Читать книгу The Koran (Al-Qur'an) - Anonymous - Страница 24

THE Mohammedan civil law is founded on the precepts and determinations of the Korân, as the civil laws of the Jews were on those of the Pentateuch; yet being variously interpreted, according to the different decisions of their civilians, and especially of their four great doctors, Abu Hanîfa, Malec, al Shâfeï, and Ebn Hanbal,7 to treat thereof fully and distinctly in the manner the curiosity and usefulness of the subject deserves, would require a large volume; wherefore the most that can be expected here, is a summary view of the principal institutions, without minutely entering into a detail of particulars. We shall begin with those relating to marriage and divorce. That polygamy, for the moral lawfulness of which the Mohammedan doctors advance several arguments,1 is allowed by the Korân, every one knows, though few are acquainted with the limitations with which it is allowed. Several learned men have fallen into the vulgar mistake that Mahommed granted to his followers an unbounded plurality; some pretending that a man may have as many wives,2 and others as many concubines,3 as he can maintain: whereas, according to the express words of the Korân,4 no man can have more than four, whether wives or concubines;5 and if a man apprehend any inconvenience from even that number of ingenuous wives, it is added, as an advice (which is generally followed by the middling and inferior people),6 that he marry one only, or, if he cannot be contented with one, that he take up with his she-slaves, not exceeding, however, the limited number;7 and this

7 See Sect. VIII. 1 See before, Sect. II., p. 31. 2 Nic.Cusanus, in Cribrat. Alcor. l. 2, c. 19. Olearius, in Itinerar. P. Greg. Thoslosanus, in Synt. Juris, l. 9, c. 2, § 22. Septemcastrensis (de Morib. Turc. p. 24) says the Mohammedans may have twelve lawful wives, and no more. Ricaut falsely asserts the restraint of the number of their wives to be no precept of their religion, but a rule superinduced on a politic consideration. Pres. State of the Ottoman Empire, bk. iii, c. 21. 3 Marracc. in Prodr. ad Refut. Alcor. part iv. p. 52 and 71. Prideaux, Life of Mah. p. 114. Chardin, Voy. de Perse, t. i. p. 166. Du Ryer, Sommaire de la Rel. des Turcs, mis à la tête de sa version de l'Alcor. Ricaut, ubi supra. Pufendorf, de Jure Nat. et Gent. l. 6, c. I, § 18. 4 Cap. 4, p. 53. 5 Vide Gagnier, in Notis and Abulfedæ Vit. Moh. p. 150 Reland. de Rel. Moh. p. 243, &c., and Selden, Ux. Hebr. l. r, c. 9. 6 Vide Reland ubi sup. p. 244. 7 Kor. c. 4, p. 53.

is certainly the utmost Mohammed allowed his followers: nor can we urge as an argument against so plain a precept, the corrupt manners of his followers, many of whom, especially men of quality and fortune, indulge themselves in criminal excesses;8 nor yet the example of the prophet himself, who had peculiar privileges in this and other points, as will be observed hereafter. In making the above-mentioned limitation, Mohammed was directed by the decision of the Jewish doctors, who, by way of counsel, limit the number of wives to four,9 though their law confines them not to any certain number.10 Divorce is also well known to be allowed by the Mohammedan law, as it was by the Mosaic, with this difference only, that, according to the latter, a man could not take again a woman whom he had divorced, and who had been married or betrothed to another;1 whereas Mohammed, to prevent his followers from divorcing their wives on every light occasion, or out of an inconstant humour, ordained that, if a man divorced his wife the third time (for he might divorce her twice without being obliged to part with her, if he repented of what he had done), it should not be lawful for him to take her again until she had been first married and bedded by another, and divorced by such second husband.2 And this precaution has had so good an effect that the Mohammedans are seldom known to proceed to the extremity of divorce, notwithstanding the liberty given them, it being reckoned a great disgrace so to do; and there are but few, besides those who have little or no sense of honour, that will take a wife again on the condition enjoined.3 It must be observed that, though a man is allowed by the Mohammedan, as by the Jewish law,4 to repudiate his wife even on the slightest disgust, yet the women are not allowed to separate themselves from their husbands, unless it be for ill-usage, want of proper maintenance, neglect of conjugal duty, impotency, or some cause of equal import; but then she generally loses her dowry,5 which she does not if divorced by her husband, unless she has been guilty of impudicity or notorious disobedience.6 When a woman is divorced she is obliged, by the direction of the Korân, to wait till she hath had her courses thrice, or, if there be a doubt whether she be subject to them or not, by reason of her age, three months, before she marry another; after which time expired, in case she be found not with child, she is at full liberty to dispose of herself as she pleases; but if she prove with child, she must wait till she be delivered; and during her whole term of waiting she may continue in the husband's house, and is to be maintained at his expense, it being forbidden to turn the woman out before the expiration of the term, unless she be guilty of dishonesty.7 Where a man divorces a woman

8 Sir J. Maundeville (who, excepting a few silly stories he tells from hearsay, deserves more credit than some travellers of better reputation), speaking of the Alcoran, observes, among several other truths, that Mahomet therein commanded a man should have two wives, or three, or four; though the Mahometans then took nine wives, and lemans as many as they might sustain. Maundev. Travels, p. 164. 9 Maimon. in Halachoth Ishoth. c. 14. 10 Idem, ibid. Vide Selden, Uxor. Hebr. l. r, c. 9. 1 Deut. xxiv. 3–4. Jerem. iii. I. Vide Selden, ubi sup. l. r. c. II. 2 Kor. c. 2, p. 24. 3 Vide Selden, ubi sup. l. 3, c. 21, and Ricaut's State of the Ottom. Empire, bk. ii. c. 21. 4 Deut. xxiv I. Leo Modena, Hist. de gli Riti hebr. part i. c. 6. Vide Selden, ubi sup. 5 Vide Busbeq. Ep. 3, p. 184; Smith, de Morib. ac Instit. Turcar. Ep. 2, p. 52; and Chardin, Voy. de Perse, t. I, p. 169. 6 Kor. c. 4, p. 55. 7 Kor. c. 2, p. 24, and c. 65.

before consummation, she is not obliged to wait any particular time,8 nor is he obliged to give her more than one-half of her dower.9 If the divorced woman have a young child, she is to suckle it till it be two years old; the father, in the meantime, maintaining her in all respects: a widow is also obliged to do the same, and to wait four months and ten days before she marry again.1 These rules ar also copied form those of the Jews, according to whom a divorced woman, or a widow, cannot marry another man, till ninety days be past, after the divorce or death of the husband:2 and she who gives suck is to be maintained for two years, to be computed from the birth of the child; within which time she must not marry, unless the child die, or her milk be dried up.3 Whoredom, in single women as well as married, was, in the beginning Mohammedism, very severely punished; such being ordered to be shut up in prison till they died: but afterwards it was ordained by the Sonna, that an adulteress should be stoned,4 and an unmarried woman guilty of fornication scourged with a hundred stripes, and banished for a year.5 A she-slave, if convicted of adultery, is to suffer but half the punishment of a free woman,6 viz., fifty stripes, and banishment for six months; but is not to be put to death. To convict a woman of adultery, so as to make it capital, four witnesses are expressly required,7 and those, as the commentators say, ought to be men: and if a man falsely accuse a woman of reputation of whoredom of any kind, and is not able to support the charge by that number of witnesses, he is to receive fourscore stripes, and his testimony is to be held invalid for the future.8 Fornication, in either sex, is by the sentence of the Korân to be punished with a hundred stripes.9 If a man accuse his wife of infidelity, and is not able to prove it by sufficient evidence, and will swear four times that it is true, and the fifth time imprecate GOD'S vengeance on him if it be false, she is to be looked on as convicted, unless she will take the like oaths, and make the like imprecation, in testimony of her innocency; which is she do, she is free from punishment, though the marriage ought to be dissolved.10 In most of the last-mentioned particulars the decisions of the Korân also agree with those of the Jews. By the law of Moses, adultery, whether in a married women or a virgin betrothed, was punished with death; and the man who debauched them was to suffer the same punishment.1 The penalty of simple fornication was scourging, the

8 Ibid. c. 33. 9 Ibid. c. 2, p. 25. 1 Ibid. c. 2, p. 25, and c. 65. 2 Mishna, tit. Yabimoth, c. 4. Gemar. Babyl. ad eund. tit. Maimon. in Halach. Girushin, Shylhan Aruch, part iii. 3 Mishna, and Gemara, and Maimon. ubi supra. Gem. Babyl. ad tit. Cetuboth, c. 5, and Jos. Karo, in Shylhân Aruch, c. 50, § 2. Vide Selden, Ux. Hebr. l. 2, c. II, and l. 3, c. 10, in fin. 4 And the adulterer also, according to a passage once extant in the Korân, and still in force, as some suppose. See the notes to Kor. c. 3, p. 34, and the Prel. Disc. p. 52. 5 Kor. c. 4, p. 55. See the notes there. 6 Ibid. p. 57. 7 Ibid. p. 55. 8 Ibid. c. 24. 9 Ibid. This law relates not to married people, as Selden supposes; Ux. Heb. l. 3, c. 12. 10 Ibid. p. 288. See the notes there. 1 Levit. xx. 10; Deut. xxii. 22. The kind of death to be inflicted on adulterers, in common cases being not expressed, the Talmudists generally suppose it to be strangling, which they think is designed wherever the phrase "shall be put to death," or "shall die the death," is used, as they imagine stoning is by the expression, "his blood shall be upon him;" and hence it has been concluded by some that the woman taken in adultery mentioned in the Gospel (John viii.) was a betrothed maiden, because such a one and her accomplice were plainly ordered to be stoned (Deut. xxii. 23, 24). But the ancients seem to have been of a different opinion,

general punishment in cases where none is particularly appointed: and a betrothed bondmaid, if convicted of adultery, underwent the same punishment, being exempted from death, because she was not free.2 By the same law no person was to be put to death on the oath of one witness:3 and a man who slandered his wife was also to be chastised, that is scourged, and fined one hundred shekels of silver.4 The method of trying a woman suspected of adultery where evidence was wanting, by forcing her to drink the bitter water of jealousy,5 though disused by the Jews long before the time of Mohammed,6 yet, by reason of the oath of cursing with which the woman was charged, and to which she was obliged to say "Amen," bears great resemblance to the expedient devised by that prophet on the like occasion. The institutions of Mohammed relating to the pollution of women during their courses,7 the taking of slaves to wife,8 and the prohibiting of marriage within certain degrees,9 have likewise no small affinity with the institutions of Moses;10 and the parallel might be carried farther in several other particulars. As to the prohibited degrees, it may be observed, that the pagan Arabs abstained from marrying their mothers, daughters, and aunts both on the father's side and on the mother's, and held it a most scandalous thing to marry two sister, or for a man to take his father's wife;11 which last was, notwithstanding, too frequently practised,12 and is expressly forbidden in the Korân.13 Before I leave the subject of marriages, it may be proper to take notice of some peculiar privileges in relation thereto, which were granted by GOD to Mohammed, as he gave out, exclusive of all other Moslems. One of them was, that he might lawfully marry as many wives and have as many concubines as he pleased, without being confined to any particular number;1 and this he pretended to have been the privilege of the prophets before him. Another was, that he might alter the turns of his wives, and take such of them to his bed as he thought fit, without being tied to that order and equality which others are obliged to observe.2 A third privilege was, that no man might marry any of his wives,3 either such as he should divorce during his lifetime, or such as he should leave widows at his death: which last particular exactly agrees with what the Jewish doctors have determined concerning the wives of their princes; it being judged by them to be a thing very indecent, and for that reason unlawful, for another to marry either the divorced wife or the widow of a king;4 and Mohammed, it seems, thought an equal respect, at least, due to the prophetic as to the regal dignity, and therefore ordered that his relicts should pass the remainder of their lives in perpetual widowhood.

and to have understood stoning to be the punishment of adulterers in general. Vide Selden, Ux. Hebr. l. 3, c. 11 and 12. 2 Levit. xix. 20. 3 Deut. xix. 15, xvii. 6, and Numb. xxxv. 30. 4 Deut. xxii. 13–19. 5 Numb. v. 11, &c. 6 Vide Selden, ubi sup. l. 3, c. 15, and Leon. Modena, de' Riti Hebraici, parte iv. c. 6. 7 Kor. c. 2, p. 23. 8 Ibid. c. 4, p. 53 and 57, &c. 9 Ibid. p. 56 10 See Levit. xv. 24, xviii. 19, and xx. 18; Exod. xxi. 8–11; Deut. xxi. 10–14; Levit. xviii. and xx. 11 Abulfed. Hist. Gen. al Shahrestani, apud Poc. Spec. p. 321 and 338. 12 Vide Poc. ibid. p. 337, &c. 13 Cap. 4, p. 56. 1 Kor. c. 33. See also c. 66, and the notes there. 2 Kor. c. 33. See the notes there. 3 Ibid. 4 Mishna, tit. Sanhedr. c. 2, and Gemar, in eund. tit. Maimon. Halachoth Melachim, c. 2. Vide Selden, Ux. Hebr. l. I, c. 10. Prid. Life of Mah. p. 118.

The laws of the Korân concerning inheritances are also in several respects conformable to those of the Jews, though principally designed to abolish certain practices of the pagan Arabs, who used to treat widows and orphan children with great injustice, frequently denying them any share in the inheritance of their fathers or their husbands, on pretence that the same ought to be distributed among those only who were able to bear arms, and disposing of the widows, even against their consent, as part of their husbands' possessions.5 To prevent such injuries for the future, Mohammed ordered that women should be respected, and orphans have no wrong done them; and in particular that women should not be taken against their wills, as by right of inheritance, but should themselves be entitled to a distributive part of what their parents, husbands, and near relations should leave behind them, in a certain proportion.6 The general rule to be observed in the distribution of the deceased's estate is, that a male shall have twice as much as a female:1 but to this rule there are some few exceptions; a man's parents, for example, and also his brothers and sisters, where they are entitled not to the whole, but a small part of the inheritance, being to have equal shares with one another in the distribution thereof, without making any difference on account of sex.2 The particular proportions, in several cases, distinctly and sufficiently declare the intention of Mohammed; whose decisions expressed in the Korân3 seem to be pretty equitable, preferring a man's children first, and then his nearest relations. If a man dispose of any part of his estate by will, two witnesses, at the least, are required to render the same valid; and such witnesses ought to be of his own tribe, and of the Mohammedan religion, if such can be had.4 Though there be no express law to the contrary, yet the Mohammedan doctors reckon it very wrong for a man to give away any part of his substance from his family, unless it be in legacies for pious uses; and even in that case a man ought not to give all he has in charity, but only a reasonable part in proportion to his substance. On the other hand, though a man make no will, and bequeath nothing for charitable uses, yet the heirs are directed, on the distribution of the estate, if the value will permit, to bestow something on the poor, especially such as are of kin to the deceased, and to the orphans.5 The first law, however, laid down by Mohammed touching inheritances, was not very equitable; for he declared that those who had fled with him from Mecca, and those who had received and assisted him at Medina, should be deemed the nearest of kin, and consequently heirs to one another, preferably to and in exclusion of their relations by blood; nay, though a man were a true believer, yet if he had not fled his country for the sake of religion and joined the prophet, he was to be looked on as a stranger:6 but this law continued not long in force, being quickly abrogated.7 It must be observed that among the Mohammedans the children of their concubines or slaves are esteemed as equally legitimate with those

5 See c. 4, p. 53, 54, and 56, and the notes there. Vide etiam Poc. Spec.

p. 337. 6 Kor. c. 4, ubi supra.

1 Ibid. p. 54 and 72. Vide Chardin, Voy. de Perse, t. 2, p. 293.

2 Kor. ibid. p. 54. 3 Ibid. and p. 72.

4 Kor. c. 5, p. 86. 5 Kor. c. 4, p. 54. 6 Cap. 8.

7 Ibid. and c. 33

of their legal and ingenuous wives; none being accounted bastards, except such only as are born of common women, and whose fathers are unknown. As to private contracts between man and man, the conscientious performance of them is frequently recommended in the Korân.1 For the preventing of disputes, all contracts are directed to be made before witnesses,2 and in case such contracts are not immediately executed, the same ought to be reduced into writing in the presence of two witnesses3 at least, who ought to be Moslems and of the male sex; but if two men cannot be conveniently had, then one man and two women may suffice. The same method is also directed to be taken for the security of debts to be paid at a future day; and where a writer is not to be found, pledges are to be taken.4 Hence, if people trust one another without writing, witnesses, or pledge, the party on whom the demand is made is always acquitted if he denies the charge on oath, and swears that he owes the plaintiff nothing, unless the contrary be proved by very convincing circumstances.5 Wilful murder, though forbidden by the Korân under the severest penalties to be inflicted in the next life,6 is yet, by the same book, allowed to be compounded for, on payment of a fine to the family of the deceased, and freeing a Moslem from captivity; but it is in the election of the next of kin, or the revenger of blood, as he is called in the Pentateuch, either to accept of such satisfaction, or to refuse it; for he may, if he pleases, insist on having the murderer delivered into his hands, to be put to death in such manner as he shall think fit.7 In this particular Mohammed has gone against the express letter of the Mosaic law, which declare that no satisfaction shall be taken for the life of a murderer;8 and he seems, in so doing, to have had respect to the customs of the Arabs in his time, who, being of a vindictive temper, used to revenge murder in too unmerciful a manner,9 whole tribes frequently engaging in bloody wars on such occasions, the natural consequence of their independency, and having no common judge of superior. If the Mohammedan laws seem light in case of murder, they may perhaps be deemed too rigorous in case of manslaughter, or the killing of a man undesignedly, which must be redeemed by fine (unless the next of kin shall think fit to remit it out of charity), and the freeing of a captive: but if a man be not able to do this, he is to fast two months together, by way of penance.1 The fine for a man's blood is set in the Sonna at a hundred camels,2 and is to be distributed among the relations of the deceased, according to the laws of inheritances; but it must be observed that, though the person slain be a Moslem, yet if he be of a nation or party at enmity, or not in confederacy with those to whom the slayer belongs, he is not then bound to pay any fine at all, the redeeming a captive being, in such case, declared a sufficient penalty.3 I

1 Cap. 5, p. 73; c. 17; c. 2, p. 31, &c. 2 Cap. 2, p. 31. 3 The same seems to have been required by the Jewish law, even in cases where life was not concerned. See Deut. xix. 15, Matth. xviii. 16, John viii. 17, 2 Cor. xiii. I. 4 Kor. c. 2, p. 30, 31. 5 Vide Chardin, Voy. de Perse, t. 2, p. 294, &c., and the notes to Kor. c. 5, p. 86. 6 Kor. c. 4, p. 64. 7 Cap. 2, p. 18, 19; c. 17. Vide Chardin, ubi sup. p. 299, &c. 8 Numb. xxxv. 31. 9 This is particularly forbidden in the Korân, c. 17. 1 Kor. c. 4, p. 64. 2 See the notes to c. 37 3 Kor. c. 4, p. 64.

imagine that Mohammed, by these regulations, laid so heavy a punishment on involuntary manslaughter, not only to make people beware incurring the same, but also to humour, in some degree, the revengeful temper of his countrymen, which might be with difficulty, if at all, prevailed on to accept a lighter satisfaction. Among the Jews, who seem to have been no less addicted to revenge than their neighbours, the manslayer who had escaped to a city of refuge was obliged to keep himself within that city, and to abide there till the death of the person who was high priest at the time the fact was committed, that his absence and time might cool the passion and mitigate the resentment of the friends of the deceased; but if he quitted his asylum before that time, the revenger of blood, if he found him, might kill him without guilt;4 nor could any satisfaction be made for the slayer to return home before the prescribed time.5 Theft is ordered to be punished by cutting off the offending part, the hand,6 which, at first sight, seems just enough; but the law of Justinian, forbidding a thief to be maimed,7 is more reasonable; because, stealing being generally the effect of indigence, to cut off that limb would be to deprive him of the means of getting his livelihood in an honest manner.8 The Sonna forbids the inflicting of this punishment, unless the thing stolen be of a certain value. I have mentioned in another place the further penalties which those incur who continue to steal, and of those who rob or assault people on the road.9 As to injuries done to men in their persons, the law of retaliation, which was ordained by the law of Moses,10 is also approved by 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 extremely 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 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

4 See Numb. xxxv. 26, 27, 28. 5 Ibid. v. 32. 6 Kor. c. 5, p. 78. 7 Novell. 134, c. 13. 8 Vide Pufendorf, de Jure Nat. et Gent. l. 8, c. 3, § 26. 9 See the notes to c. 5, p. 78. 10 Exod. xxi. 24, &c., Levit. xxiv. 20, Deut. xix. 21. 1 Cap. 5, p. 79. 2 Vide Grotium , de Jure Belli et Pacis, l. I, c. 2, § 8. 3 Vide 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. Vide A. Gell. Noct. Attic. l. 20, c. I, and Festum, in voce Talio. 4 See Exod. xxi. 18, 19, and 22. 5 Barbeyrac, in Grot. ubi supra. Vide Cleric. in Exod. xxi. 24, and Deut. xix. 21.

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 Notwithstanding the Korân is by the Mohammedans in general regarded as the fundamental apart 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 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 call it) which takes place in the secular courts, and has the executive power on its side.1 Under the head of civil laws may be comprehended the injunction of warring against infidels, which is repeated in several passages of the Korân,2 and declared to be of high merit in the sight of GOD, those who are slain fighting in defence of the faith being reckoned martyrs, and promised immediate admission into paradise.3 Hence this duty is greatly magnified by the Mohammedan divines, who call the sword the key of heaven and hell, and persuade their people that the least drop of blood spilt in the way of GOD, as it is called, is most acceptable unto him, and that the defending the territories of the Moslems for one night is more meritorious than a fast of two months:4 on the other hand, desertion, or refusing to serve in these holy wars, or to contribute towards the carrying them on, if a man has ability, is accounted a most heinous crime, being frequently declaimed against in the Korân.5 Such a doctrine, which Mohammed ventured not to teach till his circumstances enabled him to put it in practice,6 it must be allowed, was well calculated for his purpose, and stood him and his successors in great stead: for what dangers and difficulties may not be despised and overcome by the courage and constancy which these sentiments necessarily inspire? Nor have the Jews and Christians, how much soever they detest such principles in others, been ignorant of the force of enthusiastic heroism, or omitted to spirit up their respective partisans by the like arguments and promises. "Let him who has listed himself in defence of the law," says Maimonides,7 "rely on him who is the hope of Israel, and the saviour thereof in the time of trouble;8 and let him know that he fights for the profession of the divine unity: wherefore let him put his life in his hand,9 and think neither of wife nor children, but banish the memory of them from his heart, having his mind wholly fixed on the war. For if he should begin to waver in his thoughts, he would not only confound himself, but sin against the law;