Doubt in Islamic Law: A History of Legal Maxims, Interpretation, and Islamic Criminal Law by Intisar A. Rabb (review)

In the introduction to this book, Professor Intisar Rabb asserts that the concept of doubt in Islamic criminal law reveals much about the nature and complexity of 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 16^th 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 perhaps the most basic of its many forms, this (hadith-based) maxim admonishes judges “to avoid hudud [punishments] 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. The book is an almost encyclopedic discussion of their positions on morality, justice, and tradition, all within the context of how and when the 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 the 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.

As the author points out in the final chapter of the book, the arguments over doubt within Shi‘ism perhaps most directly involve two key jurisprudential issues (past and present) within Islam itself, i.e., the conflict between revelation and reason, and the scope of divine delegation of interpretive authority. This debate was certainly present but somewhat masked within the four Sunni madhahib (plural of madhhab), which did not explicitly include reason within the four foundational sources of the law. This final chapter, which addresses “Dueling Theories of Delegation and Interpretation” within Shi‘ism, is therefore especially helpful in providing a broader context for understanding how the issue of doubt involved fundamental issues and principles of legal authority and interpretation.

An interesting facet of the book are the occasional comparisons between European and especially American approaches to doubt in criminal law (“the rule of lenity”) and those of the classical Muslim scholars. The skepticism about legal maxims in general, and the doubt canon (or rule of lenity) in particular, by legal realists such as Karl Llewellyn and textualists like Antonin Scalia suggests interesting parallels with the thinking of some Muslim jurists, especially those of the Hanbali madhhab within the Sunni tradition and the traditionalists within Shi‘ism. Though infrequent, these...