Revisiting the Philosophy of Qisas al-Nafs (Retributive Execution) from the Perspective of the Objectives of Shari’ah and Human Dignity, with an Emphasis on the Possibility of Organ Donation as a Substitute for Retribution

Abstract

This study, by reexamining the philosophy of qisas al-nafs in Imami jurisprudence and Iranian criminal law, demonstrates that qisas, contrary to revengeful and violent interpretations, is a rights-based institution limited by the principle of equivalence. Its objective is to restore the disturbed moral and social balance through a proportionate response to intentional homicide, to restrain the cycle of blood vengeance, and to consolidate collective security, rather than to merely eliminate the offender physically. Within this framework, qisas functions as a right that can be claimed, forgiven, or converted by the victim’s next of kin, and it is carried out through judicial procedures under the supervision of a judge and within the bounds of human dignity—including prohibitions against mutilation, excessive harm, and the obligation to act benevolently in execution—so that both the deterrent principle and the dignity of even the offender are preserved. The study further shows that this intrinsic logic of qisas, in light of the maqasid al-shari‘ah (objectives of Islamic law) and the rule of preserving life (hifz al-nafs) and maintaining public order, tends toward limiting the scope of harsh punishments and preferring restorative and life-affirming alternatives. This interpretation aligns with the Qur’anic principle “and for you in retribution there is life” (wa lakum fi al-qisasi hayatun), such that “life” is understood not only as the deterrence of future killings but also as the creation of actual possibilities for life for others. The third and fourth discussions explore the feasibility of an alternative model in which the victim’s heirs, instead of demanding the traditional implementation of qisas al-nafs, may—by virtue of their rights to reconciliation and waiver, and under conditions of the convict’s informed and non-coerced consent, with judicial and medical oversight—choose to convert their right into a mechanism for organ donation, thereby saving the lives of patients on the verge of death. This is contingent upon safeguarding the dignity of the condemned person throughout and after the process, prohibiting any form of coercion or humiliation, ensuring the separation of the jurisdictions of the execution judge and the medical ethics committee, and institutionally guaranteeing the jurisprudential legitimacy of exercising or waiving the right. The conclusion drawn is that qisas can transcend the mere logic of terminating the offender’s life and evolve into a dignity-centered mechanism of justice that is simultaneously deterrent and life-giving for society as a whole.