Person:

Rabb, Intisar

Against a popular notion of Islamic law as a limited set of texts of divine origin that bar judicial discretion and require harsh punishment, this Article argues that Muslim jurists historically generated a doctrine of “reasonable doubt” in response to changing social and political contexts. In a move astonishing for its boldness and its virtual invisibility, those jurists transformed the doubt doctrine from reports of early judicial practices into a foundational legal text. That is, jurists writing at the end of the long founding period of Islamic law (seventh to eleventh centuries) successfully claimed that the Prophet Muḥammad himself had announced a “doubt canon” in the seventh century—directing judges to avoid criminal punishments in cases of doubt. The transformation was so complete and the claim so effective that few later jurists were aware of the dubious prophetic pedigree for the Islamic doctrine of doubt. Remarkably, medieval Muslim jurists deployed concepts of doubt to assert interpretive power over Islamic law, to define institutional relationships, and either to curb executive overreach in or to assert parameters for legitimate punishment. In effect, they used ever-expanding definitions of doubt to construct the very elements and institutions of legitimate crime and punishment that they sought to regulate.

This surprising turn of events is like a modern-day U.S. constitutional amendment that passes without going through any legislation or ratification process, and where history forgets that the textual modification was not a part of the original document. The forgotten history of doubt in Islamic law is crucial to understanding the most pressing questions surrounding the reemergence of Islamic law as state law in modern constitutional and criminal contexts. As an originalist legal tradition, Islamic law today heavily relies on the past for definitions of Islamic constitutional and criminal law, often in ways that are unaware of the prominent role of discretion and doubt in Islam’s founding period and beyond. This Article explores the history of doubt.

In the arguments about the judicial citation of foreign law, judges are arguing about values. But they often do not acknowledge the values that they are debating or give specific rationales for why they prefer one value over the other in their majority and dissenting opinions, preferring instead to adopt negative models of foreign law against which to make a general claim. One example of this phenomenon is the American judicial citation of “kadijustiz” — a term introduced by Max Weber and popularized by Justice Felix Frankfurter in a 1949 decision — to refer to arbitrariness. But this practice is wrong because for two reasons. First, it is inaccurate, as Islamic legal historians have long pointed out in detailing Islamic judicial procedure in Mamluk, Ottoman, and other courts from the medieval to early modern periods. Second, judicial citation of kadijustiz obscures the reasons for adopting certain values over others in contested judicial decision-making, thereby weakening invoking-judges’ arguments overall.