Details if other :. Thanks for telling us about the problem. Return to Book Page. Wael B. Hallaq Editor. Rudolph Peters' book is about crimes and their punishments as laid down in Islamic law. In recent years some of the more fundamentalist regimes, such as those of Iran, Pakistan, Sudan and the northern states of Nigeria have reintroduced Islamic law in place of western criminal codes. Peters gives a detailed account of the classical doctrine and traces the enforcement of cr Rudolph Peters' book is about crimes and their punishments as laid down in Islamic law.
Peters gives a detailed account of the classical doctrine and traces the enforcement of criminal law from the Ottoman period to the present day. The accounts of actual cases which range from theft, banditry, murder, fornication and apostasy shed light on the complexities of the law, and the sensitivity and perspicacity of the qadis who implemented it. This is the first single-authored account of both the theory and practice of Islamic criminal law. It will be invaluable for students, and scholars in the field, as well as for professionals looking for comprehensive coverage of the topic.
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British Journal of Criminology , 1— Cottingham, J. Dagger, R. Laborde and J. Maynor eds. Daly, K. Davis, L. Davis, M. Tonry ed. How Much? Deigh, J.
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Punishment: Theory and Practice
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Sher, G. Sigler, M. Skillen, A. Smart, J. Smart and B. Stephen, J. White, Cambridge: Cambridge University Press Stichter, M. Tadros, V. Tanguay-Renaud, F. Tasioulas, J. Ten, C. Oxford: Oxford University Press. Tonry, M. Tudor, S. Matravers ed. Ashworth, and C. Walgrave, L. The success of retaliation as a response therefore depends on adequate monitoring of the aggressor and possession of the power to effectively harm them in turn.
Reconciliatory responses demand a willingness to forgive the aggressor and wipe the slate clean for the sake of future mutually beneficial relations. Reconciliation aims to foster an intrinsic desire in the aggressor to end hostilities by eliciting remorse and recognition of the value of the relationship. It therefore does not depend on monitoring and power. Reconciliatory responses do however risk leaving the forgiving party vulnerable to future exploitation, if the aggressor deceives them about their commitment to avoid hostilities and maintain good relations.
Nonetheless, from the long-term perspective, reconciliatory responses are optimal when successful, for they reduce the risk of the aggressor perpetrating harm without incurring the cost of monitoring and the maintenance of coercive power in the future, while bringing the benefit of maintaining relationships so far as possible. Where Associational Value is high, the orientation to forgiveness and reconciliation is accordingly enhanced; where it is low, either because of features of the aggressor themselves or the relationship they have with members of the group — or, as we shall suggest below, features of the socio-political environment — the orientation to retaliation will be stronger.
Evaluations of how to react to a hostile act, holding evaluations of its seriousness constant, are accordingly shaped by Associational Value: by the expected value of future interactions with the offender. This research resonates with an extensive literature in comparative political economy. The Associational Value findings suggest that countries with higher levels of social solidarity and trust will be those in which it is easiest to create institutions and practices oriented towards reconciliation and hence to moderate retributive excess; and that it may be harder to generate barriers to retaliation and escalating aggression, and incentives to reconciliation, in large scale, anonymous, urbanised societies, where confident evaluations of high future Associational Value are harder to make.
Indeed, comparative sociological evidence supports this suggestion, in that the countries which have experienced the most dramatic increase in punitiveness over the last 40 years are those with the lowest levels of solidarity and trust and the highest levels of heterogeneity along a range of social indicators. As we have seen, the notion of proportionality generates in itself no concrete limits to punishment; hence the question of how much — and indeed how — to punish remains open to the sway of convention, political decision, or expediency.
And these relationships help to foster intrinsic motivations for compliance with prevailing social norms at least among insiders — an important caveat when it comes to penal policy.
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The coordinated market economies, moreover, typically feature the more generous welfare systems which, particularly in their Nordic, social democratic form, represent a recognition of mutual interdependence and belonging and express a culture of solidarity which fosters trust relations and which is strongly correlated, as shown by comparative research, with lower levels of punishment.
Moreover, we might expect Associational Value to be weaker — and hence the appeal to proportionality or other metaphors aspiring to limit punishment a less effective constraint on retributive reactions — in the countries with highly competitive, first-past-the-post political systems, where policy horizons tend to be relatively short term and policy platforms accordingly volatile, than in the consensus-oriented political systems typical of the northern European and Nordic countries.
For, in the latter countries, policy horizons tend to be longer term as interests within a proportionally representative system have to be bargained out in the process of coalition-formation: voters can accordingly have some confidence in the credibility of the policy platforms on which parties stand for office. Their capacity to limit punishment, in short, is dependent not on abstract appeals to proportionality but on social and political cohesion which fosters high Associational Value between citizens and hence an orientation towards reconciliation — conditions which are met to a greater degree in the coordinated systems of northern Europe and the Nordic countries than in the Anglo-Saxon, liberal market countries.
In other words, the psychological conditions which foster an orientation to reconciliation, through sustaining dense networks of mutual Associational Value, are better institutionally supported in coordinated market economies whose production regimes are premised on investment in long term relationships; in proportionally representative, consensus-oriented political systems in which there is a longer time frame for policy making; and in social democratic welfare systems which symbolise mutual dependency and which foster solidarity and relatively low levels of social inequality.
The importance of trying to understand the nature of this institutional impact can hardly be exaggerated. The question of what shapes the balance between retaliation and reconciliation has long been recognised by sociologists, anthropologists and criminologists as a crucial question about punishment. Even those who, like G.
Mead, see desert as the basic reason for punishment, and the expression of vengeance and affective blame as socially useful, acknowledge that these generate no stable criteria for the level of punishment, and so inevitably carry the risks of the escalation of aggression and of the stigmatisation of offenders. What is needed, rather, is an understanding of the institutional conditions which can structure the dynamics of collective action so as to inhibit the slide into stigmatisation and othering, and foster the reconciliatory dispositions.
A certain form of retributivism, then, in the sense of a set of stable and effective criteria defining the fittingness of penalties by reference to a particular offence by a particular offender, makes most sense within the cosmology, or moral economy, in which state penalties are enacted within, and widely regarded as integral to, a political system rooted in a symbolically legitimated status hierarchy.
Moreover the legitimation of those penalties may be underpinned in some important ways by theological symbolism and various forms of religious doctrine and belief. Early modern punishments look to us crude and extreme expressions of revenge; but their meaning to contemporaries — notably to the spectators at the scaffold or to the consumers of the forms of popular culture mentioned earlier — was importantly premised on an afterlife, on expiation, on a symbolism of penitence.
And they resonated with moral sensibilities in a less violence-averse and a more overtly status-based hierarchical world than ours. But in our social and political world — a world no longer organised around a moral order structured in terms of symbolically anchored notions of desert or appropriateness — there is no agreed mechanism for anchoring the penalty scale according to cardinal proportionality, and actual penalty scales are driven by convention, calculations of consequences, and political dynamics. Particularly under conditions of a highly politicised climate for criminal justice policy-making, the commitment to just deserts all too easily produces insatiable demands for hard treatment.
Desert theorists believed that retributivism could provide a limit to punishment by restricting its moral justification to the past-oriented criterion of proportionality with the seriousness of an offence. That its credentials on the first criterion are dismal is not surprising given that our prevailing culture is no longer premised on widely shared belief in a moral order structured around notions of desert or appropriateness grounded in widely shared symbols of equivalence. But this sobering analytic conclusion should not, in our view, be interpreted as a counsel of despair.
Few proponents of the justice model would want to recreate the hierarchical and authoritarian conditions which made retributive punishments such as the lex talionis meaningful to contemporaries, and religious affiliations and symbols of the sacred cannot be organised in democratic societies by processes of deliberate institutional reform, even should they seem attractive. The task, rather, is to consider what early modern societies can tell us about the links between the legitimation of punishment and broader social conditions; to reflect on the theoretical and practical resources which resonate with modern moral and political discourse; and to ponder how best they may be institutionalised under particular conditions.
Both moral commonality and the sense of a real relationship between victim and offender as fellow members of a society have doubtless been attenuated by the increasing heterogeneity and moral pluralisation of social orders, especially in the more individualistic, competitive, liberal market countries. Those countries in which the retributive revival appears to have had the most baleful effect in eroding the institutional counterpart to reconciliatory dispositions in the criminal process are those in which inequality, conflict and heterogeneity are highest.
The lesson for the more punitive — and less equal — liberal market countries is that avoiding polarisation and reducing inequality is likely to be as important as the effort to reconstruct the criminal process to effectively foster repentance and reconciliation; and that the key to penal moderation lies not only in reintegrative criminal justice policy, but in social policy and in political arrangements and institutional structures which maximise expected Associational Value among citizens.
In conclusion, it is important to clarify that our argument about the incapacity of the neoclassical revival to generate a robust sense of limits on punishment is not to be taken as suggesting that consequentialist theories of punishment are immune from analogous difficulties, let alone to make a case for penal consequentialism. In fact, one of us is inclined to take a restricted consequentialist line on punishment, 86 but that argument is for another day. Even leaving aside the well known distributive difficulties with purely consequentialist arguments for punishment, 87 it will be evident that while many of the potentially positive consequences of punishment — deterrence, incapacitation, reform and so on — are in principle measurable with the increasingly sophisticated tools of the social sciences, the question of how much of any of them adequately balances the infliction of a particular penalty remains an intractable moral question which cannot be reduced to any calculus, and one, moreover, on which views differ widely.
In the realpolitik of penal practice, the key aspiration must be to determine the ethically optimal penal practices consistent with political legitimation. For modern consequentialists, as for modern retributivists, there is little alternative to the messy business of building political and social coalitions around agreed conventions specifying, and limiting, adequate penalties. Hence our knowledge, from comparative research, that the countries which have most successfully resisted the drift to penal severity since the s are those whose social, economic and political institutions have given them maximum capacity to coordinate policy, in the public interest, over the long term is of key ethical significance.
The value pluralism and heterogeneity of modern societies, sitting alongside our commitment to democratic politics, complicates the tasks of both legitimising punishment and institutionalising arrangements favourable to reconciliation within a stable set of symbols and practical arrangements. The task has been yet further complicated by the spread of criminal law into ever greater areas of regulation.
The social task of legitimising and civilising punishment cannot be separated from that of legitimising and civilising the deployment of criminal law, and while our focus in this paper has been on punishment, we accept that, parallel to the argument which we have made about the institutional conditions under which appeals to penal proportionality can be made meaningful, we need to come to some understanding of the conditions for building support around institutions capable of delivering social coordination on criteria of fittingness or proportionality relevant to criminalisation.
But whether we are focusing on punishment or on criminalisation, we should train our attention on the analysis and conditions of existence of institutions stabilising and implementing substantive criteria of fittingness, rather than placing our reformist faith in the chimera of appeals to proportionality. National Center for Biotechnology Information , U. Mod Law Rev. Author manuscript; available in PMC Sep 1.
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Author information Copyright and License information Disclaimer. Whitman, as well as the MLR editors and referees, for very helpful comments on earlier drafts of this paper and David Soskice, as well as participants at the McDonald Ethics Conference , and at a New York University Criminal Law Faculty Seminar, for very useful discussion of its argument. Copyright notice. This article may be used for non-commercial purposes in accordance With Wiley Terms and Conditions for self-archiving.
The publisher's final edited version of this article is available at Mod Law Rev. References 2. The concepts of proportionality and commensurability are interchangeable: we focus on proportionality both because of its salience in the penal theory literature, and because of its analogous deployment in other areas such as human rights, and public, international and private law across many jurisdictions. For key examples amid an extensive literature, see Alexy R.
A Theory of Constitutional Rights. Proportionality: Constitutional Rights and their Limitations. CUP; Cambridge: Balancing Constitutional Rights. Minnesota Law Review. Proportionality as a Principle of Limited Government. Duke Law Journal. Rescuing Proportionality. Philosophical Foundations of Human Rights. OUP; Oxford: Proportionality and Constitutional Culture. OUP; New York: Prevention as a Limit on the Preventive Justice.
In: Ashworth A, Zedner L, editors. Prevention and the Limits of the Criminal Law. Murphy J. Punishment and the Moral Emotions. Doing Justice. Hill and Wang; New York: Censure and Sanctions. Clarendon Press; Oxford: Punishment, Communication and Community. The Permissibility of Punishment. Law and Philosophy. Is Twenty-first Century Punishment Post-desert? In: Tonry M, editor. Ashworth A. Sentencing and Criminal Justice. Proportionate Sentencing: Exploring the Principles.
Crim L Rev. Tonry ed , n 3 above; Garland D. The Culture of Control. Not Just Deserts. Pratt J, Eriksson A. Routledge; Abingdon and New York: Lacey N. Lacey N, Pickard H. From the Consulting Room to the Court Room? Whitman JQ. The Transition to Modernity. The Oxford Handbook of Criminal Law. Hart HLA. In: Punishment and Responsibility. Gardner J, editor. Routledge; London: In the light of the failure of the neoclassical revival to foster stability, fairness and moderation in penal policy in liberal market systems such as the UK and the US, it is not surprising that some of the most imaginative penal theorists in recent years have reached back into older symbolic resources such as mercy and forgiveness, many of them with theological resonance, to try to reconstruct desert theory in less potentially vengeful and narrowly retributive terms.
In a further paper, we consider what form a process of institutional reconfiguration to reanimate meaningful limits on punishment might feasibly take under the conditions of modern representative democracy. Taking Rights Seriously. Duckworth; London: A Matter of Principle. To blame or to forgive?