Imprisonment in Pre-Classical and Classical Islamic Law

Author(s): Irene Schneider

Reviewed work(s):
Source: Islamic Law and Society, Vol. 2, No. 2 (1995), pp. 157-173
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IMPRISONMENT IN PRE-CLASSICAL AND CLASSICAL

ISLAMIC LAW
IRENESCHNEIDER*
zu Koln)
(Universitat
Abstract
a generallyacceptedformof punishmentin modemlegal systems,
Imprisonment,
existed also in Islamic law in the pre-classicaland classical periods (secondcenturies),althoughMuslimjurists devotedonly limited
sixth/eighth-thirteenth
attentionto the subjectand Islamicistshave largelyignoredit. Muslimjuristsof
theirattentionon pre-trialand adpre-classicaland classicaltimes concentrated
for debt.Thejuristsmentionpuniministrativedetention,especiallyimprisonment
tive detentionas a supplementary
measurethatwas enactedmostlyin conjunction
with corporalpunishments
(hududandta'zir).Becausestateauthoritiesestablished
a monopolyover criminaljurisdictionat a very early stage, it is possible that
punitivedetentionplayeda moreimportantrole in practicethanit did in theory.
However,inasmuchas I foundonly a few examplesin historicalsources,it seems
safe to concludethatpunitivedetentiondidnothavethe samestatusin pre-modem
Islamiclaw thatit does in modemlaw.
IMPRISONMENT,a generally accepted form of punishment in modem
Western and non-Western legal systems, existed also in Islamic law in
the pre-classical and classical periods (second-sixth/eighth-thirteenth
centuries),' although Muslim jurists paid only limited attention to the
subject. For the most part, Islamicists have ignored the topic, which is
mentioned only in works on criminal and procedural law2 and in
*
I am gratefulto ProfessorB. Johansenfor his criticismof an earlierversionof
this essay and to ProfessorD. Powersfor his comments.Any remainingshortcomingsaremy responsibility.
1 See ChafikChehata,Etudesde droitmusulman(Paris,1971), 15ff. Chehata
definesthe pre-classicalperiodof Islamiclaw as extendingfromthe middleof the
secondto the thirdcenturyA.H., and the classicalperiodas extendingfrom the
thirdto thesixthcenturyA.H.

2 J.N.D. Anderson, "Homicide in Islamic law," Bulletin of the School of

Oriental and African Studies, XIII (1951), 811ff.; M. el-Awe, "Ta'azir in the
Islamic Penal System,"Journal of Islamic and ComparativeLaw, VI (1976), 41ff.;

Welt
B. Johansen,"Eigentum,
FamilieundObrigkeitim Hanafitischen
Strafrecht,"

des Islam, XIX (1979), Iff.

Prisonsare treatedmoreextensivelyin M.M. Ziyada,Al-sujfn fi Misr fi '1qurinal-wust?,"al-Thaq4fa,CCLXII(1944),15ff.;20ff.;CCLXXIX(1944), 16ff.;

A. al-Wa'ili,Ahkdm-izinddndar Islam, trans.M.H. Buka'i (3rd ed., Teheran,
1989);F. Ziyadeh,"Adabal-Qddiandthe Protectionof Rightsat Court,"Studies
in Islamic and Judaic Traditions, ed. W.M. Brinner and S.D. Ricks (Atlanta,

I havenotbeenable to see HasanAbfu6udda,Ahkam

1987), 143ff.;unfortunately

? E.J.Brill,Leiden,1995

Islamic Law and Society 2,2

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

he can releasehim fromcustody.The termof imprisonmentis limitedto

a few monthsand may be extendedonly if the creditorproves that the
debtorhas sufficientassets. The sole objectiveof imprisonmentfor debt
is to compel a debtor to satisfy his creditors. He is released if it
becomes clearthathe is impecunious.4
In ancientRomanlaw a debtorwas punishedby enslavement.Subsequently, this punishmentwas mitigatedand the debtorhad to work
off his debt in the creditor'shouse.5This was the practice in Roman
provinciallaw in late antiquity,althoughimprisonmentfor debt existed
as well.6 In this connection,a ruling attributedto the Prophet'sCompanion Abu Hurayra(d. ca. 678) is of interest.Insteadof following a
creditor'swish to have his debtorarrested,Abu Hurayraorderedthat
the debtorremainfree and repayhis debt by workingfor the creditor.7
Similarly, 'Umar b. 'Abd al-Aziz (r. 717-720) is reported to have
issued a judgment directingan insolvent man to work off his debts.8
Putting aside the issue of historicity, these reportsare importantbecause they indicatethatdebtbondageexisted in early Islamic times. In
anothercase, Ibn Abi Layla (d. 765) ordereda solvent debtorwho was
evading repaymentto be publicly paraded.9These examples suggest
that the status of imprisonmentfor debt was in a state of flux at the
beginning of Islam and that, in additionto imprisonment,repayment
throughpersonallabor and public paradingserved as ways of protecting the creditor'srightto makesubsequentclaims.
By contrast,'Ali b. Abi Tilib (r. 656-661),10the jurist al-Shabi (d.
4 G.
Bergstrasser, Grundziige des islamischen Rechts, ed. J. Schacht (Berlin/
Leipzig, 1935), 118; D. Santillana,Instituzionidi diritto musulmanomalichita con
riguardo anche al sistema sciafiita, 2 vols. (Rome, 1938), vol. 1, 135; E. Sachau,
MuhammedanischesRecht nach schafiitischer Lehre (Stuttgart/Berlin,1897), 346;
for the differences among the madhahib, see Ibn Rushd, Biddyat al-mujtahid, 2
vols. (6th ed., Beirut, 1983), vol. 2, 284.
5 M. Kaser, Rimisches Privatrecht(16th ed., Miinchen, 1992), 359ff.
6 L. Mitteis, Reichsrecht und Volksrechtin den istlichen Provinzen des romischen Kaiserreiches (repr.Leipzig, 1935), 456ff.; R. Taubenschlag,"L'lmprisonnement dans le droit greco-6gytien," in idem, Opera Minora, 2 vols. (Warschau,
1959), vol. 2, 713ff.
7 Ibn Abi Shayba, Kitab al-Musannaf fi'l-ahddlth wa'l-athdr, ed. S. alLahham, 9 vols. (Beirut, 1989), vol. 5, 108; al-Waki', Akhbdr al-quddh, 3 vols.
(Cairo, 1947-50), vol. 1, 112; Ibn Hazm, al-Muhalld, ed. M. Shikir, 11 vols.
(Cairo, 1928-33), vol. 8, 171ff.
8 Ibn Rushd, Biddya, vol. 2, 293.
9 'Abd
al-Razzaq al-San'ani, al-Musannaf, ed. H. al-A'zami, 11 vols. (Beirut/
Simlak, 1972; 2nd ed., 1983, Faharis 1987), vol. 8, 267; Ibn Abi Shayba
(Musannaf, vol. 5, 108) cites a reportindicating that Ibn Abi Layla was in favor of
imprisonment.
0 'Abd
al-Razzaq, Musannaf, vol. 8, 306; Ibn Babuya, Man Idyahduruhualfaqih, ed. H. al-Musawi, 4 vols. (5th ed., Teheran, 1970), vol. 3, 19ff.

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

as-saldt,76); IbnAbi Shayba,Musannaf,vol. 5, 108, 218.

(= K.
13 J. Schacht,
to IslamicLaw (Oxford,1964),24; for another
An Introduction
traditionascribed to Shurayhin which he criticizes prisons, cp. Ibn Hazm,
Muhalld,vol. 11, 143.
14 Sahnin,al-Mudawwana
al-kubrdli'l-lmamMalik,ed. M.S. al-MaghribiatTunisi,15 vols. (Beirut,n.d.),vol. 5, 206, 226.
15 Al-Shafi'i,al-Umm,8 vols. (2nded., Beirut,1983),vol. 3, 206, 217.
16 Al-Khassaf,Kitabadab al-qaddwa-sharhAbi BakrAhmadb. 'All al-RdzE
al-Jassds,ed. F. Ziyadeh(Cairo,1978),256.
17 Al-Shafi'i,al-Umm,vol. 3, 206.
18 Al-Khassaf,Adab,255ff.
19 I. Schneider,Das Bild des Richtersin der adabal-qd.d-Literatur
(Frankfurt
a.M., 1990),76ff.
20 Al-Mawardi,
Adabal-q&di,ed. M.H.as-Sirhan,2 vols. (Baghdad,1971-72),

IMPRISONMENT

161

In addition,a male apostatemay be imprisonedfor threedays in an

effort to revive his faith in Islam. If he is unwillingto reaffirmhis faith
within this time-period,he is to be executed.21Opinions differ on the
female apostate.According to some jurists, she may be sentenced to
death like her male counterpart;others call for imprisonment.22If a
female apostateis slave, her imprisonmentis temporary:she shouldbe
returnedto her owners so that they may encourageher to re-embrace
Islam.23In the case of female apostateswho are either free or slaves,
imprisonmentfunctions both as a form of ta'zir (see below) and as a
meansto encouragethemto returnto Islam.24
(b) Pre-trialDetension
Pre-trialdetentionin pre-classicaland classical Islamic law serves the
same function as in moder Westernlaw, namely to detain a suspect
until his trial commences. The Prophetis reportedto have orderedthe
arrestof persons on suspicion (fi tuhma).25In anotherinstance, he is
said to have had the Banf Qurayzaarrestedto force them to accept an
arbitrator.26

(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

and imprisonedfor a year.28In the case of murder,the murderershould

be whipped 100 times and imprisonedfor a year if his offence was
forgiven, that is, if the victim's family did not exact vengeance by
killing him (Malikis and Shi'is).29

- In the case of highway robberynot involving murder,that is, when a

personis waylaid or mugged(Malikisand Shifi'is).30
- If a thief is caught red-handedor steals more than once. If he has
alreadylost bothhandsandfeet, he is first flogged and then imprisoned
(Malikis).31
- In the case of multiple false accusationsof unchastity(qadhf) (the
Hanafi AbuiYfsuf).32
- As a penaltyfor the commissionof incest.In this case, the offenderis
first struckwith a sword and, if he survives the blow, imprisoned(the
Shi'i Ibn Babuiya).33
Punishments for highway robbery, theft and false accusation of
unchastityare all specified in the Qur'an,where they are referredto as
hudud. However, the Qur'anic hudad-punishmentsare corporal in
nature34and any imprisonmentimposed in connection with such a
crime is imposed as a supplementaryform of punishment.The same
holds for incest, the punishmentfor which is not specifiedin the Qur'an.
In the case of highway robbery, the Malikis impose imprisonment,
without a corporalpunishment.As the Qur'anicpunishmentfor highway robberyis the cutting off of one foot and one hand,35it appears
thatthe Malikis considerimprisonmentto be sufficientbecause no one
has been murdered.Generallyspeaking,it can be concludedthat punitive detentionis imposed in conjunctionwith corporalpunishmentand
normallyafterthe corporalpunishmenthas been executed.
Moving from legal doctrineto legal practice,we find that imprisonmentwas often imposed in place of the hudad.It is this practicewhich
28 Malikb. Anas,al-Muwatta',transmission
of Yahyab. Yahyaal-Laythi,ed.
S.M. al-Lahhamand M. Qassas(Beirut,1988), 670; IbnBbuiya, Man ld, vol. 3,
19.
29 Malik, Muwatta', 671.

30 Ibn Abi Zayd al-Qayrawani,

al-Risala, ed. and trans.L. Bercher(2nd ed.
Algier, 1952), 242ff.; Sachau,Recht, 834; Rosenthal,Concept,38ff.; K. Dilger,
derRechtsentwicklung,"
Der Islamin der Gegenwart,ed. W. Endeand
"Tendenzen
U. Steinbach(2nded., Miinchen,1989),177ff.,cf. 189.
31 Ibn Abi Zayd al-Qayrawani,
al-Risdla,242ff.; 'Abdal-Razzaq,Musannaf,
vol. 10, 186ff.: 'Umaris said to have favoredthe cuttingoff of both handsand
feet, 'Ali reportedlypleadedthatonly one leg andone armshouldbe amputated.
Abi Yusuf,Kitabal-Khardj,ed. 'U. Bashir(Cairo,1933), 166.
33 IbnBabuya,Man Id,vol. 3, 19ff.
34 Schacht,Introduction,175ff.
35 Ibid., 180.

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

2. Landlordsand the military6lite (al-ashrdf)were to be summoned

before a judge and admonisheddirectlyby him.
3. Businessmen(awsat), were to be admonished,summonedby the
judge and imprisoned.
4. The masses (al-sifla) were subjectto admonishment,summons,
imprisonmentandbeating.42
The higher a person's social status, the milderhis punishment.It was
believed that members of the highest class could be deterred from
committingcrimes by privateadmonitions,whereasmembersof lower
classes required progressively more severe measures. Al-Mawardi
observes that some jurists are of the opinion that a common man may
be imprisoned for one day or for an entire lifetime.43In the abovementionedscheme, imprisonmentis regardedas a punishmentonly for
the middle- and lower-classes.However,the Shi'i Ibn Babuyarefersto
"sinningscholarsand quacks"as candidatesfor imprisonment.44
Because the lawbooks are silent on the punishmentsto be imposed
and because ta'zlr was exercisednot only by judges but also by political authoritieswho had a monopoly on the penal system in 'Abbasid
times,45 in order to determinewhen imprisonmentwas imposed we
must consult non-legal sources such as historical texts, biographical
dictionaries and collections of hadith. In the hadith-literature, for ex-

ample,the Prophet'sCompanion,Ibn 'Abbas(d. ca. 686), is reportedto

have punisheda man with imprisonmentfor selling a free personinto
slavery.46I have found additional references to punitive detention in the

following threetexts writtenbetweenthe tenthandthe twelfthcenturies:

al-Waki' (d. 941), Akhbar al-qu.dh, which includes biographies of

judges from all Islamic regions; al-Kindi (d. 961), Kitarbal-quddh,

which deals with Egyptianjudges; and al-Qadi'Iyad (d. 1149), Tartib
al-maddrik, which contains biographies of scholars. In these sources,
one finds numerous references to imprisonment for debt,47 imprison42 Al-Kasani, Kitab Badd'i' aj-sand'i' fi tartib al-shardai', 7 vols. (Beirut,
1982), vol. 7, 64; Art. "Ta'zir,"EI, vol. 4, 769 (Heffening);Johansen,"Eigen-

tum,"50ff. This socialdivisionhas beenknownsince the twelfthcenturyandmay

account,as Johansensuggests,for special courtsthatexistedfor differentsocial
classesin Ottomantimes.
43 Al-Mawardi,
Ahkdm,236ff.Thisis truefor theMalikis.Whetheral-Mawardi
also ascribedthis opinionto otherShafi'ijuristsis not clear, as he mentionsno
names.
44 Ibn
Babuya, Man la, vol. 3, 19ff.
45 Schacht, Introduction, 54; Johansen,"Eigentum,"54.

46 'Abdal-Razzaq,Mupannaf,vol. 10, 195.

47 Al-Waki',Akhbdral-quddh,3 vols. (Cairo,1947-50),vol. 2, 232, 252, 296,
308, 317; al-Kindi,Kitab al-Qu.ddh,ed. R. Guest (Leiden/London,1912), 351,

IMPRISONMENT

165

ment for contemptof court48and pre-trialdetention.49These texts also

mentionthe followingcases:
- an unreliablecourtsecretaryimprisonedfor breachof official duty;5S
- a professionalfemale mournerarrestedfor no apparentreason;51
- a poet imprisoned for writing a poem considered obscene or
inflammatory;52

- a personimprisonedfor refusingto pray-in which case blows were

also administered;53
- delinquentsarrestedby a judge for arbitraryreasons (several cases);
in some of these cases the delinquentswere beaten;54
- and, finally, an orphanwho complainedto a judge about his guardian. The judge ignoredthe orphan'scomplaint.When the boy triedto
take revengeby writinga satiricalpoem attackingthe judge, the judge
sent him to prison. When the judge's conduct became public knowledge, he was suspended.55
Judges often were arrestedfor political reasons,56and some landed
behindbarsfor refusingto acceptthe office.57In all such instances,the
prison sentence was imposed by the political authority and was
intended as a political measure-an issue beyond the scope of this
essay.
These examples indicate that both in theory and in practice,
imprisonmentfor debtwas a recognizedinstitutionin Islamiclaw. This
conclusionis corroborated
by the evidenceof papyri.An eighth-century
letter, for example, mentionsa taxpayerwho was put behind bars for
evading taxes. It is evident from the letter that the tax collector also
whippedthe tax evaderin an effortto force him to pay his taxes.58
412, 454, 528, 593; al-Qadi 'Iyad, Tartib al-maddrik wa-taqrib al-masdlik, ed.

A.B. Mahmid,4 vols. andsupp.(Beirut,1967-68),vol. 1/2, 601 (in combination

with whipping,vol. 3/4, 80).
48 Al-Waki', Akhbdr, vol. 1, 210; vol. 2, 78; vol. 3, 187, 313; al-Kindi,

Quddh, 341, 439.

49 Al-Waki', Akhbar, vol. 2, 161ff.; al-Kindi, Qudah, 365ff., 457.
50 Al-Qadi
'Iyad, Tartib, vol. 3/4, 217.
51 Al-Waki',
Akhbdr,vol. 3, 105.

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

early case it is obviouslythe tax collector,not the q&dl,who punishesthe tax

evaderandputshimbehindbars!

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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.

61 Qur'anicsijn is derivedfromthe Latinsignum throughthe Greekvariant

lat. signum> gr.signon> arab.
signon.See J. Niehoff,"Romanicagraeco-arabica:
sijn,"RomaniaArabica,FestschriftR. Kontzi,(Tiibingen,forthcoming1995);cf.
otheretymologiesin Rosenthal,Concept,35, note84.
62 Rosenthal,Concept,35; Wa'ili,Ahkam,14ff.
63 Rosenthal,
Concept,36.
64 Taubenschlag,
713ff.; Rosenthal, Concept, 36ff.; G.
"Emprisonment,"
Beduinenleben
Jacob,Altarabisches
1897),217.
(Berlin,
65 W. Reinert,Das Rechtin der altarabischenPoesie (K6ln, 1963), 24. The
knownto thebedouinwas expulsionfromthetribe.
only truepunishment

IMPRISONMENT

167

authorities.For example, 'Umarb. al-Khattab(r. 634-644)66reportedly

bought a house in Mecca and turnedit into a prison.The same is said
of 'Ali (r. 656-661) in Basra,67of the Kufanjudge Shurayh(d. 679), of
the jurist al-Sha'bi (d. 714), and of al-Hasan al-Basri (d. 728).68
Prisonersreportedlycould escape easily from 'Ali's prisonbecause it
was-in the words of thejuristal-Khasssf,"notsolid enough."For this
reason, 'All had anotherprisonbuilt which was "like a fortress."69A
centurylater,the Shgfi'i scholaral-Buwayti(d. 846) was held in a kind
of house-arrest.EveryFridayhe would preparehimself for prayersand
attemptto leave the house, but he was stoppedon each occasion by a
guard (sajjdn).70A similar story is told in connectionwith Bakkarb.
Qutayba (d. 883), who initially was placed in a prison and later
detained in a rented house. He too attemptedto leave the house on
Fridays;at times he would sit by his window and recite hadlth to the
people who had gatheredin frontof his house.71
Prisons were subject to the control of judges. Significantly, handbooks for judges (addb al-qd4i) stipulatethat the well-being of prisoners is one of the most importantdutiesof a newly-appointedjudge and
stressthatthis dutymustbe carriedout carefully.Everyprisonershould
be brought before the new judge, who was under an obligation to
establish the reasons for imprisonment.72If no plaintiff had filed a
complaint, the judge was requiredto release the prisoner.Under no
circumstance should anyone be kept in prison wrongfully.73 AlKhassaf(d. 847) explicitlycautionsa new judge not to leave anyone in
prison,with the exceptionof a prisonerwho had acknowledgeda claim
against himself, against whom a witness had testified, or who was
awaiting hadd-punishment.In all other cases, the judge must release
the prisoner.74According to AbufYusuf, prisonerswere to be maintained out of state funds so that they would not roam the streets in
shackles, begging.75The norms stipulatedin the handbooksfor judges
66 Al-Simnani, Rawdat al-quddh wa-tarlq al-najdh, 4 vols., ed. al-Nahi
1970-74), vol. 1, 361ff.
(Baghdad,
6 Al-Khassaf, Adab, 253ff.; al-Simnani, Rawda, vol. 1, 361ff.; Rosenthal,
37.
Concept,
68 Al-Simnani, Rawda, vol. 1, 128ff.
69 Al-Khassaf, Adab, 253f.
70 Al-Subki, Tabaqdt al-Shdfi'cya al-kubrd, ed. M. al-Tanahi and A.M. alHulw, 8 vols. (Cairo, 1964-71), vol. 2 165ff.; Rosenthal, Concept, 63.
71 Al-Kindi, Quddh, 513; Schneider,Bild, 119.
72 Al-Khassaf, Adab, 61ff.; al-Mawardi,Adab, vol. 1, 221ff.
73 Ibid.; Schneider,Bild, 117ff.
74 Al-Khassaf, Adab, 61ff.
75 Abf Yusuf, Khardj, 150; according to the Shafi'is, a prisoner possessing

168

IRENESCHNEIDER

may often be understoodas directivesfor a needed correctiveof their

usual conduct.There is no denying, however, that the duties of judges
and the rights of prisonersare clearly defined in the handbooks and
thatthe tortureandkilling of prisonerswas not condoned.76
As regardsthe treatmentof the prisoners,it is interestingto compare
statementsmade by two Hanafi jurists, al-Khassaf (d. 847; his commentatoris al-Jassas,d. 981) and al-Sarakhsi(d. 1096). According to
al-Khas.saf,a prisonerwho is sick may be looked after by his servant
or discharged from prison. This is because the action of a creditor
should not result in the death of a debtor/prisoner;if the prisoneris ill
and unattended,his life is at risk.77A prisonermay receive guests in
prison, especially membersof his family. Al-Khassif even allowed a
prisoner to engage in sexual intercoursein prison if an appropriate
place for the activitywas available.Accordingto al-Jassas,al-Khass.if
held this view on the strengthof an analogy that he drew between a
prisoner'srightto sexual intercourseandhis rightto eat and drink.78
Al-Sarakhsiexpressly forbadeprisonersfrom attendinggatherings,
festivals, the pilgrimage (hajj) and funerals.79Requiringa prisonerto
remainindoors,he argued,would serveto frustratehim sufficientlythat
he would eventually pay his debts. A prisoner should, therefore, be
detained in an uncomfortableplace without a bed and without any
company. The women's prison should be at a considerable distance
from the men's prison,and the sexes shouldnot be imprisonedtogether.
Like al-Khassaf, al-Sarakhsi did not object to family and friends
visiting a prisoner, as he expected them to persuade the prisoner to
satisfy his creditors.However, al-Sarakhsiemphasizedthat a prisoner
shouldnot be beaten, chained,paradedthroughthe streets,or forced to
work.80

A storyrelatedby al-Kindicontainsevidencebearingon lax security

conditions:Identicaltwins regularlyexchangedplaces in prison,apparently without anybody noticing.81Al-Waki' mentionsa criminalwho
assetswas requiredto pay a rentfor his spacein theprison,cf. Sachau,Recht,346.

76 Schneider,Bild, 137ff.; Johansen,

"Eigentum,"53.
77 Al-Khassaf, Adab, 264.
78 Al-Khassaf, Adab, 265.
79 Al-Sarakhsi, Mabsat, vol. 20, 90; al-Kasani, Badd'i', vol. 7, 174; Ibn
Hazm, Muhalla, vol. 8, 171ff. On the other hand, Ibn Babuya, Man Id, vol. 3,
19ff. holds that the imam should allow imprisoneddebtors to attend the prayerson
Friday and on holidays; but they should be accompanied by someone who will
safeguardtheir returnto prison after the prayersare over.
8U Al-Sarakhsi, Mabsut, vol. 20, 90.
81 Al-Kindi, Quddh, 528.

IMPRISONMENT

169

was ordered by a judge to go to prison (on his own) without an

accompanyingguard;the criminalreportedlycompliedwith the order.82
The primaryfunction of Islamic prisons was not to punish but to
detain. This is consistentwith the practicesof administrativeand pretrial detention whereby a debtor or a prisoner awaiting his trial is
detaineduntil he had pays his debts or until courtproceedingsagainst
him commence.The fact thatMuslimjuristsdiscussonly imprisonment
for debt may explain why they manifest significant concern for
prisoners' rights and why prison conditions appear to have been
relatively salubrious.The type of prisonmentionedin the lawbooks is
not one that is designed to incarceratecriminalsfor a fixed period of
time as a form of punishment,that is, it is not consistentwith punitive
detention.
However, there existed anothersort of prison-the so-called "robber's prison"(sijn al-lusus) which the lawbooks mentiononly in passing. Al-Khassif recommendssuch prisonsonly for debtorswho might
attemptto escape. His commentator,al-Jassas,warns specifically of
the danger of death to which a debtor might be exposed in such a
prison.83This suggests thatprisonersotherthandebtorsnormallywere
kept there and that security arrangementsand living conditions there
were much harsherthanthey were in debtorprisons.We imagine that
inmates were not protectedagainst each other or against death from
starvation and that the likelihood of their being forgotten by the
judiciarywas great.
The lawbooks contain only brief references to "robber'sprisons"
and they do not mention how they should be administered,who was
sent to them, and why. What are the reasons for this? Two explanations come to mind. First, the most common type of imprisonment
envisagedby the jurists-apart frompre-trialdetention-was no doubt
administrativedetention, especially in the form of imprisonmentfor
debt. It was for this type of imprisonmentthat the jurists established
strict rules and it was to this type of imprisonmentthat they paid the
most attention.Punitivedetentionwas employedonly as a supplement
to the hudud-and ta'zir-punishments(see above), and it seems to have
been considered an unusual punishmentthat was largely ignored by
the jurists. Second, as previously noted, the 'Abbasid Caliphate84
82 Al-Waki', Akhbar, vol. 1, 132ff.
83 Al-Khassaf, Adab, 264ff.; Rosenthal, Concept, 57ff.
84 Johansen, "Eigentum," 53ff.; according to Johansen, this situation lasted
until post-classical times.

170

IRENESCHNEIDER

establisheda monopolyover the criminaljustice system at a very early

stage and thereforecontrolledthe "robber'sprisons."Althoughalmost
nothingis known aboutthe types of punishmentsthatwere imposedby
'Abbasid state authorities,it is possible that convicted criminalswere
kept in punitivedetentionin the "robbers'prisons."If this is the case, it
follows that punitive detention played a certain role in the sphere of
criminaljurisdictionadministeredby the stateauthority.
Ziyada's (rare)study of prisonsin medievalEgypt sheds some light
on the question:85He mentions a statementby the Mamlukhistorian,
al-Maqrizi(d. 1442),86accordingto which therewere three prisons in
Ayyibid Cairoat the time of the Sultanal-Kamil(r. 1218-38) onwards,
one for convicted criminals,one for political prisoners,and a thirdfor
people who had been sentencedto death.87It is reportedthat before he
became Sultan,Qal'uin (r. 1280-90) took a walk in the vicinity of the
prison for convicted criminals, where he encounteredstench and the
despairingcries of prisoners.He thereforeclosed this prisonin the year
1282 andhad anotherone built in the citadelthreeyears later.The new
prisonwas used to incarceratethe Sultan'senemies amongthe Mamlfik
Emirs; in due course, it evolved into a place of horror in which
prisonerswere subjectedto dreadfultreatment.88In Cairo there were
now two prisons for political prisonersand one for people who had
been sentenced to death. No information-at least for this period-is
available about prisons for criminals,althoughZiyada speculates that
one of the threeprisonsmay also have housedconvictedcriminals.89
Anotherconclusionis possible:thatin the most cases criminalswere
punishedby flogging, public paradingor banishment,not by punitive
detention.Once again it appearsthatimprisonmentwas used predominantly as a political measure-a

subject which has been excluded

here-and thatprisonsdesignedexclusivelyfor punitivedetentionwere

rare. One cannot help but notice that punitive detentionplayed only a
subordinaterole in thefiqh-literatureas well as in the historicalsources
up to Mamlfiktimes.

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

171

The DoctrinalTreatmentof Imprisonmentby MuslimJurists

The Zahirijurist Ibn Hazm (d. 1064) made the following comment
about imprisonment:"God has commandedthat justice be done and
that delaying tactics as well as prisonsbe forbidden.Prisonis a delaying tactic and unjust (zulm). To prevent a creditorfrom having his
claim satisfied quickly is a delaying tactic and unjust."90Ibn Hazm
criticizes imprisonmentfor debt because it delays satisfaction of a
creditor'sclaims. Generally,he emphasizesthat no Muslim should be
preventedfrom moving freely on earth unless the Qur'anand sunna
impose such a contraint. He does not, however, make clear what
exactly this means.91
This critical opinion about imprisonmentis, as far as I can determine, exceptional.As notedabove,otherjuristsacceptedimprisonment,
but concentrated-like IbnHazmin this citation-on imprisonmentfor
debt.But what aboutotherkinds of imprisonment?Referencesare few.
Al-Sarakhsiraised the questionwhetherpre-trialdetentionin a given
case is to be considereda precautionarymeasure(ihtiydt)or a penalty
(ta'zlr).92 Elsewhere, al-Sarakhsi acknowledged the compulsory
characterof imprisonmentfor debt,93but called it a legal punishment
('uqiba mashru'a).94He regardedimprisonmentfor debt to be analogous to the case of an unchaste woman for whom house arrest is
imposed in Q. 4:15ff. (Note: the verse was subsequentlyabrogated).
This demonstratesthat administrative,pre-trialand punitivedetention
were not regarded as separate categories by Muslim jurists, who
focusedtheirattentionon imprisonmentfor debtand-sometimes-pretrial detention.Al-Sarakhsiconsideredpre-trialdetentionto be a form
of ta'zir.Similarly,imprisonmentfor debt seems to have been regarded
as a harsh treatment,if not a punishment('uquba). This is why the
jurists tried to restrictits applicationwith respect to debtors.Unfortunately, they were silent about otherprisoners,especially those held in
punitivedetention.
90 IbnHazm,Muhalld,vol. 8, 172.
91 Ibid.,vol. 11, 141.
92 Al-Sarakhsi,Mabsat,vol. 9, 38f.;Rosenthal,Concept,45, note 120.
93 Al-Sarakhsi,Mabsat,vol. 20, 90; see also al-Khassaf,
Adab,254.
94 Al-Sarakhsi,Mabsut,vol. 9, 38ff.; vol. 30, 88; see also al-Khassaf,Adab,
253ff.Theargumentis basedon a hadlth(cf. Wensinck,Concordance,vol. 4, 188)
in which imprisonment
for debt is imposedand called an 'uquba, althoughthe
exact meaningof 'uqabahereis not clear.Later,it comprisedthe hudadpunishder
ments,retaliationand sometimesta'zir. See B. Johansen,"ZumProzeBrecht
Gesellschaft,Supp.II,,
'uqubat,"Zeitschriftder DeutschenMorgenldndischen
XIX.DeutscherOrientalistentag
vom 28. Sept.bis 4. Okt.1975in Freiburg,ed. W.
Voigt(Wiesbaden,1977),477ff.,480.

172

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,

"carcer enim ad continendos homines, non ad puniendos haberi debet"; see G.

und Strafenmit Freiheitsentzug,"

Zeitschriftder
Kleinheyer,"Freiheitsstrafen

Saviny-Stiftungfiir Rechtsgeschichte,germ. Abt., CVI (1990), 102ff., 108ff.

areparallelto thosespecifiedin the Islamic

Theseinstancesof imprisonment
lawbooks.

IMPRISONMENT

173

as a substitute for the death penalty, and for smaller offenses.97In

penal law, imprisonmentvery often servedas a supplementto corporal
punishment.98By contrastto its limited treatmentin the lawbooks, it
was increasingly applied in practice.9 Although imprisonmentfunctioned as a form of custody, it was classified under corporalpunishment in the lawbooks.l00It has been suggested that this was perhaps
becauseof the miserableconditionsin many prisons.l'0
In European law, it was only when corporal punishment was
abolished between the end of the eighteenthand the beginning of the
nineteenthcenturythatimprisonment-that is, the deprivationof freedom-came to be generallyacceptedas an independentformof punishment.102
Foucaultsummedup the situationas follows: Beginningin the
eighteenthcenturythe criminal'sbody ceased to be a targetof repression. Fromthattime onwards,his isolationfromhis fellow humanshas
become more important.And with that, punishmenthas stoppedbeing
a publicspectacle.103

97 G. Schwerhoff, Kiln im Kreuzverhor(Bonn/Berlin, 1991), 128.

98 Kleinheyer, "Freiheitsstrafen,"107. This holds for Islamic law as well.

99 Ibid., 107; Schwerhoff, Koln, 128; Justiz in alter Zeit, ed. Ch. Hinckeldey
(Rothenburg o.T., 1984), 350ff.; this is similar to Islamic law in the sphere of
ta'zir.
100 Similarly, Muslim jurists referredto imprisonmentfor debt as an 'uqaba!
101 Justiz, 350; Kleinheyer, "Freiheitsstrafen,"108. Numerous decrees were
issued in an effort to improve prison conditions.
102 M. Foucault, Uberwachen und Strafen. Die Geburt des Gefdngnisses
(Surveiller et punir, germ.) (Frankfurta-M., 1977), 15; Kleinheyer, "Freiheitsstrafen," 123ff., 131. Other scholars have argued that the substitution of various
forms of imprisonmentfor the sanctions of medieval law occured in the sixteenth
and seventeenthcenturies. See, for example, J.H. Langbein,Tortureand the Law of
Proof-Europe and England in the Ancien Regime (Chicago, 1977), 28, see also
38, 48, 53; E. Peters, Torture (Oxford, 1985, repr. 1986), 83ff.
103 Foucault, Uberwachen und Strafen, 15ff., 302, and passim.