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Justice, Punishment, and the Medieval Muslim Imagination
How was the use of violence against Muslims explained and justified in medieval Islam? What role did state punishment play in delineating the private from the public sphere? What strategies were deployed to cope with the suffering caused by punishment? These questions are explored in Christian Lange’s in-depth study of the phenomenon of punishment, both divine and human, in eleventh- to thirteenth-century Islamic society.
The book examines the relationship between state and society in meting out justice, Muslim attitudes to hell and the punishments that were in store in the afterlife, and the legal dimensions of punishment — how different types of retribution were justified, circumscribed, or rejected altogether by Muslim jurists. The crossdisciplinary approach embraced in this study, which is based on a wide variety of Persian and Arabic sources, sheds light on the interplay between theory and practice in Islamic criminal law, and between executive power and the religious imagination of medieval Muslim society at large.
CHRISTIAN LANGE Is Lecturer in Islamic Studies in the School of Divinity at the University of Edinburgh.
Acknowledgments
My first words of gratitude go to the quadrumvirate of Ph.D. advisors who have seen this study through its various phases, all of them Doktorvdter in the true sense(s) of the word. William A. Graham from Harvard Divinity School has accompanied my graduate career from beginning to end and has always been a source of encouragement and inspiration. Baber Johansen graciously welcomed me at L’Ecole des Hautes Etudes en Sciences Sociales in Paris and then continued to guide my work at Harvard University with unfaltering patience and kindness. Roy Mottahedeh sparked my interest in a number of key issues relating to Saljuq social history. Wheeler Thackston has offered academic advice, musical distraction, and caring friendship throughout the years, for all of which I am deeply grateful.
An Arabic proverb in Maydant’s (d. 518/1124) famous collection has it that “traveling is a punishment from hell” — in my case, it’s been a blessing. I am greatly indebted to Wolfhart Heinrichs and the Near Eastern Languages and Civilizations Department at Harvard University for a two-year traveling grant which has afforded me the privilege to write the initial version of this study in a number of inspiring locations: at the German Oriental Institute in Beirut, the Dekhoda Institute in Tehran, and the Institute of Shari‘a Sciences in Muscat. I am also thankful to Heinz Gaube and ‘Abd al-Rahman al-Salim1 for facilitating my stay in Muscat.
Different parts of this study were presented at a number of seminars and conferences: at the German Oriental Institute Beirut (April 9, 2005), the Berlin Free University (May 19, 2005), the American Academy of Religion (Philadelphia, November 20, 2005), the University of Colorado at Boulder (December 1, 2005), the American Oriental Society (Seattle, March 18, 2006), the Consejo Superior de Investigaciones Cientificas (Madrid, June 16, 2006), Harvard Law School’s Islamic Legal Studies Program (Cambridge, September 8, 2006), and the Middle East Studies Association (Boston, November 27, 2006). I wish to thank the organizers of the panels as well as all those present during the discussions for their valuable comments. I also would like to thank Kevin Reinhart and Cambridge’s two anonymous reviewers for reading the manuscript and greatly enhancing the factual accuracy and logical coherence of this study. As always, all remaining errors and omissions are exclusively my own shortcomings.
Perhaps the greatest reward in studying punishment has been the opportunity to share thoughts and concerns with a number of friends and fellow graduate students at Harvard and beyond. Sarah Savant, Travis Zadeh, Ahmed El-Shamsy, and Jasmin Adam have read different parts of this study and given valuable feedback. Blain Auer, Yaron Klein, Kobi Gal, Yoav Liebermann, and Ilan Wapinski have offered a wealth of good advice and constructive criticism. Their friendship has been the foundation on which this study has been built. The book is dedicated to my parents — fiir Euer Vertrauen und Eure Geduld.
Introduction
This book is a study of the theory and the practice of punishment in the later Islamic Middle Period, in particular under the Saljuq rulers of Iraq and Persia (fifth/eleventh and sixth/twelfth centuries). Punishment is defined here as the premeditated use of legitimate force against members of the Muslim polity.’ The goal of this endeavor is to throw light on a number of issues: how was the use of violence against Muslims explained and justified under the conditions of a militarized régime such as that of the Saljuqs? How were the interests of individuals to preserve the integrity of their bodies defined vis-a-vis the governing classes’ claim to power? Phrased differently, what role did punishment play in delineating the private from the public sphere?
Finally, what cognitive strategies did people, both intellectuals and commoners, devise and deploy in order to cope with the suffering caused by punishment? From a religious perspective, for example, how did they conceive of the relationship between punishment in this world and the next? Such questions not only bring to the fore some fundamental principles of social organization; they also address deeply embedded categories of thought, since a society’s system of punishment and reward is a prime indicator of how it defines the limits of justice. Thus, this study hopes to contribute to our understanding of the very fabric of medieval Islamic life.
A study of punishment with specific regard to the Saljtiqs is promising for several reasons. The Saljtiq period was an important formative stage in the development of Islamic civilization. With the irruption of the nomadic Saljugs into Khurasan (431/1040) and Iraq (447/1055), for the first time in the history of the Nile-to-Oxus region a Turkish military class rose to autonomous rule. True, Turkish elements had been nurtured over a long period in the military administration of the central Islamic lands. From the time of the caliph Mu‘tasim (reigned 218/833—227/842), Turkish soldiers had formed the military élite of the caliphate.” The Saljiiq rise to rule, however, brought about fundamental changes. The early Saljuq rulers, under the brilliant leadership of the vizier Nizam al-Mulk (r. 455/1063-485/1092), attempted to reintroduce, after a period of disorganization, a strong central administration, based on a number of key concepts: the temporal authority of the sultan vis-a-vis the caliph, the control of the military by means of a system of centrally distributed fiefs (igta), the close supervision of the educational system, and the establishment of a well-trained, mostly Persian bureaucracy.*
Tendencies of decentralization became manifest in the second half of the Saljtq period (511/1118-590/1194). This notwithstanding, the Saljtiq period was a time of prosperity and flourishing of Islamic culture in Iraq and Persia. Intense commercial activity in the great urban centers helped to create an atmosphere of cosmopolitan mobility.* The creation of institutions of higher learning (madrasas) went hand in hand with the institutional reinforcement of a separate class of religious and legal scholars. Luminaries such as Shirazi (d. 476/1083), Juwayni (d. 478/1085), Sarakhsi (d. c. 490/1096), and the celebrated Ghazali (d. 505/1111) ushered in the late classical age of Islamic theology and law. The first Sufi brotherhoods were founded. Mystical literature reached an early climax in the work of Sana’ (d. prob. 525/1131), and Persian poetry peaked in the panegyrics of Mu‘izzi (d. c. 520/1126) and Anvart (d. c. 560/ 1164). By creating lasting structures of political, social, and cultural order, the Saljuqs greatly contributed to what Marshall Hodgson called the “victory of the new Sunni internationalism.” In the judgment of one of the leading historians of the period, the Saljtiqs “revitalised Islam.”°
Regardless of the considerable interest of this period in Islamic history, studies of the Saljiiqs, especially of aspects of their social history, are rare.’
This state of things prevails even though researchers can rely on a rich variety of literary sources from the period. The present work surveys a broad range of sources: in addition to the writings of historians, the works of administrative advisors, poets, and theologians as well as jurists are taken into account. In order to facilitate this endeavor, I lay emphasis on a period of more or less exactly one hundred years: from 447/1055, the Saljuqs’ entry into Baghdad, to 552/1157, the death of sultan Sanjar, the ruler of Khurasan and last of the Great Saljuqs. I further restrict the scope of this study by focusing on the lands of Iraq and greater Persia (including Khwarazm, Transoxania, and Afghanistan). Examples from earlier (e.g., Buyid) or later (e.g., Khwarazmian) dynasties, or from the Saljugq appanage kingdoms in Anatolia, the Jazira, Syria, and Kirman are cited only occasionally, and only in order to illustrate points made in connection with the Saljtiqs of Iraq and Persia. Lastly, another important limit of this study must be mentioned. Since political rule, and therefore the administration of punishment, lay in the hands of Sunni rulers, I rely primarily on Sunni sources.”
The multigenre approach adopted in this study results in a synchronic, rather than a diachronic, analysis of the practice and theory of punishment under the Saljiiqs. The historical genesis of certain punishments, or the gradual development of intellectual traditions about individual practices, receives somewhat less attention. Rather than historical change, this study proposes to investigate social statics.” The goal of this project is, first, to elucidate how different segments of society thought about the social fact of punishment. I attempt to show, second, how these different discourses interrelated and mutually influenced one another; and, third, how they may have informed practice. While I strongly believe in the benefits that can be derived from this kind of multidisciplinary and topical approach, I admit that the three parts of this book are connected rather loosely; in fact, each could be taken to constitute a separate study of “punishment.” It is up to the reader to judge to what extent I have achieved the ideal conception of an histoire totale, that is, to reconstruct as many contemporary perspectives as possible on a single cultural phenomenon. '°
A further note on methodology: in this study, I embrace methodological pluralism, which I believe is the specific strength of Religionswissenschaft, the academic field of inquiry in which this study is primarily located. While part I of this study draws its main inspiration from Michel Foucault’s Discipline and Punish (1975), especially his analysis of the spectacle of the scaffold as a “political tactic,”'' part II develops a fourfold interpretive model of the Muslim hell, using as its main inspirations Rudolph Otto’s famous concept of the mysterium tremendum, Claude Lévi-Strauss’s structuralism, the “hermeneutics of suspicion” developed, inter alios, by Paul Ricoeur, and Max Weber’s and Clifford Geertz’s contributions to the study of religion, especially their insight that religious ideas can prompt certain forms of social action, while at the same time being determined by their social context.'” Part III of this study, finally, combines legal analysis with insights from cultural anthropology, especially theories of shame.
The historical context
For the purpose of historical summary, the Saljuq period in Iraq and Persia can be divided into three parts: first, there is the period of conquest (c. 426/ 1035-447/1055); second, the period of consolidation and centralized rule (447/1055—-511/1118); and, third, the period of disintegration and localization of political rule (511/1118—590/1194).'* After 511/1118, Ahmad Sanjar b. Malikshah, the Saljuq ruler of Khurasan, assumed the title of Great Saljugq and succeeded in ruling the eastern part of the empire with firmness until his death in 552/1157; his rule therefore stands out against the general decline of the western Saljuqs.
The Saljuqs were a tribe of the Ghuzz or Oghuz Turks converted to Islam when settling in the lower Jaxartes valley (present-day Uzbekistan) in the late fourth/tenth century.'* Hired as mercenaries by the Samanids (r. 204/ 819-395/1005) and the Ghaznavids (r. 367/977-583/1187), from 426/1035 they gradually moved southwards into Khurasan, conquering Nishapir in 429/1038 and crushing the army of the Ghaznavid sultan Mas‘td b. Muhammad in 431/1040 at Dandanqan. Once northeast Persia was in their hands, the Saljuqs spread further westwards. While Chaghri Beg, one of the Saljtq chiefs, stayed in the east, his brother Tughril Beg moved on to conquer Rayy (433/1041—2), Isfahan (443/1051), and, finally, Baghdad (447/1055).
Supported by the considerable talent of their Persian vizier Nizam al-Mulk, Tughril’s successors Alp Arslan (r. 455/1063—465/1072) and Malikshah (r. 465/1072-485/1092) governed Iraq and Persia from their capital at Isfahan, while subgroups of the Saljuq tribal confederation moved into Syria and Anatolia (battle of Malazgird in 463/1071). During the reign of Malikshah, the Saljugqs’ tribal notion of the rule of a primus inter pares was increasingly replaced with the Iranian conception of (semi)divine kingship. This Iranian tradition, represented by the empire’s Persian administrative élite, bestowed absolute power on the king and made his office hereditary. This view of kingship soon provoked discontent among the senior members of the Saljtq clan. In 466/1074, Malikshah had to quell a revolt of his uncle Qawurd, the ruler of Kirman. Qawurd regarded his position as senior member of the Saljuq familiy as a superior claim to the title of Great Saljuq. Likewise in 477/1084, Malikshah’s own brother Tikish revolted in Khurasan. Tikish, however, was defeated and jailed for life.
After the death of Malikshah and that of his vizier Nizam al-Mulk in the same year, the first signs of disintegration of Saljuq rule became manifest. Malikshah’s three sons Barkyartq (r. 488/1095-498/1105), Muhammad (r. 498/1105-511/1118), and Sanjar (r. 511/1118—552/1157) disputed succession over Iraq, and the empire gradually “assumed the guise of a federation of autonomous princes.”'” Muhammad b. Malikshah was the last Saljuq ruler to exercise undisputed power in Iraq and West Persia; after his death, most Saljtiq princes lost their effective authority to local military governors.
With Muhammad’s demise, his brother Sanjar, who had been governor of Khurasan since 490/1197, took on the title of Great Saljtiq, defended his nominal supremacy in battle against Muhammad’s son Mahmid (513/1119) and went on to rule over Khurasan with relative stability, subjecting as his vassals the Ghaznavid kings of Afghanistan, the Qarakhanids of Transoxania, and the Khwarazmshahs of the lower Oxus region. Sanjar increasingly turned his attention to the east, moving his capital to Marv in order to counteract the threat of nomadic groups filtering into Transoxania and Khurasan. However, in 536/1141 he had to give up claims to Transoxania when his army was defeated on the Qatwan steppe by the Central Asian tribal confederation of the Qara Khitay.'° Things finally fell apart in 548/1153, when Ghuzz tribesmen of the upper Oxus regions, a group among Sanjar’s nomad subjects, rose in rebellion against the harsh taxes imposed on them. After giving battle to Sanjar’s army, they managed to capture the Great Saljuq. Sanjar lived through three years of humiliating captivity. The chroniclers speak of his starvation in a cage. Shortly after his successful escape and return to his devastated capital Marv, he died in 552/1157. With him, the authority of the Saljuqs in northeast Persia ceased.
In the west, structures of government had begun to disintegrate even earlier. After sultan Muhammad’s death in 511/1118, no fewer than five of his sons vied for rule. All held some degree of power in various parts of the land, but were more often than not dominated by their Turkish military “god-fathers,” the atabegs (Turk. ata: “father,” beg: “lord”). Mahmud b. Muhammad was able to claim the title of sultan until his death in 525/1131. He was followed, after yet another interval of interfraternal warfare, by his son Mas‘td (r. 529/1134-547/1152), but the latter’s effective power was confined to central Iraq and the Jibal region including Isfahan and Hamadhan. Fiefs had become personalized and hereditary,'’ and the governors of the cities of the empire, such as the powerful military prefect (shina) of Rayy, the amir ‘Abbas (d. 541/1146), increasingly challenged the overlordship of the Saljuq sultan, who ended up as just one among a score of ambitious local potentates.
Among these local rulers was the ‘Abbasid caliph in Baghdad. By the time of Mustarshid (r. 512/1118—529/1135) the caliphate had already regained a measure of self-confidence and military strength.'* Mustarshid even ventured into battle with the Saljuiq sultan Mas‘td in Persia. Defeated near Hamadhan in 529/1135, he was murdered, allegedly by a Batint assassin, or perhaps on the order of the Saljuq sultan. Nevertheless, Mustarshid had set a precedent. The caliph was once again a player in the complex pattern of rule in Iraq. After the death of sultan Mas‘ud in 547/1152, Mustarshid’s successor Mudgtafi (r. 530/1136—-555/1160) expelled the Saljuq military governor (shihna) from Baghdad. A small caliphal state was founded, and some years later there was a short-lived renaissance of the ‘Abbasid caliphate under the eccentric al-Nasir li-Dm Allah (r. 575/1180-622/1225).
With the death of Mas‘tid in 547/1152, according to the chronicler Ibn alAthir, the fortunes of the Saljtiq family went into steep decline.'” The last Saljtq sultan Tughril (II) b. Arslan, for a time master of Jibal, was killed in battle by the Khwarazmshah Tikish in 590/1194. In the course of the sixth/ twelfth century, the great Turkish commanders set up their own dynasties, sometimes as atabegs and nominal vassals of the Saljuq sultan, sometimes as independent rulers. Zank1’s (d. 541/1146) emirate at Mosul is perhaps the most famous of these kingdoms; others came into being in Azerbaijan, Khuzistan, and Fars. The early Saljuqs’ attempt to create a centrally governed empire had finally collapsed. Nevertheless, they had set up structures of social organization that survived well into the period of localized military rule and, in fact, for a long time thereafter.
General conditions of punishment under the Saljuqs
How did the political developments described in this rough historical sketch influence the administration of justice and of punishment? As indicated, the second half of the Saljiq period was marked by the emergence of “a fluid set of purely military governments,”*’ the caliph having metamorphosed from the leader of Islamdom at large into just one among the local rulers. Government consisted primarily in the collection of taxes and military defense against outside forces. As for the administration of justice, the local rulers, caught perpetually in petty warfare, appear to have functioned only as a last resort. Except when considerations of state interest prompted the rulers to make a show of force, the civil leaders (a‘yan) and religious scholars (‘ulam@) of the cities were left to lead their affairs with a certain degree of liberty.
This liberty, however, came at the price of a militarized ruling class.*! In terms of the prosecution of crime and the administration of punishment, it can be argued that a militarized government always creates an environment of legal insecurity. As the sources suggest (see part I of this study), public punitive rituals, often unpredictable and excessive in their violence, were a constant spectre in the lives of ordinary men and women. Perhaps punishment by the state did not threaten the physical survival of the urban community as a whole — for most people who did not partake in the machinations of the ruling strata, the threat of state punishment was probably more often imaginary than real. However, as this study suggests, because of its eminently public character, punishment may well have contributed to a general feeling of the impermanence and precariousness of life.
This feeling was reinforced by a number of additional factors of insecurity. First, once the Saljuq expansion had come to a halt, the groups of Ghuzz tribesmen roaming the countryside became an increasing hazard to public security. The problem was exacerbated by the continuing influx of Turkish tribesmen from Central Asia. These unruly elements threatened the safety of the roads and smaller urban settlements, as the repeated injunctions addressed to local governors to “protect the safety of the roads” in some late Saljugq diplomas of investiture suggest.°* Second, the nature of political rule, marked by shifting alliances between local rulers and complex patterns of territorial distribution, made efficient prosecution of crime difficult. Organized crime in the cities, especially in the latter half of the Saljuq period, seems to have increased.
The gangs of urban militias, the so-called ‘ayyarin, posed a strong challenge to government.~° Third, the Saljiiq period was a time of religious strife and persecution. This is most prominently illustrated by the Nizar Isma‘ilis, the Assassins of Western lore. After seizing the fortress of Alamiut, in the Daylami mountains north of Qazwin in 483/1090, the Isma‘ilis of Persia and Iraq mounted a revolt against the Sunni Saljuq rulers. Their method of operation was to target powerful individuals from among the ranks of the amirs and government officials, including the sultan himself. However, fear of Isma‘tis, or Batinis as they were commonly called, appears to have resonated not only with the Saljuq ruling class, but with large parts of the subject population as well. Thus it would appear, at least from the reports about a mass hysteria culminating in the public auto-da-fé of Isma‘Tlis in Isfahan around the turn of the century, or about ignominious public executions of Ismail leaders, which people reportedly attended by the thousands.**
By meting out punishment against criminals, Batinis, and all sorts of offenders, the Saljtiq régime both reinforced and reacted to the general feeling of insecurity. It is true that exemplary punishment may have reassured the populace that no crime would escape retribution. But the real purpose of punishment was, first and foremost, to demonstrate the absolute power of the ruler. Public punishment was a political ritual. According to Iranian kingship theory, the protection of the kingdom rested squarely on the shoulders of the prince.
Therefore, any crime could be seen as a /ése-majesté, a personal attack on the prince’s sovereignty. Public punishment, then, offered the opportunity to take revenge for this attack, “to make everyone aware, through the body of the criminal, of the unrestrained power the sovereign,” and thus to reveal to the public the truth of the ruler’s claim to legitimacy. After the demise of caliphal power, as has been noted by Roy Mottahedeh, the temporal rulers in Islam came under increasing pressure to demonstrate to their subjects and to themselves that they merited their authority.*° Public spectacles of punishment served them well in satisfying this need. As Foucault concluded his analysis of the penal administration of the French ancien régime, “[t]he public execution did not re-establish justice; it reactivated power.”~’
There was a certain ambiguity (also noted by Foucault), however, in the role played by the spectators of such public (re)enactments of power. On the one hand, the spectators were passive witnesses who were “struck with terror [hishmati sakht-i buzurg biyuftad]” at the spectacle of executions and other punishments.** On the other hand, the spectators did not simply pay “scaffold service” to the ruler by showing up in great numbers to the penal ceremonies. At times they became active participants. During ignominious parades of criminals through a city, people insulted, spat at, or even attacked the condemned.”’ In the wake of public executions, corpses were sometimes maimed by an enraged mob.*” However, this active role of the audience carried in itself the seed of resistance, since the refusal to assist, or even to attend, public spectacles of punishment could signify a measure of discontent with government.*! The chronicles record popular protests against excessive punishment only occasionally;* * this, however, could indicate the historians’ bias in favor of the political authorities, rather than showing that people always acquiesced to excessive rituals of public punishment. If they acquiesced, they are likely to have done so out of fear of retribution. In sixth-/twelfth-century Baghdad, the authorities responded to sporadic revolts of the populace with merciless scorching of their residential quarters.”
There were other venues in which the subjects of Saljuq rule could express discontent with the repressive nature of the political régime. For instance, descriptions of punishment in the next world offered a way of reflecting about, and in fact of criticizing, punishment in this world. Representations of eschatological punishment in many ways mirrored penal justice as dispensed by temporal rulers, thus carrying a message about the use of coercive force in this world. Another venue was that offered by the discourse of jurists. As this study argues, jurists tried to carve out a space of individual freedom from arbitrary punishment. This they did not so much by calling into question the de facto power of the temporal rulers, a battle they had, by the time of the Saljiqs, more or less forfeited. Rather, they stressed the concept of inviolability (Aurma) of the private sphere, and of the human body in general.
These, then, are the three perspectives on punishment that this study proposes to investigate in more detail: first, the political use of punishment as a means of manifesting the power of the ruler and his delegates (part I); second, the eschatology of punishment in the hereafter as a reflection of punishment in this world (part II); third, the legal discourse on punishment (part IJ). My basic argument is that both eschatologists and jurists skillfully managed to mobilize Islamic cultural resources to create a space of individual liberty under a highly militarized and unstable political régime. In this space of freedom of thought, alternative visions of justice and just rule could flourish. To conclude this introduction, I shall briefly discuss the sources used in each part of this study. In broad strokes, I will also outline the central issues raised, and some of the conclusions reached, in each of the chapters.
Part I: the politics of punishment
The first part of this study is devoted to the practice of punishment under the Saljtiqs and to the discourse the Saljuq ruling establishment used to justify penal repression, vis-a-vis both themselves and the general public. I discuss spheres and institutions of punishment (chapter 1), as well as types of punishment (chapter 2): executions, corporal punishments, shaming, exile, and imprisonment. A systematic overview of the practice of punishment in medieval Islam, to the best of my knowledge, is hitherto unavailable in the secondary literature.** Therefore, much of my work has consisted in clarifying the terminology and typology of punishment. In this effort, I have relied primarily on Saljuq historiography. The thorny question as to whether the chronicles carry their own normative agenda, and therefore must not be taken to refer to historical “reality,” is of some concern in this context. Marylin Waldmann has criticized traditional scholarship in Islamic history for using historical narratives “almost exclusively as unstructured, uninterpretive mines of factual information”
rather than recognizing that history writing is an interpretive act marked by strong ideological underpinnings. While I do presuppose a measure of honesty and factual reliability of the historians, I should like to put forth two considerations in answer to Waldmann’s charge. First, I do not think that the search for factuality precludes a concern for interpretive issues. Whenever it has seemed both possible and desirable, I have examined the social and political context in which the historians wrote. I have sought to elucidate some of the didactic or ideological aims the historians may have pursued.*° Second, when one compares different historical narratives, certain patterns of practice emerge that are, at least to my mind, unlikely to be the result of deliberate fabrication. Even if the factual details of historical events cannot always be known with absolute certainty, these patterns of action can with reasonable confidence be taken to refer to actual historical practice. It is with types of social actions that this study is primarily concerned, not with the question of the facticity of historical particulars.°”
It is striking that all kinds of punishments of all kinds of people are mentioned with great frequency in the historiography of the Saljtiq period; in fact punishment is part of the stock repertoire of the chroniclers. The Hanbali preacher, jurist, and historian Ibn al-Jawzi (d. 5597/1200) may serve as an example here.** This author represents, in the words of Rosenthal, “the lowest level to which Muslim historiography, in its main representatives, ever sank.”*’ As Rosenthal argues, one reason for this is that Ibn al-Jawzi devoted a lot of space to “insignificant events, such as extraordinary natural phenomena.””” It is true that Ibn al-Jawzi focuses on local events in Baghdad, and treats global history in rather summary and superficial fashion. But his interest in “extraordinary phenomena” may also account for his intense preoccupation with the issue of punishment, and may therefore prove important for the purposes of this study. In its chronological (rather than prosopographical) parts, Ibn al-Jawzi’s chronicle deals with three main categories of newsworthy items:
(1) the changing fortunes of the reigning military aristocracy, that is, the battles and diplomatic relations among the Saljuq princes as well as those involving the caliph and other local rulers of the time — here there are many references to members of the ruling classes who incur punishment, such as viziers fallen from grace, treacherous ammrs, and tyrannical military governors (shihnas); (2) events concerning the civilian élite of Baghdad of whom Ibn al-Jawzi himself was a member; Ibn al-Jawzi devotes considerable space to ceremonies of investiture (Khar) of fellow scholars, and to the appointments of madrasa directors and teachers as well as of viziers, judges, chamberlains (Aajibs), and market-inspectors (muhtasibs); in this second category one also comes across cases of punishment, when scholars or other officials are involved; (3) miscellaneous events such as the inflation and deflation of prices, the introduction and abolishment of taxes, portentous natural phenomena, fires, famines and diseases, and curiosities such as roosters laying eggs; it is in this last category that Ibn al-Jawzi mentions the crimes and punishments of the lower strata of society (amma). About Ibn al-Jawzi’s pious outlook on life there can be no doubt, and interpretation of his work should take this into account.*!
Other Arabic chronicles mention punishments with great frequency, too, but all in all are less concerned with the details of penal prosecution.*” As for Saljuq chronicles composed in Persian, the Rahat al-sudur of Rawandi (written at the beginning of the seventh/thirteenth c.) stands out.** Rawandi tends to intersperse his history with literary quotations, especially poems and proverbs, which makes his work somewhat akin to the didactic genre of mirrors for princes. For example, Rawandi comments on the revolt and execution of sultan Sanjar’s former intimate and governor of Balkh, ‘Al Chatri, by adducing an Arabic proverb (mathal) castigating Chatri’s rebellion (“Stupidity will make you stumble, and rebellion will ruin you [a/-jahlu yuzillu [-gadam wa-l-baghyu yuzilu |-ni‘am]”); he then proceeds to quote a poem from Firdawst’s Shahnama comparing the ruler to the sun on the horizon, which can sting like a sword but is also kind to mankind (bi-yvak dast shamshir u-yak dast mihr).** Rawandi’s treatment of this incident has a double purpose. It pays lip service to his patron’s authority to punish, but it also reminds the ruler that forgiveness 1s a virtue. In sum, as with Ibn al-Jawz1, the reader must be aware of possible normative agendas in Rawand1’s work.
Another problem related to the use of chronicles is what can be called the historians’ disdain for the ordinary. Much of the daily practice of punishment is simply not mentioned in the sources. As Hallaq has noted in respect to an earlier period, “historians were not interested in recording the day-today routine of the judiciary, and if we know something about this routine, it is because it often creeps into those relatively few accounts of an unusual nature.”*° This statement also holds true for the Saljiiq period. The frequency with which punishments are mentioned stands in some contrast to the degree of precision with which these punishments are described. One thus finds, in many instances, the laconic notice of a sultan, vizier, or amir whose order of execution was carried out (amara fa-qutila), but one is left without any clue as to how or by whom this was done.
Therefore, in order to supplement the information that can be gleaned from the historical sources, the first part of this study also makes use of a variety of other genres of literature. These include mirrors for princes, administrative handbooks, diplomas of investiture, dictionaries, literary prose, and poetry.*° In addition to giving valuable clues as to the functioning of the Saljtiq penal administration, these sources reflect the Sunni ruling classes’ concern with buttressing their use of coercive force with a cogent strategy of justification. This they achieved by declaring punishment, even in its most excessive forms, to be an essential ingredient of just government. According to them, punishment by the repressive state apparatus served to preserve the awe (hayba) that the ruler required to keep his domain pacified. This notion is encapsulated by the term siyasa (Pers. siyasat) which has the double meaning of “governance” and “punishment.” The ideology of siyasa both justified and in turn was supported by public acts of punishment. For the Saljuiq state, punishment was an act of propaganda that served a specific political tactic.*”
Part II: the eschatology of punishment
While part I of this study looks at punishment from the perspective of the Sunni state, part II examines descriptions of punishment in the Muslim hell. At first sight, the relationship between state punishment in this world and divine retribution in the next may seem a stretch. Upon closer analysis, however, one finds many aspects in the medieval Muslim imaginaire of hell that indicate a close conceptual link between the this-worldly and the otherworldly sphere. Eschatology is taken here as a literary genre that is addressed primarily to a popular audience.
As I suggest, the minute details of punishment in the hereafter reflect not just a taste for the bizarre on the part of the eschatologists. Rather, medieval Muslim representations of hell offered a powerful discourse that helped the underprivileged come to grips with the reality of punishment and suffering in this world. The imagery of hell analyzed in this study no doubt constitutes what Robert Orsi has characterized as a “despised religious idiom” — that is, despised by those modern interpreters who can see in it nothing but the dark, chaotic, sometimes even repulsive, side of the religious imagination. With Orsi, however, I would like to take these representations seriously, by studying them in terms of how they matter to ordinary humans.”
Sources for the Muslim hell used in this study include the Quran and the exegetical literature (tafsir), hadith collections, especially eschatological manuals such as those of Ibn Abr 1-Dunya (d. 281/894), Ghazal, and Qurtubt (d. 671/1272), and reports about the Prophet’s night journey (isra@’). The net I cast is wide. I have drawn in additional material from before and after the Saljtiq period in order to arrive at a comprehensive view of hell, a view which is evidenced not only, but also, in the Saljuq period. Iam aware, however, that the temporal and spatial distance of some of the sources to fifth-/eleventhand sixth-/twelfth-century Persia and Iraq poses certain methodological challenges. Let me offer possible avenues for thinking about these challenges.
As for temporal distance, it is known, for example, that the writings of Ibn Abi |-Dunya continued to circulate in great numbers well into the sixth/ twelfth century and beyond. Sibt b. al-Jawzi (d. 654/1256) claimed he was familiar with more than 130 of Abi l-Dunya’s works.” Since the number of eschatological traditions seems to have increased over the centuries, rather than decreased, and since these traditions were not subjected to the same close criticism as, say, legal hadiths, it would appear reasonable to conclude that much of the information in earlier sources continued to be known in Saljuq times. I read Aadith traditions in much the same way as they would have appeared to a Saljtiq contemporary, looking backwards, as it were, to the time of the Prophet.*! As for sources written after the Saljiiq period (of which I have used only a few, and only in order to supplement earlier works), there is always the possibility that the material they present circulated earlier.
Why, however, should an eschatological manual such as that of Qurtubt, who lived in Muslim Spain for most of his life, be used for a study of eschatological thought under the Saljtiqs? One answer to this question is that scholars of the period traveled extensively, so that religious knowledge went back and forth with relative ease between east and west. One of Qurtubi’s teachers in hadith, Abu |-‘Abbas Ahmad al-Qurtubi (d. 656/ 1259), is known to have visited Egypt and Iraq, where his work was held in high esteem; the Syrian Nawawt (d. 676/1277) quotes his writings in a number of places.°> Qurtubi himself did not die in al-Andalus, but in Egypt.
Through their travels, scholars like the two Qurtubis helped to create an international Islamic textual community whose members “were engaged in what they perceived as an ongoing dialogue across space and time.”°* Thus, there appears to be, despite temporal and spatial distances, a reasonable amount of coherence in the (Sunni) Muslim eschatological tradition. It must be admitted, however, that the second part of this study is the one that is least focused on the Saljuq context. In fact, it is my expressed goal in this section to raise theoretical issues that reach beyond this historical period and speak to interpretive issues relevant for the study of Islamic eschatology and of the history of religion in general.
Chapter 3 opens with a discussion of the notion that mainstream Sunnt Islam has always rejoiced in a great certainty of salvation, despite the prospect of temporary punishment in hell of the grave sinners (ahl al-kab@ir).> As I argue, the long lists of grave sins in the hadith corpus and the myriad punishments specified in the eschatological tradition speak a radically different language. What is more, there is little in eschatological descriptions of hell that indicates that Muslim sinners are punished only temporarily. Punishment of Muslims in hell, I submit, was a much-feared and much thought-about prospect, at least on the level of the popular imaginaire.
In the remainder of the chapter, as well as in the next, I discuss a variety of possible functions that the eschatological idiom could fulfill. Since to the best of my knowledge the Muslim imagery of hell has never been analyzed with a satisfying degree of detail,*° I provide a full description of hell’s topography and of the creatures that inhabit it. While discussing various aspects of the Muslim imagery of hell, I develop a fourfold interpretive model of analysis, examining the ascetic-psychological, structuralist, moral-didactic, and performative dimensions of Muslim traditions about punishment in the hereafter.
The overarching concern of this part of my study is to show the close temporal, spatial, and conceptual contiguity of hell and earth. Not only were the torments of the inhabitants of hell modeled after this-worldly realities, but often it seems that the punishments that were enacted in Saljuq society acquired their specific meaning against the background of descriptions of punishment in the hereafter. When Isma‘is were burned at Isfahan in 494/1101, the man who was put in charge of the burning pits was called Malik by the people, in reference to the chief guardian-angel in hell.°’
Ibn al-Jawzi, in his reports about public executions, frequently uses eschatological language, and one wonders whether this chronicler’s interest in public punishment, especially if it was cruel or spectacular, follows a logic of correlating this-worldly events with other-worldly prospects.”* Finally, one of the most commonly practiced public punishments under the Saljugqs, ignominious parade through the city (tashhir), can be interpreted as an eschatological drama, complete with blackened faces and other signs of disgrace and punishment in hell.°”
To prove such transfers from the realm of ideas to that of actual social practice (and vice versa) is of course very difficult, or even impossible. If nothing else, however, medieval Muslim eschatology is noteworthy for the intimate connection it establishes between life on earth and in hell. As this study argues, hell played an important role in society, fulfilling a variety of functions. Eschatological traditions offered a discourse which helped the oppressed to assuage their fears and sufferings, but which could also empower people by expressing resistance against the social status quo.
Part III: legal dimensions of punishment
As the chronicles of the Saljuq period suggest, punishment was seldom informed by shart‘a precepts. For the Islamic legal historian, however, this is only one among many other aspects in the history of punishment that deserve notice. The Western study of punishment in premodern Islam has traditionally stopped at this point, claiming that the theoretical legal discourse had very little, if anything, to do with penal practice. This truism is problematic for at least two reasons. First, as parts I and II of this study show, the fact that criminal justice was divorced from the law does not mean that punitive practices were insignificant in the broader cultural context. Second, as part II of this study seeks to demonstrate, the jurists of Islam did in fact discuss, albeit in oblique ways, issues of punishment in a way that was relevant to practice.
For the student of Islamic law in the Saljuq period there is a rich body of literature from which to choose. According to a common periodization,”” it was under the Saljtiqs (c. fifth/eleventh and sixth/twelfth c.) that Islamic law flourished in its “classical age.” The work of the Transoxanian Hanafi jurist Marghinant (d. 593/1197), in which the arrangement of chapters and the scope of legal reasoning reached a certain canonical form, is regarded as either the last representative of the “classical” or the first of the “postclassical” period.
Part III of this study relies primarily on the Hanafi and Shafi‘ literature of the period. In Saljiig Iraq and Persia, especially in the latter,°' these were the two dominant schools of law. They competed for local primacy in the urban centers of Khurasan, often to the point of provoking riots. While the early Saljtq sultans made it a deliberate policy to appoint Hanafi judges and preachers, the vizier Nizam al-Mulk attempted gradually to redress the balance somewhat in favor of the Shafi‘ls.°” The situation, however, remained tense. Scholars who converted from one school to the other exposed themselves to a lot of trouble.
Thus, when Abt |-Muzaffar al-Sam‘ant (d. 489/1096) became a Shafi‘ite in 468/1075—6, after having studied Hanafi law both in Marv and in Baghdad, this almost caused a public riot (fitna) in Marv, the city of his birth. Apparently, the Hanafi scholarly establishment, among them Abt |-Muzaffar’s brother Abt 1-Qasim ‘Alt, felt that their position as the most influential school of law in town was under threat.°? As a result, Abi 1-Muzaffar had to leave Marv. However, he returned not long after to reconcile himself with the Hanafis, became a professor (mudarris) at the (Shafiq) Nizamiyya madrasa, and even taught his brother’s (Hanafi) son.“
The same Abt l-Muzaffar al-Sam‘ani is one of the prime witnesses for the Hanafi-Shafid debate that is at the center of chapter 5. This is the question in Islamic legal theory (usul al-figh) as to whether analogical reasoning (giyas) should be used to expand the scope of the divinely ordained punishments (hudiid, sing. hadd).°° By and large, the ShafiTs saw no harm in it; the Hanafis, on the other hand, rejected the notion. While the Hanafi position thus may have restricted the use of state punishment, there remains the question whether they accepted other ways of extending hadd norms. For example, this could have been accomplished by arguing that certain offenses were not overtly stated, but linguistically implied in the add ordinances.
In the remainder of chapter 5, I trace a debate in Hanafi substantive law (furi‘ al-figh) that dwells precisely on this issue. Some among the Hanafis argued that, even though analogy from fornication (zina) to sodomy (/iwat) was disallowed in criminal law, the “meaning” or “function” (manda) of sodomy was implied by that of fornication; therefore, they concluded, sodomites had to be punished in the same way as fornicators. The majority, however, disagreed, insisting on the fundamental semantic difference between zina@ and Jiwat. In tracing this Hanafi debate, I have drawn from a broad range of authors in a variety of genres.°°
In chapter 6, I turn to the issue of discretionary punishment (fa‘zir). For this I use not only the Hanafi and Shafi but also some of the Hanbali and Maliki literature on the subject (again, with the exception of Shi7 sources). Discretionary punishment is a residual category in Islamic penal law and practice which, by the time of Saljtiqs, had become the ruling authorities’ passe-partout for inflicting punishment, not according to the revealed law (shart‘a), but according to raison d'état. | suggest that the jurists of all schools sought to rein in arbitrary uses of punitive authority by arguing that only offenses committed in public were subject to discretionary punishment.
Thereby, they achieved two things: first, they offered a measure of protection against the state’s intrusion into the private sphere; second, they helped to propagate what could be termed the Islamic ethos of anti-exhibitionism. The importance of the concept of publicness in criminal law is shown by the penalty of shaming (tashhir), a discretionary punishment that, at least according to the chronicles, occupied a central place in the administration of punitive justice under the Saljuqs. Tashhir (lit. “to make someone public”) is a neglected phenomenon in the study of Islamic criminal law history.
The issue of shame is a recurrent motif in all six chapters of this study. It appears apt, therefore, to end this study with a discussion of shaming in the legal literature, and to reflect on the place of this punishment in the broader cultural context of medieval Islam. In the conclusion, I review the most important findings of this study and attempt to formulate a number of synthetic and comparative thoughts on the role of punishment in the development of Islamic civilization. It is my hope that the following pages will not be received as a punishing but rather as a rewarding experience by the reader.
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