Doubt in Islamic Law: A History of Legal Maxims, Interpretation, and Islamic Criminal Law
Intisar A. Rabb, Ph.D. 2009.
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.
- Studies the construction and operation of legal maxims in Islamic law, with a focus on a single legal maxim
- Discusses the controversy that Islamic law is a divine legal tradition
- A comparative account of Islamic law, accessible to legal historians and comparative lawyers, as well as Islamic law specialists
Table of Contents
Part I. Institutional Structures and Doubt, Seventh–Sixteenth Century CE:
1. The God of severity and lenity
2. The rise of doubt
Part II. Morality and Social Context, Eighth–Eleventh Century CE:
3. Hierarchy and hudud laws, eighth–ninth century CE
4. Doubt as moral discomfort, tenth–eleventh century CE
Part III. The Jurisprudence of Doubt, Eighth–Sixteenth Century CE:
5. Doubt as an element of Islamic criminal law, eighth–eleventh century CE
6. Substantive, procedural, and interpretive doubt, eleventh–sixteenth century CE
7. Strict textualism as a limitation on doubt: Sunni opponents, eighth–eleventh century CE
8. Dueling theories of delegation and interpretation: Shi'i doubt, tenth–sixteenth century CE
Conclusion: doubt in comparative and contemporary context.
"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 Review
'Even for aficionados of progressive legal interpretation who only dabble in Islamic legal theory, among whom this reviewer is most certainly included, the ‘closing of the gates of ijtihād’ is a concept that is known and, for the most part, feared - but Rabb puts a new spin on that understanding.' M. Christian Green, Journal of Law and Religion