Islamic Medieval Criminal Law

In the Middle Ages, Europe was characterized by arbitrary, and frequently harsh feudal "rule of man" while Islam had a legal system that at least somewhat restrained its political leaders. 

Islamic criminal justice, while harsh, just as it is today, was less harsh and less arbitrary than European criminal justice was in the Middle Ages. Islamic society at the time was also more urban, more scientific, and had a larger class of scholars with access to more knowledge preserved in written texts. 

Perhaps not coincidentally, the balance of power between the Islamic world and Christendom shifted back in favor of Christendom in Iberia and the Balkans, and in terms of global economic competition, around the same time that the Renaissance arrived in Europe restoring urbanity, Roman legal concepts, and the intellectual mettle of European civilization.

Calling modern Islamist fundamentalist criminal jurisprudence medieval, is as much a comparison to European medieval (and more accurately, early modern European) criminal justice practice, as it is to medieval Islamic criminal justice practice.

The striking thing about medieval Islamic criminal law is that it featured a jurisprudence of doubt and lenity facing off against political practices of control and severity. Principles of Islamic criminal law placed interpretive authority in the group of scholar-jurists who gained expertise to read divine texts to say what the Law is (sharīʿa). Practices of Islamic criminal law authorized executive authorities—caliphs, sultans, and their agents—power over law enforcement (siyāsa). Principles informed the task of expert jurists and state-appointed judges in defining legitimate punishment derived from Islam’s foundational texts. Practices informed the wide array of severe punishment that law enforcement officials meted out regularly, with a justification that it was “in the public interest” (maṣlaḥa). Principles often justified limited punishment by means of “deterrence” (zajr) and “spiritual rehabilitation” (kaffāra). Practices often justified unrestrained punishment as a means of maintaining law and order, social control, or might as right. The principles of punishment, practices of punishment, and justifications for punishment typically operated in siloes separated by a wide plain. This chapter explores the ground where they met.

Intisar A. Rabb, Enforcement and Punishment in Medieval Islamic Law (in CULTURAL HISTORY OF CRIME AND PUNISHMENT IN THE MEDIEVAL AGE (Sarah McDougall, Karl Shoemaker eds., Bloomsbury 2022) [Forthcoming]) on SSRN.