Book: Doubt in Islamic Law by Intisar Rabb

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.

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.

‘In her extremely detailed book, Intisar Rabb traces the formation of the legal maxim of doubt in Islamic criminal law from the seventh until the eleventh century (CE) within both the Sunni and Shi’i legal traditions … Rabb’s book offers an important contribution to the study of Islamic law. She has shown how the Muslim legal elite, even the eponymous Sunni jurists and their immediate successors, were individual human agents with a pragmatic bent, and as such their juridical thinking was shaped by complex and diverse goals such that they never arrived at a uniform definition of doubt. Neither did they limit themselves to a specific canon of ‘texts’ in order to develop an increasingly sophisticated jurisprudence of doubt by the eleventh century.’ Nurfadzilah Yahaya, Society for Contemporary Thought and the Islamicate World Revie.

Table of Contents:

 Introduction;

Part I. Islamic Institutional Structures and Doubt, First/Seventh–Tenth/Sixteenth Century CE

1. The God of severity and Lenity;

A: The Recurring Case of Māʻiz

B: Foundations beneath Māʻiz: Islamic Criminal Law

C: Debates about Māʻiz

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 Hudud Laws,

A:Early Islamic Values: Egalitarianism and Deterrence

B: Social Status and Political Power: Overcriminalization of Political Opponents

C: Hierarchy in Hudud Laws: Undercriminalization of the Elite

4. Doubt as Moral Concern

A:Hudud Enforcement: Moral Egalitarianism and Divine Legislative Supremacy

B: Hudud Avoidance: Death Is Different and Other Moral Concern

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 Hanafi Criminal Law

B: Early Maliki Criminal Law

C: Early Shafiei Criminal Law

6. Sunni Doubt: Substantive, procedural, and interpretive doubt,

A:Hanafi Doubt: Attention to Subjectivity and Intent

B: Maliki and Shafiei Doubt: Accomodation 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:Hanbali Doubt: Strict Textualism, Constrained Discretion

B: Zahiri Doubt: Stricter Textualism, Barred Discretion

C: Textualism vs. Doubt

8. Shia 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

A: Hadith Versions of the Doubt Canon (with Isnads/chains of transmission)

B: Landmark Cases on Hudud Enforcement and Avoidance

C: On the Rise of Islamic Legal Maxims: A Prehistory of Doubt

Bibliographic Information

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

Author: Intisar A. Rabb

Publisher: Cambridge University Press

Language: English

Length: 432 pages

ISBN: 9781107080997

Pub. Date: December 31, 2014