@article{Jurisprudence:2548,
      recid = {2548},
      author = {Toft, Amir Armon},
      title = {Revaluing the Price of Blood: Homicide in Islamic  Jurisprudence and Ottoman Law},
      publisher = {University of Chicago},
      school = {Ph.D.},
      address = {2020-08},
      pages = {391},
      abstract = {This dissertation examines homicide in Ottoman-era Islamic  jurisprudence. Broadly speaking, it aims to articulate a  more comprehensive approach to studying criminal law in  Islamic jurisprudence, one that takes into account both  theoretical doctrines and practical institutions. This  study therefore makes a methodological and a substantive  intervention in the study of Islamic  law.

Methodologically, I argue against the scholarly  tendency to evaluate Islamic law within its theological  guise. Put differently, Islamic law is rarely seen as law  first and Islamic second. Far more common is to view  Islamic law as a narrower exercise in scriptural  interpretation. Because the Shariʿa was God’s law, it is  often held, Muslim jurists historically drew no distinction  between law and morality and therefore no distinction  between law and politics. For jurists, the Shariʿa was a  single, universal system of law, permitting no political  division and no legislation from temporal rulers. This  standard account, however, overlooks the historically and  politically contingent nature of Islamic jurisprudence.  This dissertation contends that Islamic law, analogous to  Roman law in premodern Europe, was a legal tradition that  over time got worked into discrete territorial legal  systems. It is with this contention in mind that the  subtitle to this study distinguishes between Islamic  jurisprudence and Ottoman law.

The distinction between  tradition and system appears most saliently in the domain  of criminal law and is illustrated best through homicide.  Modern scholars have generally looked for Islamic criminal  law in the traditional books of Islamic legal science  (fiqh). Because intentional homicide in Islamic  jurisprudence carried the possibility of the death penalty  through requital (qiṣāṣ), it usually gets classified as a  crime. These texts, however, were mostly concerned with  civil matters, addressing the relationships among people  rather than the relationship between people and the  sovereign. I argue that jurists theorized homicide  primarily as the violation of a private right, and  considered its remedies, including both compensation and  requital, as civil remedies, in that the victim’s heirs  held the right to exercise or forgo the option. For the  criminal dimension of homicide, we must look to the public  jurisdiction of temporal sovereigns. Jurists held, I argue,  that the sovereign ruler possessed the competency and  discretion to make rules and institutions in furtherance of  the common good, such as the punishment of offenders who  escaped civil liability. Ottoman legal institutions  illustrate well this distinction between the private and  public domains of the law. By keeping these two domains  distinct, therefore, I propose a more accurate description  of the normative and institutional framework of Islamic  criminal law.},
      url = {http://knowledge.uchicago.edu/record/2548},
      doi = {https://doi.org/10.6082/uchicago.2548},
}