Normative Bases of Torture and Capital Punishment in Islamic Law and Political Theory

One may legitimately question the practical relevance of Islamic criminal law (fiqh al-‘uqubat) in the medieval Islamic polity. In fact, historians of crime and punishment in medieval Islam often opt to more or less ignore legal doc­trines, considering them largely irrelevant to historical practice.

According to Islamic criminal law, five offences are punishable by death: apostasy, blasphemy (whose definition includes the act of insulting the Prophet Muhammad), illegal sexual intercourse, brigandage and intentional homicide. The classical jurists count the penalties for the first four of these offences among the so-called hadd (pl. hudud) punishments (henceforth ‘statutory punishments'), which they characterise as ‘divinely ordained', because they are specifically mentioned in the Qur'an or the traditions reported from the Prophet (hadith). This sacrosanct character of the statutory punishments makes them largely inaccessible to juridical reasoning and extrapolations. As a corollary of this, statutory crimes were defined narrowly, and the acceptance of repentance, strict rules of evidence (such as the requirement of four eyewitnesses in cases of illegal sexual intercourse), the principle that the statutory punishments are inapplicable in the presence of legal doubt, and perhaps most importantly, the fact that the Islamic judge (qadi) does not act as public prosecutor, made condemnation by the judge unlikely or even impossible in most cases.

Thus, what emerges from the premodern Muslim legal literature is a ‘paradoxical reluctance of the jurists to implement the serious hadd [statutory] penalties'.^[258] There are several ways to interpret this phenomenon. One aspect that deserves to be highlighted is that the jurists opposed the staging of public spectacles of state violence, such as the statutory punishments (in particular crucifixion, the punishment for brigandage) usually implied. Violent punish­ment had been from early Islamic times the province of the government and its agents of public order, less so of the developing class of legal scholars and judges. The chronicles from early Islam up to Ottoman times provide many cases in which the authorities made an example of offenders against the public order by publicly shaming, torturing and executing them. Thus the fact that the jurists developed doctrines that painstakingly circumscribed statutory crimes and punishments can be interpreted as an attempt to rein in state violence. At any rate, reports about the implementation of statutory punishments under the supervision of judges are exceedingly rare in the historiography of Islam.

Intentional homicide in Islamic law is regulated by the law of talio (qisas, cf Q 2:178), whereby the blood avengers of the victim can demand execution of the murderer from the judge, claim blood money, or pardon him. The chronicles of medieval Islam say almost nothing about talionic capital punish­ments; it is impossible to decide whether this is because they did not occur or because they were so frequent that the chroniclers ignored them. In addition to statutory and talionic offences, crimes that cannot be judged on the basis of the revealed law alone (including cases where the evidence to support statutory or talionic punishment is convincing but not conclusive) are punish­able by ta‘zir (‘discretionary punishment'), which is meted out at the discre­tion of the judge. According to most Muslim jurists of the classical period, discretionary punishment must be less than the mildest statutory punish­ment, that is, less than forty lashes with the whip.

The classical jurists widely condemn the infliction of excessive pain, that is, torture, which they consistently associate with mutilation. According to various narrations, the Prophet repeatedly prohibited mutilation, whether of human beings or of animals.^[261] Later Mamluk jurists, however, came to define mutilation rather narrowly. ‘Mutilation', wrote the Egyptian Ibn al- Humam (d. 1457), ‘is realised only in cutting off limbs and similar things that are done to the body and which persist [in their effect].'^[262] It is also in the works of Mamluk jurists that one detects a tendency to allow for judicial torture. Previously, and in stark contrast to Roman law, torture of witnesses was unknown in Muslim jurisprudence. However, from the late thirteenth cen­tury onwards, and roughly parallel to the rise of judicial torture in Europe, Muslim jurists such as Ibn Taymiyya (Damascus/Cairo, d. 1328), Ibn Qayyim al-Jawziyya (Damascus, d. 1350) and Ibn Farhun (Medina, d. 1397) legitimated judicial torture, thereby producing a profound shift in the Muslim doctrine of evidence.

Against this backdrop of the jurists' view of legal punishment, a second discursive tradition should be examined, that of Islamic political theory, which in the Islamic Middle Period was usually articulated in the form of courtly advice literature to rulers, the so-called Mirrors for Princes.

Next to the emphasis on justice, the term siyasa (Pers. siyasat) is central to this tradition. Siyasa was used in the first centuries of Islam in the sense of ‘governance', but from the tenth century, another, more narrow meaning of siyasa as ‘(capital) punishment' emerged and was in full swing by the twelfth and thrteenth centuries. As political theorists of the period argued, justice, the ruler's key virtue, requires the use of capital punishment almost as a conditio sine qua non. This development occurred more or less in parallel with the rise to power of Turkish and Central Asian military governments in the Nile-to-Oxus region, a transformation of the political landscape that produced both dynasties of the Seljuqs and Mamluks.

An eleventh-century Iranian Mirror for Princes, the Qabusnameh, states bluntly that the ruler must not neglect ‘rightful bloodshed, because the common good depends on it'.^[264] In the absence of punishment, claims another Mirror for Princes, written some hundred years later in Aleppo, ‘men would devour one another'.^[265] In late twelfth-century advice literature one reads that ‘people are wicked' and that ‘with wicked people, things cannot be put right through tolerance and indulgence... [therefore] the sultans of today must rely on punishment (siyasat) and awe'.^[266] Under the Mamluks, the courtier Ibn al-Nafis (Cairo, d.

Military regimes like that of the Seljuqs and Mamluks governed in an atmosphere of political instability in which the legitimacy of government had to be constantly reaffirmed by violent manifestations of state power. The Persian tradition of absolutism offered these regimes an ‘independent ethical standard based on force and opportunism’.^{[267] [268]} Overall, the siyasa-based author­itarianism of Middle Period Islamic governments led to a situation in which ‘even great sultans tended to be drastically arbitrary, splendid in their moments of generosity, inhuman in their anger or their fears’.^[269] In the popular imagination of the Islamic Middle Period, the figure of the execu­tioner (jallad) became so intimately linked to that of the ruler that in the Arabian Nights the caliph Harun al-Rashid (r. 786-809) is regularly represented as the head of a triad comprising his vizier, Ja‘far, and his no less famous executioner, Masrur.

In an attempt to harmonise siyasa and Sharia, and probably also to curtail the former, the jurists began to develop the doctrine of al-siyasa al-shar‘iyya, ‘governance in accordance with Sharia’. In Ibn Taymiyya’s classic exposition, excesses of siyasa (which he terms ‘oppressive siyasa’, siyasa zalima) are condemned, but nonetheless utilitarian ideas about the commonweal are increasingly incorporated into juridical reasoning. Premodern Muslim think­ing about siyasa shar‘iyya is rich and variegated. However, in the long run the concept arguably did more to undermine Muslim jurisprudence than to rein in the arbitrariness of autocratic rule. This is illustrated by the above-quoted example of Ibn ‘Abidin, in whose account the death penalty qua discretionary punishment and the concept of siyasa are closely intertwined. In Ottoman times, there emerged a tendency to lay down siyasa punishments in the so- called Qanunnamehs, for example the celebrated Qanun-i ‘Osmani of Süleyman the Magnificent (r. 1520-66), a codification of siyasa that arguably helped to stabilise affairs.