Imprisonment in Pre-Classical and Classical Islamic Law
Imprisonment in Pre-Classical and Classical Islamic Law
Imprisonment in Pre-Classical and Classical Islamic Law
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Welt
B. Johansen,"Eigentum,
FamilieundObrigkeitim Hanafitischen
Strafrecht,"
? E.J.Brill,Leiden,1995
158
IRENESCHNEIDER
Rosenthal'sTheMuslimConceptof Freedom,which emphasizesphilosophical rather than legal issues.3 Does this lack of informationin
primaryand secondarysourcespoint to a differencebetween the function of imprisonmentin pre-modernand modem times? I will try to
answer this questionby focusing on the legal aspect of imprisonment
(to the exclusionof politicaldetention)andby attemptingto throwlight
upon the following three issues in pre-classical and classical Islamic
law: (1) The circumstancesin which a judge might send a person to
prison;(2) prisonorganization,living conditions,and the treatmentof
prisoners;and (3) the doctrinaltreatmentof imprisonmentby Muslim
jurists.
The Circumstancesin Whicha JudgeMightSenda Person to Prison
Thereis little informationon imprisonmentin the Islamicfiqh-literature,
where the terms used are sijn ("prison")and habs ("detention").As
there is no furtherterminologicaldivision in thefiqh-literature,I shall
use threecategoriesrecognizedin moder Westernlaw when considering the various types of imprisonmentin pre-classical and classical
Islamic law: (a) Administrativedetention,that is, the use of imprisonment as meansof compulsion,primarilyto compel a recalcitrantdebtor
to pay; this form of detentionalso serves as a means of keeping contemptuouslitigants underobservation;(b) Pre-trial detention,that is,
detaining a person in jail until his or her trial commences; and (c)
Punitivedetention,thatis, incarcerationfollowing a conviction.Punitive
detentionplays a special role in modernlaw, since, afterfines, it is the
most common punishmentfor a criminal offense. Its purpose is to
segregatea criminalfrom society and protectsociety from him. Of the
threetypes of detention,the first two are forms of custody,and only the
third is a true punishment in the moder sense. All three types of
detentionarefoundin Islamiclaw, albeitwith importantdistinctions.
(a) AdministrativeDetention
In Islamic law, administrativedetentionis used primarilyin connection
with debts. According to classical law, if a creditorbelieves that a
debtorhas sufficientassets, the lattermay be held prisoneruntil he has
paid off his debt. Once the judge is convincedthatthe debtorwill pay,
al-sujan'fi'l-lsldm(Kuwait,1987).
al-sijnwa-mu'dmalat
3 F. Rosenthal,TheMuslimConceptof Freedomprior to the NineteenthCentury(Leiden,1960),33. Rosenthalacknowledgesthathe makesno effortto give a
systematicaccountof thesubject
IMPRISONMENT
159
160
IRENESCHNEIDER
714),11 and the judge Shurayh(d. ca. 695)-the latter two were from
Kiifa-are said to have arrested debtors. Shurayh reportedly kept
debtorsunderarrestin a mosque;only if they failed to pay did he send
them to prison.12As the authenticityof these reportsis difficultto establish and as Shurayhis a semi-legendaryfigure who probablyacted as
an arbitratorratherthana judge,13it is not possibleto determineexactly
when imprisonmentfor debtwas introducedinto Islamiclaw.
In the earlyfiqh-literature, imprisonmentfor debt is recognized,
whereas repaymentof a debt throughpersonallaboris prohibited.The
ninth-centuryliteraturecites Milik (d. 795),14al-Shafi'i (d. 820)15and
Abu Hanifa (d. 767)16as being in favor of imprisonmentfor debt. By
way of explanation, al-Shafi'i states that no action may be taken
against a debtor'slabor-power(Id sabil 'ala ijdratihili-anna ijdratahu
As
'amal badanihi)but that actionmay be taken againsthis property.17
a result,laws concerningactionstakenagainstpropertygenerallywere
accepted by the jurists, and imprisonmentwas used to enforce them.
According to the Hanafis, imprisonmentfor debt should last approximately four months. A debtor should be arrested only after being
subjectedto carefulinterrogationand shouldbe releasedif it transpires
thathe is unableto pay. He is then declaredinsolvent18
Administrativedetentionalso was used in connectionwith contempt
of court.19The Shfi'i jurist, al-Mawardi(d. 1058), advised judges to
reprimanda person who showed contempt for the court, stipulating
further:"If, however, such a personbecomes abusive or offensive, and
if he turns out to be a simple-mindedman, he may be beaten with a
stick or a shoe. Furthermore,the offender may be arrestedif the trial
takes the form of a revolt againstthe law and if he insists on remaining
silent."20
11 'Abd
vol. 8, 306.
Mu.sannaf,
12 Ibid.,al-Razzaq,
vol. 8, 305; al-Bukhari,Sahlh,8 vols. in 4 (Beirut,1981),vol. 1, 118
IMPRISONMENT
161
(c) PunitiveDetention
An utteranceattributedto the Prophetmay be understoodas referringto
punitivedetention.In this statementhe commandedthe arrestof people
It is not clear
"fromthe Hijaz"whose fighting resultedin a murder.27
whetherthey were subjectedto otherpunishments.
The pre-classical and classical lawbooks indicate that punitive
detention(the termused is "imprisonment") shouldbe imposed in the
following cases:
- When a personaids and abets in the commissionof manslaughter.If,
for example, the personwho held the victim duringa fight thoughtthat
the victim would be hit but not killed, he shouldbe severely punished
vol. 1, 253.
21 Ibn Abi
Shayba, Musannaf, vol. 6, 584ff.; J.L. Kramer,"Apostates, Rebels
and Brigands,"Israel OrientalStudies X (1980), 34ff.; see 44.
22 Ibn Abi Shayba, Musannaf, vol. 6, 585ff.; al-Shafi'i, al-Umm, vol. 6, 180.
23 Al-Sarakhsi, Mabsat, vol. 10, 112.
24 Ibid., vol. 10, 109, 112, 114.
25 A.J. Wensinck, Concordance et Indices de la TraditionMusulmane,8 vols.
in 4 (repr., 2nd ed., Leiden, 1992), vol. 7, 342; Rosenthal, Concept, 45; Johansen,
"Eigentum,"29; see, for example, al-Khassaf,Adab, 68, 746.
26 Al-Sarakhsi, Mabsut, vol. 20, 89.
27 This hadith is not found in Wensinck, Concordance; but see al-Khassaf,
Adab, 253.
162
IRENESCHNEIDER
IMPRISONMENT
163
AbufYisuf (d. 798) criticizedin his Kitabal-khartj,36 urgingthe authoin orderto emptythe prisonsand
rities to implementhadd-punishments
deter potentialwrongdoers.Some laterjurists such as al-Mawardi(d.
1058) andIbn Hazm (d. 1064) were strictin theirrejectionof replacing
This suggests that imprisonhadd-punishmentswith imprisonment.37
ment was imposed more often than amputationsand whippings, alstipulations.
thoughthis was not in accordancewith the Qur'mnic
In addition to the hudud, another group of punishment must be
considered:ta'zlr-punishmentsmeted out at the discretionof judges in
all cases for which no hadd-punishmentis specified. Ta'zir-punishmentsare appliedin cases relatingto religiousmatters,as, for example,
failureto pray,as well as in privateclaims betweenhumanbeings. The
only restrictionplaced on these punishmentsis that they shouldnot be
Intendedto serve as a deterrent
more severe thanhadd-punishments.38
of flogging or banishment
take
the
form
(zajr), ta'zir-punishmentmay
39When discussing ta'zir, the juristsexplicitly mentionimprisonment,
here clearly a punitivemeasureintendedas a punishment.40
However,
apart from a few remarks on ta'zir, the jurists make no attempt to
intervenein the decision-makingpowers of the judiciaryby establishing, for example,special punishmentsfor particularoffenses. This may
explainwhy, apartfrom the hudad,thefiqh-literaturedoes not mention
imprisonment or any other punishment in connection with special
crimes.
Shafi'i and Hanafi jurists imposed strict limits on imprisonment.
According to Shafi'i doctrine imprisonmentusually lasts six months
and may not exceed one year. According to the Malikis, however,
imprisonmentmay last fromone day to a lifetime.41
In his discussion of ta'zir-punishments,the Hanafi al-Kasani (d.
1191) mentions four social classes and the punishmentappropriateto
each class:
1. The nobility (ashrafal-ashrhf),a class thatincludeddescendants
of the Prophetandjurists,were to be admonishedonly by an envoy
of a judge.
36 Abu Yusuf, Khardj, 151.
37 Ibn Hazm, Muhalld, vol. 11, 133; al-Mawardi,Adab, vol. 1, 227.
38 Al-Mawardi, al-Ahkdm al-sultaniya (2nd ed., Cairo, 1966), 236; Schacht,
Introduction, 175ff.; N. Coulson, "The State and the Individual in Islamic Law,"
Internationaland ComparativeLaw Quarterly,VI (1957), 49ff., 54.
39 Johansen,"Eigentum,"48ff.
40 Schacht, Introduction, 175, 197; Rosenthal, Concept, 40.
41 Al-Khassaf, Adab, 66; al-Mawardi,Ahkdm, 134ff.; Coulson, "The State,"
54.
164
IRENESCHNEIDER
IMPRISONMENT
165
52 Ibid.,vol. 2, 187.
53 Ibid.,vol. 3, 260.
54 Ibid., vol. 2, 178; al-Qadi'Iyad,Tartib,vol. 3/4, 348. In manycases the
arenot
reasonsforimprisonment
55 Al-Kindi,Qudah,341. specified.
56 See, for example,ibid.,463ff., 478.
57 Al-Waki',Akhbdr,vol. 1, 27, 226.
58 W. Diem, "VierDienstschreibenan Ammar,"Zeitschriftder Deutschen
Morgenlindischen Gesellschaft, CXXXIII (1983), 239ff., see 259ff. In this very
166
IRENE SCHNEIDER
The availableevidence also indicatesthat offenses otherthan insolvency were punishedwith imprisonment.However, the small number
of reportedcases suggeststhatimprisonmentwas not the most frequent
form of punishment,a conclusion that is corroboratedby Rescher's
study of the punishmentsmentioned in the 1001 Nights.59 Rescher
identified the following types of punishmentthat were carriedout in
Baghdad,which, as the capital, served as a fertile groundfor criminal
activities: flogging, banishment, forced labor, public parading of a
prisoner (for example, having him sit backwards on the back of a
camel or donkey), imprisonmentand death sentences. He concluded
thatthe publicparadingof the delinquent,not imprisonmentor corporal
punishment,was the most frequentlyimposedpunishment.60
Prison Organization,LivingConditions,and the Treatmentof
Prisoners
In the Qur'in the word sijn ("prison")occursonly in the storyof Joseph
(Q. 12:26),61whereas the word habs occurs in several saras in the
sense of "detention,"without the implication of imprisonment.62Q.
4:15ff. imposes house detention(using a derivativeof the root m-s-k)
on women in the case of illicit fornication,but this verse was subsequently abrogatedand the punishmentwas replaced by flogging (Q.
24:2). As Rosenthalhas noted, this kind of house detentioncannotbe
comparedto imprisonment63
Prisons no doubtexisted in the towns of Mecca and Medina during
the time of the Prophet,as elsewhere.64Among the bedouin, by contrast,prisonswould have been impractical,althoughit was common to
take prisoners-of-war who were guarded by old women.65 Little
informationis available on what early prisons looked like and how
they were administered.Several reportsare attributedto pre-classical
59 O.Rescher,"StudienUiber
denInhaltvon 1001Nacht,"Islam,IX (1919), Iff.,
see 65ff.
60 The same is true for the Ottomanlaw; see U. Heyd, Studies in old Ottoman
Criminal Law (Oxford, 1973), 301ff.
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IMPRISONMENT
169
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IRENESCHNEIDER
85
CCLXII(1944), 17.
"Al-sujun,"
86 Ziyida,
Al-Maqrizilived in the post-classicalperiod,withwhichI am not concerned
here.As thereis no comparable
workforearliertimes,it mayserveas an example.
87 Ziyada,"Al-sujin,"CCLXII(1944), 17; see also D. Ayalon,"Discharges
from Service, Banishmentsand Imprisonmentin MamlukSociety";idem, The
MamlukMilitarySociety(repr.London,1979),V, 40ff., esp.40.
88 ZiyBda,"Al-sujin,"CCLXII(1944),20ff.
89 Ibid.
IMPRISONMENT
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IRENESCHNEIDER
Conclusion
Althoughthe threeWesterncategoriesof administrativedetention,pretrial detention and punitive detentionexisted in Islamic law, Muslim
jurists focused their attentionon pre-trialdetentionand administrative
detention,the latterespeciallyin connectionwith imprisonmentfor debt.
They consideredcarefullythe cases in which a debtormight be sent to
prisonandkept there,establishinglenientconditionsfor debtorsandfor
prisonerswho were awaitingtrialanddefiningthe rightsof prisoners.
and as a
The juristsreferto punitivedetentionas a ta'zfr-punishment
the
with
hudud.
in
be
enacted
to
measure
conjunction
supplementary
The fact that the lawbooks mention a "robber's'prison"supportsour
contention that punitive detention existed. In contrast to the rules
established for debtors, no rules were established for prisonerswho
were held in punitivedetention,althoughtheirconditionsseem to have
been extremelyharsh.
The only safe conclusion that can be drawnfrom this discussion is
that Muslim juristsregardedimprisonmentas a means of dealing with
debt, and that they regardedcorporalpunishmentas the most accepted
and normalform of punishment.This does not say much about actual
practice, and I am currentlyunable to determinehow often punitive
detentionwas imposedin connectionwith ta'zlr.Althoughit is possible
that the state authorityimposed punitive detentionon a regularbasis,
the studies by Rescher and Ziyada corroboratethe conclusion that
punitivedetentiondid not play a very importantrole in practice.Thus,
punitive detention in pre-classical and classical Islamic law did not
have the same status that it does in modernlaw. It was less important
than corporalpunishmentin the classical periodbut mighthave played
a role in ta'zfr-punishments.
A similar developmenttook place in medieval Europe, where imprisonmentdid not play an importantrole in the law and servedprimarily as a form of custody.95It was imposed, for example, in German
cities of the late MiddleAges in cases of pre-trialdetentionand administrativedetention(contemptof courtand debt).96As punitivedetention,
however, imprisonmentwas imposed only as compensationfor fines,
95 This goes back to the Romanjurist Ulpian D, 48,19 (de poenis), 8, 9,
IMPRISONMENT
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