Originally even Islam knew nothing of the capital punishment publicly inflicted, of a ritual execution by the community and its officers, at least not in cases of murder or manslaughter. Even in the earlier caliphate there were enormous difficulties in the way of the execution of a Moslem who had not shed innocent blood. Apart from the talio the official infliction of capital punishment was hardly possible, for as long as Arab sentiment survived, the people could not grasp the distinction between an executioner and a murderer. A change did not take place until with the accession of the Abbasids the Iranians took the reins of government from the Arabs and brought with them Iranian conceptions of state and law.
On the other hand, the Hebrews, near kinsmen of the Arabs, arrived at just conceptions of capital crime and capital punishment fifteen hundred years earlier than they. According to the Hebrew view, the guilt of sin, which is held to be an offence against the Deity, weighs upon the whole community, until the actual perpetrator of the crime is extirpated or purged out of its midst. The sentence of death is carried out by the whole community and takes the form of stoning, its characteristic features being that every man of the congregation takes part in it and casts his stone. Murder and manslaughter, indeed, are not as yet classed among the offences against God, for which capital punishment at the hands of the community is due; bloodshed is in the main a private wrong still, and its punishment is left to the injured person. But it is not associated with blood-feud between clans, and the criminal is not protected by his family. Blood-revenge is tamed already and restricted by law to what we know as the talio. The shedder of blood is abandoned by his family, the heir and avenger may pursue and slay him. Should he take refuge in a sanctuary, he is safe if he has shed blood by mischance only. Otherwise the sanctuary affords him no protection. It is the right and duty of the community, represented by its elders, to drag him away from the altar and hand him over to the avenger. The act of slaughter is always left to the latter; the ceremonial infliction of capital punishment, execution by the congregation, is never the penalty assigned for murder or manslaughter. But the avenger is not allowed to take a ransom for the murderer or give him his life. For here the idea insinuates itself that bloodshed is not only a wrong and injury done to the individual, but a crime, that is to say an offence against God. The murderer has sinned also against the Deity, and his guilt lies upon the whole community, until they are rid of him.
Thus the religious obligation of the community, to wash away the blood shed within its borders, goes hand in hand with the individual obligation of vengeance. If the murderer cannot be discovered, vengeance is impossible; but a symbolical ceremony is substituted for the purification of the community, and the city within whose borders a man is found dead by an unknown hand must slay a cow in place of the murderer.
We see that among the Hebrews the ideas of crime and punishment had their root in religion; the crime is an offence against God, and its punishment is the purging of the community from this offence; execution is the only real punishment, and must be distinguished from talio on the one hand and mere chastisement on the other.
Among the Arabs the religious root of the penal law has withered away and nothing but human vengeance is left. This can hardly be the ancient conception. Vengeance itself is in its origin not a human passion merely, it is likewise a religious duty. True, this duty was originally believed to have been imposed, not by the Almighty, but by a demon. And this demon was the wrathful spirit of the murdered man himself, who would not let his clan rest until they had given him to drink the murderer’s blood for which he thirsted. We can still find traces of this belief among the Arabs. Amongst them the avenger of blood is under a solemn vow, exactly like the man who has to offer sacrifice or fulfil any other religious duty; he may not wash nor comb his hair, nor drink wine, with many other prohibitions of the same kind. As he accomplishes the act of vengeance, he must call upon the name of him for whom he takes it, in a brief form of words; then he is free and returned from the state of sanctification and uncleanness to that of cleanness and common life; exactly like a sacrificer after he has made a sacrifice.
But these are petrified remains, as it were, of a motive that has no present potency. The poetry which has come down to us invariably speaks only of the ungovernable rage of the avenger, not of the person to be avenged; of burning pain in the breast of the survivor, which demands relief at any price; and of the shame which weighs him down as long as the murderer still treads the earth alive. Moreover—and this is a particularly striking point—religion has not retained any influence upon actual law amongst the ancient Arabs, apart, perhaps, from the process of inquiry by curse and oath.
Ancient Arab law is singularly profane, dry, and formless; it is throughout a matter of bargain and contract, for even the penal law operates only through compensation and payment.
Such, in brief outline, is the picture of the Arabic community, a community devoid of supreme authority and executive power. We are fond of calling it patriarchal, but what do we mean by the phrase? Of the amenities of family life we find no trace, nor any trace of patriarchal guardianship. Each man has to give his help, if anything is to be done. There is more scope in such a community for the display of courage, self-sacrifice, and brotherly kindness than in our own, where the state seems to work like a machine for which we have merely to provide the fuel. It is a pity, however, that so fair an opportunity is not put to the fullest use. In critical cases, the corporate feeling on which the whole system depends is often shown by but few. There are hitches and difficulties everywhere, though in the desert the conditions of life are very simple, narrow, and easy to understand, its interests very uniform. No progressive civilisation can develop in this fashion; the desert is enough in itself to render development difficult. These weak foundations will bear no aspiring superstructure. Not even individual liberty, as we understand it, reaps advantage from the absence of the coercion of the state. For if the sense of kinship be too weak to control the wicked and force the indolent to fulfil the duties incumbent upon them, yet it is strong enough to prevent the growth of intellectual freedom in circles that possess and exercise it. Such liberty can only thrive in a state which, like Noah’s ark, contains all kinds of animals and lets them do as they please, not in a society of kinsmen which lays a spell upon their members from within, though it can impose no coercion from without.
The communities of Europe started, as there are many evidences to show, from primitive conditions like those in which the Arabs of the desert have remained. It is well that we should bear this in mind, and so estimate, quantæ molis erat romanam condere gentem, what amount of labour was required to create a stable system of law, independent of the individual.
FOOTNOTES
[41] [The subject-matter of this article originally appeared as an address delivered January 27th, 1900, at the university at Göttingen. It was published in pamphlet form, but is now for the first time translated and given wider currency by special arrangement with the author.]
[42] A guest whom the shadow of the tent has rendered sacred is after a certain time dismissed and resumes his journey.
CHAPTER XII. THE PRINCIPLES OF LAW IN ISLAM
Written Specially for the Present Work
By Dr. I. GOLDZIHER
Professor in the University of Vienna, etc.
In studying the lines along which Islam has developed we are confronted with a singular antithesis within the faith itself. It is the outcome of a revolutionary movement which arose to declare war against the past of the Arab nation and of all other nations which it subdued by the ruthless sword of Islam. Yet it had scarcely taken the first step in its career, before investing with little short of sacramental importance an idea so wholly alien to the spirit of subversion and revolution that it seems to us rather a palladium of the most rigid conservatism. This is the idea of the sunna.