discretionary punishments with little regard to sharia, often under the pretext of following the dictates of political expedi-ency.. Beginning in the 12th century jurists tried to assimi
Trang 1discretionary punishments with little regard to sharia, often
under the pretext of following the dictates of political
expedi-ency Beginning in the 12th century jurists tried to
assimi-late the concept of political expediency into the framework of
sharia Late medieval jurists such as the Syrian Ibn Taymiyya
(d 1328), developed the influential doctrine of “governance
in accordance with sharia.” In the long run, however, this
doctrine tended to further subordinate Islamic judges to the
executive power of the temporal authorities
Documents of investiture for the office of the Islamic
judge from the ninth to the 15th centuries tend to be silent
with regard to the divinely ordained punishments, let alone
the discretionary punishments Only with the full
develop-ment of the doctrine of political expediency under the
Ot-toman Empire (13th–20th centuries) were Islamic judges
reintegrated into the administration of penal justice From
early on there was a dual regime of religious and
tempo-ral criminal justice The institution known as the Court of
Grievances was originally instituted under the caliph
al-Mahdi (r 775–785) According to al-Mawardi, the major
me-dieval theorist of Islamic public law, this court possessed the
authority to investigate crimes ex officio, in addition to
rely-ing on rules of evidence somewhat more lax than those of
the Islamic judge’s court However, the Court of Grievances
seems to have functioned as a criminal court only in cases
that aroused great public interest, such as when the popular
mystical preacher al-Hallaj was sentenced to death by
cruci-fixion in 922 in Baghdad
In the day-to-day prosecution of crime, the urban police
and the market inspector played a more important role
Be-tween the 11th and 13th centuries in Baghdad the chief of
po-lice was a powerful political player, second in importance only
to the vizier The police punished crime according to both the
principles of political expediency and sharia The brigandage
verse in the Koran was conveniently exploited for the
perse-cution of all sorts of offenders The police were aided by the
market inspector, who was set to watch over public morals and
commercial fraud Market inspectors are mentioned in the
chronicles as having publicly rebuked, flogged, or
ignomini-ously paraded trespassers against norms of public behavior
Types of punishment in medieval Islam included
ex-ecutions, corporal punishments, shame punishments,
ban-ishment, imprisonment, and fining The form of execution
most frequently mentioned in the chronicles is crucifixion,
a practice that comes closer to hanging than to the
Roman-style nailing on a cross However, execution by the sword may
have been just as common or even more widespread Other
forms of execution, rarely mentioned in the sources, included
stoning, throwing from towers (a punishment applied to
sod-omites), strangling (of high-ranking members of the military
or administrators), burning (mostly of heretics), drowning (of ill-reputed women), and trampling by elephants (especially
in the East) Corporal punishments included flogging with whips, switches, or crops; beating of the soles of the feet was common under the Ottomans
Except in cases of retaliation, a strong reticence to mutilate bodies appears to have prevailed through much of Islamic his-tory Ignominious parades on donkeys, camels, or oxen were common sights throughout the Islamic Middle Ages Offend-ers were led through the city, their faces blackened with smut
or embers, sitting backward, while their crimes were called out to the public Other forms of shame punishment included the privation of the right to act as witness, a coveted position
of honor The stipulation in the Koran that certain criminals
“shall be banished from the land” was taken to refer to both banishment and imprisonment, since prisons were thought to
be a kind of netherworld of almost eschatological proportions Little is known about what popular prisons looked like, but conditions in the great prison in the Cairo citadel (Mamluk Period, 1250–1517) seem to have been miserable, with prison-ers starving to death if unaided by their families Pecuniary punishments, though disputed by the jurists, were a common form of discretionary punishment
The outstanding feature of the administration of penal justice in medieval Islam would seem to be the divorce of legal theory from penal practice Soon after the decline of charismatic religious leadership in early Islam (ca 622–720) the prosecution of crimes was usurped by the temporal au-thorities (ninth–11th centuries) However, concurrent with the development of Islamic legal doctrine, the jurists man-aged to reclaim a measure of influence in criminal law by de-fending the inviolability of the human body as well as that of the private sphere of Muslim households and by bringing the
concept of political expediency back into the fold of sharia
(especially from the 14th century on) Thus, debates about the extent to which the prosecution of crime in medieval Islam lay outside the realm of religious law must take into account specific historical and doctrinal contexts The study of the history of Islamic criminal law is still in its infancy, despite some progress in recent years, especially with regard to the Ottoman Period, for which court registers are available
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22 crime and punishment: The Islamic World