The history of Islamic criminal justice is not written by its enforcers. In fact, the jurists, judges, and other legal scholars who left us most of the sources on Islamic law largely discussed criminal law from a distance. With the exceptions that I mentioned in the last essay, they often did not closely interact with the military men who oversaw this legal sphere. Yet, societies existed within the Islamic world in which the gulf between scholarly and military elites like the shurṭa was not so very wide, namely al-Andalus (Islamic Spain). After the evaporation of the Umayyad caliphate in the fifth/eleventh century and the breakup of al-Andalus into a variety of kingdoms known as mulūk al-ṭawāʾif (the party kings), there emerged a new genre of legal literature in al-Andalus, known as the nawāzil. These texts consisted of records of legal opinions and judgments given by jurists and magistrates, respectively.[1] One of the earliest nawāzil, al-Aḥkām al-Kubrā, was written by Ibn Sahl (d. 486/1093), a jurist living in Cordoba under the Jahwarids (r. 422–461/1031–1069) who also elucidated real criminal cases.
Unlike the authors of fiqh treatises in the Near East, Ibn Sahl was deeply concerned with the realities of criminal justice, but also strikingly treated the shurṭa, the criminal judicial and policing force in the premodern Islamic world, as a legitimate legal institution. This is evident when Ibn Sahl discusses a debate surrounding the jurisdiction of the qāḍī in criminal matters, stating that in his view the judge’s authority did not extend to “talionic justice, blood money, or anything similar.”[2] The fact that Ibn Sahl argues as a jurist against the qāḍī’s involvement in criminal matters is significant, given the fact that jurists in the Near East asserted that the judge was the primary enforcer of law, including criminal justice, despite this sphere of law being dominated by the shurṭa. His affirmation that the shurṭa are a legitimate institution may be explained by the fact that, unlike in the Near East, these criminal judicial officers in Cordoba would consult a body of jurists when making judgements. Therefore, the shurṭa and the jurists in al-Andalus were more aligned than their counterparts in Near East, as is evident in a criminal case involving the ṣāhib al-madīna (the governor of the city and the chief criminal magistrate) during the Jahwarid period. The shurṭa in Cordoba was under this judicial authority’s command. Ibn Sahl’s detailed description of this case shows that Cordoban jurists were interested in the practice as well as in the theory of criminal justice. He narrates:
It happened that the pilgrim, Abū Marwān ʿAbd al-Malik b. Ziyādat Allah b. Muḍar al-Tamimi al-Ṭubni, was killed in his bed at his house in the eastern suburb of Cordoba’s metropolitan center, next to the amīr’s mosque, in the month of Rabīʿ II, in the year 457 (March 1065), and his son came out into the open, announcing the wake with the funerary prayer for his father, loudly exclaiming that Abū Marwān had been attacked at night and killed. The vizier Abū l-Walīd Muḥammad b. Jahwar (d. 461/1069) deplored that and ordered an investigation by the ṣāhib al-madīna, Muḥammad b. Hishām, known as al-Hafīd, “the grandson.” [Muḥammad b. Hishām] proceeded to the house, and, entering it found the man slaughtered with sixty stab wounds. He inspected the residence for signs of forced entry or exit and discovered nothing. He found the man’s clothing hidden in a corner of the house, and the knife and his pens were covered with blood. Among the women’s undergarments, there were bloodstains.[3]
Ibn Sahl’s account echoes the unblemished narratives of al-Musabbiḥī (as discussed in the first essay) with his description of the ṣāhib al-madīna’s investigative process. This criminal magistrate seems to have a defined method and approach. He analyzes the crime scene, examines the body, surveys the house for signs of forced entry, and conducts a search for clues, ultimately finding the murder weapon as well as the bloodstains. Ibn Sahl’s matter-of-fact retelling of the ṣāhib al-madīna’s investigation suggests that these were well-known evidentiary procedures by the criminal administration, akin to premodern forensic analysis. Ibn Sahl continues:
He subjected the women to interrogation, and one of them said about another woman present, “She killed him, and we helped her.” And she further said, “He deserved to be killed a year ago.” His sons were also living in the house with him: the one announcing the funeral who was the eldest, and another frail son who was afflicted by some disease. This frail man said, “Thieves came upon him and killed him.” Then he went back on his testimony and said that the women killed him and that his older brother was standing outside the door of the house to confirm his death and the inheritance. Therefore, Abū Marwān’s nephews, along with the frail son, had the most right to call for retribution on his account. The ṣāhib al-madīna consulted with the jurists.[4]
Ibn Sahl’s mundane and detailed narrative shows his unique value as a legal source, distinct from the literary embellishments found in some chronicles and literary anthologies, and the rigid formulae of jurisprudence. His administrative and prosaic literary style may be because Ibn Sahl, as a jurist, was intimately familiar with the law enforcers of Cordoba, and they likely came from similar circles. Thus, Ibn Sahl’s account of this criminal case reads as a surprising combination of the dry criminal reports found in chronicles with the attention to legal detail characteristic of jurisprudential literature. Yet, also unlike the Near East, the chief criminal magistrate asked for counsel from the jurists of Cordoba. This criminal case had many suspects, but accountability was unclear, and the testimonies were contradictory. Therefore, legal expertise was needed. Among these jurists was a man named Ibn ʿItāb, who gave his fatwā (legal opinion):
No one that had been with him, neither the women nor the sons, should be killed as long as each one of them swears under the blood oath that they did not kill him. There is no blood money needed from either one of them or any culpability. Afterwards, their prison sentences will be lengthened. He derived his reasoning from a legal matter that the judge Abū Bakr b. Zarb had adjudicated. . . . Furthermore, he said, as for what the one woman said about the other, “She killed him, and we helped her,” we state that it is possible that she either meant that she participated in either word or deed, and there is no legal justification for her to be executed because she did not say anything until after interrogation by the shurṭa and others, and they [the women] became scared as a result.’[5]
Given the conflicting testimonies as well as the scandalous implications of the family’s complicity in the man’s murder, Ibn ʿItāb, like other jurists, turned to the Islamic doubt canon criminal cases. As Intisar Rabb has observed, jurists could fall back on doubt as a means to avoid the enforcement of Qurʾānic punishments, such as the death penalty, upon a suspect whose conviction did not meet the required evidentiary standards.[6] This is clear from the fact that Ibn ʿItāb was not satisfied with the methods of proof applied by the criminal magistrates. He questioned the legal reliability of the woman’s confession after her interrogation by the ṣāhib al-madīna, which aligns with most of the jurists’ general unease with confession as evidence, regardless of whether it was voluntary or coerced. Therefore, Ibn ʿItāb suggested the blood oath as a solution to the dilemma of this case.
The qasāma (blood oath) was an Islamic legal procedure where relatives of the deceased or suspects could swear a blood oath determining the guilt or lack thereof of a suspect or suspects.[7] In this case, Ibn ʿItāb was attempting to avoid the possibility that family members would be executed. However, they were still subject to discretionary punishment in the form of long imprisonment.
In cases where the evidence was lacking for implementing Qurʾānic punishments, jurists would allow discretionary penalties in the form of prison sentences or ad hoc whippings in criminal cases where evidence was insufficient. Interestingly, Abu al-Ḥusayn Isḥāq b. Ibrāhīm b. Sulaymān b. Wahb al-Kātib (d. after 335/946), a fourth/tenth century Abbasid scribe, advocates in an administrative treatise that the ṣāḥib al-shurṭa must avoid implementing the Qurʾānic penalties in cases where there is doubt or lack of evidence.[8] He refers to the well-known maxim, “Avoid the Qurʾānic punishments in cases of doubt,” to justify his claim.[9] Instead, he states that the ṣāḥib al-shurṭa should implement the discretionary penalty, the standard punishment enforced by the criminal magistrates and police chiefs. The influence of this maxim, both among the Abbasid-era shurṭa along with the shurṭa of Cordoba in the mulūk al-ṭawāʾif period, indicates that jurisprudential influence could be felt on the activities of the ṣāhib al-madīna and the shurṭa even when they relied on non-jurisprudential procedures, such as reasonable suspicion, as well as confessions, often coerced, rather than on witnesses.
Ibn Sahl’s account of the case demonstrates a unique melding of practical criminal justice with a jurisprudential perspective, all of which epitomizes how very different law and legal literature were in al-Andalus as compared to the Near East. Despite Islamic societies having similar legal institutions, the jurisdictional and judicial forms they took were shaped according to their social-legal milieus. These texts make it clear that Islamic law was not a monolith, but rather embodied diversity in legal tradition and practice.
Notes:
[1] Christian Müller, “Judging with God’s Law on Earth: Judicial Powers of the Qaḍī Al-Jamāʿa of Cordoba in the Fifth/Eleventh Century,” Islamic Law and Society 7, no. 2 (2000): 159–86, 159–62.
[2] Abū al-Aṣbagh ʿĪsā b. Sahl, Dīwān al-aḥkām al-kubrā aw al– iʿlām bi-nawāzil al-aḥkām wa- qiṭrin min siyar al–ḥukkām , ed. Yaḥyā Murād (Cairo: Dār – al-ḥadīth, 2007), 13.
[3] Ibn Sahl, Dīwān al-aḥkām, 702–03.
[4] Ibid., 703
[5] Ibid.
[6] Intisar A. Rabb, Doubt in Islamic Law: A History of Legal Maxims, Interpretation, and Islamic Criminal Law (New York: Cambridge University Press, 2015), 38–39.
[7] Rudolph Peters, “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.
[8] Abū al-Ḥusayn Isḥāq b. Ibrāhīm al-Kātib, al-Burhān fī Wujūh al-Bayān, ed. Muḥammad Sharaf Ḥifnī, 1st ed. (Baghdad: Maktabat al-Shabāb, 1969), 321.
[9] Intisar A. Rabb, Doubt in Islamic Law, 36–38; Ibn Wahb, al-Burhān, 321.
(Suggested Bluebook citation: Mohammed Allehbi, A Murder in a Cordoban Family: The Intertwining of the Theory and Practice of Criminal Law in al-Andalus, Islamic Law Blog (July 27, 2023), https://islamiclaw.blog/2023/07/27/a-murder-in-a-cordoban-family-the-intertwining-of-the-theory-and-practice-of-criminal-law-in-al-andalus/)
(Suggested Chicago citation: Mohammed Allehbi, “A Murder in a Cordoban Family: The Intertwining of the Theory and Practice of Criminal Law in al-Andalus,” Islamic Law Blog, July 27, 2023, https://islamiclaw.blog/2023/07/27/a-murder-in-a-cordoban-family-the-intertwining-of-the-theory-and-practice-of-criminal-law-in-al-andalus/)