Doubt in Islamic Law: A History of Legal Maxims, Interpretation, and Islamic Criminal Law (Cambridge Studies in Islamic Civilization)

This Book Considers An Important And Largely Neglected Area Of Islamic Law By Exploring How Medieval Muslim Jurists Resolved Criminal Cases That Could Not Be Proven Beyond A Doubt, Calling Into Question A Controversial Popular Notion About Islamic Law Today, Which Is That Islamic Law Is A Divine Legal Tradition That Has Little Room For Discretion Or Doubt, Particularly In Islamic Criminal Law. Despite Its Contemporary Popularity, That Notion Turns Out To Have Been Far Outside The Mainstream Of Islamic Law For Most Of Its History. Instead Of Rejecting Doubt, Medieval Muslim Scholars Largely Embraced It. In Fact, They Used Doubt To Enlarge Their Own Power And To Construct Islamic Criminal Law Itself. Through Examination Of Legal, Historical, And Theological Sources, And A Range Of Illustrative Case Studies, This Book Shows That Muslim Jurists Developed A Highly Sophisticated And Regulated System For Dealing With Islam's Unique Concept Of Doubt, Which Evolved From The Seventh To The Sixteenth Century-- This Book Considers An Important And Largely Neglected Area Of Islamic Law By Exploring How Medieval Muslim Jurists Resolved Criminal Cases That Could Not Be Proven Beyond A Doubt-- Introduction -- Part I. Islamic Institutional Structures And Doubt, First/seventh-tenth/sixteenth Centuries. 1. The God Of Severity And Lenity ; A. The Recurring Case Of Mā'iz ; B. Foundations Beneath Mā'iz: Islamic Criminal Law ; C. Debates About Mā'iz ; 2. The Rise Of Doubt ; A. The Canonization Of Doubt: Judicial Practice ; B. The Textualization Of Doubt: Foundational Text ; C. The Interpretation Of Doubt: On Institutional Structures And Legitimacy. Part Ii. Morality And Social Context, First/seventh-fifth/eleventh Centuries. 3. Hierarchy And Hụdūd Laws ; A. Early Islamic Values: Egalitarianism And Deterrence ; B. Social Status And Political Power: Overcriminalization Of Political Opponents ; C. Hierarchy In Hụdūd Laws: Undercriminalization Of The Elite ; 4. Doubt As Moral Concern ; A. Hụdūd Enforcement: Moral Egalitarianism And Divine Legislative Supremacy ; B. Hụdūd Avoidance: Death Is Different And Other Moral Concerns ; C. The Generalization Of Doubt: Legitimacy And Moral Concern. Part Iii. The Jurisprudence Of Doubt, Second/eighth-tenth/sixteenth Centuries. 5. Early Doubt: Doubt As An Element Of Islamic Criminal Law ; A. Early Hạnafī Criminal Law ; B. Early Mālikī Criminal Law ; C. Early Shāfi'ī Criminal Law ; 6. Sunnī Doubt: Substantive, Procedural, And Interpretive Doubt ; A. HạnafīĪ Doubt: Attention To Subjectivity And Intent ; B. MālikīĪ And Shāfi'īĪ Doubt: Accommodation Of Legal Pluralism ; C. Fault Lines: Strict Liability As Definitions Of Moral Values. Part Iv. Interpretive Authority, Second/eighth-tenth/sixteenth Centuries. 7. Against Doubt: Strict Textualism In Opposition To Doubt ; A. Hạnbalī Doubt: Strict Textualism, Constrained Discretion ; B. Zạ̄hirī Doubt: Stricter Textualism, Barred Discretion ; C. Textualism Vs. Doubt ; 8 Shī'ī Doubt: Dueling Theories Of Delegation And Interpretation ; A. Rationalist Thrust: A Presumption Of Nonliability And Legality ; B. Traditionalist Parry: One Right Answer As Text ; C. Rationalist Riposte: One Right Answer As Revelation Before Reason -- Conclusion: Doubt In Comparative And Contemporary Context -- Appendices. Appendix A. Hạdīth Versions Of The Doubt Canon (with Isnāds/ Chains Of Transmission) ; Appendix B. Early Cases On Hụdūd Enforcement And Avoidance ; Appendix C. On The Rise Of Islamic Legal Maxims: A Prehistory Of Doubt. Intisar A. Rabb. Includes Bibliographical References And Index. This book considers an important and largely neglected area of Islamic law by exploring how medieval Muslim jurists resolved criminal cases that could not be proven beyond a doubt. Intisar A. Rabb calls into question a controversial popular notion about Islamic law today, which is that Islamic law is a divine legal tradition that has little room for discretion or doubt, particularly in Islamic criminal law. Despite its contemporary popularity, that notion turns out to have been far outside the mainstream of Islamic law for most of its history. Instead of rejecting doubt, medieval Muslim scholars largely embraced it. In fact, they used doubt to enlarge their own power and to construct Islamic criminal law itself. Through a close examination of legal, historical, and theological sources, and a range of illustrative case studies, this book shows that Muslim jurists developed a highly sophisticated and regulated system for dealing with Islam's unique concept of doubt, which evolved from the seventh to the sixteenth century. Through a close examination of legal, historical, and theological sources, this book considers a largely neglected area of Islamic law, calling into question a controversial popular notion about Islamic law today, which is that Islamic law is a divine legal tradition that has little room for discretion or doubt, particularly in Islamic criminal law.