Iranian Religious Scholar Yussefi Eshkevari: A Path Toward Replacing the Death Penalty in Shi'a Religious Law
In an interview with Deutsche Welle, this religious scholar states: “The great extent to which the death penalty is being implemented nowadays has no basis in Fiqh and Islamic law. Basically, the matter of Efsad fel-Arz (“Spreading Corruption on Earth”) which is mentioned in a number of verses of the Koran, is general and not specific, that is, [it encompasses] any corrupt act, any crime, any wrongful act, and the Koran has not provided an example for these acts at all, it has not specified anything. This is a general label. It is as if you were to say, for instance, oppressors, tyrants, the corrupt ones, the lewd ones, and the like, [labels] that have been used in the Koran in a general sense, that is, as an expression for a type of crime or a type of wrongful act that some people might commit. There is neither an example of, nor a ruling for such a thing.”
Eshkevari believes that with the establishment of Islamic rule in Iran and ever since Ayatollah Khomeini declared Fiqh to be “the modus operandi of the regime”, the Islamic Republic has tried to expand Shari’a law (especially where crimes and punishments are concerned) as a way to eliminate political opponents and anyone who criticizes the regime by labeling them as Mofsed fel-Arz (“one who spreads corruption on Earth”).
This religious researcher emphasizes that no Shi’a religious scholar has ever declared any [psychotropic] drug to be Haram (prohibited by religious law, or Shari’a). According to Eshkevari, “[T]herefore, either Mr. Khamenei - as the leader of the Islamic Republic and the Faqih (“Shari’a Legal Scholar”) Guardian whose religious decree is binding and enforceable - or the Judiciary that is supposedly headed by a Mojtahed (religious scholar who can issue a “Fatwa” or decree) must provide an answer to this question: On what basis do you execute drug traffickers?”
Moharebeh, a sentence to suppress the opponents of the Islamic Republic
Currently, there are at least 24 prisoners on death row in Iran charged with Moharebeh. All prisoners who have been executed for their belief since the onset of the Revolution were charged with that same crime.
Moharebeh, meaning “waging war against God”, is a crime defined in the Koran, punishable by crucifixion. But Yussefi Eshkevari says: “According to most Shi’a legal scholars, including Ayatollah Khomeini himself, Moharebeh consists of individual or collective armed action, in the streets, with a raised sword, that causes fear and terror among the people.”
Eshkevari says: “Such a thing has not happened even once during the entire history of the Islamic Republic, with the exception of cases in the early 1980’s by MKO supporters. After that, no such cases have ever been seen.”
Eshkevari continues: “Today, the Islamic Republic has defined this charge very broadly, just like it has done with Efsad fel-Arz. Any opposition to or enmity with the regime is considered Moharebeh with God and the Prophet and the Islamic Republic, whereas the Islamic Republic does not even exist in the initial definition of Moharebeh. This is an extremely negative expansion of the meaning [of Moharebeh] that is contrary to Fiqh and contrary to Shari’a.”
This religious scholar says: “Let us even assume that a particular rule was implemented 1400 years ago in a certain place; that is not a reason for Foqaha (plural of Faqih) to [want to] do the same thing [here and now].”
Eshkevari believes that more just, reasonable, and beneficial punishments can substitute existing ones for Moharebeh “based on evidence, general principles, and the fundamentals of the Koran, Islam, and the tradition of the Prophet” in the same fashion it is done for women or as relates to Efsad fel-Arz.
The rule of Qesas (retribution) was to limit the savagery of Arab paganism before Islam
Next to drug traffickers, the most contentious executions are those related to a sentence of Qesas, an Islamic punishment based on which the family of the victim [the next of kin] has the right to either ask for the death penalty in intentional murder cases, forgive the perpetrator, or ask for Diah.
The sentence of Qesas has specifically been mentioned in the Koran, but Yussefi Eshkevari believes it to be related to the savagery of Arab paganism [and ignorance] before Islam, a time where in the event of a murder, the victim’s tribe could kill all the members of the perpetrator’s tribe, even those who had played no role in the murder.
Eshkevari says: “Based on the rule and tradition of Thar (“asking for blood”) that existed during the time of Arab paganism [and ignorance] before Islam, hundreds of people would fall instead of just one. The Koranic sentence [of Qesas] was issued in order to limit the violence. Today, however, that same rule that was meant to limit violence is used to expand it.”
This religious scholar believes that nowadays, murder is no longer a personal and private matter but one that is within the purview of the law and the government. Therefore, like the majority of other countries, it is the government’s job to prescribe a specific punishment, not the victim’s family.
He says: “Today the government can make decisions based on what is expedient and what is in the regime’s best interest, as the authorities say, and I think it needs to abolish the death penalty as it has been abolished in most countries in the world, because it is not beneficial and serves no purpose.”
Execution of homosexuals is rooted in Judaic jurisprudence
Sexual relations between two men, or Lavat, is another instance subject to the death penalty in Iran and eight other Moslem countries.
Yussefi Eshkevari says that although sexual relations between two men or two women has been vilified in the Koran, there is no rule governing it, and it is possible that the harsh [punishment] regarding such relations goes back to Judaic jurisprudence.
This new age religious intellectual says that even if such a ruling existed for homosexuality in the past, it must change now, given modern developments in this regard. He says: “Homosexuality is essentially different than Lavat because they are two different subjects; at least those who talk about or provide a scientific analysis of homosexuality see them differently. There is a rule in Fiqh, according to which [the integrity and the validity of] a rule is dependent upon the subject matter. Today, homosexuality, by its nature, is no longer the same as Lavat and Mossaheqeh (sexual relations between two women); they say that it is essentially a hormonal change or other things, and I am not well-versed in this area, this is an area for medical doctors to opine. If doctors and specialists say that this is a new and completely different subject, then the former rule regarding Lavat will automatically become a non-issue and will be abolished.”
The ground is ready for changing laws in Islam
Hassan Yussefi Eshkevari emphasizes that there are not that many Shi’a and Sunni scholars who think like he does and who believe in change in Islamic rules. He believes, however, that the path to change is clear.
He says: “I am not very hopeful that there will be many changes in scholarly outlooks and rules in the short term. But when you look at what has happened and you compare how things are today with how they were 20 or 30 years ago, [you realize], in my opinion, that change happens slowly. I believe that in a not too distant future considerable changes will occur in how religious legal scholars see things and they too will understand that the truth is much too cruel for us to be obstinate and stubborn about [not seeing and accepting it], and keep prescribing archaic solutions for new subjects.”