This is part 2 in a series of 4 posts.
:: Part 2 :: In Government, Society and Jurist We (Need to) Trust
In this post, I hope to achieve two goals. First, I want to eliminate any attachment to the notion that punishment in Islamic criminal law is mainly corporeal punishment. As I provide some details, I hope, second, to show that Islamic criminal law, like any aspect of Islamic law, needed for its success the participation of a good government, a good society (with identifiable manners and social and moral standards), and cooperating jurists.
In an Islamic juristic scheme, when crime does not fall under the categories of a retaliatory punishment (qiṣāṣ) or a specified punishment (ḥudūd), it is handled by lawmaking and judicial discretion (taʿzīr). Retaliatory punishment is subject to forgiveness by the victim and her or his associates (it is privatized criminal law, as Tahir Wasti would call it); the second is subject to high evidentiary standards (ḍarʾ al-ḥadd biʾl-shubha) and is regularly demoted to the last of the three categories of judicial discretion. Discretionary punishments are open to forgiveness from different directions via politicians and their judicial comrades. Emphasizing repentance and commuting specified punishments (ḥudūd) to lower crimes are genuine qualities in medieval legal reasoning, and the legal texts demonstrating that abound.
Muslim governments have exercised significant freedom in legislating in the area of criminal law. Historical Muslim states have, in fact, instituted specific policies in the areas of public law, including criminal and financial laws, which were sometimes enthusiastically approved and sometimes rejected by jurists. The juristic literature partly justified both executive and judicial power aiming to quell crime, in some cases, with very few limits on either the sultan or the judge. A defendant may be imprisoned at the discretion of a judge or a prince in crimes of un-specified punishment if known to possess bad character, and it suffices that the judge knows that he committed the crime of which s/he is accused. This quote from Ibn al-Qayyim (d. 751/1350) travelled via Junqi Dadah Effendi (d. 1146/1733) to Ibn ʿĀbidīn’s (d. 1252/1836) commentary:
We know of no leading scholar of the law who would allow such a person (a verifiably corrupt defendant) to be asked to make an oath of innocence then be sent home … This is not a doctrine held by any one of the four leading scholars of (Sunnī) law, nor is it a doctrine of others [i.e., other than the four leading scholars]. If we were to demand an oath of innocence from the infamous and the thief, requiring two witnesses for full prosecution, that would be a violation of good policy (al-siyāsa al-shar ‘iyya).
Attention to the character of an alleged criminal who was a government official and is accused of inflicting arbitrary punitive measures or of overreach is emphasized in the study of judicial discretion. Intersecting with that is an employment of istiḥsān, or judicial preference, a tool that aids the lawyer to consider all factors in a case. In his Encyclopedia of Liabilities, al-Fuḍayl b. ʿAlī Jimālī (d. 991/ 1583) quotes from al-Fatāwā al-Ẓāhiriyya:
A government agent (ḥākim) forces one to confess to a crime of ḥadd, qiṣāṣ, or a theft; he confesses and is hence executed or amputated (at the hand): If the confessed was known to be a man of virtue and chastity, the government official is liable (whether one reasons by qiyās or by istiḥsān); if infamous and known to have committed similar acts, the government representative is liable if we reason by qiyās but not if we reason by istiḥsān.
Al-Māwardī’s theorization of both the criminal law and criminal procedures pertaining to white-collar crime in his Wilāyat al-Maẓālim draws attention to the freedom of special-assignment judges, who can a) apply pressure to extract evidence, b) expand the use of inferences by circumstantial evidence and c) inflict severe punishments on trusted officials and leaders of the community who betray that trust.
Would a judge consider social standards to hold someone to be infamous or “of bad character” or is the only required standard here that an individual be a risk to communal peace? The context of this argument reveals that a judge has a responsibility to enforce community standards, as if he were a policy maker. While Ibn ʿĀbidīn (d. 1252/1836) was stating that policy (siyāsa) falls under a judge’s purview, al-Ḥaṣkafī (d. 1088/1677) was compiling statements (this one attributed to al-ʿAynī (d. 855/1451)) showing the moral and social foundations of judicial discretion:
One who stores wine and drinks it and abandons the daily prayers I would imprison, lightly punish, then send away; the one accused of murder and theft I would imprison until he repents. The evil of the first individual is destructive to the culprit, but in the latter, it is destructive to society.
Calling attention to government overreach in this and related areas is abundantly present in the legal literature, and suspicion of government, in fact, is also an old element in medieval Islamic legal reasoning. Consider, for example, this modern-sounding (conservative) argument against overtaxing in which al-ʿAynī (d. 855/1451) prohibits civilians from working as kafīls (collection agents) to aid the government in exacting unfair taxes, which, while considered debts to the government, are no genuine debts at all:
As for taxes imposed by the government (sultan) on people, such as fees and tariffs in our time, which are unjustified: Scholars disagreed whether one may take on the task of collecting them; some saying this should not be allowed, since they are no genuine debt; others say the collection is valid and subject to all laws of restitution. This is the view of Fakhr al-Islām al-Bazdawī (d. 481/1089). 
 Tahir Wasti, The Application of Islamic Criminal Law in Pakistan (Leiden: Brill, 2009), 76–81.
 Ibn ‘Ābidīn, Radd al-Muhtār, vol. 6 (Beirut: Dār al-Kutub al-‘Ilmiyya, 2003), 126.
 A collection of legal opinions by Ẓāhir al-Dīn Muḥammad b. Aḥmad al-Bukhārī (d. 619/1222), heavily quoted in later sources and remaining (to my knowledge) available only in manuscript form.
 Al-Fuḍayl b. ‘Alī al-Jimālī’s (d. 991/1583) Encyclopedia of Liabilities (Fātiḥ-2342, folio 16).
 This section in Māwardī’s text is always read as a treatment of government officials’ overreach, which it mostly, but not exclusively, is. The Nāẓir al-Maẓālim simply handles powerful offenders.
 Abū al-Hasan al-Māwardī (d. 450/1058), Al-Aḥkām al-Sulṭāniyya wa al-Wilāyāt al-Dīniyya, ed. A. Mubarak al-Baghdadi (Kuwait City, Kuwait: Dār Ibn Qutayba, 1989), 102-25, esp. 106, 112.
 Ibn ‘Ābidīn, Radd al-Muhtār, vol. 6, 127.
 Al-‘Ayni (d. 1451), Al-Bināya Sharḥ al-Hidāya, vol. 8 (Beirut: Dār al-Kutub al-‘Ilmiyya, 2000), 461.