Crime and Punishment in Early Islamic Egypt (AD 642–969): The Arabic Papyrological Evidence[1]

Until today, no systematic study has been undertaken on the abundant Arabic material on papyrus and paper regarding crime and legal punishment. This is all the more deplorable since the papyri are almost the only source that give first-hand insight into the question of how Islamic legal practice has developed from the very beginnings. Moreover, Islamic penal law is of immediate importance for the ongoing debate of a revival of "the šarī‛a" in contemporary Muslim societies. Being one of the major bones of contention, 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 knowledge of the past and the understanding of the present.

What is criminal law? Islamicist Rudolph Peters has put it in the following words:

If a given society regards certain private interest, e.g. the protection of property, as essential for the social order, it will, according to his definition, "protect it by stronger remedies than those available under private law," thus making it a public penal subject of protection (Schutzgut). Peters argues that "criminal laws, 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 abundant theoretic works of Muslim fiqh (traditional jurisprudence) as well as the no less abundant Arabic historiographical literature. All of them originated 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 early Muslim authorities factually dealt with crime in the subject societies and how they dealt with the local customary practices already established in these societies.[4] On the part of Arabic Papyrology, again, there has been a remarkable neglect of systematically contributing to our knowledge in this regard by using its first-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 in the Arabic papyri. This is self-evident by the focus of interest of the producers of papyrus texts, who where much more devoted to financial and private affairs. It is also self-evident by the fact that the majority of Egyptians in the first centuries of Muslim rule, especially in the countryside where most of the papyri have been found, was non-Muslim and therefore subject to their own penal laws. Yet, a state as self-confident as the Muslim one must have had a primary interest in dealing also with its non-Muslim subject's criminal affairs. For this was, according to the above given definition of criminal law, not only a means 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 expected.

The following is a first overview of that very material which is in fact dealing with criminal misdemeanors 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 papyri, 73 texts deal explicitly or implicitly with crime and criminal prosecution. That would amount to a 7–8% of the so far known total of Arabic papyrus evidence.

Fig. 1:

Total number of Arabic papyri (dark color) and its share dealing with crime and punishment (light color).

Islamic 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. ḥuqūq Allāh). This kind of misdemeanor is per se a criminal deed and has to be punished by the state authorities only. All other delicts however, including what we would call capital delicts, are a matter of 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)
   1. intentional
   2. unintentional
2. Offences against God's rights (ḥuqūq Allāh)
   1. unlawful sexual intercourse (zināʾ )
   2. unfounded accusation of unlawful sexual intercourse (qaḏf )
   3. drinking alcohol (šurb ḫamr )
   4. theft (sariqa )
   5. banditry (ḥirāba, qaṭ‛ aṭ-ṭarīq )
   6. 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 harm
   1. intentional
      • ⇒ retaliation (qiṣāṣ), i.e. killing or wounding of the offender by the victim or his closest relative under the supervision of the qāḍī
   2. unintentional
      • ⇒ bloodmoney (diya), payed by the offender or his solidarity group (‛āqila)
2. Offences against God's rights (ḥuqūq Allāh)
   1. unlawful sexual intercourse (zināʾ )
      • ⇒ married: stoning to death (raǧm)
      • ⇒ unmarried: flogging (ǧald) 100 blows
      • ⇒ slaves: flogging 50 blows
   2. unfounded accusation of unlawful sexual intercourse (qaḏf)
      • ⇒ flogging 40–80 blows
   3. drinking alcohol (šurb ḫamr)
      • ⇒ flogging 40–80 blows
   4. theft (sariqa)
      • ⇒ amputation (qaṭ‛) of hand etc.
   5. banditry (ḥirāba, qaṭ‛ aṭ-ṭarīq)
      • ⇒ penalty depending on gravity of offence
   6. apostasy (ridda) – not the Hanafites and Shiities!
      • ⇒ death penalty
3. All other offences (most of all)
   • ⇒ discretionary punishment according to šarī‛a (ta‛zīr) or not šarī‛a (siyāsa)

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 documented: three definite cases and three more possible cases of personal assaults. One of these assaults was against a single young Muslim in the Fayyūm, another one against Christian monks of a monastery near Assyūt, and a third one against an unknown person, caused by a guard (Arab. ḥāris) somewhere in Egypt.[8] There are two more texts that possibly deal with cases of bodily harm. Yet, this is disputable on the basis of their fragmentary condition and unclear context.[9] A last one, finally, leaves it open whether it deals with bodily harm or rather with a form of theft.[10]

Regarding the well-known and specific Islamic ḥadd-crimes (cf. category 2 above), there are some more cases to be found in the papyri. They exclusively deal with theft. Six cases consider deliberate theft,[11] and four more cases are possibly about theft.[12] Three more texts give indirect hints on the daily existence of theft in society.[13] No other ḥadd-delict, however, is mentioned in the Arabic papyri, with the exception of wine drinking, where we have one indirect allusion,[14] and one obscure and not very plausible delict.[15]

However, by far most documents deal with misdemeanors belonging neither to the first nor the second categories. They line up a third category, which is delicts punishable according to proceedings of deliberate punishment (Arab. ta‛zīr or siyāsa). These are cases of embezzlement or misappropriation not amounting to theft; heresy; intentional abuse of power by single members of the state authorities; intentional neglect of official duty; fugitives from agricultural land; intentional refuse of paying taxes; disturbance of public order. There are five cases of delicts which strictly speaking belong to the ḥadd-delicts but cannot be punished in that manner due to procedural or evidentiary shortcomings.[16] One more text is the already mentioned case of possible public heresy, which is forbidden according to the šarī‛a but cannot be punished whith a ḥadd-penalty.[17] Another 31 papyri deal with delicts that were not in contradiction to the šarī‛a but could possibly endanger public order. These are 11 cases of intentional abuse of power by single members of the state authorities.[18] One papyrus deals with intentional neglect of official duty and a respective money-fine.[19] 12 more texts deal with the problem of land-fugitives (ǧāliya, φυγάδες), who committed 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 mentioned twice.[22]

Since non-Muslims for many centuries represented the majority of the Egyptian population, what happened in cases where non-Muslims committed criminal offences, either affecting Muslims or not? In later legal theory, the Muslim legal schools were not unanimous: the Šāfi‛ite and Ḥanbalite schools claimed that religious minorities were indeed subject to Islamic ḥadd-rules and should be punished with their respective punishments, due to their permanent living on Islamic territory; on the contrary, the Ḥanafite and Mālikite schools did not follow this view. But this was definitely an understanding of Islamic society from later centuries.[23] In the formative period the politically dominant Muslim minority kept a culturally 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 to allow general conclusions.

There is no own formulaic genre for penal affairs in the Arabic papyri, except the denunciations, warrants to appear before court, and above all petitions.[25] Thus, unlike other subjects of papyrus documents (tax matters, private legal undertakings etc.), information about penal affairs is mostly to be collected from random evidence in different kinds of texts. These are chiefly letters, either between officials or private and business letters. The lack of an own formulary notwithstanding, there was clearly the need to write down details about criminal misbehavior and its prosecution, as this randomly collected evidence shows. It is manifest by a not very even, yet roughly balanced dissemination of testimonies in Arabic papyrus texts from each of the first three centuries of Muslim rule in Egypt.[26]

Fig. 2:

Chronological dissemination of Arabic papyri with criminal content.

What is to be said about the total number of Arabic papyri related to crime and prosecution (Fig. 1)? The counted 73 papyri or 7–8% of the whole Arabic stock are few, if compared to the bulk of papyrus texts that broach the issue of other aspects of daily life, like fiscal administration or commercial activity. Yet, as a whole, it is not a small number, and new editions of unknown material will all the more enrich this fascinating source material.

There are reasons for the relative scarcity of criminal evidence in Arabic papyri. First of all, one has to stress the fact that the administration of criminal justice under Muslim rule as well as its respective institutions evolved only gradually over time. If criminality took place from the beginnings, pervasion of its prosecution by the new Muslim administration took some time to work out. Moreover the non-Muslim majority retained its own traditional legal institutions, namely the ecclesiastical and rabbinical tribunals, as reminiscences from pre-Muslim rule. In this connection one also has to keep in mind the specific archaeological situation. Most of the papyri reflect the situation in regional centers and the countryside rather than the more speedily transforming Muslim cities. The beginnings of specific Muslim perceptions of criminal justice in Egypt are to be found in the papyri, yet with a considerable lag in time, i.e. the 8^th and 9^th c. AD. This fact together with the archaeological situation is causative for the strong increase of documentary production related to crime and punishment (as is shown in Fig. 2).[27]

Another reason for the "silence of the sources" is the fact that the specific Muslim punishments, which were the ḥadd-punishments (cf. category 2 above) were only seldom inflicted. Being the figurehead of Islamic penal law, they must have been important enough to be met by state prosecution from a very early time on.[28] Yet, Islamic law even in theory, and all the more in practice, was considerably reluctant to inflict ḥadd-punishments. Verdict of guiltiness was made difficult by procedural reservations, and there was a prevailing tendency of shifting away any case of ḥadd to the more flexible domain of ta‛zīr-punishments (cf. category 3 above), if any possible and at the slightest doubt of procedural shortcomings.[29]

Examination of the contemporaneous papyrus evidence in the other languages (Greek and Coptic papyri) is of primary importance for deepening our understanding of the Arabic texts.[30] This goes beyond the scope of the present undertaking and has to be the subject of another occasion. But can we expect proportionally more testimonies for crime and prosecution in Greek and Coptic papyri?[31] Presumably not, for yet another reason: Egyptian village-life since Late Antiquity had shown a strong tendency to solve social conflicts by means of arbitration rather than punishment.[32] If ever possible, one tried to avoid the involvement of outside authorities, especially that of state prosecution. Conflicts were to be solved inside the village communities whenever possible.[33] Also, the Muslim administration did not care too much about petty crime as long as no major state interest was threatened.[34] This explains the proportionally high amount of texts dealing with land-fugitives, for this was a direct threat to taxation and state-revenue. Direct engagement with the subject population was largely avoided, and few are the allusions to conflict between the indigenous population and the Arab authorities as well as to punishment of the perpetrators.[35] Also, one has to take into account the many aspects of legal proceedings that have not been written down and thus have not been preserved for posterity, a situation that is also well known from Late Antiquity.[36]

Information about criminality in society and the administration of criminal justice in the Arabic papyri is scattered. Their fragmentary state as well as a general lack of any penal archive rarely allow to reconstruct legal procedures in a broader sense. However, the papyri are of enormous importance as source material for an otherwise poorly documented core area of Islamic civilization, the early development of Islamic penal law. A meticulous examination of the factual contents of the Arabic papyri relevant to criminal matters is the next step to be taken.

Notes

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, "‛Uqūbāt: 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 historiographic sources, already pointed out a discrepancy of normative ideals and a differing factual reality. Cf. É. Tyan, "Judicial Organization," in Khadduri and Liebesny, op.cit., 236–278, at 274; eund., Histoire de l'organisation judiciaire en pays d'Islam (Leiden 1960²) 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 on the financial administration alone. For the early penal administration cf. now L. Reinfandt, "Strafverfolgung in Ägypten und Palästina 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).

7. The following is taken from Peters, op.cit. (above, n. 1) 7.

8. P.Marchands II 29 (9^th c., Fayyūm); P.Ryl.Arab. II 11 (9^th c., Asyūṭ); 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 intihāk. 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 intihāk 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., Edfū); 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., Fayyūm).

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., Fayyūm); 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.

16. P.Ryl.Arab. I, I 12 (no dating, Ramǧūs in al-Ušmūnayn); P.Mich.inv. 5613 (B) = Sijpesteijn, op.cit. (above, n. 12) n. 16 (8^th c., Fayyūm); 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., Asyūṭ); 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 den arabischen 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., Fayyūm); a.a.O. 31 (8^th c., Fayyūm); Ragib, Sauf-conduits 2 (722 AD); P.Cair.Arab. III 174 (no dating); P.Philad.Arab. 74 (8^th–9^th c., Ašmūn); Diem, Schreiben 3 (7^th–8^th c.); Blau/Hopkins, Judaeo-Arabic Papyri 12 (no dating).

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., Fayyūm); P.Ryl.Arab. I, I 13 (no dating, Anṣinā/Antinoopolis).

22. Grohmann, Urkunden 18 (9^th c., al-Ušmūnayn); Karabacek, Türken, 100 = PERF 788 (867 AD, Fayyūm).

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-šurūṭ al-‛umariyya) unter einem anderen Aspekt gelesen," Jerusalem Studies of Arabic and Islam 9 (1987) 290–315.

25. Denunciations: P.Heid.Arab. II 58; Chrest.Khoury I 80; P.RagibLettres 5. Warrants: PERF 699; P.Ryl.Arab. I, I 13; P.Hamb.Arab. II 3+4. Petitions: Chrest.Khoury I 84; P.Mich.inv. 5631 = Sijpesteijn, op.cit. (above, n. 12) n. 31; Grohmann, op.cit. (above, n. 16) 186; P.Khalili I 16; P.Marchands II 29; P.Ryl.Arab. II 11. ‒ The petitions generally seem to be the most promising and informative genre for criminality in the Greek as well as in the Arabic domains.

26. The exact numbers are: 7^th c.: 4 texts; 7^th–8^th c.: 15 texts; 8th c.: 16 texts; 8^th–9^th c.: 6 texts; 9^th c.: 15 texts; 9^th–10^th c.: 6 texts; no dating: 9 texts. Naturally, these total numbers mirror the production of Arabic documents as well as their state of excavation and edition and not, however, the actual occurrence of criminality in Egyptian society.

27. J. Schacht, "Pre-Islamic Background and Early Development of Jurisprudence," in Khadduri and Liebesny op.cit. (above, n. 4) 28–56, at 37–38.

28. Ibid., 37.

29. Peters, op.cit. (above, n. 2) 73; R. Hartmann, Die Religion des Islam. Eine Einführung (Berlin 1944) 122. ta‛zīr-punishment could change according to the defendant's social background and other circumstances. Cf. Nagel, op.cit. (above, n. 23) 91.

30. Federico Morelli (Vienna) has published lists of prisoners from the Fayyūm with their respective delicts from the mid-8^th c. AD Cf. P.Horak 64–66 and CPR XXII 35. Other relevant Greek papyri are P.Abinn. 44–45, 49–50 (all from the mid-4^th c. AD); P.Haun. III 57 (412–415 AD) about bodily harm; SB VI 9456 (594 AD, Arsinoe) about theft; SB XVIII 13267 (7^th c., Fayyūm) and CPR XXII 4 (7^th c., Herakleopolites) both about prisons in the Fayyūm; PERF 562 (7^th c.) about fugitives; P.Ross.Georg. IV 15+16 (710 AD, Aphrodito) about abuse of power and possible tortures; P.Ant. III 189; P.Vind.Eirene 29–31; SPP X 252.

31. In an oral communication, Hans-Albert Rupprecht (Marburg) called my attention to rather similar proportional numbers in the Greek papyri.

32. I am obliged to Alia Hanafi (Cairo) for pointing out to me the important role of arbitration (Arab. muṣālaḥa) not only in Late Antique but also in Muslim legal practice. On friendly forms of conflict resolution in Late Antiquity, cf. T. Gagos and P. van Minnen, Settling a Dispute: Towards a Legal Anthropology of Late Antique Egypt (Ann Arbor 1994) and T. Gagos, "Negotiating Money and Space in Sixth Century Petra," in Atti del XXII congresso internazionale di papirologia (Florence 2001) I 495–509.

33. R.S. Bagnall, Egypt in Late Antiquity (Princeton 1993) 161–162; id., "Official and Private Violence in Roman Egypt," BASP 26 (1989) 201–216 = id., Later Roman Egypt: Society, Religion, Economy and Administration. Variorum Collected Studies Series 758 (Aldershot-Burlington 2003) 206–217.

34. Bagnall, op.cit. (above, n. 33) 171–172.

35. Sijpesteijn, op.cit. (above, n. 12) 187.

36. Eva Jakab (Szeged) suggested this aspect, for which I am indebted to her.