Criminal jurisdiction, as we understand it, is rendered impossible by the absence of a supreme authority, a magisterial tribunal. Although fidelity to one’s kindred is a moral law and the violation of it a sin, yet the Arabs have not reached the abstract conception of crime against the community at large, still less of punishment inflicted by the community—since for the community to cast off a troublesome or unworthy member is not, strictly speaking, a punishment. They only recognise private offences, and the punishment of these is the business of the individual. There is no official process of investigation with the coercive methods of vigorous cross-examination. If anything is stolen, the owner proclaims his loss aloud and lays the thief under a curse unless he restores the missing article, and all his accomplices likewise, unless they tell what they know of it. If murder or manslaughter has been committed by an unknown hand and this or that man is suspected of being the perpetrator, his clan takes an oath of purgation for him, which may, however, be counterbalanced by an oath to the opposite effect on the part of the dead man’s clan.
The punishment of an offence is of course left to the sufferer. It is his business to see how he can best get compensation for the wrong done him and to seek for help wherever he may find it. He is not forbidden to take vengeance into his own hands, nor is there any compulsion to make him have recourse to law instead of so doing. The individual may, of his own free will, refrain from violent measures, if he pleases, and may enter into negotiations, which are then conducted on the basis of a legal principle, of an inner material law. But if, instead of avenging himself, he resorts to legal proceedings, the question is never one of the punishment of a crime,—which, indeed, could hardly be settled by agreement between the contending parties,—but merely of compensation for a loss. Compensation can be given for everything for which vengeance might be exacted. All crimes are treated in the same manner by the law, and assessed as economic damage. Every loss of honour, property, or life can be appraised by agreement; they all have their price in camels. Vengeance is not thereby appeased, but if revenge is relinquished, the law demands no more.
The worst and most serious crime is bloodshed. Malice or accident, war or peace, make no difference to this. Its natural and primary consequence is blood-revenge. This is, in the first place, the duty of the next heir, but it quickly extends to others, for the clan of the slayer does not desert him, but takes his part, and consequently also the slain man’s whole clan naturally helps the avenger against them. The result is a state of war between the two clans, which finds expression in occasional murders, often at long intervals. All members of the clan are considered accomplices; they espouse one another’s quarrel as in war, and fall victims to vengeance without distinction of persons. Every new member is a fresh motive for vengeance, and thus revenge incessantly breeds revenge. Thus blood-revenge necessarily results in blood-feud between the clans. It has been supposed that blood-feuds are only carried on between two hostile tribes, and not between kindred clans belonging to the same tribe, as that would constitute a breach of tribal unity. But the preservation of tribal unity is a moral axiom only, and incapable of keeping the centrifugal forces under effective control. The clan’s right of feud is undisputed, and, as a matter of fact, blood-feuds are carried on also within the tribe as well as without. The duty of vengeance is more vividly realised than duty to the tribe; it is a sacred primary law which takes precedence of all political considerations. Even if brother slays brother in the same clan, the result is a blood-feud, though the cases on record are as a rule supposititious, not real, just as similar cases are treated by the Greeks as tragic problems in the Oresteia and the Œdipodeia.
Law can be substituted for revenge in murder as in other crimes, that is to say, even blood-guiltiness can be paid off in money, i.e., in camels. This is done by agreement between debtor and creditor or between the clans of both; and when the agreement is brought about, the source of the blood-feud is estopped. In quarrels within the tribe it is the duty of the chiefs, and of the head chief more particularly, to induce the disputants to consent to an accommodation by law. They then negotiate as between two belligerent powers; they can only mediate for peace, not impose it. Sometimes they are successful, sometimes not. Mecca and Medina furnish the best instances of both results. Very often the disputants do not make peace until their strength is utterly exhausted. Then the balance-sheet is drawn up, the debit and credit in dead and wounded compared, and the difference made up in camels.
But it is obvious that in this case the incongruity between what vengeance demands and what the law accords is too glaring. The Arabs are keenly alive to this fact, and it is not considered honourable to accept camels as satisfaction for a murder—to sell blood for milk, as their phrase goes. Vengeance is far better appeased by positive amends on a less unequal scale, by blood for blood, an eye for an eye, and a tooth for a tooth. This is sometimes made by peaceful means, and that is what is called talio. The criminal is not sheltered by his own people, but is handed over to the avenger that he may requite him for what he has done. If the heritage of vengeance has passed to a child, the execution is often deferred till his majority.
By this means the quarrel is confined to the parties immediately concerned, the clans are not implicated, blood-revenge does not degenerate into blood-feud, nor does it exceed in the heat of passion the measure of strict retribution. As a matter of fact talio appears to have been common in cases of mere bodily injury. An amusing instance is recorded in the life of Mohammed. At the battle of Bedr he ranged his men in a long straight row, forming them into line with the shaft of a spear. In so doing he struck somewhat heavily upon the body of a man whose figure projected beyond the straight line, and the individual, whose name and race are exactly recorded, complained of his violence. Mohammed promptly offered his own body and said, “Take unto thyself the talio,” which, however, the other magnanimously declined to do. From this we see that also a military commander in the exercise of his official functions differs in nothing from a private person in the eyes of the law. Imagine a scene of this sort between officer and private on a modern parade-ground!
If, however, it is not a question of satisfaction for mere corporeal injuries, but of blood for blood, the situation becomes far more difficult; for if mulct is unwillingly taken, talio is far more unwillingly given. It is the direst disgrace for any clan to give up one of its members, no matter what his crime, into the hands of another clan which intends to put him to death; rather will they slay him themselves. Hence the talio, though an efficacious means of keeping blood-revenge within bounds and blunting its dangerous edges as far as the peace and unity of the tribe are concerned, cannot be practically enforced in the ancient Arabic community, because it has no sovereign power over the tribe.
The first Arabic community with sovereign powers was established by Mohammed in the city of Medina, not upon the basis of blood, which naturally tends to diversity, but upon that of religion, which is equally binding on all. There for the first time the talio becomes effective, there it can be enforced. The community, at the head of which God stands, and the prophet as God’s representative, has power to deliver the shedder of blood over to the avenger, and it is the duty of the community to see that this is done. “In the talio ye have the life,” says the Koran; and a commentary is provided by the hideous anarchy, conjured up by blood-feuds, which prevailed in Medina before the coming of Mohammed—life was then indeed impossible. And in another place the Koran says, “If a man have slain one person unlawfully, it is as if he had slain all men.” In other words the murder of an individual is to be regarded as a crime committed against the whole community, and the whole body must see to it that lawful vengeance may have its course. The execution of vengeance is, however, still left to the rightful avenger; and he is at liberty to exercise his right or renounce it, either freely or for a price. The talio is not yet a punishment, it is only the transition stage to it from revenge.
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.