punishment, and the class where imprisonment and reformative measures appear.
- Diya is fixed compensation in place of retaliation, and it is the classical system's institutionalised victim compensation.
- Compare sections 395 and 396 of the Bharatiya Nagarik Suraksha Sanhita 2023, which are Indian law's much later arrival at the same idea.
The Classical Islamic Approach: Hadd, Qisas and Tazir
Test yourself
1. State the three classes of offence in classical Islamic law and the basis of the classification. Hadd, qisas and tazir. The classification is by whose right the offence violates: hadd offences violate a right of God, that is a public right, and carry a punishment fixed by revelation; qisas offences violate the right of the victim or the heirs and carry retaliation, blood money or forgiveness at their choice; and tazir covers all other offences and is discretionary as to both the offence and the punishment.
2. Why were hadd punishments rarely inflicted? Because the punishment being fixed, the system controlled it through the requirements of proof rather than through the sentence. The standard of proof for a hadd offence is extraordinarily high, and the governing principle is that a hadd punishment is averted by doubt, so a case that fell short of the required proof was dealt with as tazir instead.
3. What are the three options open to the heirs of a homicide victim? To demand qisas, that is retaliation; to accept diya, the fixed blood money; or to forgive outright, in which case the primary penalty falls away although the ruler may impose a tazir punishment in the public interest.
4. Which class matters most to a penology paper, and why? Tazir. It is the only class involving what a modern lawyer would call sentencing discretion, it covered the great majority of offences in practice, and it is where imprisonment, banishment and corrective measures appear. Hadd has no discretion and qisas leaves the choice to the victim's family, so neither raises the sentencing questions this paper is about.
5. What is the closest thing in Indian law to diya, and how late did it arrive? Compensation to the victim, ordered by a court under section 395 of the Bharatiya Nagarik Suraksha Sanhita 2023, and the victim compensation scheme under section 396. Their predecessors, sections 357 and 357A of the Code of Criminal Procedure 1973, arrived in 1973 and in 2009 respectively, so institutionalised compensation for the victim of a homicide is a very recent feature of Indian criminal law.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.