Qiṣāṣ in the Modern State: Searching for the Victim’s Family in Middle Eastern Criminal Law

Abstract

This article traces the development of the role of the victim’s family (awliyāʾ al-damm) in Middle Eastern legal systems. In the pre-modern period, most Muslim jurists saw the right of the victim’s family to determine the punishment for homicide as central to retaliation (qiṣāṣ) and gave political authorities a limited ability to punish offenders. As the modern state expanded in the nineteenth century, new codes provided room for governments to enact punishment and eventually removed the role of the family altogether, a move challenged by Islamists in the twentieth century. This article argues that although growing state power is an important backdrop against which legal development took place, it must also be recognized that the solutions created did not sideline the šarīʿa. Instead, reformers engaged with existing Islamic debates on balancing individual and societal rights to justify change, choosing interpretations that fit into evolving circumstances.