Feasibility Study of Jurisprudential Substitution of Retribution in Kind (Qisas al-Nafs) with Organ Donation

Abstract

This study, employing a descriptive–analytical and inferential–maqāṣidī (objectives-based) approach, reexamines one of the most fundamental and controversial penal rulings in Islam—Qisas al-Nafs (retribution for murder). Drawing on the principles of Imamiyyah jurisprudence, it aims to reinterpret the philosophy of Qisas through the lenses of the Maqāṣid al-Shariah (objectives of Islamic law) and human dignity, exploring the feasibility of fully substituting organ donation for the execution of retribution in kind. The central question of this research arises from the Qur’anic declaration that the ultimate purpose of Qisas is the realization of justice and the preservation of collective life, as expressed in Surah al-Baqarah (2:179): “And there is life for you in retribution, O people of reason.” If the divine objective of Qisas is to sustain life, the study asks whether it is possible—by moving beyond the traditional method of taking life—to give life a concrete meaning through the donation of the offender’s organs to those on the brink of death. Could such a transformation not only maintain the deterrent and just nature of Qisas, but also embody its deeper meaning of life more profoundly? The research is founded on the distinction between the immutable essence of the ruling (ḥukm thābit) and the mutable method of its execution, providing a legitimate foundation for innovation in penal mechanisms. From this perspective, Qisas, as a divine principle, remains intact at the level of its essence, yet at the level of enforcement it could be realized not through the physical taking of life but through the continuation of life via organ donation. This substitution thus becomes an expression of the Qur’anic objective of life in Qisas—transcending the dichotomy of death and life, and seeking justice through the regeneration of life rather than its elimination. Findings of the study indicate that within Imamiyyah jurisprudence, principles such as ihsān fi al-qatl (benevolence in execution), the prohibition of mutilation, ḥurmat al-muʾmin mayyitan ka-ḥurmatihi ḥayyan (the sanctity of the believer after death equal to his sanctity in life), and al-ḍarūrāt tubīḥ al-maḥẓūrāt (necessity permits the prohibited) collectively provide the jurisprudential capacity for such transformation—provided that a rigorous institutional framework is established. This framework must include the verification of death according to recognized scientific and religious criteria, the obtaining of informed and voluntary consent, strict separation between judicial and medical authorities, and enhanced ethical and religious oversight. Under such a model, the offender’s body would not serve as an instrument of vengeance but as a source of life for others, elevating the Qur’anic principle “and in retribution there is life for you” from a moral slogan to a tangible social reality. The final conclusion of the research asserts that the full substitution of organ donation for the execution of Qisas, when carried out under rigorous religious, ethical, and institutional supervision, is not inconsistent with the principles of Islamic justice. Rather, it represents a manifestation of rationality and humanism within the Shariah.