Academic journal article The Middle East Journal

Doubt in Islamic Law: A History of Legal Maxims, Interpretation, and Islamic Criminal Law

Academic journal article The Middle East Journal

Doubt in Islamic Law: A History of Legal Maxims, Interpretation, and Islamic Criminal Law

Article excerpt

LAW Doubt in Islamic Law: A History of Legal Maxims, Interpretation, and Islamic Criminal Law, by Intisar A. Rabb. New York: Cambridge University Press, 2015. 414 pages. $115.

In the introduction to Doubt in Islamic Law, Professor Intisar Rabb asserts that the concept of doubt in Islamic criminal law reveals much about the nature and complexity of Islamic law (shari'a) itself. The remaining text, a detailed study of the doubt doctrine in both Sunni and Shi'i jurisprudence, confirms her assertion. The description and analysis of the development and maturation of the concept of doubt from the early formative years through the 16th century (and later by Shi'i jurists) is in fact a study of the interpretive methodologies and debates of leading Muslim jurists from every important school (madhhab) as they developed criminal law in particular and, by implication, Islamic law in general.

The core of her discussion is the gradual establishment of the doubt maxim from a judicial practice, based on several well-known early cases, into a canonical doctrine of criminal law. In one and per- haps the most basic of its many forms, this (hadith-based) maxim admonishes judges "to avoid hudud [punishments, i.e., for grave offenses] whenever you find an opportunity to do so." (Appendix A of the book contains many other versions of this maxim). The transformation of doubt from practice to doctrine over the centuries was a process that engaged many of the leading jurist-scholars in every era, and the book is an almost encyclopedic discussion of their positions on morality, justice, and tradition, all within the context of how and when hudud punishments should be applied and when they should be avoided. Beyond questions of its legitimacy, arguments over the appropriate application of doubt to specific cases involved a variety of issues, including intention, mistake of fact, and mistake or ignorance of the law. Although the focus of the book is on criminal law, examples in areas such as contract law are also provided to flesh out the arguments of the jurists.

While the doubt maxim and its eventual transformation into doctrine is the focus of the text, other maxims related to the application and enforcement of criminal law are discussed. These include the elite-leniency maxim, which advised judges to "overlook the faults of the nobles." Related to this was the sentiment, expressed in various maxims, that acts committed in private, by persons of any social status, should be overlooked, at least before they came to be publically known. The well-documented struggle for control of the law and its institutions by jurist-scholars, who generally sought to limit sanctions, against the political rulers, who sought to enforce criminal sanctions widely and severely as an expression of their power, is revealed in the employment of these maxims in actual cases. …

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