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Capital punishment in the Aqdas

Capital punishment is (apparently) allowed in the Kitab-e Aqdas. But is it as simple as that …?


From: Sen McGlinn
To: talisman9@yahoogroups.com
Subject: MSNBC.com Article: Fifth firefighter dies afterCalif.blaze
Date sent: Mon, 06 Nov 2006 20:29:32 +0100

On 6 Nov 2006 at 18:25, XX wrote:

> the context establishes a _preference_ for the more brutal solution,
> no?

Emphatically not: one cannot plausibly take one verse out of the Aqdas
in isolation from others, read it literally, and then claim to be
working contextually. Contextual reading is just the opposite
procedure.

My apologies to those who have heard the arguments below before.

I read the Aqdas not as prescribing capital punishment as a positive
law, but as pointing to a principle of justice: that the punishment
should satisfy the sense of natural justice, by making the punishment
fit the crime. There are generally 3 theories of punishment: that it
is deterrent, that it is corrective/educational, and that justice
requires balanced retribution. I think Baha’u’llah backs the third of
these in K62, where he says:

Should anyone intentionally destroy a house by fire, him also shall ye burn; should anyone deliberately take another’s life, him also shall ye put to death. Take ye hold of the precepts of God with all your strength and power, and abandon the ways of the ignorant. Should ye condemn the arsonist and the murderer to life imprisonment, it would be permissible according to the provisions of the Book.

However there are some cases where the punishment cannot fit the
crime. The balanced retributions for rape, murder and (fatal) arson
would be barbaric, and would involve the executioner (or judicial
rapist) in a sin, since it is written:

… let no soul slay another; this, verily, is that which was forbidden you in a Book that hath lain concealed within the Tabernacle of glory. What! Would ye kill him whom God hath quickened, whom He hath endowed with spirit through a breath from Him? Grievous then would be your trespass before His throne! Fear God, and lift not the hand of injustice and oppression to destroy what He hath Himself raised up; (K73)

Therefore (back to k62) there is an alternative where “fitting
punishment” cannot be applied in full: life imprisonment.

Murder — and arson even more so — is an instance in which the
principle could be expressed with maximum rhetorical force, but then
protected from a too literal application by common sense, and by
forbidding the deliberate taking of life. Arson I take to refer to
arson in a city, which under Ottoman law was severely punished for
obvious reasons, as a form of murder. The use of burning as a
punishment was forbidden in Islamic law, so this verse has a vehemence
of expression even greater in the Islamic context than in our own. It
tells us, “God’s justice would be for the killer to die, and even for
the arsonist to burn,” but then adds that imprisonment is acceptable,
and taking life is forbidden (K73).

Naturally imprisonment is to be preferred, but we should remember that
this is still not balancing justice, however long the imprisonment may
last. The victims will not need that reminder — if you have lost a
son or daughter to an unrepetant murderer, imprisonment will not feel
like full justice. The victims may need our understanding, they may
need us to say “we know that this does not satisfy that sense of
justice and injustice that we have in us from our childhood, but it is
the best that can be done, since taking life is forbidden.”

Life imprisonment and compensation for the (surviving) victims is as
near as we can come to natural justice, without breaking God’s laws
ourselves. As often happens in ethics, there are two principles, both
valid, which cannot both be followed completely in a given practical
situation. Then we have to seek a compromise, or in this case, follow
the compromise already provided for us by Baha’u’llah.

The upshot is that the eye-for-an-eye principle remains part of the
theology of justice, but the actual implementation of capital
punishment is forbidden in the positive law. In this sense — at the
level of actually making and implementing laws for society — one
could say that the Baha’i teachings are opposed to capital punishment
in principle, while recognising that the “instruments of security
have been delegated by God to the state, not to religious leaders, so
states have a right to define the legitimate use of force, and
religions may only express an opinion about the principles involved.

The idea that taking life is wrong should be distinguished from
religious pacifism: it does not mean that any use of fatal force is
wrong. I do not think that K73 prevents or condemns the use of force
to protect society and enforce the law. But it does apply to the
question of punishment. Whether the person concerned is a soldier or a
criminal, once captured they are no longer a threat (presuming secure
detention is possible). So capital punishment is analogous to
executing prisoners of war, while the use of deadly force by the
police, where necessary, is analogous to the use of military force
against an external enemy.

Baha’i law, like Islamic law, is an open and comparative system. It
does not provide a coherent code, but a variety of principles and
precedents, calling for a process of interpretation and application.
One cannot read a single verse from the Aqdas as if it were article
2.3.6b of the Civil Code and say, ‘that is Baha’i Law.’.

Laws become positive laws not when they are thought up, but when they
are implemented through a designated administration and enforcing
agent. We can classify 3 types of Bahai law and teachings according to
which agent is involved – the individual for him or herself, the Bahai
institutions, or a civil government. Religious teachings that become
state law, become law because the government has adopted and
implemented them, not because they are religious teachings. In every
case the form of the law would be the result of political processes,
because there is no case of a Bahai law that is sufficiently defined
to be adopted as positive law for the state. Bahai political actors of
a literalist bent might absolutise a principle in their own minds,
thinking that the penalty for arson should be burning or life
imprisonment, but they would have to fall back on different opinions
to be thrashed out in political processes as soon as they are
confronted with practical questions such as how is the punishment
implemented, does it apply to minors, how old is a minor, what sorts
of arson are involved, does “arson” here really mean crimes of hate
(terrorism) and exclude a psychological condition involving
fascination with fire … etc..

Similarly the law “Bind ye the broken with the hands of justice, and
crush the oppressor” (K88). It is an important principle, but it
requires a political process and a civil agent to implement it.

An example of the way principle passes into law via the action of
civil government is this passage by Shoghi Effendi, which envisions a
global Bill of enforceable human rights, underwritten by the civil
governments, not by the religious order:

The unity of the human race, as envisaged by Baha’u’llah, implies the establishment of a world commonwealth in which all nations, races, creeds and classes are closely and permanently united, and in which the autonomy of its state members and the personal freedom and initiative of the individuals that compose them are definitely and completely safeguarded.

Note that this commonwealth is not the same as the Baha’i
Commonwealth
with capital C. This is a commonwealth of nations,
because it has “state members” and it embraces all creeds — not just
the Bahais. This commonwealth of nations will safeguard “the personal
freedom and initiative of .. individuals.” This looks like the
Universal Declaration of Human Rights but elevated into a positive law
of real legal rights that can be enforced, because there is an
international political organisation to do so, even against the
individual states. The fact that one of the most fundamental Bahai
principles entails a religiously plural society in which individual
freedoms have real protection tells us a great deal about the possible
enforceability of religious law by any state member. We again see that
the details of the laws of the commonwealth of nations are not
specified, but are to be worked out in political processes.

But to get back to K73 and pacifism. Clearly a judicial execution is
taking away a life that God has granted. It is standing in the shoes
of God. A Bahai who has understood the Aqdas as a whole, and not just
with a cherry-picker approach, could not serve as an executioner,
since to do so would presumably result in a terrible punishment in the
next life. Neither could a largely Bahai society ask its non-
believing and non-Bahai citizens to carry out such a sentence. Even if
the executioner did not believe in divine judgement, or did not
believe that deliberate killing is a ‘grevous trespass’, the Baha’is
believe that the killer will suffer in the next world, so we cannot
ask anyone else to do that thing for us.

As for what is barbaric, it is a question of the times. Abdul-Baha is
reported to have said:

In the Taurat there are ten commandments concerning the murderer. Is it possible to carry these out? Can these ten ordinances, concerning the treatment of murderers, be enforced? Modern times are such that even the question of capital punishment – – the one form which some nations have decided to enforce in relation to a murderer – – is a mooted question. Wise men are consulting as to its feasibility or otherwise. (Star of the West, Vol. 3, No. 13, from p. 3, talk of 12 Oct 1912)

Moses lived in the wilderness. There were no prisons for the punishment of criminals. Hence, according to the exigency of the time, the law was an eye for an eye and a tooth for a tooth. Is it possible to follow such a law now? In the Torah there are ten commandments concerning murder. These ten ordinances, concerning the treatment of murderers, cannot be enforced now. Even regarding capital punishment, wise men are studying this question, as they maintain that capital punishment should be abolished.
(Persian notes of the same talk, translated in Mahmud’s Diary 320)

Apart from the difference in times, which makes capital punishment
unacceptable in most societies and most situations today, we also have
to be clear that the authority to use force of any kind is not given
to the Bahais or any other religious community:

The one true God, exalted be His glory, hath ever regarded, and will continue to regard, the hearts of men as His own, His exclusive possession. … The instruments which are essential to the immediate protection, the security and assurance of the human race have been entrusted to the hands, and lie in the grasp, of the governors of human society. This is the wish of God and His decree…. (Baha’u’llah, Gleanings from the Writings of
Baha’u’llah, p. 206
)

But again, we need to distinguish between the use of violence to
protect the weak (stop the criminal) and to correct injustice (to
destroy tyrants and aggressor governments), and the treatment of the
criminal or tyrant once he or she has been captured and can do no more
harm. Killing, even the unavoidable death of innocents, is permitted
to the state and is justified in the face of aggression or oppression,
providing the cure is not worse than the disease, and a ‘cure’ is
probable. Capital punishment could also be justified in a preventative
situation, where the possibility of safe detention and trial was not
available — this is the situation Abdu’l-Baha describes above, of a
society without prisons. One can even deliberately imprison the
innocent for preventive reasons, as in the compulsory isolation of
disease carriers. All of these fall under the heading of means that
are necessary to achieve a much greater public good. But to
deliberately take the life of someone already captured and capable of
doing no further harm is in my view barbaric. I’m with the “wise men”

      *****
Post script: I have since translated another tablet in which Abdu’l-Baha questions the advisability of capital punishment, even where prescribed by religious law.

Short link: http://wp.me/PcgF5-1AH

3 Responses to “Capital punishment in the Aqdas”

  1. Stephen Kent Gray said

    Bahai Library Online has a paper on the death penalty.

    http://bahai-library.com/le-lievre_death_penalty

    Talk is given about the deterrent effect and various legal systems as well.

    http://bahai-library.com/uhj_capital_punishment_amnesty

    The second paper linked gives a more pro death penalty position in that yes, all religions do in fact endorse the death penalty as referenced in the last paragraph (erroneously I must add).

  2. Is burning forbidden in Islamic law? I have read contradictory Hadith on the issue. There is a Hadith saying homosexuals should be executed with fire which is right next to a Hadith saying that since fire is God’s punishment it shouldn’t be used by humans as punishment. Classical issue of Hadith contradicting each other being next to each other as Hadith are collected by category.

  3. Sen said

    The hadith on the punishment for homosexuality almost unanimously argue for stoning, or for throwing from a high place followed by stones, or toppling a wall on top of the homosexual. All of these mimic the fate of the people of Sodom. While there are reports that Abu Bakr had a homosexual burned, this has never been a significant view or enacted in practice, so far as I know, and one must be alert to the possibility that the hadith has a Shiah source and is intended to demonstrate that Abu Bakr had little knowledge of Islamic fundamentals. Only a text critical approach can unveil the source and age of this hadith, and there is no certainty that it would reveal anything.

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