Doubt's Benefit: Legal Maxims in Islamic law, 7th-16th Centuries

Intisar Rabb PhD, Boston College Law School

Abstract

This dissertation examines the history, function, and debates surrounding legal maxims ( qawa'id fiqhiyya ) and concepts of doubt and ambiguity in Islamic law. Legal maxims are succinctly stated principles that jurists use as key interpretive tools when applying texts and settled precedents to new cases. As gap-filling measures to address situations for which there is no plain statement of law, maxims allow jurists tremendous leeway in formulating new precedents. Studying the juristic usage of legal maxims can reveal much about a legal system's interpretive processes and the values of the jurists employing them. This is particularly true in criminal law, which reflects value-laden rules of societal (or divine) condemnation for certain behaviors and which--in classical Islamic contexts--straddled political-legislative and juridical-interpretive divides. Accordingly, my work focuses on maxims of criminal law that place certain limitations on the definition and imposition of criminal sanctions and--by extension--the reach of legitimate political authority. The " h[dotbelow]udud maxim " developed into the central maxim of Islamic criminal law, requiring judges to "avoid imposing criminal sanctions in cases of doubt or ambiguity" ( idra'u 'l-h[dotbelow]udud bi'l-shubahat ). My detailed study of this single maxim is illustrative of the genre of legal maxims, which first appear in the 1 st /7 th century. These maxims were distilled and collected in multiple treatises of legal maxims beginning in the 7 th /13 th centuries, continuing through the 10 th /16 th centuries, and--after a period of less robust activity--reemerging as an important field of inquiry in modern times. This study serves as a mechanism for addressing global questions about the development and operation of legal maxims with specific emphasis on criminal law and the role of the jurists in constructing and defining doubt together with the institutional, societal, and/or moral values that motivated them to do so.

This dissertation makes interventions in fields of Islamic legal history and criminal law theory within a broadly comparative framework drawing on recent studies of American legal maxims. My research demonstrates the centrality of legal maxims to judicial deliberations in Islamic law--especially in criminal law. It shows how jurists used legal maxims to accommodate and adjust to new circumstances. And it displays how these maxims and the representations of them in the legal literature represent matured principles of Islamic law resulting from long periods of deliberation and change as jurists and political officials negotiated the borders of shared but thin lines between issues of authority, discretion, and the rule of law.