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2010 Crime and Punishment in Early Islamic Egypt (AD 642-969): The Arabic Papyrological Evidence

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2010 Crime and Punishment in Early Islamic Egypt (AD 642-969): The Arabic Papyrological Evidence
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  Proceedings of the Twenty-Fifth International Congress of Papyrology, Ann Arbor 2007  American Studies in Papyrology   (Ann Arbor 2010) 633–640 Crime and Punishment in Early Islamic Egypt (AD 642–969):The Arabic Papyrological Evidence 1   Lucian ReinfandtUntil today, no systematic study has been undertaken on the abundant Arabic material on papyrusand paper regarding crime and legal punishment. This is all the more deplorable since the papyri are al-most the only source that give first-hand insight into the question of how Islamic legal practice has devel-oped from the very beginnings. Moreover, Islamic penal law is of immediate importance for the ongoing debate of a revival of "the    ar    a  " in contemporary Muslim societies. Being one of the major bones of con-tention, it provokes defenders and opponents likewise. Knowledge about the genesis of Islamic criminal(or penal) law and its factual application in early Islamic societies is of great benefit for both the know-ledge of the past and the understanding of the present.What is criminal law? Islamicist Rudolph Peters has put it in the following words:(It is) the body of law that regulates the power of the state to inflict punishment on persons inorder to enforce compliance with certain rules. Such rules typically protect public interests andvalues that society regards as crucial, even if the immediate interest that is protected is a privateone…. 2  If a given society regards certain private interest, e.g. the protection of property, as essential for thesocial order, it will, according to his definition, "protect it by stronger remedies than those available underprivate law," thus making it a public penal subject of protection ( Schutzgut  ). Peters argues that "criminallaws, therefore, give an insight into what a society and its rulers regard as its core values." 3  Modern research on the evolution of Islamic criminal law has mostly concentrated on the abundanttheoretic works of Muslim fiqh (traditional jurisprudence) as well as the no less abundant Arabic histori-ographical literature. All of them srcinated in the 9 th c. AD or later and hold a strongly normative view of the beginnings and early development of penal administration. They do not say much about how earlyMuslim authorities factually dealt with crime in the subject societies and how they dealt with the localcustomary practices already established in these societies. 4 On the part of Arabic Papyrology, again, there 1 Quotations of published papyri according to P.M. Sijpesteijn, J. F. Oates (  ), A. Kaplony, "Checklist of Arabic Papyri," BASP  42 (2005) 127–166. 2 R. Peters, Crime and Punishment in Islamic Law: Theory and Practice from the Sixteenth to the Twenty-first Century  .Themes in Islamic Law 2 (Cambridge 2005) 1. 3   Ibid.   4 Cf. R. Maydani, "  Uq  b  t: Penal Law," in M. Khadduri and H.J. Liebesny (eds.), Law in the Middle East. Vol. 1: Origin and Development of Islamic Law  (Washington D.C. 1955) 223–235; J. Schacht, An Introduction to Islamic Law   (Oxford 1964); N.J. Coulson, A History of Islamic Law  (Edinburgh 1964); C. Lange,  Justice, Punishment and the Medieval Muslim Imagination (Cambridge 2008). Émile Tyan, by comparing the legal manuals with the evidence from narrative his-toriographic sources, already pointed out a discrepancy of normative ideals and a differing factual reality. Cf. É. Tyan,  Lucian Reinfandt634has been a remarkable neglect of systematically contributing to our knowledge in this regard by using itsfirst-hand documentary material of early Muslim administration in Egypt. 5  A possible explanation for this last point is the comparative scarcity of criminal and penal matters inthe Arabic papyri. This is self-evident by the focus of interest of the producers of papyrus texts, whowhere much more devoted to financial and private affairs. It is also self-evident by the fact that the ma- jority of Egyptians in the first centuries of Muslim rule, especially in the countryside where most of thepapyri have been found, was non-Muslim and therefore subject to their own penal laws. Yet, a state asself-confident as the Muslim one must have had a primary interest in dealing also with its non-Muslimsubject's criminal affairs. For this was, according to the above given definition of criminal law, not only ameans of protecting public order, but all the more of preserving the Muslims' own core values. Therefore,there must be more allegations to crime and criminal prosecution in the Arabic papyri than so far ex-pected.The following is a first overview of that very material which is in fact dealing with criminal misde-meanors and their prosecution in early Islamic Egypt. My focus is on the Arabic papyrus evidence only,which covers a time period from the 7 th through the early 10 th century. The later Arabic papers, however,are left aside for the time being, since they are concerned with later and perhaps differing developments of the Fatimid, Ayyubid, and Mamluk periods.Of the some 2,000 so far published Arabic documents, about 1,000 are papyri. 6 Of these 1,000 pa-pyri, 73 texts deal explicitly or implicitly with crime and criminal prosecution. That would amount to a7–8% of the so far known total of Arabic papyrus evidence. 01020304050607080901001st Qtr   Fig. 1: Total number of Arabic papyri (dark color) and itsshare dealing with crime and punishment (light color)."Judicial Organization," in Khadduri and Liebesny, op.cit., 236–278, at 274; eund., Histoire de l'organisation judiciaire en pays d'Islam (Leiden 1960 2 )  passim . 5 There is no papyrological study so far devoted to the Islamic penal administration. Seminal monographic studies of Muslim administration like those by C.H. Becker, D.C. Dennett, A. Grohmann, J. Bæk Simonsen et al. largely concentrate onthe financial administration alone. For the early penal administration cf. now L. Reinfandt, "Strafverfolgung in Ägypten undPalästina nach der arabischen Eroberung (7.–9. Jahrhundert)," in M. Lang and R. Rollinger (eds.), Die vielfältigen Ebenen des Kontakts. Interkulturelle Begegnungen in der Alten Welt  (Stuttgart 2010). 6 Sijpesteijn et al., op.cit. (above, n. 1).  Crime and Punishment in Early Islamic Egypt (AD 642–969) 635Islamic Law in its classical definition does not distinguish between private and public legal matter.There is no such phenomenon like penal law or criminal law that is comparable to Western legal systems.Only one group of offences has a clear criminal connotation, that is the violation of God's own rights(Arab.  uq    q All    h ). This kind of misdemeanor is  per se  a criminal deed and has to be punished by thestate authorities only. All other delicts however, including what we would call capital delicts, are a matterof arbitration between the parties or of discretionary punishment by official authorities.There are thus three basic categories for criminal offences: 7  1. Violation of persons (murder, manslaughter, bodily harm)a) intentionalb) unintentional2. Offences against God's rights (  uq    q All    h )a) unlawful sexual intercourse ( zin     )b) unfounded accusation of unlawful sexual intercourse ( qa    f  )c) drinking alcohol (   urb   amr  )d) theft ( sariqa  )e) banditry (  ir    ba  , qa    a    -    ar    q  )f) apostasy ( ridda  ) – not the Hanafites and Shiities!3. All other offences (majority of possible cases)The respective punishments for these offences are as follows:1. Murder and bodily harma) intentional  retaliation ( qi    ), i.e. killing or wounding of the offender by the victim or hisclosest relative under the supervision of the q     b) unintentional  bloodmoney ( diya  ), payed by the offender or his solidarity group (   qila  )2. Offences against God's rights (  uq    q All    h )a) unlawful sexual intercourse ( zin     )    married: stoning to death ( ra     m )unmarried: flogging (    ald  ) 100 blowsslaves: flogging 50 blowsb) unfounded accusation of unlawful sexual intercourse ( qa    f  )  flogging 40–80 blowsc) drinking alcohol (   urb   amr  )  flogging 40–80 blowsd) theft ( sariqa  )  amputation ( qa    ) of hand etc.e) banditry (  ir    ba  , qa    a    -    ar    q  )  penalty depending on gravity of offence 7 The following is taken from Peters, op.cit. (above, n. 1) 7.  Lucian Reinfandt636f) apostasy ( ridda  ) – not the Hanafites and Shiities!  death penalty3. All other offences (most of all)  discretionary punishment according to   ar    a  ( ta    z    r  ) or not   ar    a  ( siy    sa  )In the following, only the most important texts are cited, a choice of 58 from a total of 73. Regarding the first category of delicts (see above), there is not a single text to be found that deals with the killing of persons, be it intentionally or unintentionally. On the other hand, a few cases of bodily harm are doc-umented: three definite cases and three more possible cases of personal assaults. One of these assaults wasagainst a single young Muslim in the Fayy  m, another one against Christian monks of a monastery nearAssy  t, and a third one against an unknown person, caused by a guard (Arab.   ris  ) somewhere inEgypt. 8 There are two more texts that possibly deal with cases of bodily harm. Yet, this is disputable onthe basis of their fragmentary condition and unclear context. 9 A last one, finally, leaves it open whether itdeals with bodily harm or rather with a form of theft. 10  Regarding the well-known and specific Islamic  add  -crimes (cf. category 2 above), there are somemore cases to be found in the papyri. They exclusively deal with theft. Six cases consider deliberatetheft, 11 and four more cases are possibly about theft. 12 Three more texts give indirect hints on the dailyexistence of theft in society. 13 No other  add  -delict, however, is mentioned in the Arabic papyri, with theexception of wine drinking, where we have one indirect allusion, 14 and one obscure and not very plausibledelict. 15  However, by far most documents deal with misdemeanors belonging neither to the first nor the sec-ond categories. They line up a third category, which is delicts punishable according to proceedings of de-liberate punishment   (Arab. ta    z    r  or siy    sa  ). These are cases of embezzlement or misappropriation notamounting to theft; heresy; intentional abuse of power by single members of the state authorities; inten-tional neglect of official duty; fugitives from agricultural land; intentional refuse of paying taxes; disturb-ance of public order. There are five cases of delicts which strictly speaking belong to the  add  -delicts but 8   P.Marchands  II 29 (9 th c., Fayy  m); P.Ryl.Arab. II 11 (9 th c., Asy  ); P.Ryl.Arab. II 302 (unpubl.) (9 th  –10 th c.). 9   P.Mird  18 (7 th c., Negev); P.Ryl.Arab. II 97 (unpubl.) (9 th c.). 10   P.Heid.Arab. I 4 (710 AD, Aphrodito) about a Copt who was accused to have committed intih   k  . The editor C.H.Becker understands the delict as "looting." Yet, the context does not make entirely clear such an assertion, since the meaning of  intih   k  could also be such as "bodily harm" and "rape." 11 Grohmann, P.Mird  19 (7 th c., Negev); P.Ryl.Arab. I, I 14 (8 th c.); P.Jahn 17 (8 th  –9 th c.); P.Heid.Arab  . II 58 (9 th c.); Chrest.Khoury  I 80 (9 th  –10 th c.); P.Ryl.Arab  . II 232 (unpubl.) (9 th  –10 th c.). 12   P.Heid.Arab  . I 4 (710 AD, Aphrodito); P.Khalili  I 16 (9 th c.); P.Hamb.Arab  . II 3+4 (9 th c., Edf   ); P.Mich.inv. 5627 =P.M. Sijpesteijn, Shaping a Muslim State: Papyri Related to an Eighth-Century Egyptian Official  (Oxford 2010) no. 7 (8 th c.,Fayy  m). 13 P.Mich.inv. 5613 (A) = Sijpesteijn, op.cit. (above, n. 12) n. 22; P.Mich.inv. 5632 = Sijpesteijn, op.cit. (above, n. 12) n.23 (both first half of 8 th c., Fayy  m); P.Berl.Arab. II 53 (8 th  –9 th c.). 14   P.Ryl.Arab. II 127 recto (unpubl.) (8 th  –9 th c.). 15   P.RagibLettres  5 (9 th  –10 th c.). This could rather be a case of heresy (Arab. bid    a  ), but the context seems not very clear.  Crime and Punishment in Early Islamic Egypt (AD 642–969) 637cannot be punished in that manner due to procedural or evidentiary shortcomings. 16 One more text is thealready mentioned case of possible public heresy, which is forbidden according to the   ar    a  but cannot bepunished whith a  add  -penalty. 17 Another 31 papyri deal with delicts that were not in contradiction to the   ar    a  but could possibly endanger public order. These are 11 cases of intentional abuse of power by singlemembers of the state authorities. 18 One papyrus deals with intentional neglect of official duty and a re-spective money-fine. 19 12 more texts deal with the problem of land-fugitives (    liya  ,  ), who com-mitted a major crime (by the authorities' point of view), since their flight alarmingly weakened state-revenues and could harm public security. 20 Another frequent delict mentioned in the papyri is tax evasion,committed either by single persons or by entire villages. 21 Finally, the disturbance of public order is men-tioned twice. 22  Since non-Muslims for many centuries represented the majority of the Egyptian population, whathappened in cases where non-Muslims committed criminal offences, either affecting Muslims or not? Inlater legal theory, the Muslim legal schools were not unanimous: the   fi    ite  and   anbalite  schoolsclaimed that religious minorities were indeed subject to Islamic  add  -rules and should be punished withtheir respective punishments, due to their permanent living on Islamic territory; on the contrary, the   anafite  and M    likite  schools did not follow this view. But this was definitely an understanding of Islamicsociety from later centuries. 23 In the formative period the politically dominant Muslim minority kept aculturally defensive status against a non-Muslim majority. 24 The above cited papyrus texts give no hints of non-Muslims being bound to Muslim penal conceptions, although the material is still too scattered toallow general conclusions. 16   P.Ryl.Arab  . I, I 12 (no dating, Ram  s in al-U  m  nayn); P.Mich.inv. 5613 (B) = Sijpesteijn, op.cit. (above, n. 12) n.16 (8 th c., Fayy  m); Grohmann, From the World of Arabic Papyri  (Cairo 1952) 186 = PERF 615  (8 th  –9 th c.); CPR XVI 11(9 th c.); CPR XVI 20 (9 th  –10 th c.). 17   P.RagibLettres  5 (9 th  –10 th c.). 18 P.Heid.Arab. I 3 (710 AD, Aphrodito); Becker, PAF  2; Becker, NPAF  6 = P.Cair.Arab  . III 153 = Becker, PAF  13; P.RagibLettres  8 (757–758 AD, Memphis?); CPR XVI 7 (7 th  –8 th c.); P.Cair.Arab  . 167 (8 th c.); P.Ryl.Arab  . II 11 (9 th c., Asy  ); P.Khalili  I 16 (9 th c.); and possibly CPR XVI 14 (9 th  –10 th c.), PERF  660 (9 th c.), PERF  838 (9 th c.). 19 Grohmann, op.cit. (above, n. 16) 130–131 = PERF  593 (with amendments by Werner Diem, "Philologisches zu denarabischen Aphrodito-Papyri," Der Islam 61 [1984] 251–275, at 262). 20   PERF  652 (9 th c.); Becker, PAF  14 = P.Heid.Arab  . I 12 verso + Moritz, Arab. Pal. 105; Ragib, Qurra  2 (no dating);Becker, NPAF 5 = P.Cair.Arab  . III 151; Becker, NPAF 10 = P.Cair.Arab. III 152; P.Mich.inv. 5627 = Sijpesteijn, op.cit.  (above, n. 12) n. 7 (8 th c., Fayy  m); a.a.O. 31 (8 th c., Fayy  m); Ragib, Sauf-conduits  2 (722 AD); P.Cair.Arab  . III 174 (nodating); P.Philad.Arab. 74 (8 th  –9 th c., A   m  n); Diem, Schreiben 3 (7 th  –8 th c.); Blau/Hopkins,  Judaeo-Arabic Papyri  12 (nodating). 21   PERF  606 (early 8 th c.); Grohmann, Aperçu  p. 52 = PERF 623 (8 th c.); P.Berl.Arab  . II 23 (7 th c.); P.Mich.inv. 5578(3)= Sijpesteijn, op.cit. (above, n. 12) n. 10 (8 th c., Fayy  m); P.Ryl.Arab. I, I 13 (no dating, An  in  /Antinoopolis). 22 Grohmann, Urkunden 18 (9 th c., al-U  m  nayn); Karabacek, Türken , 100 = PERF  788 (867 AD, Fayy  m). 23 T. Nagel, Das islamische Recht. Eine Einführung  (Westhofen 2001) 89. 24 An elucidating example for a view on certain discriminatory Muslim actions as mainly defensive measures is A. Noth,"Abgrenzungsprobleme zwischen Muslimen und Nicht-Muslimen: Die 'Bedingungen  Umars' (al-  ur  al-  umariyya) untereinem anderen Aspekt gelesen,"  Jerusalem Studies of Arabic and Islam 9 (1987) 290–315.
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