George Sale, The Koran, commonly called the Alcoran of Mohammed, translated into English immediately from the original Arabic; with Explanatory Notes, taken from the most approved Commentators. To which is prefixed A Preliminary Discource (1734)
the Korân 1: but this law, which seems to have been allowed by Mohammed to his Arabians for the same reasons as it was to the Jews, viz. to prevent particular revenges, to which both nations were extreamly addicted 2, being neither strictly just, nor practicable in many cases, is seldom put in execution, the punishment being generally turned into a mulct or fine, which is paid to the party injured 3. Or rather Mohammed designed the words of the Korân relating thereto should be understood in the same manner as those of the Pentateuch most probably ought to be; that is, not of an actual retaliation, according to the strict literal meaning, but of a retribution proportionable to the injury: for a criminal had not his eyes put out, nor was a man mutilated, according to the law of Moses, which, besides, condemned those who had wounded any person, where death did not ensue, to pay a fine only 4; the expression eye for eye, and tooth for tooth being only a proverbial manner of speaking, the sense whereof amounts to this, That every one shall be punished by the judges, according to the heinousness of the fact 5.
Of the punishment of lesser crimes.
In injuries and crimes of an inferior nature, where no particular punishment is provided by the Korân, and where a pecuniary compensation will not do, the Mohammedans, according to the practice of the Jews in the like case 6, have recourse to stripes or drubbing, the most common chastisement used in the east at this day, as well as formerly; the cudgel, which for its virtue and efficacy in keeping their people in good order, and within the bounds of duty, they say came down from heaven, being the instrument wherewith the judge’s sentence is generally executed 7.
The decisions of the doctors not always followed by the secular tribunals.
Notwithstanding the Korân is by the Mohammedans in general regarded as the fundamental part of their civil law, and the decisions of the Sonna, among the Turks, and of the Imâms, among those of the Persian sect, with the explications of their several doctors, are usually followed in judicial determinations, yet the secular tribunals lowed do not think themselves bound to observe the same in all cases, but frequently give judgment against those decisions, which are not always consonant to equity and reason; and therefore distinction is to be made between the written civil law, as administered in the ecclesiastical courts, and the law of nature or common law (if I may so
2 V. Grotium, de Jure belli & pacis, l. 1. c. 2. $. 8.
3 V. Chardin, T. 2 p. 299. The talio, likewise established among the old Romans by the laws of the twelve tables, was not to be inflicted, unless the delinquent could not agree with the person injured. V. A. Gell. Noct. Artic. l. 20. c. 1. & Feftum, in voce Talio.
4 See Exod. xxi. 18, 19, and 22.
5 Barbeyrac, in Grot, ubi supra. V. Cleric. in Exod. xxi. 24, & Deut. xix. 21.
6 See Deut. xxv. 2, 3.
7 V. Grelot, Voy. de Constant. p. 220, & Chardin, ubi supra, p. 302.
