Introduction – General Overview

We know that in Islamic punishments and criminal laws, punishments are divided into two categories: hadd and ta’zir. Hadd punishments are laws that are clearly stated in the Quran and authentic prophetic traditions, and are known as “textual punishments”. Ta’zir punishments are punishments that are not explicitly mentioned in the Sharia and the judge (religious ruler) determines them based on rules such as proportionality between the crime and punishment, and considering other benefits and harms. These punishments must, of course, be less severe than hadd punishments.

In the realm of jurisprudence, if the basis is on religious documents, in the Quran four punishments have been determined for four crimes: theft, fighting, retribution, and adultery. However, in jurisprudence, which was established in the second century and gradually developed until the fifth century among Sunnis and until the seventh century among Shiites, various punishments have been determined for different types of crimes.

But regarding the ruling of execution and killing; among the Quranic punishments, we have two mentioned punishments of killing and execution, one regarding retribution (verse 45 of Surah Al-Ma’idah) and one about the punishment for those who wage war (verse 33 of Surah Al-Ma’idah), which is one of the four types of punishment for those who wage war and is carried out selectively. However, there is another case mentioned in verses 60-62 of Surah Al-Ahzab. In these verses, it is said that hypocrites who have a disease in their hearts and spread rumors, wherever you find them, kill them. In Islamic jurisprudence, execution by stoning (rajm) is prescribed for adulterers and being thrown off a mountain is also considered as a punishment for those who commit sodomy. There may be other cases as well, but I cannot recall them at the moment.

In any case, what is certain is that in Islamic jurisprudence and law, there are instances of capital punishment. However, in this regard, I will present some considerations from two perspectives in order to compare different views (albeit briefly). These two perspectives are traditional jurisprudence and Islamic modernist and intellectual views.

The execution of punishment from the perspective of traditional jurisprudence.

In this section, I try to reflect on the concept of capital punishment within the framework of traditional and common jurisprudence and the special perspective of jurists. First of all, it should be noted that these cases do not have the same situation. For example, the punishment for a combatant is optional, meaning one of the four options is execution, and this statement means that there is no obligation to crucify the criminals and other options can be used. Regarding the rumor of spreading fear among the sick, it is clear that the verse of the Quran is not a juridical or punitive ruling, but merely a threat, and the maximum punishment is the execution of these individuals, not the fabrication of a legal and judicial ruling. This is why the Prophet never punished the spreaders of rumors and opponents with execution or other punishments, and later jurists did not derive a legal ruling from it. Throwing homosexuals off a mountain also has multiple options, and it can even be arranged in a

Among these cases, such as the laws of retribution, stoning, apostasy, and insulting the Prophet, differences and distinctions can also be seen between them in two ways. First, only the punishment of retribution is mentioned in the Quran, and there is no ruling (whether execution or anything else) for adultery, homosexuality, apostasy, and insulting the Prophet in the Quran. Therefore, they have no place in the Quran. Secondly, among these cases, only the law of retribution has a personal nature, and the rest of the cases are completely within the realm of state and government laws. This means that the government can enforce such laws, or not enforce them at all based on their interests, or impose other punishments (such as imprisonment).

From the past, it is clear that in terms of punishments, the hand of the government and the judicial system is completely open and can consider and enforce a wide and fair range of penalties for various crimes.

According to these points, it can be concluded that within the framework of traditional jurisprudence and ijtihad, the only case in which the death penalty has a personal and individual nature is the right of retribution for a life taken. This is the reason why the Islamic Republic government argues that it cannot make a decision instead of the guardian and therefore, retribution has been and continues to be firmly implemented in the Islamic Republic (and even in the previous regime). However, this retribution ruling also comes with its own conditions and exceptions, which will be discussed shortly.

From an Islamic perspective, the death penalty is not considered humane.

We know that modern Muslim thinkers, with a historical-critical approach to Islam and traditional jurisprudence, have now come to the conclusion that the social laws of Islamic Sharia (personal and worship laws, of course, follow a different internal logic) are essentially changeable, unless proven otherwise. This is contrary to the view of jurists who claim that the laws of Sharia are fixed and cannot be changed unless proven otherwise. However, according to these thinkers, identifying and finding solutions to these contradictions can be done within the framework of their own authorized interpretations, such as primary-secondary laws or governmental rulings, and in some cases, through authorized interpretations and possibilities. Modern Muslim thinkers do not consider religion, Sharia, and the Quran as a legitimate source of political power or legislation. The legitimacy of the government and political power is derived from the people’s opinions, and the law is legitimized through experts, parliament, and representatives of the people, and is enforced as necessary (as Iqbal Lahori suggested

In light of the broad perspective mentioned in Islamic reformist thought, specifically the death penalty for any type of crime falls within the realm of experts and their expertise, who determine, based on knowledge, reason, and experience, firstly, whether a punishment such as execution is beneficial or harmful in preventing crimes (such as murder or drugs), and secondly, and more importantly, whether taking a human life and ending the life of a person (even the most guilty) is permissible or not. This kind of view towards human and human rights is certainly new and has not been prevalent among Muslims (like other Western and Eastern societies) in the past. Perhaps even today, not all Muslim reformist thinkers (at least explicitly) support the abolition of the death penalty, but at least the idea is gaining strength. However, it is clear that legislation is a societal institution and is outside the realm of Sharia and its authorities, namely the jurists, and that the most severe punishments for crimes such as apostasy

Of course, these thinkers have each, over the past one hundred and fifty years, discussed extensively on this subject, both from an external and internal religious perspective, and have used various arguments that can be referenced in their written works.

From the perspective of the principle of fundamental authority in understanding religious beliefs, these individuals not only do not consider the death penalty for apostasy, insulting the Prophet, adultery, and homosexuality as Quranic, but also completely contrary to the texts and especially against the principles and foundations of other Quranic and Islamic principles (such as principles like freedom of belief, compassion, and proportionality of crime and punishment) and recently, serious criticisms have been made against this type of approach and jurisprudence from an ethical point of view. In addition, there are many ambiguities in the Quran and especially in the narrations and hadiths regarding the limits and compensations, which are the main source of jurisprudence and fiqh for the jurists, and often the references of the jurists regarding the punishments of stoning, apostasy, and insulting the Prophet, even from a completely religious and hadith perspective, are distorted and unreliable. In this regard, even some traditional jurists have raised many

However, regarding the most important justification for the Islamic government of Iran in regards to the execution of retribution, it can be said that this justification also requires reflection from various perspectives. Firstly, if it is determined by experts (according to the interpretation of Islamic scholars) that the principle of execution is harmful and at least not necessary, then the issue of execution becomes irrelevant and there is no room for debate or argument, and the discussion on this matter ends. Secondly, today, no law or punishment in the judicial system is purely personal, but the government also considers the rights of society and the public interest above personal feelings and emotions, and it is necessary to respect those interests. Therefore, when the government determines that even the use of personal rights by the heirs of the victim is detrimental to society, it has the right, according to reason and religion, to completely abolish the punishment of retribution and this is neither against reason, nor against custom, nor against religion. Is this not the way of

More importantly and surprisingly, the mass and indiscriminate execution of drug traffickers, which has no place in either Sharia law or human morality and reason. At the very least, science and experience have shown that such punishment has not only failed to prevent the spread of drugs, but has also caused and continues to cause numerous damages, which even officials of the Islamic Republic have acknowledged. In this case, what insistence is there on this failed tradition? In the traditional jurisprudence framework, the death penalty for drug traffickers is not only not permissible, but they are not even deserving of imprisonment or confinement, as the use, purchase, or sale of drugs is not officially and publicly prohibited in Sharia law, and no religious scholar (to the extent of my knowledge and memory) has officially issued a fatwa on the prohibition of drugs. Even if it is considered prohibited, is every person who commits a prohibited act deserving of death and execution? With this description, it is truly incomprehensible why

The summary of my claims in this short text is:

Firstly, it is correct in jurisprudence and sharia that there are instances where the death penalty exists, but these types of punishments also have many exceptions and conditions within the framework of jurisprudence, and at least some of them do not have roots in the Quran.

Secondly, assuming legal trust, such regulations can be replaced with alternative punishments, which can be organized by mujtahids, judges, and experts working together.

Thirdly, from the perspective of Islamic teachings, religion and sharia are not the basis for legitimizing power, nor are they the source of legislation and law. Therefore, the legislation and enforcement of law (government and judicial system) are fundamentally based on customary practices, and thus are recognized by those who are familiar with various forms of punishment (including the death penalty) and ultimately the government and legislation and determination of punishments are completely outside the realm of sharia and those responsible for it.