Islamic Legal Maxims as Substantive Canons of Construction: Ḥudūd-Avoidance in Cases of Doubt, Journal of Islamic Law and Society (2010)

Islamic Legal Maxims as Substantive Canons of Construction: Ḥudūd-Avoidance in Cases of Doubt, Journal of Islamic Law and Society (2010)

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  © Koninklijke Brill NV, Leiden, 2010 DOI: 10.1163/092893809X12472107043920 Islamic Law and Society 17 (2010) 63-125 Islamic Law and Society Islamic Legal Maxims as Substantive Canons of Construction: Ḥudūd  -Avoidance in Cases of Doubt   Intisar A. Rabb *  Abstract  Legal maxims reflect settled principles of law to which jurists appeal when confronting new legal cases. One such maxim of Islamic criminal law stipulates that judges are to avoid imposing ḥudūd and other sanctions when beset by doubts as to the scope of the law or the sufficiency of the evidence ( idra’ū ʾl-ḥudūd biʾl-shubahāt  ): the “ ḥudūd maxim.” Jurists of all periods reference this maxim widely. But whereas developed  juristic works attribute it to Muḥammad in the form of a prophetic report ( ḥadīth  ), early jurists do not. Instead, they cite the maxim as an anonymous saying of nonspecific Correspondence  : Intisar A. Rabb, Boston College Law School, 885 Centre Street, Newton, MA 02459. E-mail  :*   I would like to gratefully acknowledge the many who have contributed to this essay. Hossein Modarressi helped me navigate the sources and provided invaluable insights and feedback on drafts. Michael Cook pushed me to tighten my arguments in his careful review of several drafts as well. James Q. Whitman and Kim Lane Scheppele offered many incisive comments related to broader questions in Islamic legal history and comparative law. anks also to David Powers and Christian Lange, who provided extremely detailed comments, and to the anonymous reviewers and staff of the  Journal  . Special thanks to Maribel Fierro,  who graciously took time to engage me on several points of discovery and debate in our reviews of the same maxim. Several others commented on early drafts, for which I am grateful: Katharina Ivanyi, Scott Lucas, Behnam Sadeghi, Lena Salaymeh, Asma Sayeed, Mairaj Syed, and Adnan Zulfiqar. Finally, Ahmed El Shamsy invited me to discuss a version of this piece in a 2007 workshop called “Schacht Revisited,” hosted by Harvard Law School’s Islamic Legal Studies Program, following my early explorations of the topic at the 2006 Islamic Legal Studies conference on “Lawful and Unlawful Violence,” organized by Peri Bearman and Frank Vogel also at Harvard Law School; I benefitted from the feedback of both workshops’ participants. All contributions aside, any errors are my own.  64 I.A. Rabb / Islamic Law and Society 17 (2010) 63-125  provenance in a form unknown to ḥadīth   collectors of the first three centuries after Islam’s advent. is difference in the jurists’ citations of the maxim signals a significant shift in claims to legal authority and the asserted scope of judicial discretion, as jurists debated whether and how to resolve legal and factual doubt. While political authorities exercised increasingly wide discretion over criminal matters and used it to benefit the elite, most jurists promoted an egalitarian “jurisprudence of doubt” through insisting on criminal liability for high-status offenders and heightening claims of the authoritative-ness and scope of the ḥudūd maxim as a ḥadīth  . Keywords ambiguity, doubt, criminal law, ḥadīth  , ḥudūd  , interpretation, legal maxims, lenity, qawāʿid fiqhiyya  , shubha  / shubahāt    Indeed, avoidance of ḥudūd  in cases of doubt Inna darʾa ʾl-ḥudūdi biʾl-shubahāt Is a ḥadīth told by all transmitters of reputed clout….La-ḥadīthun rawāhu kullu ʾl-thiqāt…. 1   1. Introduction Given the appearance or accusation of criminal misconduct, how does a judge really know  when to punish the accused, and what should she do in cases of doubt? Consider this case: During the time of the Muslim polity’s fourth caliph ʿAlī, Medina’s patrol found a man in the town ruins with a blood-stained knife in hand, standing over the corpse of a man who had recently been stabbed to death. When they arrested him, he immediately confessed: “I killed him.” He was brought before ʿAlī, who sentenced him to death for the deed. Before the sentence  was carried out, another man hurried forward, telling the executioners not to be so hasty. “Do not kill him. I did it,” he announced. ʿAlī turned to the condemned man, incredulously. “What made you confess to a murder that you did not commit?!” he asked. e man explained that he thought that ʿAlī would never take his word over that of the patrolmen who had witnessed a crime scene; for all signs pointed to him as the perpetrator. In reality, the man explained, he was a butcher who had just finished slaughtering a cow. 1)  Abū ʾl-Ḥasan al-Shantarīnī (d. 542/1147), al-Dhakhīra fī maḥāsin ahl al-Jazīra  , ed. Iḥsān ʿAbbās (Beirut: Dār al-aqāfa, 1979), 7:355-7 (s.v. al-Ḥakīm Abū Muḥammad al-Miṣrī).   I.A. Rabb / Islamic Law and Society 17 (2010) 63-125 65Immediately afterward, he needed to relieve himself, so entered into the area of the ruins, bloody knife still in-hand. Upon return, he came across the dead man, and stood over him in concern. It was then that the patrol arrested him. He figured that he could not plausibly deny having committed the crime of murder. He surrendered himself and confessed to the “obvious,” deciding to leave the truth of the matter in God’s hands. e second man offered a corroborating story. He explained that he  was the one who had murdered for money and fled when he heard the sounds of the patrol approach-ing. On his way out, he passed the butcher on the way in and watched the events previously described unfold. But once the first man was condemned to death, the second man said that he had to step forward, because he did not want the blood of two   men on his hands. 2 In answer to the question of when a judge knows when to apply a criminal sanction, most legal systems require knowledge beyond a rea-sonable doubt, that is, virtually incontrovertible proof of the alleged crime’s commission through evidence that directly points to the accused as actual perpetrator. One byproduct of this requirement is a principle that punishments are to be avoided whenever there is ambiguity or doubt as to the textual basis, evidence, or criminal culpability of the accused. At common law and in medieval Europe, this took on various forms. 3  In modern American law, it is expressed in a legal maxim called the “rule of lenity.” 4  In Islamic law, we may call a parallel expression 2) Ibrāhīm b. Hāshim al-Qummī (d. mid-3rd/9th c.), Qaḍāyā Amīr al-Muʾminīn ʿAlī b. Abī Ṭālib , ed. Fāris Ḥassūn Karīm (Qum: Muʾassasat Amīr al-Muʾminīn, 1382/[2003]), 88-9, 238 (paraphrased). Both Sunnī and Shīʿī scholars cite this as an example of clever ḥudūd  jurisprudence. See Ibn Qayyim al-Jawziyya (d. 751/1350), al-Ṭuruq al-ḥukmiyya  , ed. Muḥammad Jamīl Ghāzī (Cairo: Maṭbaʿat al-Madanī, 1978), 82-4 (quoting Qaḍāyā ʿAlī   and ʿAjāʾib [ aḥkām Amīr al-Muʾminīn = Qaḍāyā ʿAlī  , as given in the edition of Muḥsin  Amīn al-ʿĀmilī, ʿAjāʾib aḥkām Amīr al-Muʾminīn ʿAlī b. Abī Ṭālib ([Qum?]: Markaz al-Ghadīr lil-Dirāsāt al-Islāmiyya, 2000) al-Ḥurr al-ʿĀmilī (d. 1104/1692), Wasāʾil al-Shīʿa  , ed. ʿAbd al-Raḥīm al-Rabbānī al-Shīrāzī (Tehran: al-Maktaba al-Islāmiyya, 1383-1989/[1963-4 - 1969]), 2:172, no. 2. 3)  For the development of reasonable doubt jurisprudence in the English common law and in continental European law, see now James Q. Whitman, e Origins of Reasonable Doubt   (New Haven: Yale University Press, 2008) (discussing the emergence of the reasonable doubt doctrine as a version of lenity in England and Continental Europe); see also John Langbein, e Origins of the Adversary Criminal Trial   (Oxford; New York: Oxford University Press, 2003), 334-6 (detailing the methods by which court officials in England avoided prosecuting criminals as a precursor to the formalized rule of lenity). 4)  See United States v. Santos  , 553 U.S. __ [128 S. Ct. 2020], *6 (2008) (“e rule of lenity requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to  66 I.A. Rabb / Islamic Law and Society 17 (2010) 63-125  the “ ḥudūd   maxim,” which directs judges to “avoid (imposing) fixed criminal sanctions ( ḥudūd  )   in cases of doubt or ambiguity ( idraʾū ʾl-ḥudūd biʾl-shubahāt  ).”The ḥudūd   maxim is a central principle of Islamic criminal law applied to situations where a judge has no firm textual or evidentiary basis for imposing a criminal punishment. In the above case, the textual basis was thought to be certain, as murder is clearly prohibited and as guilt is usually established through confession or witness testimony. 5  But an evidentiary doubt arose as soon as the real perpetrator stepped in. ʿAlī released the first man and pardoned the second—perhaps because the facts surrounding the case had become irresolvably doubt-ful without a failsafe means to validate one story over the other. What is the legal basis for such practices and how prevalent are they in Islamic law?The overwhelming majority of late-medieval and contemporary  jurists—both Sunnī and Shīʿī—view the ḥudūd   maxim as a sound prophetic ḥadīth  . 6  Its prophetic pedigree is significant because ḥadīth  s   them.”) (citations omitted); United States v. Wiltberger  , 18 U.S. 35, 43 (1820) (“e rule that penal laws are to be construed strictly is perhaps not much less old than construction itself.”). Cf. William N. Eskridge et al., Legislation: Statutes and the Creation of Public Policy  , 3rd ed. (St. Paul, MN: West, 2001), Appendix B, 23 (defining the rule of lenity as the legal maxim “against applying punitive sanctions if there is ambiguity as to underlying criminal liability or criminal penalty”); Jabez Gridley Sutherland, Statues and Statutory Construction , ed. Norman J. Singer (Chicago: Callaghan, 1992), § 59.03 (defining the rule of lenity as a canon of statutory construction providing that “penal statutes should be strictly construed against the government or parties seeking to enforce statutory penalties and in favor of the persons on whom penalties are sought to be imposed). 5)  Mālikīs hold that guilt can be established by “strong” circumstantial evidence, as in pregnancy of an unmarried woman as evidence of fornication or adultery ( zinā  ). On evidentiary rules, see Ṣubḥī Maḥmaṣānī, Falsafat al-tashrīʿ fī ʾl-Islām , 5th ed. (Beirut: Dār al-ʿIlm lil-Malāyyīn, 1980 [1st ed. 1946]), 325-76 (English trans., Farhat Ziadeh, e Philosophy of Jurisprudence in Islam  (Leiden: Brill, 1961)); and the sections on evidence in general works of Islamic criminal law, e.g., ʿAbd al-Qādir ʿAwda, al-Tashrīʿ al-jināʾī al-Islāmī   (Beirut: Dār al-Kitāb al-ʿArabī, 1968); Ramsīs Behnām, al-Naẓariyya al-ʿāmma lil-qānūn al-jināʾī (Alexandria: Munshaʾāt al-Maʿārif, 1968) ; Cherif Bassiouni, ed., e Islamic Criminal Justice System  (London; New York: Oceana Publications, 1982). 6)  See below, pp. 30-34. NB: ough the term “Shīʿī” can refer to Zaydīs, Ismāʿīlīs, and Twelver or Ithnā ʿAsharīs; and although all can be considered in some sense Shīʿī and the latter two Imāmī, for shorthand, I use the term Shīʿī (without qualification) to refer to the Twelver-Imāmīs, who comprise the majority of the Shīʿa. When mentioning other Shīʿī   I.A. Rabb / Islamic Law and Society 17 (2010) 63-125 67 form an authoritative source of Islamic law. They are taken, alongside the Qurʾān, to legislate mandatory fixed sanctio ns for certain grave offenses. It is the ability to appeal to the Prophet’s normative instruc-tions that provides jurists with firm legal bases for adjudication, espe-cially in the sensitive area of criminal law. Thus, the prophetic provenance of the ḥudūd maxim may be considered to have facilitated, indeed anchored, the jurisprudence of Islamic criminal law.But the maxim was not always prophetic. Ḥadīth   scholars of the early period (i.e., the first three centuries after the Hijra) typically did not regard it as such. Neither did jurists who applied it during the same period.   It is curious then that in later juristic works the maxim achieves such prominence as a prophetic ḥadīth  . What does this say about the legal basis for the practice of ḥudūd-  avoidance and the role of legal maxims in early Islamic law more generally?One view of legal maxims is that they reflect substantive canons of construction. These are presumptions about the meaning of a text drawn from substantive and structural concerns rather than just lin-guistic rules of thumb. 7  An example of a linguistic rule is that jurists groups, I typically refer to them by the designations for which they have become best known, i.e., Ismāʿīlīs and Zaydīs. 7)  Legal scholars categorize maxims in various ways. In Islamic law, a common strategy is to divide maxims between textual principles of interpretation drawn from the field of  jurisprudence and accordingly called interpretive canons or maxims ( qawāʿid uṣūliyya  ), and principles more closely related to the structure or substance of positive law and called here substantive canons or maxims ( qawāʿid fiqhiyya  ). In addition, grouped under the rubric of substantive maxims are five universal maxims that most jurists list as embodying meta-rules of law along with judicial maxims that govern rules of procedure and evidence. See, for example, Abū ʿAbd Allāh al-Maqqarī (d. 758/1357), al-Qawāʿid  , ed. Aḥmad b. ʿAbd Allāh b. Ḥamīd (Mecca: Jāmiʿat Umm al-Qurā, Maʿhad al-Buḥūth al-ʿIlmiyya wa-Iḥyāʾ al-Turāth al-Islāmī, 198-), 212;   Miq4dād al-Suyūrī (d. 826/1423), Naḍd al-Qawāʿid al-fiqhiyya ʿalā madhhab al-Imāmiyya  , ed. ʿAbd al-Laṭīf al-Kūhkamarī et al. (Qum: Maktabat Āyat Allāh al-ʿUẓmā al-Marʿashī, 1403/1982-3), 90-114; Zayn al-Dīn b. Nujaym (d. 970/1563), al-Ashbāh waʾl-naẓāʾir  , ed. Muḥammad Muṭīʿ al-Ḥāfiẓ (Damascus: Dār al-Fikr, 1983), 1:17-9. For other divisions, see, e.g., Jalāl al-Dīn al-Suyūṭī (d. 911/1505), al-Ashbāh waʾl- naẓāʾir  , ed. Muḥammad al-Muʿtaṣim bi-ʾllāh al-Baghdādī (Beirut: Dār al-Kitāb al-ʿArabī, 1998), 35, 201, 299, 337; Nāṣir Makārim Shīrāzī (d. 1305/1887-8), al-Qawāʿid al-fiqhiyya   (Qum: Madrasat al-Imām ʿAlī b. Abī Ṭālib, 1416), 1:26-7 (five categories). For overviews of Islamic legal maxims, see Wolfhart Heinrichs, “ Qawāʿid   as a Genre of Legal Literature,” in Bernard Weiss, ed., Studies in Islamic Legal eory   (Leiden: Brill, 2002) (and sources listed therein); Mohammad Hashim Kamali, “Legal Maxims and Other Genres of Literature
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