SSRN Id4152197

DRAFT – not final until published in CULTURAL HISTORY OF CRIME AND PUNISHMENT IN THE
MEDIEVAL AGE (Sarah McDougall, Karl Shoemaker eds., Bloomsbury 2022) [forthcoming]
CRIME AND PUNISHMENT IN MEDIEVAL ISLAMIC SOCIETIES

Intisar A. Rabb
Harvard University
April 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.
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 (Rabb 2015). 1 To explore the practices, I canvas
Maḥmūd Shaljī’s seven-volume Encyclopedia of Punishment (Mawsūʿat 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 (Shāljī 198-). 2 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. 3 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.
I. PRINCIPLES: Legal Doctrines of Criminal Liability and Doubt 4

What were the basic definitions and principles of medieval Islamic criminal law? They were
comprised of a combination of jurist-defined laws and executive-defined policies. Only three types of
“laws” within the jurists’ domain were formally regarded as such, “on the books,” and considered
normatively binding: text-based fixed crimes and punishments (ḥudūd laws); text-based capital and
Electronic copy available at: https://ssrn.com/abstract=4152197

corporal punishments or fines for wrongful deaths or serious personal injury (qiṣāṣ laws); and
discretionary punishments for the remainder: offenses undefined in the texts (taʿzīr laws). The three
together formed the skeletal structure of jurist-defined and thus legitimate crimes and punishments
under “sharīʿa” (Rabb 2015, 30–31). 5 A fourth type fell under executive jurisdiction called siyāsa, by
which political rulers exercised power over law enforcement and discretionary prosecution of crimes—
powers that lay outside of but were authorized and legitimated by norms of sharīʿa. Both extratextual
and discretionary in nature, siyāsa policies overlapped with taʿzīr laws making it so that early jurists
and executives shared jurisdiction over the two—until the executive gradually used siyāsa authority to
swallow taʿzīr laws and eventually other Islamic criminal laws altogether. This section outlines all three
(and sometimes four) categories of Islamic criminal law, and it traces the gradual move from juristic to
executive authority over definitions and applications of it.
A. Textual Criminal Laws
The Islamic system for regulating crime separates the authority to interpret the law from the
authority to enforce it—giving the former to jurist-scholars and judicial actors, and the latter to
executive authorities. Muslims believe that God directly legislated a series of fixed, mandatory criminal
sanctions in Islam’s foundational texts and related early practices. Those so-called ḥudūd laws (sg.
ḥadd) refer to both the major crimes and their associated punishments, and they comprise a system of
divine sanctions that form the core of medieval Islamic criminal law. The textual basis for that system
appears in the two foundational texts of Islamic law: a few scattered Qurʾānic verses, and
supplementary reports of prophetic practice (sunna). Given the paucity and indeterminacy of those
texts, Muslim jurists had to make extensive use of interpretation and sometimes existing customary
norms to provide the skeletal texts with the meat of anything that would resemble a meaningful
criminal law system. In going about that task, they recorded more detailed criminal law rulings in a
series of legal treatises (fiqh), begun in the eighth century with incremental updates over time (Rabb
2015, 30–31). 6
Fixed Criminal Laws and Punishments (Ḥudūd)

According to the medieval legal treatises outlining the first category of Islamic crimes, text-based
ḥudūd laws cover a base set of four crimes and associated punishments, to which jurists added an
additional three. Notwithstanding the purported textual origins, not all of them were present in the
Qurʾānic text (Rabb 2015, 32–34). 7 Those crimes include:
1. Zinā: illicit sexual relations (fornication and adultery), for which the Qurʾānic punishment at
24:2 was 100 lashes with a whip, on which jurists overlaid the local/biblical norm of stoning for
adultery. 8
2. Qadhf: defamation, or false accusations of sexual impropriety, for which the Qurʾān 24:4–5
specifies a punishment of eighty lashes.
3. Sariqa: theft, for which the Qurʾān 5:38 specifies the severe corporal punishment of hand-
amputation.
4. Shurb al-khamr: wine-drinking, which the Qurʾān 5:90 prohibits but does not specify
punishment, and for which early jurists relied on prophetic reports to determine a punishment
of forty lashes, which the second caliph then increased to eighty lashes by analogy to
defamation as a probable result of drunkenness.

To these four, early Muslim jurists added three additional text-related laws. These laws did not count as
ḥudūd laws proper, because they guided executive responses to threats to the state itself or to public
safety, and because they outlined alternative rather than fixed punishments:
5. Ḥirāba or qaṭʿ al-ṭarīq: highway robbery, or brigandage, for which the Qurʾān 5:33–34 authorizes
a range of punishments that a ruler could choose from: cross-amputation, crucifixion, exile, or
death. 9
6. Ridda: apostasy, which the Qurʾān 2:217 condemned as a spiritual wrong to be dealt with in the
afterlife but specified no this-worldly response aside from the war context—in which case it
authorized use of lethal force against apostates who signaled treasonous threats to the state by
denying its political authority or their own willingness to abide by the laws of the land.
Extending the rules of battle to the rules of ordinary criminal law, Muslim jurists criminalized
apostasy and, later, blasphemy, counting both as capital crimes. 10
7. Baghy: rebellion, which was—ironically perhaps—not a crime at all, strictly speaking, though it
was mentioned in Qurʾān 49:9–10. When rebels acted against the state for just cause or with
reasons they could assert as a plausible excuse, Muslim jurists regarded rebellion as a
legitimate way of responding to an oppressive or usurping ruler. Rebels who acted without a
legitimate reason, even where mistaken, were to be penalized as highway robbers. 11
Homicide and Personal Injury (Qiṣāṣ, Diya)

Islamic law’s second category of crime, qiṣāṣ laws, regulates acts of homicide and personal injury.
These laws are text-based but not considered “fixed” ḥudūd laws because the Qurʾān (at 2:178–79, 4:92,
and 5:45) provided for either in-kind punishment or financial compensation for bodily harm or
homicide. Moreover, the in-kind punishment is a carry-over from the biblical laws of talion: an-eye-for-
an-eye, a-tooth-for-a-tooth, a-life-for-a-life—practices well-known to the Late Antique Near Eastern
societies that birthed Islam. Qiṣāṣ laws operated as follows: Intentional killings or serious assaults
subjected an offender to the laws of in-kind retaliation (qiṣāṣ or qawad), that is, capital punishment for
murder or severe corporal punishment mirroring a wound intentionally inflicted upon another.
Unintentional killings and personal injuries, or those that the victim or her family chose to forgive,
reduced any in-kind punishment to financial compensation (diya or ʿaql)—in amounts determined
according to calculations similar to those of today’s tort laws or workers’ compensations rates for
wrongful death or personal injury. 12
It is not that all qiṣāṣ laws fall somewhere between ḥudūd laws and tort law, as many scholars
have asserted. 13 Intentional murder and violent assaults are roundly criminal: They render perpetrators
eligible for capital or severe corporal punishment, which victim input can mitigate only at the
discretion of enforcement officers. It is only unintentional acts that are analogous to modern tort law’s
wrongful death schemes or workers’ compensation statutes.
Overall, medieval Muslim jurists devised a set of principles to direct judges away from
retaliatory punishment and toward fines. Available historical sources, discussed below, confirm that it
was the rare case for which the law would authorize executions for simple homicides, at least in sharīʿa
courts.

B. Extratextual Criminal Laws
Discretionary Crime and Punishment

Alongside the limited list of ḥudūd and qiṣāṣ laws was a catchall category: an ever-growing set
of offenses accompanying a range of discretionary penalties called taʿzīr among judges and jurists and
siyāsa among executive authorities. These laws were “extratextual” in that they had no explicit
grounding in Islam’s foundational texts. Define crimes and determining appropriate punishments for
otherwise unspecified offenses thus required a significant amount of discretion. That discretion was
potentially cabined only by referencing general principles of interpretation, such as the predominant
legal canons discussed below, and by operating in the shadow of the text-based laws, also outlined
below.
Doubt Jurisprudence
Against the baseline framework of text-based laws and the outsized role of discretion in
extratextual criminal laws, it is important to understand the mechanisms by which jurists sought
nevertheless to organize both types of criminal laws through interpretive principles of substance as
well as through procedure. Their main tool for doing so was through the doubt canon (qāʿidat al-
shubha)—that broad-ranging legal principle requiring judges to avoid criminal punishments in cases of
doubt. Prominent throughout the history of Islamic criminal law, “doubt jurisprudence” emerged from
first-order principles within the text and informed discretion outside of the texts, or at least jurists
intended for it to do so.
Over the centuries, Muslim jurists defined doubt to include over sixty types of textual-
interpretive ambiguity, evidentiary infirmity, and procedural errors (Rabb 2015, 410-11) as defined in
any one of Islam’s multiple schools of law (madhhabs). 14 These same jurists then expanded the scope of
doubt to cover all of the criminal law issues that US law, for example, typically addresses in varied ways
as judicial resolution on questions of law, as affirmative defenses on questions of fact, or as mitigation
for sentencing. For Muslim jurists, doubt came to apply to such disparate areas as inquiries about the
facts and the related standard of reasonable doubt, voluntariness and intent, and all manner of
justification and excuse: contractual confusion, duress, forgetfulness, ignorance, incapacity, insanity,
mistake, negligence, self-defense, and even repentance and remorse. When addressing criminal cases,
judges and jurists considered each of those factors—applying them as manifestations of “doubt”—at
various stages of an accusation, trial, or sentencing to avoid prescribed punishments. In short, they
interpreted doubt to mean that anything less than absolute certainty about the factual, legal, or moral
appropriateness of crime required avoidance of prescribed punishments.
As expansive as its interpretation was, “doubt” did not dismiss punishment or remove
discretion altogether; rather, jurists aimed for it to regulate both. Where doubt required that a judge
avoid [fixed] criminal punishments, the doubt canon allowed judges to impose taʿzīr penalties instead,
and thereby informed definitions of moral wrongs or lesser wrongs. To elaborate them, jurists and
judges discussed thousands of instances in which the doubt canon operated to define otherwise
undefined crimes and to set punishment types and amounts.
Medieval Muslim jurists defined Islamic criminal law through doubt in three principal ways.
First, in substantive law, where there was doubt or ambiguity about the definition of a crime, jurists
were to apply what I have called an Islamic rule of lenity (Rabb 2011, 1299–1351). 15 That is, jurists read

silence or generality in a text, and even interpretive differences about it, to create ambiguity about
criminality of certain acts. The presence of ambiguity opened room for judges to expansively redefine
offenses and to downgrade penalties, by deeming most bad acts to be lesser included offenses of more
serious but also more clear ḥudūd and qiṣāṣ laws.
Second, for evidentiary norms, Muslim jurists saw the failure to meet the requisite quantum of
evidence for fixed punishments—two witnesses for most crimes, four for sex crimes—to create
evidentiary doubt. For example, if prosecuting officials did not have the requisite testimonial evidence
to prove an accusation of theft but had circumstantial evidence to support a claim from a petitioner
that the accused was wearing clothes that did not belong to him and had once belonged to the
petitioner, there was doubt. On its basis, judicial officials could choose to accept the lower quantum of
evidence and impose a lesser punishment than the fixed laws of theft required. Or they could choose to
dismiss the case altogether for lack of testimonial evidence, as occurred in a reported second/eighth
century case, where a judge ignored the implication of both a sex crime and a theft of clothes, where
two lovers were found together with the man wearing the homeowner’s clothes (Rabb 2015, 94–95 n.
80)! 16
Third, in sentencing, jurists used the doubt canon to regulate the maximum allowed legitimate
punishment. Aside from the Mālikīs, most schools limited legitimate punishment to less than the
minimum fixed punishment amount—that is, to one less lash than the penalty due for wine-drinking of
either forty lashes (for Shāfiʿīs) or eighty lashes (for other schools). In other words, Muslim jurists again
used ḥudūd and qiṣāṣ punishments to define an upper limit for taʿzīr punishments: any offenses that
did not quite violate the moral norms set by the fixed text-based criminal laws warranted punishments
no more than those laws authorized (ʿAwda 1968, 66–109; Bahnasī 2004, 29). 17
Doctrinally, then, discretionary crime and punishment operated in the shadow of the laws of
Islam’s scheme of text-based crime and punishment. Jurists used the moral imperative that ḥudūd and
qiṣāṣ laws represented to support prosecution of acts that fell short of some definitional element of a
crime. They devised rules of evidence and procedure to account for doubts about the evidentiary basis
for punishing certain crimes. And they used the text-defined punishments to define the maximum
acceptable amounts and modes of punishment in taʿzīr proceedings. All of these measures were
important for defining the limits and legitimacy of medieval Islamic criminal law, notwithstanding—or
more likely because of—the lack of either in the executive sphere, to which we now turn.
C. Executive Enforcement
What was the basis and extent of executive power over punishment? Theoretically, executive
punishment power derived from a necessity that government maintain law and order, in the “public
interest” (maṣlaḥa), and thereby uphold sharīʿa. Medieval Muslim jurists thus regarded the executive
to have shared jurisdiction over and discretion in enforcing taʿzīr norms, as a delegated power. To be
legitimate, taʿzīr prosecutions and punishments were to be limited by the moral norms that sharīʿa
aimed to establish or reinforce. They called this derivative, delegated power siyāsa sharʿiyya: executive
power authorized by sharīʿa.
But practically, executive officials could, and historically did, operate well beyond the sharīʿa
framework for criminal law. In medieval Muslim societies, executive officials dominated criminal law
proceedings and punishment. Caliphs and their agents exercised virtually unlimited discretion to
punish a virtually unconstrained set of offenses: from ordinary and extraordinary crime, personal

slights connected to and separated from politics, and violence on and off the battlefield (Peters 2005, 8–
11). 18 As a result, Islamic criminal law carved out room for discretion in two distinct spheres: one
guided by legal doctrine, the other guided by executive need.
Islam’s earliest extant legal treatises, from the ʿAbbāsid era (750–1258), show that jurists
attempted to delineate religious (sharīʿa) from political (siyāsa) authority that earlier had been merged
in the person of the Prophet and the first caliphs. 19 Singling out text-based criminal law and
punishment as uniquely legitimate, jurists of this era deemed punishments ordered by necessity to be
contingent, extralegal, and non-precedential (Rabb 2015, 123–32). 20 They reached a symbiosis of sorts:
jurists got to define legitimate laws, caliphs got to enforce punishments; and the latter would carefully
maintain an air of deference to former in official communications about or support for the “law.” The
breakup of the ʿAbbāsid empire in the fourth/tenth century altered this juristic-executive symbiosis.
Militarized once again, an increasing number of local rulers asserted unbridled power and became even
more draconian in punishment, often without deference to either the titular ruler or the jurists as the
sole legitimate interpreters of law. As I have argued elsewhere, these developments informed juristic
responses to matters of criminal law at that time: namely, it fueled their radical expansion of the
jurisprudence of doubt, contributed to their attempt to shore up authoritative bases for it by finding
new “textualist” arguments for the doctrine, and inspired the first extended treatises defining
executive authority over criminal law and other public law (siyāsa sharʿiyya). These were all attempts
to better define, and perhaps reign in, the strong executive power that took form in the new juristic-
executive symbiosis. 21
In the fifth/eleventh century, Abū al-Ḥasan al-Māwardī (1978?) and Abū Yaʿlā (1966) famously
outlined the features of the judicial-executive symbiosis of their times, spelling out the link between
religious-legal legitimacy and executive power in two separate works with the same title: al-Aḥkām al-
sulṭāniyya waʾl-wilāyāt al-dīniyya [Governance Policies and Religious Authority]. 22 These works
provided enduring reference points for siyāsa sharʿiyya, or executive policy that complied with sharīʿa,
in pre-Ottoman Sunnī Islamic empires. Here was a concise articulation of the theory: that caliphs and
executive officers could exercise broad discretion for the purpose of preserving the sanctity and safety
of the public sphere, and thereby for upholding God’s law. On this theory, sharīʿa itself authorized the
executive to act broadly, through executive-siyāsa policies geared to serve law’s existential purpose. On
this theory, moreover, jurists gave Islamic justification for long-standing executive tribunals operating
outside of the sharīʿa narrow framework but deemed broadly necessary for “correcting injustices”
(maẓālim) (Māwardī 1978?, 228ff). 23
The tenth century, when jurists began memorably writing about executive authority and its
duties to uphold sharīʿa, was a period of imperial disintegration that no doubt accounted for the ever-
increasing assertions of executive power. Varied military incursions culminated in the Mongol invasion
that dismantled the ʿAbbāsid caliphate in 1258. No longer beholden to a single central ruler, every
independent dynasty and every new sultanate constructed from the caliphate’s rubble used criminal
law and other public law practices (tax collection, war powers, and the like) to establish authority
locally. Repurposed to serve these ends, siyāsa sharʿiyya’s broad accommodations for executive
discretion came to legitimate an almost limitless exercise of executive power—so long as local rulers
lent support to or at least did not overtly undermine the jurists’ institutions and assertion of proper
interpretive authority in most religious and private law affairs. 24PRACTICES: Extralegal, Executive
Punishment

On the other side of criminal law principles were range and type of punishment practices in
medieval Islamic societies. Ongoing excavations of historical and prosopographical sources over the
past few decades make it possible to provide a historical overview of medieval Islamic criminal law
despite the enormous variability and geographic spread in each society from Islam’s earliest periods
until the rise of the Ottomans in the sixteenth century. 25
A. Corporal Punishments
Recall that the texts for the limited set of ḥudūd crimes specified just two types of punishments:
whipping or flogging (for all but theft) and the more severe punishment of hand-amputation (for theft).
To this pair, early Muslim jurists added stoning for adultery, although that punishment was not in
Islam’s foundational texts and rather reflects existing punishment practices of the Near East. This
section will contrast what Muslim jurists considered to be these “divinely legislated,” and thus
legitimate, punishments under the rubric of sharīʿa against executive punishment practices under the
rubric of siyāsa. In reviewing non-capital punishments, this discussion of non-carceral corporal
punishment considers how executive agents in each era enforced punishments of three main types:
ordinary corporal punishments of flogging and the use of physical force, severe corporal punishments
of hand-amputation and other types of mutilation, and the use of stoning.
Not all punishments were not for criminal violations of ḥudūd laws; in fact, the
disproportionate use of state violence outside of that framework points to the sheer power and
inclination of the executive to take an expansive definition of punishment. They “punished” religious-
political opponents who refused to do their bidding, military foes who explicitly rebelled or declared
war against them, and ordinary offenders who would dare violate the sanctity of the public sphere—
and therefore their authority—by committing ordinary crimes. My treatment, however, narrows the
conversation to the last category, which coincided with crimes that jurists recognized as illegal or at
least legitimately punishable, according to their interpretation of the foundational sources of law. More
pointedly, I identify and discuss punishments that fall within a more specific category of ordinary
crime: bad acts that inflict harm on another outside of contexts of military battle or executive slight,
and as a result of a decision by a judicial or executive agent. 26 I begin with crimes for which executives
or judges used flogging and severe corporal punishments.
Ordinary Corporal Punishment: Flogging and use of Physical Force

Flogging was a common medieval punishment for a variety of offenses in the Near East and beyond,
both before and after Islam’s advent (Shāljī 198-, 2:10ff). 27 In one guise, flogging played a role in helping
establish the stature of Muslim scholars as “pious opposition” essential to the judicial-executive
symbiosis. Early Muslim chroniclers are keen to note instances of their high-status peers and
prominent religious-juristic leaders being subjected to flogging (Marlow 1997; Rabb 2015, 69–98). 28 For
example, they report that, of Islam’s founding jurists, all but Shāfiʿī (d. 204/820) received floggings
ordered by caliphs and their agents. The ʿAbbāsid caliph al-Manṣūr reportedly ordered a flogging for
Abū Ḥanīfa (d. 150/767), as did ʿAbbāsid governor Jaʿfar b. Sulaymān for Mālik b. Anas (d. 179/795) (with
seventy lashes), and as did the caliph al-Muʿtaṣim for Aḥmad b. Ḥanbal (d. 241/855) (Shāljī 198-, 2:11). 29
This elan for piety and state opposition was inaugurated perhaps most notably by the Prophet’s
descendants that came to be known as the ʿAlids: beginning with the assassination of the fourth caliph
and first Shīʿī Imām ʿAlī (d. 40/661) (by a rebel, in the midst of civil war with the then-governor

Muʿāwiya), and his son Ḥusayn (d. 61/661) (by Muʿāwiya, in his bid to become the first Umayyad caliph),
and imprisonment and persecution of their descendants. 30 The jurist’s reputation bolstered their legal-
religious legitimacy—on grounds that were part- interpretive expertise, part-moral exemplar; and the
ʿAlids reputation for the same ended up fueling the ideology behind the ʿAbbāsid revolution that
brought them into power in the first place. 31 While these incidents did not meet the definition of
ordinary punishment, they set the stage for juristic treatment and mediation of that kind of
punishment otherwise.
Law enforcement officials meted out flogging and other corporal punishments for a wide range
of crimes, bearing only loose resemblance to ḥudūd law’s authorizations for ordinary crimes (Shāljī
198-, 2:12–107). 32 Punishments involving the use of physical force, to use the broadest category, were of
three types. The first was flogging (ḍarb), with the use of instruments such as whips made of leather
(sawṭ) or of twisted cords (dirra), sticks (miqraʿa), stick-like rods (ʿaṣā), nets (ḥibāl), chains (salāsīl), or
green tree branches. The second was slapping (ṣafʿ), either with an open hand or with analogous
instruments, such as shoes, socks, or chard leaves. The third included other types of physical strikes,
such as punching (laṭm, or damgha in Baghdad), striking with the fist (lakz), kicking (rakl), head-
butting (naṭḥ), neck-striking (wajʿ al-ʿunuq), and, infamously, stoning (rajm)—sometimes, but not
necessarily, to death. 33
It appears that ordinary judges and executive agents alike applied versions of these corporal
punishments in the early period in central Islamic lands. Examples abound in ʿAbbāsid Iraq. For
instance, judges in ninth-century Baghdad reportedly ordered petitioners to be slapped for contempt—
that is, for violating the required decorum in judicial settings. They also used slaps to discipline losing
parties in debt proceedings and to force them to pay taxes or private monies owed (Shāljī 198-, 2:159). 34
In Seljuq society thereafter, beginning in mid-eleventh century Persian lands, executive
officials seem to have regarded flogging as too “light” a punishment. Seljuq flogging instruments
(collectively: miqraʿa, pl. maqāriʿ) were varied and mark-leaving (mubarriḥ): executive officials used
switches (dirra), wooden rods (chūb), whips with knotted heads (sawṭ [maʿa] ʿaqd aw thamra), crops like
those used for horse-riding (tāziyāna), and bifurcated scourges (Lange 2008, 77–79). 35 Officials used
flogging irregularly as criminal punishment, usually opting to use it against military leaders or
respectable scholars when they did. For example, the famous Ghaznavid son-turned-vizier for Seljuq
ruler Alp-Arslan, Niẓām al-Mulk, tells of a military officer at the court of Maḥmūd of Ghazna whom a
market inspector (muḥtasib) flogged with forty lashes for being drunken in the market. Such
“ordinary” corporal punishments peppered the reports of penal practices for varied criminal offenses
during those times (Shāljī 198-, 159–247). 36
With the coming of the Mamlūks after the fall of the ʿAbbāsid caliphate in 1258, flogging seems
to have made a comeback. Mamlūk officials used it in response to false testimony, as a torture tool to
extract confessions, and as a law enforcement technique to be utilized outside of the context of trials
altogether. Officials reportedly used flogging to combat the apparently frequent acts of bearing false
witness and of manipulating documents for financial gain, especially in the economically depressed
second half of Mamlūk rule. 37 In 802/1400 the governor’s chamberlain (ḥājib) punished Ḥanafī judge
Ṣadr al-Dīn b. al-Ādamī for attempting to manipulate the funds of a charitable endowment supporting
the Khātuniyya Madrasa in Damascus and then lying about it at trial, by flogging him and stripping him
of his judgeship (Petry 2012, 75–76). 38 Executive officers beat a secretary in 852/1448 for accusing
someone of a crime without evidence (Petry 2012, 118). 39 Other acts of false testimony and document

falsification received flogging punishments about a third of the time they were reported to have
occurred at trial (Petry 2012, 309). 40
For court proceedings during that time, Mamlūk law enforcement officials also used flogging to
extract confessions, in line with a shift among jurists who had begun to authorize of the time began
sanctioning the use of confessions extracted through torture. 41 In 709/1311 officials enforced an
executive order against wine sales of the type that sultans frequently issued at the beginning of their
reigns to signal their commitment to sharīʿa; when local military leaders (amīrs) discovered a bootleg
market for wine among the notables, they rounded up people caught in possession of wine and flogged
them until they revealed who was making and selling it (before finding and destroying the wine
bottles) (Petry 2012, 125–34). 42
Outside of the Mamlūk courts, sultans and their agents regularly used flogging to punish
offenders without trial. For example, in 832/1429, Sulṭān Barsbay himself ordered a number of
disgruntled soldiers flogged for precipitating an attack on their commanding officer (Petry 2012, 33). 43
In 823/1420, when a baker sold bread weighing less than its requisite weight for full price to one of the
sulṭān’s secretaries who could easily report it, the muḥtasib flogged the baker immediately, without
trial (Petry 2012, 110–11). 44 The most severe use of flogging that I have seen reported, in line with
ḥudūd penalties for sex offenses, came toward the end of Mamlūk rule, when Sulṭān Ghawrī punished
three soldiers for a gang rape of women they had abducted from a wedding. When one of the women
escaped and notified the local prefect (walī), he arrested them and took them to the sulṭān, who had
them lashed until the verge of death and ordered their salary stipends to be given to the victims as
compensation (Petry 2012, 147). 45
Severe Corporal Punishment: Mutilation

In the core legal sources, the two types of severe corporal punishment include hand-
amputation for theft under ḥudūd laws and in-kind mutilation for serious personal injury—which could
be converted to fines—under qiṣāṣ laws. In practice, the historical sources rarely record impositions of
severe corporal or capital punishment. The exceptions are notable for their rare incidence in reports of
Umayyad practices (661–750), and for their seeming absence thereafter in the available historical
chronicles.
To be sure, the early historical sources imply some judicial recognition of, if not support for,
mutilation punishments. For example, Umayyad and ʿAbbāsid deeds of investiture for judges show that
rulers and governors of those eras appointed judges with jurisdiction over both ordinary punishments
and “blood” punishments (qaḍāʾ and qiṣāṣ). 46 Moreover, the medieval chroniclers’ most-reported-on
and longest-serving judge, Shurayḥ (d. between 78/697 and 99/718), reportedly imposed his own brand
of qiṣāṣ punishments in Umayyad-era Kūfa—flogging in lieu of in-kind punishment or cutting off an ear
as an actual in-kind punishment (Wakīʿ 2001, 387, 408). 47
But thereafter, as usual, we see a pattern of judges avoiding punishment and executives
extensively using alternative sanctions to punish harshly. 48 In the earliest period, from the successors
to the Prophet through the Umayyad era, there are less than ten known, surviving reports of court-
ordered punishment for theft. Shāljī’s compilation lists none. In my review of Wakīʿ’s compilation, theft
and related crimes carrying severe corporal punishments arise just seven times; but judges in each case
avoid harsh punishment—showing the doubt canon in operation (often unmentioned, as was typical in
early judicial decisions) (Wakīʿ 2001, 171). 49 For example, a petitioner went to the prominent Kūfan

judge Shurayḥ, requesting that he punish a slave whose master had flogged him until he confessed to
having stolen from him. Judge Shurayḥ rejected the confession as improperly obtained, and he
required the petitioner to present two eye-witnesses to the theft before he would impose punishment.
He treated this case as one of evidentiary doubt (or perhaps of moral doubt about the appropriateness
of a second flogging); and he declined to punish accordingly (Wakīʿ 2001, 407). 50 In late-ʿAbbāsid/Seljuq
records, beginning in mid-11th century Iraq, the collections mention just two episodes of hand-
amputation, both from Baghdad. One such sentence was against a student found guilty of a number of
unspecified offenses that seem not to have included theft in 546/1064, and the other sentence was
more severe than would have been due for simple theft: a cross-amputated hand and foot of a hospital
manager accused of fraud in 564/1168–9 (Lange 2008, 72). 51
By contrast to those judicial arenas, executive officials used mutilation punishments broadly.
The historical sources suggest that they used mutilation for theft-related acts as well as other acts. In
sources reporting on Umayyad and ʿAbbāsid practices in Iraq, Syria, and the Arabian Peninsula,
mutilation punishments took the form of food deprivation, poisoning, weight-carrying, assaults with
beasts of prey or with insects, “punitive” jousting, and injuries with swords and other weapons (Shāljī
198-, 2:7–11). 52
In Seljuq Iraq and Persia, executive agents used other types of mutilation and torture against
high-status offenders, often for more egregious crimes than simple theft and often preceding
execution. 53 Their torture instruments included the tāziyāna: a crop; the ʿuqūbayn (“two eagles”): a
wooden contraption consisting of two poles between which to hang a criminal; the falaq (also called
miqṭara and dahaq): a piece of wood bifurcated to fasten the feet or lower legs of thieves and others
who offended unspecified moral norms; the dūshākha: a fetter placed around the neck of criminals to
punish or press confessions from them; the kunda: a fetter for the feet similar to the dūshākha; the
pālhang: initially a stirrup-leather used in war to fasten the hand of prisoners and later, a wooden stock
for criminals; maqārīḍ: iron tongs used in Baghdad prisons to tear flesh from the upper legs of
criminals; and devices to pull out fingernails (Lange 2008, 73–77). 54 A particularly hairy instance
unfolded in 450/1059, when “the vizier Ibn al-Muslima was publicly exhibited and sewn up in the skin
of a bull which had just been flayed. Then two iron tongs were hooked up under his jaws and he was
pulled up on the gibbet while he was still alive,” after which he had insults hurled at him then was left
there for an entire day until he eventually died (Lange 2008, 74). 55
In addition, Seljuq chroniclers singled out to some degree punishments for stealing as part of
gang-driven plunder, banditry, or military contexts; and they discussed a wide range of even more
severe mutilation punishments than would have been imposed for theft under ḥudūd laws. 56 For
example, in 531/1136–7, when police forces arrested a number of suspects for the theft of “thousands of
dīnārs” from a house in Baghdad, rather than impose a sentence of hand-amputation, executive
officials regarded the theft as banditry, so crucified the suspects and took property from each (Lange
2008, 53 n. 167). 57 Seljuq mutilation punishments for such crimes included maiming, torture, gibbeting
(crucifying), shaming, imprisonment, exile, and capital punishment, 58 largely against low-status
offenders (Lange 2012, 72–73). 59
Under the Mamlūks, reports of hand-amputation for theft are absent in sources for judicial
sentences and relatively rare in sources for executive punishment. Executives seem to have
occasionally used hand-amputation to punish theft, as when, in 872/1468, the sulṭān ordered hand-
amputations of thieves who pilfered sacred ornaments from shrines (Petry 2012, 57). 60 More typically
10

though, executive agents used hand-amputation along with other punishments to punish repeat
offenders. In 874/1469, the reigning sulṭān reportedly ordered a recidivist offender to be hanged after
two prior offenses that had presumably resulted in amputations (Petry 2012, 53 nn. 13–14). 61 Other
repeat theft offenders faced eye-gouging and tongue-extraction with shaming, imprisonment and
hanging, and various modes of execution (Petry 2012, 54–57). 62 Moreover, as had the Seljuqs, Mamlūk
officials dealt harshly with theft incidental to the gang or mob violence that would flare up on several
occasions; they treated such incidents of what we may regard as aggravated theft or brigandage as a
capital crime. 63
All told, there are strikingly few reports of ordinary theft and of court-ordered or executive-
ordered punishments of hand-amputation in Umayyad/ʿAbbāsid, Seljuq, and Mamlūk societies. As to
why: it is unlikely that the absence of these reports reflects sensibilities of the time that hand-
amputation was too abhorrent to record. Rather, it is likely that the classes to whom that punishment
was typically applied were of low-status and that instances of private theft were so petty that they were
less worthy of recording, individually. It is even more likely that, in addition, executive enforcement of
and motives for even harsher corporal punishments for instances of theft that the sources do record
overwhelmed any “restrained” responses to theft.
Stoning as Punishment?: Corporal vs. Capital Sentences

Of the severe corporal punishments, after hand-amputation, stoning is the most storied and
brutal—even if its designation as punishment is of dubious textual origin and its application rare. Like
hand-amputation for theft, the use of stoning for adultery is of dubious textual authority and unusual
historically. It is thus at odds with its use to punish adultery in some Muslim societies where criminal
codes make headlines today. 64
Why say that stoning is of dubious textual authority or historical presence? It is dubious because
the Qurʾān does not mention stoning, and, as one scholar has shown: the disputed early ḥadīth texts to
which stoning is attributed emerged as a later interpolation of existing regional norms onto Islamic
law. Still, medieval Muslim scholars supporting stoning punishments for adultery sought to carry
forward old biblical punishments familiar to Near Eastern societies as appropriately harsh responses to
bad acts (Pavlovitch 2010). 65 Muslim jurists relied on ḥadīth texts, 66 on the basis of which Shāfiʿī and
other jurists hailed the infamous Case of Māʿiz and a report of the stoning of a woman from the Juhayna
tribe as prophetic precedents for stoning as punishment for sex crimes. Yet, even in those reports, it
was unclear whether the Prophet authorized or objected to stoning. And the textual problems made the
legality of stoning a matter of interpretive debate. 67 Nevertheless, early doctrinal fiqh sources largely
agreed on stoning as the authorized punishment for adultery (e.g., Shāfiʿī 1996, 7:154), 68 and they were
followed by most later law manuals on criminal punishment. 69
In contrast, the historical sources provide few reports, and none unequivocal, of judicial sentences
to stoning. A review of the main sources for criminal law in Umayyad through Ottoman times, shows
that stoning applied as a punishment outside of the normal criminal process, always by way of
executive policies, and never for accusations of adultery (though occasionally for confessions). Aside
from vigilante violence, the sources record a sum-total of five episodes of state-imposed stoning in
medieval Islamic societies, all outside of the legal process as a matter of executive punishment, all
reported in Mamlūk sources. Two involved Muslims and were of anonymous origin and dubious
reporting. Three were against non-Muslim minorities who seem to have been punished more for the
threat to the integrity of the state (and, by extension, Islam) that their sexual indiscretions represented
11

than for the acts themselves, which were rampant among Muslims and non-Muslims alike but punished
less severely if at all.
As for other incidents, of a handful of reports of stoning available for Umayyad and ʿAbbāsid
societies, most indicate that stoning came as vigilante acts outside of the legal process, usually in
response to a range of political slights or social improprieties—including, but not limited to, sexual
indiscretions. 70 In Umayyad times and thereafter, a vigilante assailant who stoned a man for an illicit
sex act was prosecuted but excused—on a defense not unlike the crime-of-passion excuse to murder in
the common law of homicide. In other words, killing was extralegal and improper but would not be
deemed murder. 71 Under the ʿAbbāsids, the single report of a stoning for illicit sex was by means of
vigilante justice (Shāljī 198-, 2:245). 72 Under the Seljuqs and in other late ʿAbbāsid provinces, stoning
seems to have had become less vigilante violence and more an executive-ordered punishment for
apostasy and blasphemy as power bases moved from the center to the periphery. 73 As Christian Lange
put it: “In Saljūq historiography, few, if any, reports about stoning on charges of fornication can be
found” (Lange 2008, 67), 74 and there are no reports of punishment for fornicators or sodomites in the
Seljuq chronicles (Lange 2008, 199 n. 97). 75
It is under the Mamlūks that stoning appears most memorably, both as a punishment that
judges refused to impose for sex crimes, and as a punishment that executive agents insisted on using to
punish adultery outside of courts--especially when perpetrators were interreligious couples. The most
consequential incident occurred in 919/1513, toward the end of Sulṭān Qānṣūh al-Ghawrī’s reign in
919/1513. A man who was in love with the apparently very beautiful wife of the Ḥanafī deputy judge
Ghars al-Dīn Khalīl discovered that she was having an affair with the local Shāfiʿī deputy judge, Nūr al-
Dīn al-Mashālī, and reported it to the husband. Upon Mashālī’s confession to adultery before a judge,
the couple was sentenced to flogging, parading around the city, and fines of 100 dinars each. Taken
aback by the whole episode, Sulṭān al-Ghawrī was keen to project that he had control over his realm, so
sentenced the two offenders to death-by-stoning. Rejecting his orders, a Shāfiʿī judge issued a fatwā
quoting prophetic ḥadīths to support ḥudūd avoidance for sincere repentance—which was itself
counted as a type of “doubt” in guilt that barred punishment by operation of the doubt canon. When
the judges from the other three schools endorsed that fatwā, the sulṭān dismissed all four judges,
flogged the judge who issued the fatwā, and ordered the offenders executed by hanging. This incident
was particularly notable because it effectively resulted in the dissolution of the entire judiciary for not
stoning. And, it pointed to one area in which doubt jurisprudence posed effective constraints on
executive excess (at least initially), underscoring the limits of the sulṭān’s legitimate use of draconian
punishments to project authority and control; he could not rely on ḥudūd punishments when the local
experts on Islamic law refused to co-sign on his attempts to do so, and would have to act outside of the
limits of the law and risk any damages to his reputation which could, and as Mamlūk historians
indicated, did injure his reputation and standing on the eve of the Ottoman takeover. 76
Ottoman records have no known clear incidents of judicial or executive-ordered stoning. 77 On
the books (that is, under the kānūn), following the Ottoman Criminal Code of the sixteenth century,
fines were the punishment for sex crimes; that is, the traditional punishment of flogging (though not
stoning) was formally authorized but seems to have been converted into a fine (Heyd 1973, 253–57). 78
Prostitution was regulated rather than criminalized, and the rare instances of sex crimes brought
before courts were dismissed for lack of evidence apart from one case of confession (where the penalty
goes unmentioned) (Zarinebaf 2010, 104). 79 In Ottoman customary law (örf), penalties for sex crimes
often included various shaming punishments: soiling perpetrators’ foreheads, parading them around
12

time with an animal stomach on their heads, destroying their houses, banning them from their
neighborhood, and searing their genitalia or faces. And in executive policy (siyāset), the sulṭān’s agents
used executions at their discretion for a range of crimes (Yilmaz 2016, 258). 80 Studies of the long
Ottoman period, however, report no known incidents of executions for sex crimes alone.
Put together, the sparse incidents of stoning in Islamic history offer an alternative view to both
the juristic and popular views attaching it to adultery as capital punishment. The available historical
sources record up to five occasions of stoning for sexual improprieties, none with a trial, none by proof
with witness testimony, none otherwise in accord with Islamic legal norms—placing them all in the
executive or private-vigilante realms of harsh justice.
B. Capital Punishment
In addition to the textually-designated crimes of homicide, highway robbery, and murder as capital
offenses, Muslim jurists designated adultery, blasphemy, and recidivist theft as capital crimes—all
extralegal punishment that came to be regarded as legally authorized, the latter on a kind of three-
strikes-you’re-out logic. Those laws accompanied the qiṣāṣ rules of homicide and personal injury,
which toggled between in-kind corporal or capital punishment on the one hand and pecuniary fines on
the other.
As for the historical practices, the sources rarely record impositions of in-kind punishments based
on qiṣāṣ laws—whether of the severe corporal type (treated above), or capital type (treated here). Now,
it could be that—particularly in early Islamic societies—there were frequent incidents of homicide in
which the perpetrator could not be identified, as detailed below. But thereafter, the sources report on
homicides with known perpetrators and the use of executive punishment. In the more complex
societies that followed the Umayyads, punishment for homicide—when meted out—almost always took
the form of execution, with few instances of financial compensation. This section examines each in
turn, then addresses executions for highway robbery, apostasy, and blasphemy.
Punishing Homicide: Execution and Fines

In Islam’s earliest period, there seemed to be a regular enough occurrence of homicides with no clear
perpetrator. A special fifty0-oath procedure called qasāma was designed precisely to resolve homicide
cases in which there was no clear perpetrator. 81 By contrast, the sources report extensive instances of
grisly executive state executions. Varied caliphs, sultans, viziers, princes, and governors reportedly
used multiple methods of capital punishment to respond aggressively and in no uncertain terms to all
manner of political opponents or criminal offenders.
Under the Umayyads, state executions took on myriad forms, often without judicial-juristic
involvement, and often for political reasons outside of the qiṣāṣ context: death by beheading as well as
by various means of torture resulting in death: by depriving men of water or starving them to death,
exposing them to extreme cold, extreme heat, back breaking, skin flaying, splitting open the stomach,
sawing body parts, crushing the head, pounding nails into the ears, throwing them to beast of pray,
casting people down from tall building or other heights, tearing up the body, and cutting off limbs,
drowning, poison, fire, boiling water (Wakī‛ 198-, 679). 82
In ʿAbbāsid and Seljuq societies, public executions appear infrequently in the sources, but were
presumably commonplace and not spectacular enough to warrant more notice by the chroniclers
13

(Lange 2008, 61–62). 83 As the preferred method of qiṣāṣ capital punishment for homicide, execution by
sword arises in just a few instances in twelfth-century Baghdad. All that were reported took place at the
congregational mosque of Baghdad, which was a public forum where the judge usually sat to hear cases
(Lange 2008, 46–47, 61–62). 84 Other methods of capital punishment under the Seljuqs were much
grislier, much more extensively reported, and for a much wider range of crimes than homicides.
Methods of execution included stoning (usually for apostates and by means of vigilante justice, as
discussed above), drowning, burning at the stake, casting down from citadel towers and other heights,
stuffing into pits head-first, suffocating, crucifixion (not always before death), trampling by elephants,
and various forms of torture to death (Lange 2008, 62–71, 73–77). 85 In 516/1122–3 and 518/1124–5,
suspected Bāṭinī heterodox groups were drowned in the Tigris river, and a poet was thrown into the
Oxus on the order of the Khwarazm ruler Atsiz for reporting to Sanjar’s court in Marv that the Atsiz
was sending two Bāṭinī assassins to kill the sulṭān (Lange 2008, 52, 67–68). 86 These executions were
instances of executive justice against those who threatened or offended the sovereign directly, or
otherwise posed a threat to his rule.
In Mamluk sources, homicide was the single-most reported-on crime—approximately 150 cases.
Homicide’s many reports were due to its rampant occurrence in the large metropolises of Damascus
(with about 100,000 residents) and Cairo (with around 250,000 residents) even after the Black Plague of
the fourteenth century, and the degree to which it would upset societal cohesion and safety (Petry
2012, 206). 87 Arguably, homicides are also inherently unsettling to average human sensibilities, and
thus carried shock value in the chroniclers’ retellings, and may also have functioned as their implicit
critique of government for its failure to curb violence (Petry 2012, 5–10, 205–251). 88 But of the many
homicides reported, only about four raised questions of blood money (Petry 2012, 209–10). 89 Most
homicides typically resulted in prison or execution, importantly, when perpetrators could be caught
(about half of perpetrators for reported incidents evaded arrest, and another one third escaped) (Petry
2012, 250). 90 The remainder, as committed, were other capital offenses. Law enforcement officials
punished them with a range of executions whenever they accompanied aggravated crimes such as rape,
theft, and highway robbery; and they reserved lighter sentences for the elite. In cases where
punishment was lighter, it usually was for high-status or military officer offenders: a governor flogged
and imprisoned for murder of a wife without confession or evidence, or a group of accused murderers
stripped of their land grants (iqṭāʿ) (Petry 2012, esp. 203–13). 91
Punishing Brigandage and Recidivism: Execution and Mutilation

Muslim scholars explain the zero-tolerance policy for crimes of ḥirāba (highway-robbery) with
reference to the extent to which such offenses fundamentally violate public safety, as acts of “domestic
terrorism” (Jackson 2001, 302) 92 Such episodes of brigandage seemed to increase as the empire spread
out under the late ʿAbbāsids as it began to disintegrate.
In Seljuq Persia, Lange points to a general feeling of insecurity. External threats made the
ruling class a militarized one, and that perhaps resulted in excessive punishment threatening ordinary
subjects. There were renegade opposition groups with different religio-political leanings, especially the
Ismāʿīlī/Bāṭinīs—well- known in the West as the infamous Assassins— who targeted high-level leaders;
and internal gangs of urban militias called ʿayyārūn often dominated. The latter group posed a
particular criminal threats of highway robbery, and letters of investiture marked it as a separate duty
of governors to “protect the safety of the roads” (Lange 2008, 8). 93 Seljuq officials dealt with the
14

ʿayyārūn harshly for highway robbery, typically using crucifixion (or “gibbeting”) sometimes
accompanying flogging, decapitation, and bisection. 94
In Mamlūk times, banditry was prevalent in the form of Bedouin raids, riots, and gang violence.
The period accordingly saw several instances of draconian punishments for highway robbers who could
be caught. Mamlūk sultans responded aggressively to Bedouin raids, though often with little deterrent
effect: executions by crucifixion and bisection, flaying and hanging, and all-out hand-to-hand combat
and execution as if in battle. 95 Of the twelve incidents reported, only one highway robber was spared
execution, and that was a diplomatic offense involving the “heist of a diplomatic pouch carried by an
ambassador from the Ottomans to Sulṭān al-Ghawrī” (Petry 2012, 305). 96 Of a rash of gang-led market
raids, only seven of the twenty-seven raids that were reported for Mamlūk Cairo and Damascus were
fired (Petry 2012, 67). 97 Another series of incidents reveals riots and theft involving soldiers and slaves,
sometimes seeking or “stealing” freedom (Petry 2012, 40). 98
Other episodes of brigandry involved gangs organized to steal, which resulted in maximal
penalties when they could be apprehended: collective pillorying of brigands, dismemberment,
scourging, handing, bi-section, public display of stuffed corpses after executions (Petry 2012, 63–64). 99
More localized theft and banditry in Cairo and Damascus saw different apprehension rates, with
individual thieves typically less adept than the gangs but still punished with execution. And widespread
harsh penalties confirmed the severity of executive punishment: for those whose lives were spared
from capital punishment, they faced hand-amputation, eye-gouging, face-flaying, flogging, torture to
compel disclosure of the location of stolen goods, and various forms of shaming and public humiliation
(Petry 2012, 305). 100
Punishing Blasphemy and Apostasy: Execution, Prison, Flogging

Offenses against what had come to be characterized as religious orthodoxy encompassed
blasphemy, apostasy, and dissident acts that would garner punishment whenever they threatened
political authority. In medieval Islamic lands, these acts were deemed serious offenses because religion
stood in for modern notions of citizenship; rejection of religion amounted to rejection a social
contractual agreement to follow political and legal norms—in other words, it was tantamount to
treason (Rabb 2016, 434–64). 101 Accordingly, executive officials and jurists alike seemed less concerned
with punishing those with heterodox theological or political opinions taken alone. 102 Instead,
heterodox positions were criminalized when thought to disrupt state or juristic authority and/or to
pose a threat to the safety of the public spere.
The most remarkable reports in the historical sources—and thus those chroniclers tended to
preserve—depict spectacular episodes of execution for acts expressing heterodoxy or unbelief in ways
that challenged the political and religious institutions or authorities of a given time. It was under the
ʿAbbāsids that the authorities sought to settle orthodoxy from the mélange of different approaches to
theology, mysticism, and law characterizing early Islamic communities (Donner 2010). 103 The most
infamous effort to establish orthodox, top-down, was Islam’s great Inquisition (Miḥna) whereby
ʿAbbāsid political officials enlisted religious authorities to impose a test of creed. The trials that
resulted were early examples of blasphemy trials, and typically met with carceral rather than capital
punishment. 104
15

Other incidents of severely punished heterodoxy that political officials punished as criminal
offense took on three distinct forms: apostasy (becoming non-Muslim after having been Muslim),
blasphemy (words or actions that denigrated God, the Prophet, Islam’s core tenets, and—tellingly—
even scholars), and heresy (acts or beliefs that diverged from community norms). These acts were
punished as crimes when political and religious figures saw them to pose public or political threats. 105
Under the ʿAbbāsids, the single most dramatic and memorable state-sanctioned execution was
that of Manṣūr al-Ḥallāj, the Sufi mystic who had amassed a large following but diverged from an
emergent orthodoxy and created several political enemies as a result (Massignon 1994). 106 His
widespread influence at a time of political insecurity seems to have rendered him a threat. Moreover,
his followers helped engineer a one-year takeover of the caliphate in 296/909–10 at Baghdad, only to
have the infant caliph al-Muqtadir reinstated under the tutelage of his vizier Ibn al-Furāt. One year
later, some of his leading disciples were behind another failed attempt to seize power. The composition
of his followers makes clear that the threat Ḥallāj posed was not against Sunnī orthodoxy per se, but
against the political establishment: his most vocal supporters were staunch Sunnīs: Ḥanbalī activists
and a Shāfiʿī jurist; meanwhile, the vizier Ibn al-Furāt, who opposed him, was Shīʿī.107 Nevertheless,
Ḥallāj gained enemies for being “not only a social agitator … but also a man possessed by demons,”
whose followers were baselessly accused of aligning with the Qarmaṭians, who posed an actual military
threat from the West (Massignon 1994, 17–18). 108
Ḥallāj, protected for some time, eventually met his death in Baghdad. Law enforcement
arrested him in 301/913–14 in the wake of the second coup attempt. His supporters—the Queen Mother
and the Grand Chamberlain, as well as the Shāfiʿī jurist Ibn Surayj—managed to avert a capital trial in
favor of palace imprisonment for nearly nine years. During that time, Ḥallāj’s old supporter Ibn ʿĪsā had
re-taken over the vizierate. But Ibn ʿĪsā became embroiled in a fight over fiscal policy with the powerful
tax collector (and former vizier), Ḥāmid. To gain the caliph’s favor and demote Ibn ʿĪsā, Ḥāmid managed
to reopen the trial against Ḥallāj by enlisting the support of the famous Qurʾān reciter Ibn Mujāhid, who
was anti-Ḥallājian and saw himself as upholding Sunnī orthodoxy. 109 At the same time, Ḥallāj’s Ḥanbalī
supporters fomented public unrest in protest of Ḥāmid’s actions, and they even placed the famous and
well-respected historian Ibn Jarīr al-Ṭabarī (d. 310/923) under siege for censuring their recourse to
violence. 110 All of this only further empowered Ḥāmid, who was appointed to restore order. He worked
out the terms of a capital sentence for Ḥallāj with a local Mālikī judge, Abū ʿUmar al-Ḥammādī —likely
for his school’s accommodationist stances to those in power seeking capital punishment against
criminals and foes. In a spate of ecstasy that the establishment took as challenging God (and the
establishment), but that fellow mystics saw as the obliteration of the ego into God, Ḥallāj declared “I am
Reality” (or, the Truth: Ḥaqq)—another name for God. Over the objections of the Shāfiʿī judges and
jurists, and on Ḥāmid’s charges of “blasphemy,” the Mālikī judge presided over a capital trial and issued
a death sentence in 309/922 (Massignon 1994, 19). 111 Thereafter, Ḥāmid enlisted representative elite
members of the Muslim community to cry out at the execution that Ḥallāj’s death was necessary “for
the salvation of Islam.” Amid these cries, in 309/922, Ḥallāj was flogged, hands and feet cut off, crucified
overnight, and finally beheaded, cremated, and his ashes spread to the winds just outside the gates of
Baghdad (Massignon 1994, 20). 112
Following these events, scholars of ʿAbbāsid, Mamlūk, and Ottoman legal history have detailed
several executions, similarly on bases of alleged heterodoxy. As with Ḥallāj, blasphemy, heresy, or
norms-departures were not really at issue. Instead, it was political machinations and perception of
threat to establishment authorities that led to executions in virtually every case.
16

During the Seljuq period, several such executions unfolded on accusations of apostasy, heresy, and
sundry heterodox statements and acts. 113 In an infamous heresy case almost as notable as that of Ḥallāj,
leading judges and jurists forcefully participated in the trial and execution of ‘Ayn al-Quḍāt al-
Hamadhānī (d. 525/1131). As his title “pearl of the judges” suggests, Hamadhānī was himself a judge, a
follower of the Shāfiʿī school. Fellow jurists and judges eventually accused him of heresy before the
Seljuq vizier in Iraq, ostensibly for his teachings on sainthood and prophethood, and allegedly claiming
prophetic abilities. But, as with Ḥallāj, the real offense seems to have been that he disturbed the social-
political order and likely ran afoul of establishment authorities otherwise. 114 The vizier of the time
imprisoned him at Baghdad, then transferred him to his native Hamadhān, where the Seljuq sulṭān
Maḥmūd (r. 511–525/1118–1131) executed him on 526/1131 at the age of thirty-three. 115 Around this
time, there were also several executions for alleged and actual Bāṭinīsm (Ismāʿīlīs, Assassins). Given the
ever-present specter of military groups during the Seljuq period, anyone suspected, accused, and
successfully prosecuted for violence-threatening Bāṭinīsm suffered ghastly deaths. 116 Other accusations
of heterodoxy sometimes attracted non-capital punishment.
Under the Mamlūks, varied forms of alleged heterodoxy—blasphemy, apostasy, and unconventional
statements—continued to garner harsh punishment. Religious orthodoxy had newly settled and
institutional structures convened to match it under the post-Mongol regime that emerged after the end
of the caliphate at Baghdad in 1258. Those institutions came complete with a four-judiciary system of
judges with appointments for one judge from each of the four major state-recognized Sunnī schools.
Each took part in policing orthodoxy, and not just of non-Sunnīs or non-Muslims. 117 Cases in point: two
of the most prominent cases involved one staunchly Sunnī jurist, Ibn Taymiyya, 118 and the other an
execution of the famed Shīʿī leader Shams al-Dīn Ibn Makkī, or “Shahid al-Awwal: the First Martyr.” 119
Consider the execution of the Shīʿī jurist. A group of detractors delivered a statement accusing Ibn
Makkī of being a heretic to the Shāfiʿī chief judge in Damascus, Burhān al-Dīn Ibn Jamāʿa (d. 797/1394).
After imprisoning Ibn Makkī in the Damascene Citadel, the judge referred the matter to the Mālikī chief
judge, where he was likely to get a capital sentence (Baḥrānī 1966, 146–47). 120 Ibn Makkī rejected the
charges, reaffirmed the basic elements of Islamic creed, but nevertheless was condemned. Damascus
governor Baydamur al-Khwārizmī (d. 789/1387) convened a court session in 786/1384, 121 at the
conclusion of which the Mālikī judge rose, performed a short prayer, then announced: “I have rendered
a sentence of death,” to be carried out immediately. Officials took Ibn Makkī out to behind the Citadel,
heard one last unavailing confession of faith and statement of approval for the Companions, and put
him to death: beheaded, crucified, stoned, then burned—following which he gained the moniker Shahid
al-Awwal among the Shīʿa (Baḥrānī 1966, 145–47). 122
There is little to suggest that Shahīd al-Awwal had left the fold of Islam, or taught anything
more than the ordinary mainstream Shīʿī doctrines. And, there were plenty of other Shīʿī scholars who
went unbothered. A more plausible explanation than pure religious opposition to Shi’ism is that Shahīd
al-Awwal was perhaps gaining power among his followers in a way that threatened the Damascene
governor’s power, called into question the loyalties of the former Shīʿī inhabitants, and—once public—
violated the establishment-scholarly norms and definitions of orthodoxy (Winter 1999, 172–79). 123 In
almost every single case of capital punishment, it was a Mālikī judge who entered the sentence of
death, as Mālikī doctrines alone permitted capital punishment without offering the opportunity for
repentance. In fact, Mālikī courts thus became a destination for forum-shopping Mamlūk officials keen
on securing death sentences (Rapoport 2003, 225). 124
17

Several related incidents unfolded under the Mamlūks for acts deemed blasphemy, heresy, or
religious dissidence. In and of itself, blasphemy was infrequently reported, and, when it went to trial, it
infrequently resulted in execution (see Petry 2012, 166–67). 125 Three of twenty-seven reported cases
resulted in death sentences—all from outside of Mamlūk society (Petry 2012, 175–78, 316). 126 These low
rates of reported executions suggested that judges tended to avoid death—except where, predictably,
by now, the accused posed a threat to public order, and perhaps was not a core part of the mainstream
Muslim society (Petry 2012, 165–71, 316). 127
There seemed, then, two different strands: harsh punishment and lighter punishment. Harsh
punishment, such as the execution of Shahīd al-Awwal, applied whenever the authorities perceived a
political or societal threat, or simply in instances where the accused had become an enemy of one or
more prosecuting authorities. 128 Lighter punishment seemed to apply when the opposite was true. 129
Such episodes—of harshness and leniency in questions of religious unorthodoxy when posing a political
threat—continued in the vastly reformed criminal laws of the Ottoman empire almost immediately
after the conquest of Constantinople in 1453. 130
C. Carceral Punishment (& Exile)
Incarceration is a punishment technique that arose in medieval Islamic societies through

executive practice (siyāsa), rather than by the texts of Islamic law (sharīʿa). Prison does not find explicit
mention (beyond home confinement) in Islam’s foundational texts, including the Qurʾān. Nor does it
find extensive treatment in the mainstream works of law. However, by Islam’s second century,
incarceration had become a widespread practice, and it came to have a prominent place in Islam’s
criminal justice system.
The closest the Qurʾān comes to removal from the home is banishment from society itself: that
is, exile for sowing “corruption in society” (Qurʾān 5:33). 131 Banishment from the tribe was a pre-Islamic
punishment that seemed common in early Islam, attested by banished brigand-poets from the
Umayyad period (Lange 2008, 94). 132 But thereafter, with few exceptions, exile seems to have been far
rarer than prison in medieval Islamic societies (Shāljī 198-, 4:183–212). 133 Rather than banish as
punishment, late ʿAbbāsids primarily used exile “first, and foremost, to take high government officials
out of the political game” (Lange 2008, 39, 94). 134 Under the Seljuqs, exiles would be sent to a far-off city,
still within the empire. For example, the famous vizier Niẓām al-Mulk sent his predecessor Kundurī (d.
455/1063) to Marv, and was himself sent away by his succeeding vizier, Abū Shūjāʿ al-Rūdhwārī, in turn,
when the former took over as vizier in 484/1091 (Lange 2008, 95). 135 And aside from high-ranking
political officials, scholars sometimes faced exile during that time as well. This seemed particularly
rampant, for some reason, among prominent Shāfiʿī jurists and theologians who found themselves at
odds with the mainstream. In that vein, the scholar Qushayrī was banished to his hometown of
Nīshāpūr in 469/1076–7. Imām al-Ḥaramayn al-Juwaynī (d. 478/1085) chose self-exile in Medina, living
next to the Prophet’s grave. And Abū Ḥāmid al-Ghazālī (d. 505/1111) chose self-exile (Lange 2008, 26,
84, 95–97). 136
In almost every arena, the little-discussed reality of the history of Islamic criminal law is that
prison was widespread, for all manner of crimes, and used for both the most vulnerable and the most
influential in medieval Islamic societies. 137 By the eighth century, prison use had apparently become so
widespread that the prominent Ḥanafī jurist Abū Yūsuf, who worked closely with the ʿAbbāsid
government, faulted the state for its overuse—complaining that prisons had all but replaced divinely
18

legislated ḥudūd punishments, and urging officials to return to ḥudūd punishments to remediate
increasingly crowded prisons (Schneider 1995, 162–63). 138
As for legal doctrine, punitive imprisonment made its appearance in medieval legal treatises
mostly as supplementary punishments to the divinely legislated ones. In their works, medieval jurists
specified that five offenses triggered prison time in addition to legislated punishments: aiding and
abetting a homicide, highway robbery not involving a homicide, catching a thief in the act or after
multiple theft convictions, repeated violations of the law against false accusations of sexual
impropriety, and for incest (Schneider 1995, 161–62). 139 It seems that the method and manner of these
ḥudūd and qiṣāṣ crimes prompted jurists to add prison time in a likely attempt to account for the
aggravated nature of the offenses. Notably, Shīʿī jurists regarded scholars who were fraudulent or bad-
acting as especially deserving of prison. 140 As for historical practice, notwithstanding the legal
principles, Muslim jurists deferred to the executive’s exercise of discretion in sentencing, without
setting set prison terms for unspecified crimes. 141
Often, rulers made baldly political uses of prison. Very early in their reign, for example,
ʿAbbāsid caliphs used prison to incapacitate any possible opponents (Shāljī 198-, 3:24). 142 They used it to
punish opponents of the caliphs’ failed attempt to impose a particular rendition of religious orthodoxy
during the Inquisition (Miḥna). 143 They used prison, torture, and death in a slightly more successful
attempt to impose a particular set of valid Qurʾān readings. 144 The sulṭān set up a tribunal in 322/934 to
prosecute a Reader by the name of Ibn Miqsam for using authorized Qurʾān variant-readings; he called
on, among others, Ibn Mujāhid—the well-known Qurʾān scholar credited with developing a system of
and rules for acceptable readings. 145 Ultimately, Ibn Miqsam retracted his stance on permitting
unorthodox readings, only after which he was released from prison. Ibn Mujāhid likewise helped
prosecute a similar case against Ibn Shannabūdh a year later in 322/935. (Shah 2004, 81–82; Rabb 2006,
102–104). 146
With these and other episodes, jurists came to regard prisons as overused, and said as much in
their legal writings. Centuries after the increasingly widespread use of prisons, the Shāfiʿī jurist
Māwardī (d. 450/1058) in the East and the Ẓāhirī textualist jurist Ibn Ḥazm (d. 456/1064) in the West
amplified the earlier complaints of the overuse of prison. Just as had Abū Yūsuf in eighth century
Baghdad, these jurists railed against the overwhelmingly widespread practice of using prisons instead
of ḥudūd punishments in their far-flung regions of greater Persia and Andalusia, respectively
(Schneider 1995, 163). 147 Following him, Mamlūk jurists and historians noted the widespread use of
prisons as well in Egypt, Syria, and greater Palestine.
III. CONCLUSION
This chapter has attempted to highlight and illustrate the striking features about medieval
Islamic criminal law that juxtapose legal principles against historical practices, juristic interpretation
against raw executive power, a jurisprudence of doubt and lenity against political practices of control
and severity. In the process I have hoped to answer the questions with which I started, showing a) that
there was a divergence between Islam’s criminal law principles and practices, and b) explaining why
and how they emerged and persisted to form a symbiotic whole. In short: the law expressed moral
opprobrium and its actors were intensely concerned with the procedural and substantive fairness of a
limited set of punishments that they could justify as legitimately designated by the divine. At the same
time, realpolitik reflected political realities of precarious borders, unsafe streets, and tenuous holds on
19

power; its actors were in turn intensely concerned with holding onto power and exerting social control
through criminal law. There is much more to be said on the broader theories that justified Islamic
criminal law. For example, in addition to a need to further explore political actors’ need for social
control against a backdrop of precariousness and violence in the medieval world, this cursory review
raises further questions about what really undergirded the legitimacy that jurists saw and typically
expressed as dual this-worldly utilitarian aims of “deterrence” (zajr) and otherworldly terms of
“spiritual rehabilitation” (kaffāra). There is in fact room and need for rethinking Islamic criminal law
along these and other terms, given the recent developments in criminal law theory that can
meaningfully be brought to bear on medieval Islamic criminal law. I take up that task elsewhere. 148
20

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1
See my previous work, in which I focused more on the legal-doctrinal than historical incidents of punishment: Intisar A.
Rabb, Doubt in Islamic Law: A History of Legal Maxims, Interpretation, and Islamic Criminal Law (Cambridge: Cambridge
University Press, 2015).
2
ʿAbbūd al-Shāljī, Mawsūʿat al-ʿAdhāb (Beirut: al-Dār al-ʿArabiyya liʾl-Mawsūʿāt, 198-). My inquiry extracts criminal
punishments from his collection of reports bearing on a more capacious understanding of ʿadhāb, which he takes to include
torture and military operations.
3
Carl F. Petry, The Criminal Underworld in a Medieval Islamic Society: Narratives from Cairo and Damascus under the
Mamluks (Chicago: Middle East Documentation Center, 2012); Christian Lange, Justice, Punishment and the Medieval Muslim
Imagination (Cambridge: Cambridge University Press, 2008). Supplementing these studies are many others that examine
discrete incidents or concepts that arose in specific historical contexts or legal schools. See, e.g., Yaacov Lev, The
Administration of Justice in Medieval Egypt: From the Seventh to the Twelfth Century (Edinburgh: Edinburgh University Press,
2020); Hina Azam, Sexual Violation in Islamic Law: Substance, Evidence, and Procedure (New York: Cambridge University
Press, 2015); Leslie P. Peirce, Morality Tales: Law and Gender in the Ottoman Court of Aintab (Berkeley, CA: University of
California Press, 2003), esp. chapters 8–9: 311–74.
4
For general works on Islamic criminal law, from which this section draws, see Rabb, Doubt in Islamic Law, 25–66 and passim;
Rudolph Peters, Crime and Punishment in Islamic Law (Cambridge: Cambridge University Press, 2005); Muṣṭafā Ṣādiq Rāfiʻī,
Aḥkām al-jarāʾim fī al-Islām: al-qiṣāṣ waʾl-ḥudūd waʾl-taʿzīr (Beirut: al-Dār al-Ifrīqiyya al-ʿArabiyya, 1996); Muḥammad Salīm al-
ʿAwā, Punishment in Islamic Law: A Comparative Study (Indianapolis: American Trust Publications, 1982) ʿAbd al-Qādir ʿAwda,
al-Tashrīʿ al-jināʾi al-Islāmī muqāranan biʾl-qānūn al-waḍʿī (Beirut: Dār al-Kitāb al-ʿArabī, 1968); Muḥammad Abū Zahra, al-
Jarīma waʾl-ʿuqūba fī al-fiqh al-Islāmī (Cairo: Dār al-Fikr al-ʿArabī, 1966). For a recent study, see Mohammad Hashim Kamali,
Crime and Punishment in Islamic Law: A Fresh Interpretation (Oxford: Oxford University Press, 2019).
5
Rabb, Doubt in Islamic Law, 30–31.
6
Ibid., 30–31.
7
Ibid., 32–34.
8
On the origin of stoning for adultery, and applications of it for other crimes, see below, 15ff.
9
For discussion, see Sherman A. Jackson, “Domestic Terrorism in the Islamic Legal Tradition,” The Muslim World 91, no. 3–4
(2001), 302.
10
See further Intisar A. Rabb, “Society and Propriety: The Cultural Construction of Defamation and Blasphemy as Crimes in
Islamic Law,” in Accusations of Unbelief in Islam: A Diachronic Perspective on Takfīr, ed. Camilla Adang et al. (Leiden: Brill,
2016), 434-64.
11
See further Khaled Abou El Fadl, Rebellion and Violence in Islamic Law (Cambridge: Cambridge University Press, 2001); idem,
“Ahkam Al-Bughat: Irregular Warfare and the Law of Rebellion in Islam,” in Cross, Crescent & Sword: The Justification and
Limitation of War in Western and Islamic Tradition, ed. James Turner Johnson and John Kelsay (Westport, CT: Greenwood
Press, 1990). See also Han Hsien Liew, "Ibn Al-Jawzī and the Cursing of Yazīd B. Mu'āwiya: A Debate on Rebellion and
Legitimate Rulership," Journal of the American Oriental Society 139, no. 3 (2019).
12
See Silvia Tellenbach, "Islamic Criminal Law," in The Oxford Handbook of Criminal Law, ed. Markus Dirk Dubber and Tatjana
Hörnle (Oxford: Oxford University Press, 2014 [Online]). See also Nurit Tsafrir, Collective Liability in Islam: The ‘Aqila and
Blood Money Payments (Cambridge: Cambridge University Press, 2020); Paul Powers, “Offending Heaven and Earth: Sin and
Expiation in Islamic Homicide Law,” Islamic Law and Society 14, no. 1 (2007).
13
They base this claim on that of J.N.D. Anderson, “Homicide in Islamic Law,” Bulletin of the School of Oriental and African
Studies 13 (1951): 811–28. See, e.g., Petry, Criminal Underworld, 203–204 (“Homicide in classical Sharia was interpreted as
equivalent to a tort, or offense redressable with compensation. … The classical jurists … treated homicide as a negotiable act
rather than as an absolute crime with a [fixed] penalty ….”) (citing Anderson).
14
See Rabb, Doubt in Islamic Law, Index B (listing types of and bases for “doubt”), 410-11.
15
Idem, “The Islamic Rule of Lenity,” Vanderbilt Journal of Transnational Law 44, no. 5 (2011) 1299–1351.
16
Idem, Doubt in Islamic Law, 94–95 n. 80.
17
See ʿAwda, al-Tashrīʿ al-jināʾi al-Islāmī , 66–109 esp. 80; Aḥmad Fatḥī Bahnasī, al-ʿUqūba fī al-fiqh al-Islāmī (Cairo: Dār al-
Shurūq, 2004), 29.
18
Peters, Crime and Punishment in Islamic Law, 8–11.
19
But see Patricia Crone and Martin Hinds, God's Caliph: Religious Authority in the First Centuries of Islam (Cambridge:
Cambridge University Press, 1986) (extending this theory of combined authority to cover the early Umayyads).
20
Rabb, Doubt in Islamic Law, 123–32.
21
Ibid.
25

22
Abū al-Ḥasan ʿAlī b. Muḥammad Māwardī, al-Aḥkām al-sulṭāniyya, ed. Muḥammad Fahmī al-Sirjānī ([Cairo]: al-Maktaba al-
Tawfīqiyya, 1978?); Muḥammad b. al-Ḥusayn or Ibn al-Farrā’ Qāḍī Abū Ya‛lā, al-Aḥkām al-sulṭāniyya, ed. Muḥammad Ḥāmid al-
Fiqqī (Cairo: Muṣṭafā al-Bābī al-Ḥalabī, 1966).
23
For delineation of maẓālim jurisdiction of the executive from qaḍāʾ jurisdiction of the judiciary, see Māwardī, al-Aḥkām al-
sulṭāniyya, 228ff. For discussion, see, e.g., Emile Tyan, Histoire de l’organisation judiciare en pays d’islam, 2d revised edn.
(Leiden: E.J. Brill, 1960 ), 436, 446-51, and passim. Timothy J. Fitzgerald, “Murder in Aleppo: Ottoman Conquest and the Struggle
for Justice in the Early Sixteenth Century,” Journal of Islamic Studies 27, no. 2 (2016), 196–201. Jørgen S. Nielsen, Secular Justice
in an Islamic State: Maẓālim under the Baḥrī Mamlūks, 662/1264–789/1387 (Leiden: Nederlands Historisch-Archaeologisch
Instituut te Istanbul, 1985).
24
See Amalia Levanoni, “The Mamlūks in Egypt and Syria: The Turkish Mamlūk Sultanate (648–784/1250–1382) and the
Circassian Mamlūk Sultanate (784–923/1382–1517),” in The New Cambridge History of Islam: Volume 2: The Western Islamic
World, Eleventh to Eighteenth Centuries, ed. Maribel Fierro (Cambridge: Cambridge University Press, 2010), 237–84; Yossef
Rapoport, “Legal Diversity in the Age of Taqlīd: The Four Chief Qāḍīs under the Mamlūks,” Islamic Law and Society 10, no. 2
(2003); Sherman A. Jackson, Islamic Law and the State: The Constitutional Jurisprudence of Shihāb al-Dīn Al-Qarāfī (New York:
E.J. Brill, 1996), 42–43, 48; idem, “The Primacy of Domestic Politics: Ibn Bint Al-A'azz and the Establishment of the Four Chief
Judgeships in Mamluk Egypt,” Journal of the American Oriental Society 115, no. 1 (1995) 53; Nasser O. Rabbat, The Citadel of
Cairo: A New Interpretation of Royal Mamluk Architecture (Leiden: Brill, 1995), 90–96, 98 (calling Baybars the ”true founder of
the Mamlūk system”); Jørgen S. Nielsen, “Sultan Al-Ẓāhir Baybars and the Appointment of Four Chief Qāḍīs, 663/1265,” Studia
Islamica 60 (1984), 169.
25
For modern collections of criminal law practices from most medieval Islamic societies on which I draw (those works drawing
on sources for medieval chronicles and biographical dictionaries), see above notes 3 and 4. For the more sparsely reported
early period, I supplement these collections with the tenth-century compilation of judicial cases by Wakīʿ (d. 306/917) in his
Akhbār al-quḍāt. For the vastly more documented Ottoman period, I refer principally to Uriel Heyd’s Studies in Old Ottoman
Criminal Law (1973) (Anatolia and the Levant, 16th–18th centuries), to which I add select studies of the yet-to-be-collected
criminal practices from vast court records and the other voluminous documentary and literary sources from that period. On
the latter, see, e.g., Peirce, Morality Tales; Fitzgerald, “Ottoman Conquest and the Struggle for Justice,” 176–215. Finally, for
Ottoman Court records, see the series Sijillāt al-maḥākim al-sharʿiyya, published by the Istanbul Research Center for Islamic
History, Art, and Culture, now on its thirty-fifth volume at the time of writing; see also Boğaç Ergene and Atabey Kaygun,
“Semantic Mapping of an Ottoman Fetva Compilation: Ebussuud Efendi’s Jurisprudence through a Computational Lens,”
Journal of Islamic Studies 32, no. 1 (2021) nn. 21–42 (collecting and converting some 6000 fatwās into machine-readable texts
and referencing other collections).
26
My treatment is in contradistinction to that of Shāljī’s collection of medieval Islamic punishment practices. He uses the
catch-all ambiguous term ʿadhāb to mean all instances of military tactics, political torture, and punishment for acts that
premodern Muslim jurists or modern American lawyers might not deem criminal law proper. Cf. Bryan A. Garner and Henry
Campbell Black, Black's Law Dictionary, 11th ed., Law Dictionary (St. Paul, MN: Thomson Reuters, 2019) (s.v. “crime”) (“A crime
is an act committed or omitted, in violation of a public law, either forbidding or commanding it; a breach or violation of some
public right or duty due to a whole community, considered as a community. In its social aggregate capacity, as distinguished
from a civil injury (citing Wilkins v. U. S.)). My definition removes the requirement that offenses be defined by law, following
the discretionary basis of taʿzīr and siyāsa crimes in medieval Islamic societies, and given common law-like treatment of those
crimes. On the regular conflation of ʿadhāb as torture or punishment in medieval Islamic sources, see Lange, Justice,
Punishment, 73.
27
In addition to examples provided in other contributions to this volume, ʿAbbāsid-era historical and biographical sources, for
example, point to numerous instances of flogging from both eras. See Shāljī, Mawsūʿat al-ʿAdhāb, 2:10ff (citing reports of
regular floggings of new converts to Islam).
28
See Louise Marlow, Hierarchy and Egalitarianism in Islamic Thought (Cambridge; New York: Cambridge University Press,
1997); Rabb, Doubt in Islamic Law, 69–98.
29
Shāljī, Mawsūʿat al-ʿadhāb, 2:11. For discussion and background of each figure, see, e.g., Muḥammad Akram Nadwī, Abū
Ḥanīfah: His Life, Legal Method and Legacy (Oxford: Interface Publications, 2010) Christopher Melchert, Ahmad Ibn Hanbal
(London: Oneworld, 2006); Kāmil Muḥammad Muḥammad ʻUwayḍa, Mālik b. Anas: Imām Dār Al-Hijrah (Beirut: Dār al-Kutub al-
ʻIlmiyya, 1992).
30
See Matthew Pierce, Twelve Infallible Men: The Imams and the Making of Shi'ism (Cambridge: Harvard University Press,
2016); Muḥammad Ḥusayn Ṭabāṭabāʼī, A Brief History of the Lives of the Twelve Imams (Qum: Dar Rāh-i Ḥaqq, 1980).
31
For discussion, see Roy P. Mottahedeh, “Introduction,”" in Lessons in Islamic Jurisprudence (Oringinal by Muḥammad Bāqir
aṣ-Ṣadr) (Oxford: Oneworld, 2003); Hossein Modarressi, Crisis and Consolidation in the Formative Period of Shīʿite Islam: Abū
Jaʿfar Ibn Qiba Al-Rāzī and His Contribution to Imāmite Shīʿite Thought (Princeton: Darwin Press, 1993). See also Moshe
Sharon, Black Banners from the East: The Establishment of the ʿabbāsid State: Incubation of a Revolt (Leiden: Brill, 1983).
32
See Shāljī, Mawsūʿat al-ʿadhāb, 2:12–107 (listing flogging instances).
26

33
This breakdown follows that of Shāljī in ibid., 2:5–11.
34
See ibid., 2:159.
35
Lange, Justice, Punishment, 77–79.
36
See further Shāljī, Mawsūʿat al-ʿadhāb, 159–247.
37
See Robert Irwin, “The Privatization of ‘Justice’ under the Circassion Mamluks,” Mamlūk Studies Review 6 (2002); Adel
Allouche, Mamluk Economics: A Study and Translation of Al-Maqrīzī's Ighāthah (Salt Lake City: University of Utah, 1994). For
related examples of bribery, see Petry, Criminal Underworld, 4, 75, 81, 110, 155, 178, 198, 209, 286; for counterfeiting, see ibid.,
5, 253, 267-72, 320, 330; for fraud, see ibid., 109-117.
38
Petry, Criminal Underworld, 75–76 (noting that the judge first denied the accusation then qualified his statement when
ordered to testify under oath).
39
Ibid., 118. See also ibid., note 59 and sources cited therein.
40
See ibid., 309 (noting that disgorgement of funds and imprisonment sometimes accompanied cases of falsification of waqf
yields). For other reports of flogging punishments, see ibid., 24, 33, 53, 58, 84, 86, 900, 93, 98, 107-8, 110, 113, 125, 129, 139, 147,
157, 160, 167-68, 172, 256.
41
See below, note Error! Bookmark not defined., and sources cited therein. Although the causal direction is not clear in the
sources, it seems fair to suppose that the jurists sought means to authorize a regular executive practice to retail jurisdiction
and allow otherwise “procedurally poisoned” proceedings to move forward in courts, rather than the other way around:
executives waiting for authorization from jurists before they used torture to extract confessions.
42
Petry, Criminal Underworld, 125–34 (adding that wine selling and intoxication among soldiers was frequent, and detailing
episodes of related law enforcement in response to it). For further discussion of “vice crimes,” see ibid. 311–12; and Kristen
Stilt, Islamic Law in Action: Authority, Discretion, and Everyday Experiences in Mamluk Egypt (Oxford: Oxford University
Press, 2011).
43
Petry, Criminal Underworld, 33.
44
Ibid., 110–11.
45
Ibid., 147. For other instances of Mamlūk flogging, typically combined with other punishments, see ibid., 53, 58, 84-86, 93,
139, 157, 160, 167-68, 172, 179, 184, 208, 236, 256, 262, 274, 291, 295, 302. It was rare that flogging was avoided, though there is
one instance in which the sulṭān repudiated a torturous type of it: using the bastinado in 726/1326 to curb rampant corruption
among state-appointed executive officials. See ibid., 90.
46
For example, Egyptian Judges Sulaymān b. ʿAnz and Ibn Ḥujayra al-Aṣghar occupied this position. Muḥammad b. Khalaf b.
Ḥayyān Wakī‛, Akhbār al-quḍāt, ed. Saʿīd Muḥammad al-Laḥḥām (Beirut: ʿĀlam al-Kutub, 1422/2001), 631, 636.
47
Ibid., 387, 408.
48
Specifically, such punishments took the form of food deprivation, poison, weight-carrying, assaults with beasts of prey or
with insects, “punitive” jousting, and injuries with swords and other weapons. See Shāljī, Mawsūʿat al-ʿadhāb, 2:7–11.
49
See, e.g., Wakī‛, Akhbār al-Quḍāt, 171.
50
Ibid., 407. See further Peters, Crime and Punishment in Islamic Law, 51 (on evidentiary rules); Rabb, Doubt in Islamic Law,
121 (on evidentiary doubt).
51
See Lange, Justice, Punishment, 72 (noting the rare mention of theft punishments or any other ḥudūd-related punishments
in Seljuq sources, and citing just two cases, both in Baghdad: an amputated hand for a student found guilty of several
unspecified offenses in 546/1064, and a cross-amputated hand and foot of a hospital manager accused of fraud in 564/1168–9).
52
See Shāljī, Mawsūʿat al-ʿadhāb, 2:7–11.
53
As Lange notes, Justice, Punishment at 74, judges were known to authorize torture to extract confessions even in criminal
cases, but not until relatively late—that is, under the Mamlūks. See Baber Johansen, “Signs as Evidence: The Doctrine of Ibn
Taymiyya (1263-1328) and Ibn Qayyim al-Jawziyya (d. 1351) on Proof,” Islamic Law and Society 9, no. 2 (2002); idem, “Vérité et
torture: ius commune et droit musulman entre le Xe et le Xiiie siècle,” in De la violence, ed. Françoise Héritier (Paris: Odile
Jacob, 1996)
54
Lange, Justice, Punishment, 73–77.
55
See Lange, ibid., 74.
56
See, e.g., ibid., 8, 50, 52, 64, passim (discussing the ʿayyārūn gangs of bandits and gibbeting as their regular punishment on p.
64); Petry, Criminal Underworld, 4, 47-48, 51, 63-65, 68, 71, 73, 211, 230, 279, 283, 291, 294, 305-6, 321, 324-25 (discussing
brigandage).
57
See Lange, Justice, Punishment, 53 n. 167.
58
The remainder are discussed above (in the section on flogging) and below (in the section on capital punishment). For
identification and discussion of the full range of Seljuq punishments, see ibid., 61–98 (ch. 2: Types of Punishment).
27

59
See, e.g., ibid., 72–73.
60
Petry, Criminal Underworld, 57. See also ibid., 37–38ff (listing other crimes).
61
Ibid., 53 nn. 13–14.
62
Ibid., 54–57.
63
On gangs, see ibid., 4, 7, 17, 20-21, 23, 27-29, 243, 271.
64
Examples of modern legislation and enforcement of stoning for adultery or other sex crimes are in Brunei (legislation, but
no enforcement), Iran (legislation and enforcement), and Northern Nigeria (no legislation, but enforcement). See, e.g., Intisar
A. Rabb et al., Roundtable on Brunei, Journal of Islamic Law Forum 1 (2020) [Online] (discussing the 2014 Brunei Islamic Penal
Code); Ziba Mir-Hosseini, “Criminalising Sexuality: Zina Laws as Violence against Women in Muslim Contexts,” Sur:
International journal on Human Rights 8, no. 15 (2011), nn. 14–16 (listing sources and noting that only Iran implements the
punishment of stoning for women convicted of adultery); Philip Ostien, ed., Sharia Implementation in Northern Nigeria, 1999-
2006: A Sourcebook (Ibadan, Nigeria: Spectrum Books, 2007) (providing sources for the 1999 Islamic Penal Codes of Northern
Nigeria). For additional references to all modern countries with Islamic criminal law codes, see Rabb, Doubt in Islamic Law, 6 n.
11 (to which should be added recent reforms in the Sudan, Law No. 12 of 2020, amending fifteen provisions of its 1991 Penal
Code).
65
Pavel Pavlovitch, “The Stoning of a Pregnant Adulteress from Juhayna: The Early Evolution of a Muslim Tradition,” Islamic
Law and Society 17, no. 1 (2010). This view of Umayyad-era stoning is not dissimilar from the crowd-initiated stoning that
applied to what later ʿAbbāsid societies popularly considered other egregious acts, beyond sexual crimes.
66
For the trajectory of this tradition, see ibid.6–9ff; see also his “The Islamic Penalty for Adultery in the Third Century AH and
al-Shāfiʿī's Risāla,” Cambridge Core (Online 2012).
67
For discussions of stoning as a punishment thought to be divine legislation and thus directly regulated by the doubt canon,
see Rabb, Doubt in Islamic Law , 41-43, 52, 111, 276; for early debates about its origins, see Hossein Modarressi, “Early Debates
on the Integrity of the Qur’ān: A Brief Survey,” Studia Islamica 77 (1993), 5-39.
68
See, e.g., Muḥammad b. Idrīs Shāfi‘ī, K. al-Umm (Mawsū‛at al-Imām al-Shāfi‛Ī), ed. Aḥmad Badr al-Dīn Ḥassūn (n.p.: Dār
Qutayba, 1996), 7:154. See further Lange, Justice, Punishment, 233 n. 129 (and sources cited therein).
69
Two such well-known later manuals were the Ayyūbid ḥisba manual authored by ʿAbd al-Raḥmān al-Shayzarī (d. 589/1193),
Nihāyat al-rutba fī ṭalab al-ḥisba (Beirut: Dār al-Kutub al-ʿIlmiyya, 1405/1985), 108, written in the name of Ṣalāḥ al-Dīn al-
Ayyūbī at Aleppo around 579/1183; and the Mamlūk Ḍiyāʾ al-Dīn Ibn al-Ukhuwwa (d. 729/1321), Maʿālim al-qurba fī aḥkām al-
ḥisba, ed. Reuben Levy (Cambridge: Cambridge University Press, 1938), 231—both of which detail procedures for stoning
adulterers. For discussion, see Justice, Punishment, 58–59, 67.
70
Stoning takes up a small portion of Shāljī’s reports of corporal punishment in volume 2. See Shāljī, Mawsūʿat al-ʿadhāb,
2:241–56.
71
This illegal-but-excused stance continued through Ottoman times, even when the punishment for fornication, adultery, and
homicide had typically been designated to be a fine rather than severe corporal punishment. For one such case, erroneously
called “honor killing,” in sixteenth century Aintab, see Kerim İlker Bulunur, “An Honour Killing in Aintab: The Issue of Killing
Fornicators in the Ottoman Empire,” Acta Orientalia Academiae Scientiarum Hungaricae 69, no. 3 (2016): 231-248. For
additional examples, see Shāljī, Mawsūʿat al-ʿadhāb, 2:241–43 (citing Ṭabarī, Taʾrīkh, 5:373-74).
72
See Shāljī, Mawsūʿat al-ʿadhāb, 2:245 (citing al-Bayān waʾl-tabyīn , 2:192). Shāljī’s collection includes reports of continued
vigilante and political stonings for varied reasons: ʿAlids for praising ʿAlī; a khaṭīb for an offensive sermon; an oppressive ruler;
unruly soldiers in the Būyid army; the Crusaders for occupying Jerusalem in 492; Bāṭinīs for threatening orthodoxy and
political stability in 520; and other such instances. See ibid., 2: 247–56.
73
For example, in 420/1029, under Maḥmūd of Ghazna, there are several reports of stoning of the heterodox Bāṭinīs at Rayy.
For this and other episodes, see Lange, Justice, Punishment, 67, 91, 242.
74
Ibid., 67. Of some 13 places where Lange discusses zinā, only 1 involves stoning; and of 6 discussions of liwāṭ, none do.
75
Ibid., 199 n. 97. This is so despite disputed sources suggesting that the Prophet ordered stoning as punishment for same-sex
sodomy. See ibid., 202–205 nn. 111–18 (listing and discussing fiqh and ḥadīth sources, and the Ḥanafī regard for stoning and
other harsh punishments as spurious but Shāfiʿī acceptance of them alongside reports imposing stoning for adultery). For
possible exceptions, see Lange, 67 n. 52 (citing Duda’s translation of Nāṣir al-Dīn b. Muḥammad (d. ca. 684/1285), Saljūqnāma
[ʿAwāmir al-ʿalāʾiyya fī umūr al-ʿalāʾiyya], ed. M.T. Houtsma (Leiden: Brill, 1902), translated by Herbert W. Duda, Die
Seltschukengeschichte des Ibn Bībī (Cophenhagen: Munksgaard, [1959]), 204–05)); Shāljī, Mawsūʿat al-ʿadhāb, 2:254 (citing al-
Ḥawādith al-jāmiʿa, 386).
76
For discussion, Yossef Rapoport, “Women and Gender in Mamlūk Society: An Overview,” Mamlūk Studies Review 11, no. 2
(2007): 1–47, at 1–3 (citing Ibn Iyās, Badāʾiʿ al-zuhūr fī waqāʾiʿ al-duhūr, ed. M. Muṣṭafā, H. Roemer, and H. Ritter (Cairo and
Wiesbaden: 1960–63, 4:340–50). See further Petry’s discussions in Petry, Criminal Underworld, 140–41; Protectors or
Praetorians?: The Last Mamlūk Sultans and Egypt’s Waning as a Great Power (Albany: State University of New York Press,
28

1994), 149–51; “Royal Justice in Mamluk Cairo: Contrasting Motives of Two Sultans,” in Saber Religioso Y Poder Politico En El
Islam: Actas Des Simposio Internacional Granada, 15-18 Octubre 1991 (Madrid: n.p., 1994): 197–212.
77
There is a single incident, which historians have disputed. See Fikret Yilmaz, “The Line between Fornication and
Prostitution: The Prostitute Versus the Subaşi (Police Chief),” Acta Orientalia 69, no. 3 (2016): 256 n. 15 and accompanying text.
78
See Uriel Heyd, Studies in Old Ottoman Criminal Law, ed. V.L. Ménage (Oxford: Clarendon Press, 1973), 253–57 (noting that
Ottoman records typically did not record the exact penalties imposed by qāḍīs, noting only that they were imposed “in
accordance with the Sharīʿa”).
79
See Fariba Zarinebaf, Crime and Punishment in Istanbul: 1700-1800 (Berkeley, Calif.: University of California Press, 2010), 104
(outlining how officials regulated prostitution with “zoning”), 116–18 (discussing a dismissed rape case). Cf. Galal H. El-Nahal,
The Judicial Administration of Ottoman Egypt in the Seventeenth Century (Minneapolis: Bibliotheca Islamica, 1979), 25–32).
80
See Yilmaz, “The Line between Fornication and Prostitution,” 258 (citing instances of execution, but noting that they were
on the basis of political policy rather than law).
81
Where there was strong suspicion but no evidence, qasāma was a 50-oath procedure that could create a presumption used to
assign compensation liability for a homicide with an unverified assailant from the locale in which a dead body was found. See
Peters, Crime and Punishment in Islamic Law, 40; idem, “Murder in Khaybar: Some Thoughts on the Origins of the Qasāma
Procedure in Islamic Law,” Islamic Law and Society 9, no. 2 (2002) 132–67. For applications, see, e.g., Wakīʿ, Akhbār al-quḍāt,
84–86, 117, 360.
82
E.g., Wakīʿ, Akhbār al-quḍāt, 679.
83
See Lange, Justice, Punishment, 61–62.
84
Ibid. 46–47, 61–62.
85
Ibid., 62–71, 73–77.
86
Ibid., 52, 67–68.
87
Petry, Criminal Underworld, 206.
88
See ibid., 5–10 (motives of critique), 205–251 (reports of homicide).
89
Ibid., 209–10.
90
Ibid., 250 (noting that military officers and soldiers also regularly dodged arrest given the regimes dependence on them and
their access to arms).
91
Ibid., esp. 203–13. For a colorful example, see ibid., 211–16. Other homicides occurred along with and to cover up theft,
prostitution (including a serial murderess for repeated acts of prostitution for theft), or sexual dalliance, and in the course of
drunkenness, insanity, and in reaction to spouses caught cheating. Ibid., 231–48. See also ibid., 156.
92
As termed by Sherman Jackson. See above note 9.
93
Lange, Justice, Punishment, 8. For a different conception of earlier ʿayyārūn, as organized local patrols under the Būyids, see
Deborah Tor, “ʿAyyār,” in Encyclopedia of Islam, THREE (Leiden: Brill, 2014 [Online]); idem, “From Holy Warriors to Chivalric
Order: The ʿAyyārs in the Eastern Islamic World, A.D. 800–1055” (PhD dissertation, Harvard University, 2002).
94
For examples, see Lange, Justice, Punishment, 61 n. 2, 64–65.
95
Petry, Protectors or Praetorians, 47-48; see further examples at ibid. 47-51.
96
Criminal Underworld, 305 (citing Ibn Iyās, Badāʾiʿ, 4:385, reporting the incident as occurring in 920/1514).
97
Ibid., 67. For discussion, see ibid., 40–42.
98
Ibid., 40.
99
Ibid., 63–64. There were other episodes as well: In 804/1402, gangs who would steal cloth and strangled their victims were
hanged from hooks penetrating their orifices. In 875/140, officials bisect brigands for rampant theft. Ibid., 64 n. 35.
100
Ibid., 305. Some 39 offenders in 46 reported incidents were arrested, of which approximately one third were sentenced to
capital punishment for being repeat offenders. For additional examples of executions and other severe punishment for repeat
offenders, see above notes 143–145.
101
Rabb, “Defamation and Blasphemy as Crimes,” 434–64.
102
See above, note 11 and accompanying text. In al-Andalus, studies of available fatāwā suggest that jurists dealt with
secessionist rebels and those of then-heterodox theological inclinations lightly—so long as they had plausible interpretations
backing their position against sinful or unjust rulers. See, e.g., Abou El Fadl, Rebellion and Violence, 363–69.
103
Fred McGraw Donner, Muhammad and the Believers: At the Origins of Islam (Cambridge, Mass.: The Belknap Press of
Harvard University Press, 2010).
104
See below, note 143, and accompanying text.
29

105
For clear definitions of a mature doctrine articulated under the Mamlūks, see Petry, Criminal Underworld, 166 (blasphemy
as “premeditated denigration of Islam, its Prophet, or other sanctified figures” or as “statements that denied the validity of
Islam as the ultimate expression of God’s will, or that sullied the Prophet’s mission as His instrument”).
106
Louis Massignon, The Passion of al-Hallāj: Mystic and Martyr of Islam, ed. Herbert Mason, abridged ed. (Princeton: Princeton
University Press, 1994) [original: La Passion D’al-Ḥusayn Ibn Mansour Al-Ḥallāj, Martyr, Mystique De L’islam, 3 vols. (Paris:
Geuthner, 1927)].
107
The Passion of al-Hallāj, 17.
108
Ibid., 17–18.
109
He would go onto play the same role in two later cases that would become a matter of public spectacle some fifteen years
later surrounding controversies over the proper recitation of the Qurʾān. See below notes 144 and accompanying text.
110
Massignon, The Passion of al-Hallāj, 19.
111
Ibid., 19.
112
Ibid., 20. See further J.W. Fiegenbaum, “al-Ḥallāj,” Encyclopedia Britannica [Online], at
https://www.britannica.com/biography/al-Hallaj. For a miniature rendering of the crucifixion, see the Morgan Library and
Museum collection, at https://www.themorgan.org/collection/treasures-of-islamic-manuscript-painting/45.
113
See Lange, Justice, Punishment, 9 n. 9, 38, 69, 80–81, 86 (listing examples).
114
Ibid., 38; Hamid Dabashi, Truth and Narrative: The Untimely Thoughts of ʻayn Al-Quḍāt Al-Hamadhānī (Richmond, Surrey:
Curzon, 1999), 475–526, esp. 478.
115
J.K. Teubner, "Ayn Al-Kudat Al-Hamadhani," in Encyclopaedia of Islam, Second Edition, ed. Th. Bianquis P. Bearman , C.E.
Bosworth , E. van Donzel, and W.P. Heinrichs, Encyclopaedia of Islam (Leiden: Brill [Online], 2012)
116
See above, notes Error! Bookmark not defined.–73; 86, 93. See also Lange, Justice, Punishment, 8 (generally), esp. 67
(punishment by maiming, stoning, drowning); 68–69 (death by burning at the stake), 83–84, 242 (parading around). For reports
of their assassinations of sultans and high-ranking officials, see, e.g., ibid., 30; and of accusations to bring down high-ranking
officials, see, e.g., ibid., 32. Other accusations of heterodoxy sometimes attracted non-capital punishment. Non-violent Bāṭinī
allegations, non-threatening minoritarian groups such as the Shīʿa, and heterodox Muʿtazilī theologians could receive public
shaming punishments. For further discussion of their and other minoritarian theological doctrines, see ibid., 101-103, 117-18.
See also ibid., 82-83.
117
For further discussion, see, e.g., Rapoport, “Four Chief Qāḍīs,” Jackson, “The Primacy of Domestic Politics;” Jackson, Islamic
Law and the State;” and my book manuscript on Courts & Canons during the Mamlūk era (forthcoming).
118
For studies of the life and seven trials of the well-known and controversial figure that was Ibn Taymiyya, see, e.g., M.
Shahab Ahmed and Yosef Rapoport, ed. Ibn Taymiyya and His Times (Karachi: Oxford University Press, 2010), esp. Caterina
Bori, “Ibn Taymiyya Wa-Jamāʿatuh: Authority, Conflict, and Consensus in Ibn Taymiyya’s Circle,” 30ff; Donald P. Little,
“Historical and Historiographical Significance of the Detention of Ibn Taymiyya,” International Journal of Middle East Studies
(1973).
119
See further Rapoport, “Four Chief Qāḍīs,” 210–28.
120
Yūsuf b. Aḥmad al-Baḥrānī, Luʾluʾat al-baḥrayn fī al-ijāzāt wa-tarājim rijāl al-ḥadīth, ed. Muḥammad Ṣādiq Baḥr al-ʿUlūm
(Najaf: Maṭbaʿat al-Nuʿmān, 1966), 146–47. See also Stefan H. Winter, “Shams Al-Dīn Muḥammad Ibn Makkī ‘Al-Shahīd Al-
Awwal’ (c. 1384) and the Shīʿah of Syria,” Mamlūk Studies Review 3 (1999), 172–79.
121
In his chronicle, Ibn Ḥajar records the incident under the year 781, but acknowledges that “some” [all other?] scholars date
it to 786. Ibn Ḥajar, Inbāʾ al-ghumar, 1:281
122
This is according to Suyūrī’s account in al-Baḥrānī, Luʾluʾat al-baḥrayn, 145–47. For further discussion, see Winter, “Shīʿah of
Syria,” 172–79.
123
Winter, “Shīʿah of Syria,” 172–79. See also Rapoport, “Four Chief Qāḍīs,” 225–26.
124
Yossef Rapoport, among others, details this tendency, providing rates of Mālikī-driven executions: all but four of the
twenty-six capital cases he collects from reports of fourteenth-century Mamlūk trials. “Four Chief Qāḍīs,” 225.
125
For examples, see Petry, Criminal Underworld, 166–67.
126
See ibid., 175–78, 316.
127
See ibid., 165–71, 316.
128
For discussion, see ibid., 187–90, 316-17; Rapoport, “Four Chief Qāḍīs,” 223–26.
129
For examples, see Petry, Criminal Underworld, 165–73 (tracing incidents in Ibn Ḥajar’s chronicle, which substantially
focuses on cases of religious unorthodoxy), 179–81, 189–90, 195–96.
130
On capital punishment in the Ottoman empire for homicide, blasphemy, military, and other crimes, see Heyd, Old Ottoman
Criminal Law, 262–69.
30

131
Lange, Justice, Punishment, 89-90. Shayzarī’s guide for the market-inspector muḥtasib authorized executive officials to
banish women prostitutes, effeminate men suspected of acts of male sodomy, and others known for other violations of sexual
ethical norms; while there do not appear to be recorded instances of banishment for sodomy historically, there are records of
expulsion of women prostitutes from East Baghdad to the western shore in 467/1074-5. Ibid., 97.
132
Ibid., 94.
133
Shāljī recounts rare instances of banishment or expulsion (nafy, taghrīb), whether permanent or for a term, in his Mawsūʿat
al-ʿadhāb, 4:183–212.
134
Lange, Justice, Punishment, 39; see also ibid., 94.
135
Ibid., 95 (noting that this practice of in-realm exile is contrary to Tyan’s statement that such exile was practiced only in
Spain, in his Histoire, 650).
136
Ibid., 26, 84, 95–97 (citing cases, including indications of public threat: as in the social unrest that Qushayrī fomented
between Ashʿarīs and Ḥanbalīs in Baghdad).
137
By carceral punishment, I refer to confinement in a general sense. Because prisons did not exist in early Islamic law,
incarceration could mean home confinement—often differentiated on the basis of gender—as well as shackles, handcuffs, iron
collars, and wool cloth. For early examples of Umayyad and ʿAbbāsid incarceration practices, see Shāljī, Mawsūʿat al-ʿadhāb,
3:14–16.
138
See Irene Schneider, "Imprisonment in Pre-Classical and Classical Islamic Law," Islamic Law and Society 2, no. 2 (1995) 162–
63 (citing Abū Yūsuf, Kitāb al-Kharāj, 151).
139
Schneider, "Imprisonment," 161–62.
140
See, e.g., Ibn Bābawayh, Man lā yaḥduruh al-faqīh, 3:19ff.
141
Schneider, "Imprisonment," 163. 142 In Baghdad, they regularly used homes of state officials (rijāl al-dawla) and high-
ranking servants (kibār al-khidam). Once the caliph Muʿtaṣim left in 221/836 to build a new capital at Sāmarrāʾ, members of
the royal family would imprison opponents in parts of the new royal palace, called al-Jawsaq. See Shāljī, Mawsūʿat al-ʿadhāb,
3:24.
143
Launched by the caliph Maʾmūn in 218/833 and continued by his brother Muʿtaṣim and by Wāthiq until ended by al-
Mutawakkil in 232/847, Islam’s great internal Inquisition (Miḥna) reflected a caliphal desire to determine matters of religious
orthodoxy. See generally M. Qasim Zaman, Religion and Politics under the Early ʿAbbāsids: The Emergence of the Proto-Sunnī
Elite (Leiden: Brill, 1997). The sources record that in 228 the caliph Muʿtaṣim imprisoned one Abū ʿAbd Allāh Na’im for refusing
to answer the Inquisition’s core question about the createdness of the Qurʾān; he remained there until he died. Ibid., 3:25.
144
See Mustafa Shah, “The Early Arabic Grammarians' Contributions to the Collection and Authentication of Qur'anic Readings:
The Prelude to Ibn Mujāhid's Kitāb al-Sabʿa,” Journal of Qurʾānic Studies 6 no. 1 (2004): 72–102 at 78–80 and passim.
145
On Ibn Mujāhid and the two trials, see Shah, “Early Arabic Grammarians' Contributions,” 79, 81, 85–88; Intisar A. Rabb,
“Non-Canonical Readings of the Qurʾān: Recognition & Authenticity,” Journal of Qurʾānic Studies 8 (2006), 102–104.
146
Shah, “Early Arabic Grammarians’ Contributions,” 81–82. For further discussions of shādhdh, see Shady Nasser, The
Transmission of the Variant Readings of the Qur’ān: The Problem of Tawātur and the Emergence of Shawādhdh (Leiden: Brill,
2012).
147
Schneider, “Imprisonment,” 163.
148
In an unpublished manuscript, on Rethinking Islamic Criminal Law, I expand on punishment principles and practices, as
well as policies and rethink how all three coincide with medieval and modern approaches to justifying (or abolishing) policing
and punishment.
31

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DRAFT – not final until published in CULTURAL HISTORY OF CRIME AND PUNISHMENT IN THE

CRIME AND PUNISHMENT IN MEDIEVAL ISLAMIC SOCIETIES

I. PRINCIPLES: Legal Doctrines of Criminal Liability and Doubt 4

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A. Textual Criminal Laws

Fixed Criminal Laws and Punishments (Ḥudūd)

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Homicide and Personal Injury (Qiṣāṣ, Diya)

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B. Extratextual Criminal Laws

Discretionary Crime and Punishment

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Ordinary Corporal Punishment: Flogging and use of Physical Force

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Severe Corporal Punishment: Mutilation

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Stoning as Punishment?: Corporal vs. Capital Sentences

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Punishing Homicide: Execution and Fines

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Punishing Brigandage and Recidivism: Execution and Mutilation

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Punishing Blasphemy and Apostasy: Execution, Prison, Flogging

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C. Carceral Punishment (& Exile)

Incarceration is a punishment technique that arose in medieval Islamic societies through

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Mottahedeh, Roy P. (2003), “Introduction,” in Lessons in Islamic Jurisprudence (Original by Muḥammad

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