Month: August 2012

qadi criminal justice in comparative perspective

The U.S. criminal justice system features unlimited prosecutorial discretion, justice by plea bargaining unconstrained by due process of law, and mass incarceration with a world-leading number of person incarcerated per capita.  A leading scholar of the U.S. criminal justice system has declared that it has “run off the rails” and collapsed.  Another legal scholar describes the situation thus:

If the system is doing justice now, it is by accident – the accident that particular prosecutors bargain prudently and humanely. There is good reason to doubt that this happy accident is really taking place. And even if executive discretion produces now something tolerably close to justice, the grotesque concentration of power in so few hands conflicts directly with the rule of law. The system we have is far too close to “kadi justice” for comfort. [1]

The reference to “kadi justice” is an allusion to U.S. Supreme Court Justice Felix Frankfurter’s dissenting opinion in Terminiello v. City of Chicago (1949).  In that opinion, Justice Frankfurter declared:

This is a court of review, not a tribunal unbounded by rules.  We do not sit like a kadi under a tree dispensing justice according to considerations of individual expediency.

The rule of law and justice in the criminal justice system are crucially important public issues.  Considering them in current U.S. circumstances can easily prompt despair.  What to do?

In accordance with enlightenment faith in reason, I will analyze Justice Frankfurter’s reference to “kadi justice.”  A qadi (kadi) is a judge ruling under Islamic law.  By the fourteenth century, Islamic law was well-respected, highly codified knowledge. Ibn Battuta, a visitor to the Maldives, became a qadi there by displaying his knowledge of Islamic law.  Battuta recorded in his journal his key concern as qadi: “When I became qadi, I strove with all my might to establish the rule of law.”[2] Islamic legal scholars worked to keep Islamic law unchanged from the seventh century and uniform across the Islamic world.  A qadi’s persona and public decisions represented the grandeur of Islamic tradition and the depth of Islamic legal scholarship.  Sitting under a tree dispensing justice according to considerations of individual expediency would be completely inconsistent with the self-conception and public perception of a qadi.[3]

Looking back over unenlightened ages and cultures, the image of an official sitting under a tree dispensing justice according to individual expediency fits most directly King Louis IX in thirteenth-century France.  A famous account tells of King Louis IX frequently sitting under an oak tree in the woods of Vincennes and dispensing justice directly to his subjects in accordance with his absolute royal sovereignty.  King Louis IX was not a legal scholar.  He did not strive to administer justice according to an unchanging, uniform corpus of written law and legal interpretations.  He probably sought to treat petitioners fairly in their particular circumstances, according to his own personal sense of fairness.  That’s not the sense of rule of law in our age of enlightenment.

Present-day U.S. prosecutors dispense justice much more like King Louis IX in thirteenth-century France than like a qadi in the ancient Islamic world.  Making the U.S. criminal justice system more just can start with true enlightenment.

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Notes:

[1] Dripps (2005) p. 1159.

[2] Trans. Dunn (1986) p. 234.

[3] For roughly the past half-millennium, weaknesses in the administration of justice under Islamic law have been the opposite of excessive legal discretion and lack of legal uniformity and stability.  Weaknesses of Islamic law over the past half-millennium are much better characterized as too little freedom for interpretation (ijtihad) and too little experimentation.  Too little experimentation can be interpreted as lack of confidence that God is sufficiently great to create human beings who will, at least eventually, freely discover the truth about God and the world.

References:

Dripps, Donald A. (2005). “Overcriminalization, Discretion, Waiver: A Survey of Possible Exit Strategies.” Penn State Law Review v. 109. pp. 1155-1179.

Dunn, Ross E. (1986). The adventures of Ibn Battuta, a Muslim traveler of the fourteenth century. Berkeley: University of California Press.

building a fire on a whale-turtle island

a sea-bird saw the whale-turtle island sink

More than a millennium ago, a story of building a fire on a whale-turtle island was known across the span of Iran, Russia, England, Egypt, and Ethiopia.  A version of that story exists in the Physiologus, a second-to-fourth-century didactic Greek Christian text from Alexandria (Egypt).  A Latin translation made between the fourth and sixth centuries tells the story thus:

Physiologus spoke of a certain whale in the sea called the aspidoceleon {asp-turtle} that is exceedingly large like an island, heavier than sand, and is a figure of the devil.  Ignorant sailors tie their ships to the beast as to an island and plant their anchors and stakes in it.  They light their cooking fires on the whale but, when he feels the heat, he urinates and plunges into the depths, sinking all the ships.  You also, O man, if you fix and bind yourself to the hope of the devil, he will plunge you along with himself into hell-fire.[1]

A whale “urinating” and plunging into the depths seems to correspond to a whale blowing through its blowhole and then diving.  More generally, the Physiologus seems to have added  to earlier observations of nature broader interpretations, more abstract symbolic understandings, and moral teachings.[2]  The Physiologus was translated into Ethiopic, Armenian, Syriac, Arabic, and Old Church Slavonic from the fifth to tenth centuries.  A version of the story of building a fire on a whale-turtle island appears in the didactic Old English poem “The Whale,” preserved in the tenth-century Exeter Book.[3]  Its source is almost surely a version of the Physiologus.  By the tenth century, the Physiologus was one of the most widely known books in western Eurasia.[4]

sailors mistakenly land on a whale

In the tenth century, along the Persian Gulf in present-day Iran, a sea captain recounted a different version of the story of building a fire on a whale-turtle island.  The sea captain claimed that he heard the story from another who said that he heard it from an old sailor.  In this Persian-Arabic version, some Persian sailors sailing from India encountered a strong storm that damaged their ship.  They managed to land on a small island containing no wood or water.  By the time they repaired their ship, the date had turned to the Persian New Year’s Day.  That meant celebrating the feast of Nowruz:

to celebrate it, {the sailors} took on to the island all the bits of wood they could find in the ship, palm leaves, and material, and set fire to them.  All of a sudden the island began to tremble.  As they were not far from the water, they threw themselves in and climbed aboard {their ship}.  Immediately the island sank into the sea, with such turbulence that they were almost drowned and had great difficulty in reaching safety.  They were filled with great terror.  For the island was nothing but a turtle asleep on the sea.  It had fled when it was awoken by the burning fire. [5]

The source for this story is probably the Physiologus.  However, the Physiologus’ didactic allegory of staking a new residence on top of the devil was transmitted to the Persian sea caption as just a sailor’s tale of wonder.  Scholarly literature in the ancient Islamic world often added moral teaching to earlier Greek stories.  The sea captain’s story shows moral teaching being discarded in the much different discursive circumstances of folk entertainment.[6]

The reception of the Physiologus’ story of building a fire on a whale-turtle island points to more general communications economics.  The Physiologus’ success in ancient communications markets benefited from both its moral orthodoxy and its entertainment value.  Its moral orthodoxy ensured that elites would employ scribes to copy it. Its stories of natural wonders, which could easily be shorn from its moral instruction, supported popular demand for it.  The Physiologus thus had a market position somewhat similar to college education in the U.S. today.

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Notes:

[1] Physiologus, XXXI. On the Whale, that is, the Aspidoceleon, trans. Curley (1979) pp. 45-6.  A less detailed version of the story occurs in a letter, on marvels of India, purportedly from Alexander to Aristotle (part of the Greek Alexander romance).  An account of the story that refers to the heat of cooking provoking the animal is included in the Babylonian Talmud.  See Hansen (2002) pp. 180-1. Al-Jāhiz (d. 869) in his Book of Animals criticizes sailors’ tales.  He refers to this story as the most fabulous and preposterous of them all (vol. VII, pp. 33-4).  Grunebaum (1953) p. 300.

[2] Aristotle’s History of Animals and Pliny’s Natural History are examples of earlier works providing much less abstractly interpreted descriptions of nature.  The former describes whales having blowholes, through which water was expelled (Bk 4, Ch. 10; Bk. 8, Ch. 2).  The latter describes massive sea creatures in the Indian Ocean (Bk. 9, Chs. 3-4).  With respect to more abstractly interpreted work, the Zoroastrian Avesta Yasna includes an account of the hero Keresaspa, “a youth of great ascendant, curly-haired, bludgeon-bearing,” cooking food on top of a beast.  The beast, scorched by the heat, flees, overturning the cooking pot and also putting to flight the hero-cook.  See Yasna, Ch. 9, sec. 11.  The Physiologus’ story of building a fire on a whale-turtle island differs significantly in setting and action from the Yasna’s story.  Contrary to the claim of Curley (1979) p. 83, I don’t think it likely that the Physiologus’ story has its germ in India from the Yasna’s story.  Note the peculiarity of Keresaspa being described as “curly-haired.”  Curly hair is much more characteristic of Africans and Greeks than Indians.  Perhaps describing Keresaspa as “a youth of great ascendant, curly-haired, bludgeon-bearing” indicates that the Avesta Yasna drew material from stories associated with Alexander the Great.

[3] Trans. Cook (1921).

[4] See Curley (1979), Introduction.  The Physiologus was commonly incorporated into medieval bestiaries.  Well-known stories of the phoenix rising from ashes and the pelican feeding her young with her own blood are found in the Physiologus.

Landing on a island that is actually a large sea-creature became part of medieval European folklore and bestiaries. Stewart (2018). The ninth-century Voyage of Saint Brendan {Navigatio sancti Brendani}, chapters 21 and 27, tells of monks singing, kindling fires, voyaging on the backs of whales.

[5] Buzurg Ibn Šahriyār, trans. Freeman-Grenville (1981) p. 22.  This sea-captain’s account included additional naturalistic description of whales, such as:  “When the male couples with the female, it often takes place on the surface of the water.”  Whales in medieval thought came to be associated with lust.  See Wentersdorf (1983-84) pp. 364-5.

[6]  The story of building a fire on a whale-turtle island appears in the first voyage of Sindbad the Sailor.  In that voyage, it plays a pivotal role in a reversal of fortune, but it is not otherwise moralized.  Sindbad’s voyages seem to be mainly adventure-entertainment, with a general moral framework of reversal of fortune.  Sindbad’s voyages are set in Harun al-Rashid’s reign of the Abbasid caliphate (786-809).  The earliest surviving manuscript of Sindbad’s voyages is a Turkish manuscript from the seventeenth century.  The name Sindbad the Sailor points to the Indus River in present-day Pakistan.  While the date and origins of the narrative of Sindbad’s voyages are highly uncertain, Sindbad’s story of the whale-turtle island plausibly comes from the Physiologus.  Like Buzurg Ibn Šahriyār’s version, Sindbad’s version shows the story shedding moral interpretation in serving for folk entertainment.

[images] (1) Bird sitting on an ocean pier. Photo by Douglas Galbi. (2) Building a fire on a whale-island. Illumination in a bestiary. Painted about 1230-40 in England. From folio 69r of British Library, Harley Ms. 4751.

References:

Cook, Albert S. and James Hall Pitman. 1921. Cynewulf. The Old English Physiologus. New Haven: Yale University Press.

Curley, Michael J. 1979. Physiologus. Austin: University of Texas Press.

Freeman-Grenville, Greville Stewart Parker, trans. 1981. Buzurg Ibn Šahriyār.  The book of the wonders of India: mainland, sea and islands. London: East-West Publications.

Grunebaum, Gustave E. von. 1953. Medieval Islam: a study in cultural orientation. Chicago: University of Chicago Press.

Hansen, William F. 2002. Ariadne’s thread: a guide to international tales found in classical literature. Ithaca: Cornell University Press.

Stewart, Hannah, 2018. “The Devil in the Deep Blue Sea.” the iris: Behind the Scenes at the Getty. Published online (May 12) in Art & Archives: Book of Beasts.

Wentersdorf, Karl P. 1983-84. “Animal Symbolism in Shakespeare’s ‘Hamlet’: The Imagery of Sex Nausea.” Comparative Drama, vol. 17, no. 4 (Winter), pp. 348-382.

livery companies illustrate socio-economic organization

In London, medieval craft guilds developed into livery companies. Livery companies became enmeshed in local government and the state church.  Positions in the livery companies depended more on family inheritance and social connections than on business activity.  By the sixteenth century, many liverymen did not engage in the craft of the livery company with which they were associated.

In 1515, city officials ranked London’s 48 livery companies in an order of precedence.  The order of precedence was a ranking of social prestige and political influence.  The top three livery companies were mercers (merchants), grocers, and drapers (wool and cloth merchants).  Those livery companies did not control those trades, which were large and diverse.  Many persons in those trades were not economically or politically powerful.  The livery companies were elites with ancient historical connections to the livery companies’ nominal trades. The livery companies and the order of precedence had little relation to the economic reality of actual trades.

In present-day London, the livery company known as the Worshipful Company of International Bankers has order of precedence 106 out of the current 108 London livery companies.  The Worshipful Company of Mercers remains the livery company with the highest order of precedence.

Social positions are much more stable than economic positions.

coat of arms for Worshipful Company of Scriveners, London 1596

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The Folger Shakespeare Library has on exhibit until Sept. 30, 2012, Open City: London 1500-1700.  That exhibit traces London’s transformation from a walled city with a population of about 50,000 in 1500 to an “open city” developed far beyond medieval walls and having a population of about 500,000 in 1700.  A broadsheet showing chief corporations of London in 1596 is on display in that exhibit (online image).  The image of the scriveners’ coat of arms (above) is from that broadsheet.  Here’s a machine readable version of the broadsheet’s list of the chief corporations of London in 1596 (Excel file).

courtly and Bedouin love poetry in the early Islamic world

Bottles from 6th-7th century Iran, with nude dancing women in different costumes (Freer Gallery)

Love poetry in the seventh-century Islamic world divided into urban (courtly) and desert (Bedouin) types.  While both courtly and Bedouin love poetry flourished in the Hejaz region encompassing Mecca and Medina on the western edge of the Arabian peninsula, the types contrasted thematically:

Arab writers on the subject regarded this urban love poetry as lecherous, or, at its best, as realistic.  It spoke of many loves, of illicit adventures, of great amatory activity.  The second type was chaste, pure and tender, and concentrated on one beloved.  Writers on the subject saw the difference as resulting from the contrast between city and desert life,the first merry, affluent, with easy access to slave girls; the second poor, sad, helpless and dominated by the virtuous spirit enjoined by Islam. [1]

From the seventh to the eighth centuries, political leadership shifted from Hejaz and the Umayyids to Baghdad and the Abbasids.  Nonetheless, the thematic division between courtly and Bedouin love poetry was still in play in late-eighth-century Baghdad.

An under-appreciated figure in re-imagining courtly and Bedouin love poetry is ‘Abd al-Malik ibn Qurayb al-Asma’i.  Al-Asma’i (d. 783) was a philologist.  He both wrote books on animals and produced anthologies and studies of Arabic poetry across its history.  Al-Asma’i had fine manners and graceful speech.  He was a close companion of Abbasid Caliph Harun al-Rashid in Baghdad.  Historically, al-Asma’i is known as an exemplar of adab.  Adab in the Abbasid caliphate meant urbane cultural sophistication understood in contrast to the primitive culture of the Bedouin.[2]

While an exemplar of courtly sophistication, al-Asma’i emphasized the simple physical act of sexual intercourse.  A thirteen-century Islamic jurist preserved a conversation that al-Asma’i recounted:

I said to a Bedouin woman:  “What do you consider love to be among you?” “Hugging, embracing, winks, and conversation,” she replied.  Then she asked, “How is it among you, city-dweller?” “He sits amid her four members and presses her to the limit,” I answered.  “Nephew,” she cried, “this is no lover, but a man seeking a child!” [3]

In the Thousand and One Nights, al-Asma’i appears in a story as the judge in a poetry contest among three young women of Basra.  The women compose couplets of sexual longing.  Al-Asma’i chooses as the winner the poem that describes the physical consummation of sexual longing.  Explaining to Caliph al-Rashid that choice, al-Asma’i explains that the winning love poem was the poem closest to real life.[4]  Nonetheless, al-Asma’i was no crude roué.  Perhaps he was as culturally sophisticated as the renowned Roman poet Ovid.

The stories of the Thousand and One Nights emphasize themes of courtly love poetry.  In the introductory frame, a king discovers his wife in the arms of one of the kitchen boys. The king then travels to visit his older brother, who is also a king. There, the younger brother by chance secretly observes the older brother’s wife participating in an orgy.  When the older-brother King learns of his wife’s infidelity, he laments the licentiousness of women in his kingdom:

No one is safe in this world.  Such doings are going on in my kingdom, and in my very palace. … There is not a single chaste woman anywhere on the entire face of the earth. [5]

The King’s lament obliterates the early Islamic division of love poetry.  The chaste desert Bedouin no longer exists.[6] Among sophisticated scholars of poetry and exemplars of adab, the alternative to conventional courtly love poetry had become the reality of sex.[7]

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Notes:

[1] Jayyusi (1983) p. 421.

[2] According to Meisami & Starkey (1998), p. 110, entry “al-Asma’i”:

al-Asma’i was one of the first to treat pre-Islamic poetry as a corpus to be collected and edited: his personal anthology of early examples, known as al-Asma’iyyat, shows him confronting the growing problem of the unreliability of transmitters (see rawi).  In subsequent literary history he has become the ideal speaker of Arabic, combining the merits of complete orthodox piety with the forthright simplicity of the Bedouin, symbolically reconciling the new religion with its pagan linguistic roots.

The subsequent discussion above suggests that this characterization significantly under-estimates al-Asma’i’s cultural sophistication.

[3] Ibn al-Qayyim, Rawda, commenting on early Arabs’ understanding of proper conduct in love.  Trans. Bell (1979) p. 134, adapted slightly above.  That the Bedouin woman refers to al-Asma’i as nephew highlights inter-generational difference.  For the phrase “four members” above, id. has “four limbs (shu’abiha)” and notes (p. 252, n. 48):

The expression “shu’abiha ‘l-arba'” (lit., “her four branches”) was understood variously by Muslim scholars to mean: her arms and legs, her thighs and shanks, her labia majora and minora, or her legs and labia majora.

Al-Washsha (d. 936), in his Kitab al-Muwashsha,  transforms this story into didactic verse:

To love is to kiss, to touch hand or arm
or to send letters whose spells are stronger than witchcraft.
Love is nothing but this; when lovers sleep together, love perishes.
The unchaste are only interested in having children.

Trans. Hamori (1990) p. 209.

[4] The story, Al-Asma’i and the Girls of Basra. According to Marzolph, van Leeuwen & Wassouf (2004), p. 472:

This story is contained in the Egyptian manuscripts and most of the early printed editions.  It is also quoted in Ibn al-Sarray’s (d. 1106) Masari’ al-‘ushsaq and al-Itlidi’s (seventeenth century) I’lam al-nas. {references omitted}

For a modern translation, see Night 687, in Lyons, Lyons & Irwin (2010) v. 2, pp. 773-6. The story isn’t in Haddawy, Mahdi & Heller-Roazen (2010).

[5] Haddawy, Mahdi & Heller-Roazen (2010) pp. 10, 12 (based on earliest Syrian Arabic manuscript).

[6] Abū Hayyān al-Tawhīdī (d. 1023) describes a similar change in the poetic imagination of love:

{al-Tawhīdī} comments on the romantization of love in the good old days and attributes its decline in part to the excessive sensuality of the present generation and in part to the disillusionment with the Bedouin among whom the poets had been wont to place their romantic lovers.

See Grunebaum (1952) p. 235.

[7] Centuries later, Ibn Quzman (d. 1160) echoed al-Asma’i sentiment in the less pointed form of colloquial Arabic verse (zajal):

As for refined love — let others claim it.
May God, instead, give me contentment:
Kisses, embraces, and the rest.
(If you ask any further, you prove yourself nosey.)

Todo Ben Quzman, II, 642, quoted in English trans. in Hamori (1990) p. 212.

References:

Bell, Joseph Norment. 1979. Love theory in later Hanbalite Islam. Albany: State University of New York Press.

Grunebaum, G.E. von. 1952. “Avicenna’s Risâla fî ʾl-ʿišq and Courtly Love.” Journal of Near Eastern Studies, v. 11, no. 4 (Oct.) pp. 233-238.

Haddawy, Husain, Muhsin Mahdi, and Daniel Heller-Roazen. 2010. The Arabian nights. New York: W. W. Norton & Co.

Hamori, Andras. 1990. “Love poetry (Ghazal).”  In Ashtiany, Julia. ʻAbbasid belles-lettres. Cambridge [England]: Cambridge University Press.

Jayyusi, Salma K. 1983. “Umayyad poetry.” In Beeston, A. F. L.  Arabic literature to the end of the Umayyad period.  Cambridge [England]: Cambridge University Press.

Lyons, Malcolm C., Ursula Lyons, and Robert Irwin. 2010. The Arabian nights: tales of 1001 nights. 1-3. London: Penguin.

Marzolph, Ulrich, Richard van Leeuwen, and Hassan Wassouf. 2004. The Arabian nights encyclopedia. Santa Barbara, CA: ABC-CLIO.

Meisami, Julie Scott, and Paul Starkey. 1998. Encyclopedia of Arabic literature. London: Routledge.