In the medieval Islamic world, shurṭa were overseers of criminal justice, but, paradoxically, the majority were not scholars of the law. The shurṭa was made up of military men trained to attack and extinguish the enemy, whether in the form of foreign soldiers, rebels, or criminals. As men of action, it is unsurprising that they do not seem to have composed any written works about their experiences and activities, or even to have left instructions to their colleagues and successors—or if they did, these texts did not survive. Although the literature on Islamic legal theory and practice was largely written by jurists and judges, very few of these legal experts penned writings devoted to criminal administration overseen by the shurṭa. Thankfully, we have texts written by another group of scholars, officials, and scribes who wrote sections and chapters on the shurṭa in mirrors for princes and other political-administrative works.
Mirrors for princes were a genre of political writings instructing rulers and other political authorities on the practical matters of governance, including criminal justice. This makes it fitting that an epistle written by the last head of the Umayyad chancery, ʿAbd al-Ḥamīd b. Yaḥyā al-Kātib (d. 132/ 749), serves as both the forerunner of the Islamic mirrors for princes genre and the earliest administrative text to discuss the duties of the shurṭa.[1] Two centuries later, an administrative official of the Abbasid caliphate would compose a more extensive mirror for princes, the anonymous Siyāsat al-Mulūk, with a far more elaborate chapter on the shurṭa. In the twilight of the Umayyad period, ʿAbd al-Ḥamīd b. Yaḥyā al-Kātib wrote a long epistle for the last Umayyad caliph Marwān II (r. 127–132/745–750) to his son ʿAbdallāh, the crown prince, consisting of moral and political-administrative instructions. In his epistle, he reveals the military and legal roles of the shurṭa of this period. During the Umayyad and early Abbasid eras, the ṣāḥib al-shurṭa was an elite military commander, often the deputy of the Caliph or a governor. ʿAbd al-Ḥamīd states that the head of the shurṭa should be a military veteran with battle experience, keenly strategic, reputable, and coming from a famed family lineage. He advised, “Give him control of your army and have him make his guards keep vigil all throughout the day and night.”[2] ʿAbd al-Ḥamīd’s description of the head of the shurṭa is in keeping with social-military hierarchical structures in the Umayyad caliphate, as he highlights military renown and nobility as prerequisites for this position. Given the fact that Umayyad elites were derived from a tribal–militaristic milieu, in which positions at the upper echelons of the army were often intertwined with tribal status, this is unsurprising. Yet, the shurṭa’s duties were not merely military, but also included making legal judgments. ʿAbd al-Ḥamīd advises the prince:
Instruct the commanders that none of them should enforce punishment upon his compatriots except a chastising, straightening, or corrective punishment. As for punishments which extend to the ravaging of the spirit, or implementing the ḥadd (Qurʾānic punishment) of amputation, excessive whippings, seizure of wealth, or exile, no one should judge in that matter from your army other than you or your ṣāḥib al-shurṭa by your command, your judgment, and leave.[3]
As the passage shows, outside the royal prince (the presumed future caliph), only the ṣāḥib al-shurṭa had ultimate criminal judicial authority over the troops. Besides the assortment of punishments at his disposal, the ṣāḥib al-shurṭa also presided over a variety of criminal cases, which included stealing. However, the most striking line in this passage was that the ṣāḥib al-shurṭa acted as an extension of the prince or caliph’s rāʾy (discretionary judgment). Wael Hallaq observes that the sources of law in the late Umayyad period were the Qurʾān and the sunna (traditions), as well as discretionary authority.[4] As the head of a small and tribal-militaristic Muslim community, caliphs believed that they were legitimate and leading legal authorities capable of making rulings based on their views. Therefore, the ṣāḥib al-shurṭa acted as the enforcer of the legislative decisions in criminal cases made by him or the caliph. ʿAbd al-Ḥamīd also mentions that the ṣāḥib al-shurṭa had the authority to thoroughly investigate a case, particularly those involving accusations. However, he does not go into detail about these investigative methods.[5]
Interestingly, ʿAbd al-Ḥamīd also mentions another judicial-military officer, the qāḍī. Mathieu Tillier has recently argued that the standard figure of the qāḍī, Muslim judge, did not fully emerge until the second half of the eighth century. However, ʿAbd al-Ḥamīd’s characterization of the qāḍī does have a few similarities to the institution with which we are familiar. He points out that the judge was responsible for implementing the ḥudūd (Qurʾānic penalties) and based his sentencing on the sunna (way of God) within divine law.[8] Although sunna in this period was largely derived from past caliphal judgments and a mixture of traditions from exalted Muslim figures, along with some tribal traditions, it was vastly different from the one we know today associated with Prophet Muhammad.
Therefore, two institutions had judicial authority over criminal justice at the end of the Umayyad era: the qāḍī, who based his sentencing on the Qur’ān and Sunna, and the ṣāḥib al-shurṭa, who investigated and judged crimes rooted in military procedures and his discretionary authority in accordance with the caliph. Yet, this legal state of affairs would change radically over the course of the following two centuries. Eventually, the shurṭa would preside over all criminal administration in the metropolis of Baghdad.
The fourth/tenth-century anonymous mirror for princes, Siyāsat al-Mulūk (Policies of Kings), is the most important treatise to deal with Islamic criminal justice. It was discovered by J. Sadan at the Sulemaniye Library in Istanbul, and he examined and edited passages from it in his article, “A New Source of the Buyid Period” (1979).[9] Sadan and Adam Silverstein contend that the author was a late imperial Abbasid and early Buyid-era official from a financial–administrative background.[10]
Unlike other mirrors for princes and administrative treatises, this author takes a dry and matter-of-fact tone. His mundane approach, free of embellishments, indicates that the procedures he recommends are far more rooted in practical realities. Yet, there is also a striking omission. He does not mention or allude to the jurists, judges, or jurisprudence. Thus, the well-known separation between criminal justice (as administered by the shurṭa) and other legal spheres (presided over by jurists and judges) is affirmed in the latter group’s conspicuous absence throughout this author’s chapter on the ṣāḥib al-shurṭa. He discusses the intricate criminal administration and the mechanisms behind its control and surveillance of a fourth/tenth-century city:
It is imperative for the watchmen to inspect their own activities, and those of the inhabitants in the area and their occupations. They should bring to the attention of the aṣḥāb al-maṣāliḥ (Captains of the Watch) anything that arouses their suspicion.[11] Then the Captains of the Watch should bring the report to aṣḥāb al-arbāʿ (district commanders), who should then take it to the deputies. This matter should not be delayed by night or by day. The ṣāḥib al-shurṭa should command the district commanders and captains of the watch in scrutinizing the common people and elites by day and by night and should know their backgrounds and be just with them. They should bring forward any criminals that they need to arrest, and prove their crimes by the truth and authenticity of the aṣḥāb al-akhbār (informants) and those associated with them. . . . He should command the watchmen to examine coin and bag snatchers, con men, grave robbers, master pickpockets, and tricksters. The ṣāḥib al-shurṭa must search thoroughly for fugitives in well-built places and ruins, and repeatedly survey particular roads and markets.[12]
The ṣāḥib al-shurṭa had evolved from a tribal-military commander with criminal judicial authority to one who was the overseer of an extensive and urban policing apparatus. He mentions that the ṣāḥib al-shurṭa had various forces under his charge: two deputies, a commander in each of the four districts of Baghdad, the captains of the watch in each quarter, guards with lances and dogs, lantern-keepers, wardens, and prison guards.[13] The variety of law enforcers who made up the stratified hierarchy in criminal justice, which he describes throughout the treatise, aligns with literary depictions of the criminal administration that existed in Abbasid-era Baghdad at its cosmopolitan peak between the ninth and tenth centuries.
As Baghdad was an Islamic metropolis with a conservative estimated population of 280,000 to 560,000, it is unsurprising that an expansive and complex criminal administration would emerge to maintain government control over this ever-expanding urban landscape, far different from the rudimentary garrison towns of the Umayyad era.[14] This is evidenced by the diverse urban criminal classes that the author mentions: coin jugglers, bag snatchers, con men, and grave robbers.[15] As elucidated by the author, the ṣāḥib al-shurṭa investigated crimes with procedures supported by an elaborate administrative hierarchy. The watchmen formed their presumptions on suspects based on the information gathered on the inhabitants of the quarter’s social-economic occupations, bolstered by a network of jawāsīs (spies), al- ghammāzīn and al-ghammāzāt (male and female informants), and bawwābīn and bawwābāt (male and female gatekeepers) that allowed them (in their view) to effectively investigate and identify potential criminals.[16] These spies, informants, and gatekeepers would either convey their information through the vertical hierarchy of the shurṭa or come to the shurṭa courts and headquarters. Fugitives, criminals, and suspects under the penetrating eyes of the government were detailed and searched for, and exits were sectioned off by stationed guards and roadblocks.
The author instructs that the ṣāḥib al-shurṭa should constantly consult reformed criminals on their variety of tricks and strategies, and question them if they have any information on recent crimes.[17] The author of this treatise viewed the consultation of reformed criminals as so instrumental that he classified it as one of the three main sources of criminal justice, alongside criminal administrative notebooks and the conduct and actions of past criminal magistrates and rulers.[18] Funnily enough, the fourth/tenth-century historian al-Masʿūdī (d. 345/945) refers to these criminal informants as tawwābūn (Repenters), and states that they would commit crimes on the side, so they were not as reliable as this anonymous author likes to think or portray, or even hope for.[19] Later historians living in Baghdad, such as Ibn al-Jawzī (d. 597/1201) and Abū Shujāʿ al-Rudhrāwarī (d. 488/1095) and Ibn al-Jawzi, attests to the continuation of this practice of incorporating reformed criminals into the services of the shurṭa in the fourth fifth, and sixth/tenth, eleventh, and twelfth centuries.[20]
This reliance on criminal informers by the shurṭa clashes with the evidentiary standards in fiqh (Islamic substantive law). As many jurists and judges held the testimony of witnesses with veritable reputations as sound evidence, former criminals as sources of information would not qualify as reliable witnesses. But, the shurṭa and the officials who penned treatises to instruct these criminal magistrates faced different evidentiary challenges than did the judges and jurists. Some medieval Islamic officials and jurists, notably the fifth/eleventh-century chief judge al-Māwardī (d. 450/1058), saw the jurisprudential evidentiary methods as not viable, given the fact that criminal cases like thievery were often perpetrated at night, lacking available witnesses and making the jurisprudential evidentiary framework not a feasible option.[21] As a result, they justified the judicial torture of suspects that had criminal and dubious social backgrounds.[22] The author of the Siyāsat al-Mulūk may have seen the criminal informers as a solution to this evidentiary problem. He viewed these former thieves as legitimate sources of information because, ideally, they had the expertise and contacts among the criminal groups in Baghdad in order to corroborate the strength of an accusation.
While these two texts advocated an idealistic perspective on criminal justice far different than the messy realities of law and order in Umayyad and Abbasid-era societies, they still offer a window into how government officials who worked with criminal administrations conceived of the ṣāḥib al-shurṭa and its judicial and policing duties. Most importantly, they give us a glimpse into how Islamic criminal justice evolved over its first four centuries, while Islamic governance became more sophisticated.
Notes:
[1] J. D. Latham, “The beginnings of Arabic prose: the epistolary genre: ʿAbd al-Ḥamīd b. Yaḥyā al-Kātib,” in Arabic Literature to the End of the Umayyad Period, ed. A. F. L., T. Beeston, M. Johnstone , R. B. Serjeant, and G. R. Smith (Cambridge: Cambridge University Press, 1983), 164–72.
[2] Iḥsān ʻAbbās,ʿAbd al-Ḥamīd b. Yaḥyá al-Kātib, wa-mā Tabaqqá min Rasāʼilih wa-rasāʼil Sālim Abī Al-ʻAlāʾ(Amman, Jordan: Dār al-Sharq, 1988), 243.
[3] Ibid., 251.
[4] Wael B. Hallaq, The Origins and Evolution of Islamic Law (Cambridge: Cambridge University Press, 2005), 44–45.
[5] Iḥsān ʻAbbās,ʿAbd al-Ḥamīd b. Yaḥyá al-Kātib, 225–26.
[6] Ibid., 245–46.
[7] Mathieu Tillier, L’invention du cadi: La Justice des musulmans, des juifs et des chrétiens aux premiers siècles de l’Islam (Paris: Publications de la Sorbonne, Bibliothèque historique des pays d’Islam, 2017), 204, 363–69.
[8] Hallaq, The Origins and Evolution of Islamic Law, 45–46.
[9] Siyāsat al-Mulūk, ed. J. Sadan, “A New Source of the Buyid Period,” Israel Oriental Studies 9 (1979): 355–76.
[10] Joseph Sadan and Adam Silverstein, “Ornate Manuals or Practical Adab? Some Reflections on a Unique work by an Anonymous Author of the 10th Century CE,” Al-Qantara 25, no. 2 (2004): 339–45.
[11] The Arabic word used in this treatise is aṣḥāb al-maṣāliḥ (sg. ṣāḥib al-maṣlaḥa) which also appears in three chronicles; see Hilāl b. al-Muḥassin Ṣābī, al-Wuzarāʼ aw, tuḥfat al-umarāʼ fī tārīkh al-wuzarāʼ, ed. ʿAbd al-Sattār Aḥmad Farrāj (Cairo: Dār Iḥyāʾ al-Kutub al-ʿArabīyah, 1958), 20; Ibn al-Jawzī, al-Muntaẓam fī Tārīkh al-Mulūk wa-al-Umam, ed. Muḥammad ʿAbd al-Qādir Aṭā and Muṣtafā ʿAbd al-Qādir Aṭā, 18 vols. (Beirut: Dār al-Kutub alʿIlmīya, 1992), 15:207; Muḥammad b. Yaḥyā al-Ṣūlī, Akhbār Ar-Rādī Billāh wa-l-Muttaqī Billāh, ed. J.H. Dunne (Cairo: Maṭbaʿat al-Ṣāwī, 1935), 98. However, strikingly, the office is referred to elsewhere as aṣḥāb al-masāliḥ (sg. ṣāḥib al-maslaḥa). In their Arabic dictionaries, al-Ṣāḥib b. ʿAbbād (d. 385/ 995) and al-Zamakhsharī (d. 538/1143) define maslaḥa as an armed force situated in a place of observation; see Abū al-Qāsim Ismāʿīl b. ʿAbbād Ṣāḥib al-Ṭālqānī, al-Muḥīṭ fī al-lughah, ed. Muḥammad Ḥasan al-Yāsīn 11 vols. (Beirut: ʿĀlam al-Kutub, 1994), 2:485; al-Zamakhsharī, Asās al-Balāghah, ed. Muḥammad Bāsil ʿUyūn al-Sūd 2 vols. (Beirut: Dār al-Kutub alʿIlmīya, 1998), 1:468. Thus, it is not surprising that al-Ṭabarī portrays the ṣāḥib al-maslaḥa as a garrison commander in his accounts of King David and the first Islamic civil war; see al-Ṭabarī, Tārīkh al-Ṭabarī 11 vols., 2nd ed. (Beirut: Dār al-Turāth,1967), 1: 480, 5: 134. However, the word had another contextual meaning within the Abbasid-shurṭa hierarchy in Baghdad. Al-Jāḥiẓ (d. 255/ 869) refers to a ṣāḥib al-maslaḥa of the Karkh quarter in Baghdad; see Abū ʿUthmān al-Jāḥiẓ, al-Bukhalāʼ, 2nd ed. (Beirut: Dār wa-Maktabat al-Hilāl, 1984), 71. Al-Ṭabarī narrate a tale in which the ṣaḥib al-maslaḥa held authority over the watchmen of Baghdad; see al-Ṭabarī, Tārīkh, 8:603. Therefore, one can conclude based on these sources along with the descriptions of the aṣḥāb al-maṣāliḥ in Siyāsat al-Mulūk that these officers acted as captains over the watchmen in each of the quarters of the city. But similar to how the shurṭa hierarchy is depicted in this treatise, al-Ṭabarī, al-Ṣūlī (d. 335/947), and al-Tanūkhī relate that the aṣḥāb al-arbāʿ (district commanders) held a higher rank than the aṣḥāb al-masāliḥ, below the ṣāḥib al-shurṭa and his deputies (district commander); see al-Ṭabarī, Tārīkh, 8: 298; al-Tanūkhī, al-Faraj baʿda al-Shidda, 5 vols. (Beirut: Dār Ṣādir, 1978), 4:5–6; al-Ṣūlī, Akhbār Ar-Rādī, 98. Ibn al-Jawzī (d. 597/1201) also mentions these criminal magisterial forces as aṣḥāb masāliḥ in his narratives of Baghdad between the mid-tenth and eleventh centuries; see Ibn al-Jawzī, al-Muntaẓam fī Tārīkh, 15:198, 201, 240, 279, 16:255, 17:194. Although it may be more linguistically accurate to translate aṣḥāb al-maṣāliḥ as ‘public security officers,’ given the word’s varied linguistic development, as well as the roles these officers played as supervisors of the watchmen in Baghdad, I believe ‘Captains of the Watch’ serves as a more suitable translation for these officials.
[12] J. Sadan, “A New Source of the Buyid Period,” 368; Siyāsat al-Mulūk (Istanbul: MS 2041, Haci Mahmud Efendi Collection, Sülemaniyeh Library), 29b–30b.
[13] Ibid.
[14] Jacob Lassner, The Topography of Baghdad in the Early Middle Ages: Text and Studies (Detroit: Wayne State University Press, 1970), 160.
[15] J. Sadan, “A New Source of the Buyid Period,” 369; Siyāsat al-Mulūk, 30b.
[16] Ibid.
[17] J. Sadan, “A New Source of the Buyid Period,” 371; Siyāsat al-Mulūk, 32b.
[18] Ibid.
[19] Abuʾl-Hasan ʿAlī b. al-Husayn al-Masʿūdī, Murūj al-Dhahab, 4:198.
[20] Abū Shujā al-Rudhrāwarī, Kitāb Tajārib al-Umam, ed. Henry Frederick Amedroz, 3 vols. (Iran: Faraj Allāh Zakī al-Kurdī, 1914), 3:181; Ibn al-Jawzī, al-Muntaẓam fī Tārīkh, 15:241–42, 17:186.
[21] Alī b. Muḥamma al-Māwardī, Kitāb al-Ahkām al-Sulṭānīyah, ed. Aḥmad Jād (Cairo: Dār al-ḥadīth, 2006), 323; 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): 168 –93.
[22] Ibid.
(Suggested Bluebook citation: Mohammed Allehbi, Mirrors for Criminal Magistrates, Islamic Law Blog (July 13, 2023), https://islamiclaw.blog/2023/07/13/mirrors-for-criminal-magistrates/)
(Suggested Chicago citation: Mohammed Allehbi, “Mirrors for Criminal Magistrates,” Islamic Law Blog, July 13, 2023, https://islamiclaw.blog/2023/07/13/mirrors-for-criminal-magistrates/)