Despite the lack of surviving archival records from the medieval Islamic world, scribes and other officials would preserve inshāʾ, or administrative documents from the chancery, which they penned and published in a compilation of letters known as rasāʾil. This administrative genre of Arabic and Persian literature emerged during the Buyid and Saljūq eras. Among these inshāʾ were investiture diplomas for officers appointed as the ṣāḥib al-shurṭa and its Saljūq-era equivalent, the shiḥna. Although they paint an idealized picture of the legal-political challenges which the shurṭa faced, they also provide insights into how these governments viewed the purpose, functions, and importance of this legal and political office. Abū Isḥāq Ibrāhīm al-Ṣābiʾ (d. 384/994), the head of the Buyid chancery in Iraq, and Muʾayyad al-Dawla Muntajab al-Dīn Badiʿ al-Juwaynī (After d. 552/1157), the head of the Saljūq chancery in Khurasan, preserved investiture documents given to individuals appointed to the office of the ṣāḥib al-shurṭa, or analogous institutions like the shiḥna.
In fact, the earliest surviving investiture letter for a ṣāḥib al-shurṭa was written by Abū Isḥāq Ibrāhīm al-Ṣābi (d. 384/994), who acted as the ṣāḥib dīwān al-inshāʾ (head of the chancery) for the first Buyid Amir of Iraq, Muʿizz al-Dawla (r. 334-356/ 945-967) and his son and successor, ʿIzz al-Dawla (r. 356-366/967-978).[1] This document was written for a ṣāḥib al-shurṭa appointed over the city of Wāsiṭ in Iraq, likely written sometime in the early 360s/970s. The investiture diploma states:
Our majesty, the Amir ʿIzz al-Dawla, and our lord, the Vizier, decree the appointment of Abū al-Hasan to the maʿūna (the office of criminal magistrate) in Wāsiṭ with its proclamation of this investiture of security throughout all of Wāsiṭ’s surroundings to anyone who seeks evil, behaves in a lewd way, stirs up dissension (fitna), openly carries a weapon, and instigates the rise of partiality, factionalism, and speech in matters of belief. Whoever does that has forsaken himself. Root out these activities and enforce the punishment in this city. He—may God elevate his order—and the Vizier—May God extend his authority—command Abū al-Ḥasan to seek out and pursue those people, arresting whoever is found, dispatching them to jail, going far in chastising and correcting them, implementing the ḥudūd (Qurʾānic punishments) and al-tankīl (exemplary punishments) upon them. Compelling the people of every quarter from Wāsiṭ to look out for anyone from those factions among them, relaying information about him and guidance on his affair in order to proceed and act in his case with a duty to deal with him along with the fitna (strife). He [Abū al-Ḥasan] should instruct a group of the elites and the common people, in order to deal with him and imprison him. And let the one present inform the one who is absent, God willing.[2]
As this investiture letter shows, ṣāḥib al-shurṭa was not only responsible for criminal justice in the city of Wāsiṭ, but also the outlying regions. Like other treatises and literature, the ṣāḥib al-shurṭa meted out Qurʾānic and discretionary (alternatively known as exemplary) punishments against criminals. But what is striking about this investiture diploma is that it provides a window into the unique social-political circumstances of Buyid Iraq. The investiture diploma commanding that the ṣāḥib al-shurṭa search for individuals who openly carry weapons and instigate fitna (strife) mirrors Buyid criminal administrative policies in Baghdad, which sought general disarmament of the population outside the military, along with the suppression of sectarianism.[3]
As the contemporary geographer al-Muqaddasī (d. 380/990) observed, sectarianism plagued the nearby city of Basra in the late tenth century.[4] Riots and the proliferation of urban militias were either sparked, exacerbated, or accompanied by these religious conflicts, which provoked the anxieties of the Buyid amirate of Iraq. Rulers and officials keenly understood that the ṣāḥib al-shurṭa could not solve these insurmountable obstacles through excessive violence. Instead, the diploma instructs the newly appointed ṣāḥib al-shurṭa of Wāsiṭ, Abū al-Ḥasan, to collaborate with the population to suppress sectarianism, which is highly significant because it shows the instrumental role that the ʿayān/amīr system played in criminal justice.
Marshall Hodgson first suggested that the ʿayān/amīr system was one in which rulers and military elites governed societies through the collaboration and support of notables and other non-military personages with social standing.[5] In the fourth/tenth century, the Buyids and their military elites had recently conquered Iraq and its cities. Because of this, these law enforcers needed the cooperation of the local population to navigate the distinct social–religious dynamics unique to the city while simultaneously maintaining public order at the behest of their government masters. The benefit of this partnership was that the ṣāḥib al-shurṭa could rely on a pivotal information network that helped him become apprised of social-religious factions in the cities, known suspects, and an alternative means to deal with them, without necessarily resorting to violence. In addition, the letters hint that he could also use members of the populace as auxiliary forces to imprison perpetrators. Unsurprisingly, the challenges facing the shurṭa’s maintenance of public order (notably sectarianism and highway robbery) would remain constant beyond Buyid-era Iraq, as demonstrated by an investiture diploma written by Muʾayyad al-Dawla Muntajab al-Dīn Badiʿ al-Juwaynī for a shiḥna appointed over the city of Balkh in Khurasan (Eastern Iran).
Balkh was one of the four major cities in Khurasan and also served as a dynastic appendage under the Saljūqs.[6] As a matter of fact, Muntajab al-Dīn al-Juwaynī wrote these letters for the Saljūq Sultan Sanjar b. Malik Shāh (r. 511-552/1118-1157), who first ruled Balkh as an amīr before ascending to the rank of supreme Sultan over Khurasan and Northern Iran.[7] So, the city had special importance for the Saljūqs, which can be seen through the instructions given to the shiḥna appointed over Balkh sometime during Sanjar’s reign. The letter states:
That which concerns the office of the shiḥna, he should act according to the principle of al-maṣlaḥa (public interest). The shiḥna should check the ways of aggression and excess. He must inflict fines for crimes based on the extent of the offense and the financial means of the criminals and must drive off and suppress the transgressors and corrupt, as well as aid and strengthen the righteous and chaste. The imposition of the Qurʾānic punishments upon transgressors, thieves, and highway robbers is necessary by divine law and considered among the utmost matters for Muslims. . . . The shiḥna considers the religious obligations of this matter by consulting and asking for the approval of the leading authorities of the community, the muftis, and the ʿulamāʾ of sharīʿa. Ensuring safety over the roads, pathways, and journeys of Muslims, and all manners of travelers and passersby, so he reaches the farthest point possible. The shiḥna must banish the troublemakers and corrupt from their hiding places and their abodes. He must appoint reliable guards in any place in Balkh where there is a possibility of fitna (strife) and highway robbery so that any information which comes their way they notify deputies of the provincial administration. May he inflict on all criminals a stipulated punishment in a dedicated and swift manner for that disturbance, and impose the rulings of siyāsāt and sharīʿa upon the corrupt and bandits.[8]
Although it is unsurprising that Muntajab al-Dīn al-Juwaynī ’s investiture diploma resembles Abū Isḥāq Ibrāhīm al-Ṣābi’s text in style and commandments, particularly with sectarianism still posing a problem for authorities, it also contains instructions unique to the social-legal circumstances of twelfth century Balkh. First, the shiḥna is commanded to inflict fines for crimes. The enforcement of financial penalties for crimes is a universal practice that existed in late antiquity under the Romans and Sasanians, as well as in medieval Europe.[9] ʿAbd al-Ḥamīd explicitly refers to the seizure of wealth as one of the punishments at the disposal of the ṣāḥib al-shurṭa.[10] Fifth and sixth-century/eleventh and twelfth-century era chroniclers also narrate that Abbasid and Saljūq criminal magistrates would fine suspected criminals whom they could not arrest because of some mitigating circumstance or who had already fled.[11] However, it is rare for mirrors for princes and investiture documents to explicitly mention this practice, so this is a valuable document.
Secondly, the investiture diploma commands that shiḥna should consult with religious scholarly classes to learn about his religious-legal obligations as a criminal magistrate. This is a rare stipulation for administrative documents concerning criminal magistrates. The majority of Near Eastern mirrors for princes and inshāʾ (chancery documents) do not mention the jurists or other religious scholars’ involvement in criminal justice, so this investiture diploma stating that they are integral to a shiḥna’s office is noteworthy. Yet, this prerequisite was indicative of social and religious-legal developments in Iraq and Iran during the late Buyid and Saljūq eras. The religious classes and judges became far more involved in administration, serving as officials and even writing administrative manuals.[12] In Baghdad, jurists and judges in the latter half of the fifth and early sixth/ eleventh and twelfth centuries would consult in criminal cases.[13] This significant legal-political shift was due to the fact that caliphs and rulers were beset with invasions and civil wars, characteristic of the ever-changing and politically turbulent periods in the eleventh and twelfth centuries, and needed the legitimacy and support of religious scholarly classes far more than ever. This was particularly true in Balkh, where jurists and judges were among the notables. The implications of this development can be seen with the investiture diploma instructing that the shiḥna enforce both siyāsāt (government ordinances) and sharīʿa (sacred law).
Between the tenth and twelfth centuries, siyāsa, which originally meant administration and statecraft, became a rubric encompassing the legislative authority, procedures, and precedents establishing effective governance—making it distinct from religious jurisprudence and traditions. Yet, some government officials saw these sources of law as not distinct from one another, but as normatively complementary. The chief judge of Baghdad al-Māwardī and his colleague and judge Abū Yaʿlā b. al-Farrāʾ wrote two seminal treatises, named al-Aḥkām as-sulṭāniyyah, which construct a legal administrative framework for criminal justice that has sharīʿa divided into two branches. The shurṭa (criminal magistrates and police chiefs) adhered to the administrative-government sphere of siyāsa as their rubric, making it distinct from jurisprudential methodology, which these two judges both called aḥkām (ordinances).[14] Thus, it is unsurprising that we find a similar sentiment in this investiture diploma for the shiḥna, showing this principle of harmony between siyāsa and religious jurisprudence had spread throughout Saljūq Iraq and Iran.
Similar to the mirror for princes, these investiture diplomas demonstrate the change over time in Muslim rulers’ and officials’ conceptions of criminal justice. Although each inshāʾ was shaped by the social circumstances of the city it was issued for, they had noticeable similarities, with both mentioning sectarianism as an obstacle, as well as the need for criminal magistrates to rely on the populace and particularly the notables. Yet, there were differences, such as inshāʾ for the shiḥna of Balkh emphasizing enforcement of criminal justice according to a consultation of the religious scholarly classes and the intertwining of siyāsa and sharīʿa becoming compatible sources of criminal law. Despite not having archives from these criminal administrations, the preservation of these singular documents allows us to see criminal law as it was issued and put into action.
Notes:
[1] F.C. de Blois, Encyclopaedia of Islam, 2nd ed., s.v. “Ṣābiʾ.”
[2] Abū Isḥāq Ibrāhīm al-Ṣābiʾ, Diwān Rasāʾil al-Ṣābiʾ: the Registry of al-Ṣābiʾ Letters, ed. Ihsan Dhanoun al-Thamiri (London: Al-Furqān Islamic Heritage Foundation, 2017), 2:258.
[3] John Donohue, The Buwayhid Dynasty in Iraq 334 H./945 to 403 H./1012: Shaping Institutions for the Future (Leiden: Brill, 2003), 80.
[4] Muḥammad b. Aḥmad Muqaddasī, Aḥsan al-taqāsīm fī Maʻrifati-l-aqālīm (Calcutta: Asiatic Society, 1991), 130.
[5] Marshall G. Hodgson, The Venture of Islam, 2: The Expansion of Islam in the Middle Periods (Chicago: University of Chicago Press, 1974), 64–8; Richard W. Bulliet, The Patricians of Nishapur: A Study in Medieval Islamic Social History (Cambridge, MA: Harvard University Press, 1972), 22–27; David Durand-Guédy, Iranian Elites and Turkish Rulers: A History of Iṣfahān in the Saljūq Period (London; New York: Routledge, 2010), 107.
[6] Jürgen Paul, “Balkh, from the Seljuqs to the Mongol Invasion,” in Eurasian Studies 16 (2018): 316.
[7] Ibid., 320–22.
[8] Muntajab al-Dīn Badiʿ al-Juwaynī, Kitāb-i ʻatabat al-Katabah: Majmūʻah-i Murāsalāt-i Dīvān-i Sultān Sanjar ed. Muḥammad Qazvīnī, and ʻAbbās Iqbāl (Tehran: Shirkat-i Sahāmī-i Chāp, 1950), 79.
[9] Trevor Dean, Crime in Medieval Europe, 1200-1550 (New York: Longman, 2001), 131; Fred H. Blume, trans., The Codex of Justinian: A New Annotated Translation, with Parallel Latin and Greek Text, ed. Timothy Kearley (Cambridge: Cambridge University Press, 2016), 9:18.9–19.4 (3:2341–2343); János Jany, “Sasanian Law,” E-Sasanika 14 (2011): 1–33, 16.
[10] See the previous essay.
[11] George Makdisi, “Autograph Diary of an Eleventh-Century Historian of Baghdād–II,” Bulletin of the School of Oriental and African Studies 18, no. 2 (1956): 241, 243, 247; 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 alʻIlmīya, 1992), 16:211.
[12] Nimrod Hurvitz, Competing Texts: The Relationship Between al-Mawardi’s and Abu Yaʿla’s al-Ahkam al-sultaniyya (Cambridge, MA: Harvard Law School Islamic Legal Studies Program. 2007), 8–9; Christian Lange, Justice, Punishment and the Medieval Muslim Imagination (Cambridge: Cambridge University Press, 2008), 47–48.
[13] George Makdisi, “Autograph Diary of an Eleventh-Century Historian of Baghdād—IV,” Bulletin of the School of Oriental and African Studies 19, no. 1 (1957): 281–303, 291.
[14] Alī b. Muḥamma al-Māwardī, Kitāb al-Ahkām al-Sulṭānīyah, ed. Aḥmad Jād (Cairo: Dār al-ḥadīth, 2006), 324; al-Qāḍī Abū Yaʿlā al-Farrāʼ, al-Qāḍī Abū Yaʿlā al-Farrāʼ Wa-Kitābuhu al-Ahkām al-Sulṭānīyah, ed. Aḥmad Ḥāmid al-Faqī (Beirut: Dār Kitāb al-ʻIlmiyya, 2000), 260.
(Suggested Bluebook citation: Mohammed Allehbi, Diplomas for Crime and Punishment, Islamic Law Blog (July 20, 2023), https://islamiclaw.blog/2023/07/20/diplomas-for-crime-and-punishment/)
(Suggested Chicago citation: Mohammed Allehbi, “Diplomas for Crime and Punishment,” Islamic Law Blog, July 20, 2023, https://islamiclaw.blog/2023/07/20/diplomas-for-crime-and-punishment/)