UC Berkeley

This M.A. dissertation is an essay in historical comparative law, dealing with the laws of homicide and bodily harm (henceforth: laws of injury) in antiquity and in Early Islamic law. The three research questions that have guided this discussion were: (I) what are the basic tenets of the laws of injury in pre-Islamic legal systems? (II) to what extent did Qur’ānic laws of injury follow these earlier laws? (III) what does the Qur’ān's attitude towards these earlier laws reveal with regard to possible sources for its own regulations? The First Chapter shows that in the laws of the ancient Near East, the law of homicide comprised part of private law. The murderer owed the spilled blood to the family of the victim, and only they had the right to exact retribution against him, or to demand blood money instead. This situation, in which the responsibility for exacting retribution on the injuring party laid on the injured one, was later abolished in most of the legal systems of the Fertile Crescent. Biblical law referred to the prevailing situation in ancient Near Eastern law, and narrowed its application to the person of the culprit and only as equivalent retribution (eye for an eye). Biblical law restricted blood-vengeance by distinguishing between intentional and unintentional homicide, and by placing legal limitations on retribution according to the circumstances in which the homicide took place. Moreover, Biblical law established a right of asylum for unintentional homicide in Cities of Refuge (Deut., XIX; Num., XXXV). Biblical law forbade accepting blood money from a killer in cases of homicide, but allowed an injured party to demand either talionic retribution or blood money for bodily harm. As discussed in the Second Chapter, at the beginning of the first millennium of the Common Era, conceptual changes in Rabbinic Judaism led to the reduction in the application of the principle of measure for measure, and to a marked preference for monetary compensation. While biblical law demanded taking the life of intentional murderers, the Rabbinic halakha recognized the sanctity of life as its prime principle and invalidated the actual application of the death penalty in all cases prescribed by Biblical law. The Third Chapter is devoted for a brief exploration of the ways in which Biblical law was reinterpreted in Early Christianity. The Sermon on the Mount (Math. V-VII) or the equivalent Sermon on the Plain (Luke VI: 17-49), both reject the notion of compensation for injury, and call upon the victim to forgive his attacker in order to gain atonement for his sins from God. The Sermons are unique in that their directives came to be understood as a moral diction rather than obligatory law. Early Church Canons are also significant to the discussion, in that they prescribed obligatory penance for unintentional homicide. The Fourth Chapter describes the pre-Islamic Arab tribal practice (henceforth: Jāhilī practice). Jāhilī practice relied on a number of principles reflecting the nature of the society in which it has evolved: in the absence of a central government, there existed only tortious litigation, and in the absence of personal liability, accounts of injury were settled between solidarity groups. Jāhilī practice prescribed collective liability for injury, and approved of the legal inequality between persons depending on the status of the parties and the strength of their groups. Alongside the sweeping permission to avenge (tha‛r) an injury, Jāhilī practice offered different mechanisms to curb the desire for vengence. The most prominent of these mechanisms was the option to replace revenge by monetary compensation (diya or ‛aql). Jāhilī practice also included conventions with no known parallel in ancient law, like the collective liability for the payment of compensation, imposed on the offender's solidarity group (‛āqila). The laws of injury in Islamic Law derive from the legislation of Prophet Muhammad, as laid down in the Constitution of Medina and, more notably, in the Qur’ān. As shown in the Fifth Chapter, these two sources testify to the formative stage in the development of the laws of injury in Islam. The Constitution of Medina recognized most of the Jāhilī principles concerning injury, while constraining them by a new type of solidarity – the bonds of faith, which were given precedence over kinship in defining legal rights and duties in cases of injury. While the Constitution did not bar retaliation for bodily harm, it referred disputes arising from homicide to the adjudication of the Prophet. A comparison between the Constitution of Medina and the Qur’ān delineates a gradual process of development from Jāhilī practice to Islamic law. As part of this development, the Qur’ān bestowed the status of divine law upon various regulations of the Constitution. Some stipulations of the Constitution, which have not been included in the Qur’ān, like the status of Medina as a sanctuary, entered the Sharī‛a through prophetic ḥadīths. In addition to the rules of the Constitution, the Qur’ān limited liability for homicide to the offender, while tacitly preserving the ‛āqila's liability in cases of injury. Interpreting verses concerning injury in the Qur’ān in light of other verses in the Qur’ān itself (e.g., tasfīr al-Qur’ān bi-l-Qur’ān), reveals that the scripture has a coherent legal teaching, obtained from two main corpora. The first source is Divine Law (ḥukm Allāh), as revealed in previous scriptures and in the revelation sent down to the Prophet. The second is the recognized practice (al-ma‛rūf), comprising of those parts of the Jāhilī practice which did not contradict the precepts of the Qur’ān. The Qur’ān adopted the Rabbinic principle of the sanctity of life. Nevertheless, in contrast to the halakha, it did not go as far as abrogating the application of the death penalty altogether. The Qur’ān has rather taken the middle way between Biblical law and the halakha: it allowed for monetary compensation and called for forgiveness like the halakha, but, in line with Biblical law, it did not forbid talionic retribution (qiṣāṣ) in intentional cases of homicide and bodily harm. It also took a middle way between rejecting collective liability for homicide and tacitly sanctioning the Jāhilī institution of collective payment of blood money. All other forms of conduct, unauthorized by divine providence, where invalidated as expressions of the Law of [religious] Ignorance (ḥukm al-Jāhiliyya). In light of the aforementioned findings, it is possible to offer several remarks regarding the development of the laws of injury in Early Islam, and their relation to previous legal traditions. Firstly, The Qur’ānic institution of retribution is limited to equivalent personal retribution against the offender. Thus, it differs significantly from the unrestrained vengeance of Jāhilī practice, and is far more akin in to that of Biblical law. The Qur’ān endorsed the biblical law of equivalent retribution that had divine legitimacy in the Torah. Secondly, The Qur’ān added two alternatives for redressing cases of injury, out of the legal repertoire existing in its days: forgiveness for the offender in return for divine atonement, and payment of blood money. With regard to the former, clear similarities exist between the theories of recompense advocated by the Qur’ān and the Gospels, and the Muslim tradition itself ascribes its source to the Law of the Gospel. Concerning blood money payment, the institution of blood money was a deeply engrained procedure in pre-Islamic Arab tribal society, and it was officially acknowledged as such by the Prophet in the Constitution. This finding strengthens the possibility that the Jāhilī practice was the historical source for the institution of blood money as found in the Early Islamic law. In conclusion, in the Prophets' rulings on homicide and injury as reflected in the Constitution and the Qur'an, one finds some concepts that can be understood only as a heritage of the Jāhilī practice, and others whose distinct origins lie in the religious milieu of Late Antiquity in general, and specifically that of Judeo-Christianity. The Prophet and the religious scholars who came in his footsteps, did not decide between the different alternatives available to them in the Jāhilī practice and in other early traditions of law. Rather, they combined them into a comprehensive legal theory, establishing the following hierarchy between them: pardoning the offender, receiving blood money and demanding equivalent retribution. This development might not be limited only to the laws of injury, but also reflect comparable developments in other fields of Islamic Jurisprudence as well.