By Bahman Khodadadi
As Muslim jurist Mohsen Kadivar observes, in traditional fiqh (Islamic law), certain punishments prescribed by sharīʿa can be carried out "by any adult Muslim (mukallaf) based on their own judgment and without recourse to a judge or a court."[1] One of the key prerequisites for the application of life-for-life retribution (qiṣāṣ al-nafs) is that the victim's life must be regarded as sacred; in other words, the victim must be "blood-protected" (mahgoun al-damm).[2] Those whose lives are deemed to be "wasted blood" (mahdūr al-damm) refers to people whose existence is considered of no value according to traditional fiqh;[3] as Kadivar notes, they fall outside of the bounds of this protection and subject to potential punishment without recourse to judicial oversight.[4] In traditional fiqh, the term mahdūr al-damm (wasted blood) refers to an individual whose blood is considered worthless or discarded.[5] Such a person's life, property, and honor are deemed to lack sanctity, and in the language of fiqh they are regarded as hadar (waste).[6] In the case of such individuals, any harm inflicted upon them—whether through assault, theft, defamation, or even the taking of their life—cannot be pursued legally.[7] There is no recourse for vengeance/retribution (qiṣāṣ) or compensation through blood money (diya), as they are considered beyond the protection of the law.[8]
Traditionally, the term "wasted blood," in relation to Islamic law, refers to people whose lives are seen as so worthless that any ordinary person has the right to put them out of their misery (releasing them from their suffering in sin, in a manner of speaking) without needing the intervention of judicial authorities or warrant.[9] As such, wasted blood people should not simply be seen as persona non grata but as hostis humani generis, enemies of the Muslim polity, against whom everyone, not only the theocratic state, is allowed to declare war.[10]
The legal status of wasted-blood people, in the eyes of the present author, seems to be analogous[11] to the philosopher Giorgio Agamben's figure of the homo sacer, which he describes as "the person whom anyone could kill with impunity."[12] These so-called outlawed or wasted-blood people might also be philosophically considered stateless individuals, in the sense intended by Hannah Arendt, in that they fail to enjoy the rights of citizenship and are, therefore, not members of the polity.[13] Their legal situation poses a formidable obstacle to their right to life as it even goes beyond classifying them as second-class citizens; they are not recognized as citizens at all. Essentially, they are viewed as people that Carl Schmidt would have considered "others,"[14] that is, damned people whose lives are fundamentally worthless whether they pose a threat to the Muslim community or not.
Apostates and blasphemers are often cited as typical examples of individuals categorized as worthless blood people. However, some scholars argue that the death penalty prescribed for apostasy and blasphemy is a product of political theology rather than of religious doctrine.[15] In his article "Muslim Political Theology: Defamation, Apostasy, and Anatema," Ebrahim Moosa highlights Taha Jaber al-Alwani's argument that the traditional death penalty for apostasy contradicts Islam's foundational principle of "no coercion in matters of religion."[16] As Moosa notes, Al-'Alwānī's extensive survey of early Islamic doctrines leads him to conclude that the concept of apostasy was a contested issue in the early period of Islam.[17] Where the capital punishment was enforced, it was a matter of political adjudication rather than religious decision-making, suggesting that such practices were tied to political governance rather than spiritual or doctrinal imperatives.[18]
Whether the death penalty for wasted-blood individuals is viewed as a product of political theology or traditional fiqh, it remains a significant issue within the Iranian Penal Code. The 1991 Islamic Penal Code ("IPC") granted to the public the authority to execute such individuals. This provision remains in the revised Islamic Penal Code of 2013, currently in force. The 1991 IPC included two controversial articles that addressed the homicide of a wasted-blood person. Article 226 stipulates that "The murderer receives qiṣāṣ punishment only if the victim did not deserve death under sharīʿa; if the victim deserved to be put to death, this must be proved by the murderer before the court." The second Note[19] to Article 295 also provides that:
If a person murders another person, believing that the victim deserves qiṣāṣ punishment or is a wasted-blood person, and the existence of such belief is proved in court, but later it appears that the victim had not deserved qiṣāṣ punishment or death because he or she was not a wasted-blood person, the murder committed is a quasi delict murder. And if the murderer can prove that the victim was a wasted- blood person, he will not be sentenced to qiṣāṣ punishment and the payment of diya.
Surprisingly, as the article demonstrates, exemption from punishment is to be granted only if the act of killing was based on a merely honest belief, rather than a reasonable one. In essence, these two articles empower members of the public to administer Islamic justice on their own, letting the courts later adjudicate their justifications.
Shifting from the 1991 Islamic Penal Code to the current one, passed in 2013, two significant articles (302 (para. a) and 303) warrant critical analysis. Article 302 (para. a) and its note read:
Where a victim fulfills one of the following conditions, the perpetrator shall not be sentenced to qiṣāṣ and payment of diya: a) The perpetrator of an offense punishable by the death penalty as the fixed corporal punishment [ḥudūd] . . . Note 1: Taking action … absent an authorization by the court, shall constitute a crime; and the perpetrator shall be sentenced to discretionary punishment [taʿzīr] laid down in Book Five: Discretionary Punishments.
Article 303 reads:
Where a perpetrator alleges that the victim falls under the provision of Article 302 of the present Code in respect of life or a bodily organ, as the case might be, or that he or she has committed a felony against the victim, acting on the same conviction, the allegation shall be established in court in accordance with law; and the court shall be required to initially consider the said allegation. Where it is not established that the victim fell under the provision of Article 302, nor is it established that the perpetrator committed the crime, acting on such belief, the perpetrator will be sentenced to qiṣāṣ. However, where it is established that he has wrongfully committed a felony on this belief, and the victim does not fall under the provision of Article 302, the perpetrator shall be sentenced to payment of diya in addition to punishment laid down in [the section on] Discretionary Punishments.
Analytically speaking, the major difference distinguishing the 1991 Islamic Penal Code from its 2013 update is the stipulation of discretionary punishment (taʿzīr) under Note 1 of Article 302, which addresses those who act in the absence of authorization by the court. More to the point, Note 1 of Article 302 of the current Penal Code explicitly stipulates that those who commit homicide are to be punished with a discretionary punishment even if the victim was a wasted-blood person. This new provision can be regarded as a progressive penal policy against the establishment of private vengeance and justice.
Now let us focus on the problematic nature of Article 303. Three conclusions can be drawn about this article. First, if a perpetrator of lethal violence cannot prove that the victim was a wasted-blood person, but can prove that he believed the contrary at the time of the homicide, the perpetrator is to be sentenced to the payment of diya and to a taʿzīr punishment pursuant to Note 1 of Article 302. Second, if the perpetrator cannot prove that the victim was a wasted-blood person and cannot prove his or her sincere belief in the religious legality of his or her act, the perpetrator is to be sentenced to qiṣāṣ punishment. Third, if a perpetrator can prove that the victim was a wasted-blood person and that he or she committed a homicide based on that belief, the perpetrator is not to be sentenced to qiṣāṣ punishment or payment of diya, but instead is to be sentenced to a taʿzīr punishment pursuant to Note 1 of Article 302.
Both Articles 302 and 303 are sociologically criminogenic[20]: they essentially authorize members the public to kill those who are assumed to be wasted-blood people with impunity from qiṣāṣ punishment (conclusions 1 and 3, above). What is worse, the broad, flexible, and often ambiguous nature of the status of being considered "wasted blood" makes it especially dangerous. Extremists who feel a strong sense of loyalty to their interpretation of Islamic values—or who believe they are fulfilling the religious-moral duty to "enjoin right conduct and forbid indecency"[21]—can be easily incited to violence. As a result, individuals labeled as "wasted blood" may become targets for murder
To illustrate this point, even a mild, academic, and respectful critique of Islamic law rulings—or a modern interpretation of them—can expose a speaker to the threat of death from a zealot who views them as an apostate or blasphemer. In other words, an extremist onlooker might consider someone who has made a statement they find at odds with their understanding of Islam to be someone whose life is considered forfeit, their blood deemed "wasted."[22] In this scenario, we are faced with moral crusaders who might subscribe to the motivating thought that killing a wasted-blood person reserves a place for them in Heaven. As I argued in my book, On Theocratic Criminal Law, "]s[uch self- employed hitmen, holding a strict and self-styled standard of morality, may take on the street identity of Batman with the assumption that it is religiously allowed, and even highly recommended, to take matters into their own hands, stave off social disaster, cleanse the city of moral corruption, and eradicate the evils denounced by the Quran and tradition."[23]
What is even scarier and more dangerous is when people, aware of the permission to kill wasted-blood people with reduced penal consequences—which is granted by Iran's Islamic Penal Code— kill innocent people on the pretext of killing a wasted-blood person. In short, under Articles 302 and 303, criminal law and criminal procedure have been replaced by the defined beliefs of fanatics, which, inevitably, have the potential to disrupt public order and security.[24]
Given the dangerous implications of the current provisions providing an excuse to perpetrators of vigilante justice in Iran's current Islamic Penal Code, particularly Articles 302 and 303, legislators must take immediate steps to reform these sections in order to prevent the legal empowerment of individuals to carry out extrajudicial killings based on subjective beliefs.
Notes:
[1] Mohsen Kadivar, Human Rights and Reformist Islam, trans. Niki Akhavan (Edinburgh University Press, 2021), 121.
[2] Ibid.
[3] Ibid.
[4] Ibid
[5] Ibid., 98.
[6] Ibid.
[7] Ibid.
[8] Ibid., 97–98.
[9] Ibid. For further discussion, see Bahman Khodadadi, On Theocratic Criminal Law: The Rule of Religion and Punishment In Iran (Oxford University Press, 2024), 172.
[10] Kadivar, Human Rights and Reformist Islam, 121.
[11] Strictly speaking, I should point out here that my usage does not exactly correspond with that of Agamben; that is why I have avoided using the word "identical," for the term homo sacer has a somewhat contradictory element: although anyone can kill a homo sacer with impunity, he cannot be put to death according to ritual practices. The sacredness of this character distinguishes it from wasted- blood people who, of course, are not sacred, but fully impure.
[12] Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life (Stanford University Press, 1998), 72.
[13] See Hannah Arendt, The Origins of Totalitarianism (Schocken Books Press, 2024).
[14] See Carl Schmidt, Der Begriff des Politischen (Dunker & Humbolt, 2015).
[15] Ebrahim Moosa, "Muslim Political Theology: Defamation, Apostasy, and Anatema," in Profane: Sacrilegious Expression in a Multicultural Age, ed. Christopher Grenda et al. (University of California Press, 2014), 174. See also Rudolph Peters and Gert J. J. De Vries, "Apostasy in Islam," The Journal of Die Welt Des Islams 17, no. 1/4 (1977): 1–25.
[16] Moosa, "Muslim Political Theology: Defamation, Apostasy, and Anatema," 181. See also The Qur'ān (2:256).
[17] Moosa, "Muslim Political Theology," 181.
[18] Ibid., 181–82. For a detailed discussion of the terms ḥuqūq al-ʿibād ("rights of man") and ḥuqūq Allāh ("rights of God") as developed in classical Islamic jurisprudence—particularly in relation to blasphemy and defamation—see Intisar A. Rabb, "Society and Propriety: The Cultural Construction of Defamation and Blasphemy as Crimes in Islamic Law," in Accusations of Unbelief in Islam, eds. Adang, Camilla, Hassan Ansari, Maribel Fierro, and Sabine Schmidtke (Leiden, The Netherlands: Brill, 2015): 434–65.
[19] Note is part of the law and courts routinely refer to it.
[20] The term "criminogenic" refers to factors, conditions, or environments that are likely to cause or contribute to criminal behavior. See Elizabeth R Groff and Brian Lockwood, "Criminogenic Facilities and Crime across Street Segments in Philadelphia: Uncovering Evidence about the Spatial Extent of Facility Influence," The Journal of Research in Crime and Delinquency 51, no. 3 (2014): 277–314.
[21] Al-amr bil-maʿrūf wa-n-nahy ʿan al-munkar is a central tenet in Islamic jurisprudence and ethics, embedded in the moral and social fabric of Islamic societies. Grounded in the teachings of the Qur'ān and ḥadīth, it represents the broader Islamic mandate to foster a just and virtuous community. Specifically, amr-e be ma'rouf refers to advocating for what is good, right, and morally upright, while nahy az monkar refers to opposing what is considered wrong, immoral, or harmful. Collectively, these principles highlight the duty of Muslims not only to uphold ethical standards in their own lives but also to promote these values within their communities. On this concept, see Michael Cook, Commanding Right and Forbidding Wrong in Islamic Thought (Cambridge: Cambridge University Press, 2001).
[22] For instance, one can imagine that Abdulkarim Soroush's understanding of the Qur'ān might be viewed by some hardliners as dangerously unorthodox, and therefore expose him to accusations of apostasy or blasphemy—charges that, in the eyes of extremists, could justify violence or even mark him as "wasted blood." In particular, a series of interviews Soroush gave to the BBC regarding prophetic revelation have been widely accessible to the public and have garnered considerable attention. See BBC Persian, "پرگار: "قرآن، رویاهای پیامبر؟" ، بخش اول," YouTube, May 3, 2016, https://www.youtube.com/watch?v=QBSXNMc3q_Y&t=5s.
[23] Khodadadi, On Theocratic Criminal Law, 240.
[24] A notable example is the murder of sixteen women in Mashhad—the holiest city in Iran—committed between July 2000 and 2001 by Saeed Hanaei, a 39-year-old religious zealot and fanatic. For a detailed analysis of the case of Saeed Hanaei, see ibid., chs. XIII–XV.
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