Intisar A. Rabb, Harvard Law School, has posted Enforcement and Punishment in Medieval Islamic Law, which is forthcoming in Cultural History of Crime and Punishment in the Medieval Age, ed. Sarah McDougall and Karl Shoemaker (Bloomsbury 2022):
The striking thing about medieval Islamic criminal law is that it featured a jurisprudence of doubt and lenity facing off against political practices of control and severity. Principles of Islamic criminal law placed interpretive authority in the group of scholar-jurists who gained expertise to read divine texts to say what the Law is (sharīʿa). Practices of Islamic criminal law authorized executive authorities—caliphs, sultans, and their agents—power over law enforcement (siyāsa). Principles informed the task of expert jurists and state-appointed judges in defining legitimate punishment derived from Islam’s foundational texts. Practices informed the wide array of severe punishment that law enforcement officials meted out regularly, with a justification that it was “in the public interest” (maṣlaḥa). Principles often justified limited punishment by means of “deterrence” (zajr) and “spiritual rehabilitation” (kaffāra). Practices often justified unrestrained punishment as a means of maintaining law and order, social control, or might as right. The principles of punishment, practices of punishment, and justifications for punishment typically operated in siloes separated by a wide plain. This chapter explores the ground where they met.--Dan Ernst
Examining both principles and practices of medieval Islamic criminal law can shed light on some of the most pressing questions of old criminal law (Islamic and otherwise): What is the extent of convergence or divergence between Islam’s principles and practices? How, from juristic or social-political accounts of criminal justice, can we explain the types of punishments we see on the books and in the world as we know it?
To answer these questions, I will explore the principles-practices divergence by first examining the legal sources. Then I will review them alongside narratives of social-political practices. For the legal principles, I draw on previous work outlining medieval Islamic criminal law and the expansive role of doubt in substantive law and in criminal procedure. To explore the practices, I canvas Maḥmūd Shaljī’s seven-volume Encyclopedia of Punishment (MMawsūʿat al-ʿadhāb), in which he collects all mentions of “punishment” from a well-known set of historical chronicles and other literary sources from the eighth century onward. I supplement his sources with the less-covered Seljuq, Mamlūk, and Ottoman-era accounts of punishment that Christian Lange (2012), Carl Petry (2008), and others have collected in their studies. By combining views of criminal law from the pens of medieval jurists together with accounts of contemporaneous acts reporting on their less verbose executive counterparts, I offer depictions of how each side tended to approach crime and punishment.
